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Will LGBTQ Americans ever be treated equally?

Supreme Court hearing 3 employment discrimination cases on Oct. 8



anti-LGBTQ discrimination, gay news, Washington Blade
Jon Davidson (Photo courtesy of Davidson)

In the days before there were any laws barring businesses from discriminating on the basis of sexual orientation or gender identity, business owners throughout the country had free rein to turn LGBTQ people away, without consequence. Now that 20 states, Washington D.C., and nearly 300 counties and cities expressly ban such discrimination by businesses open to the public, those whose anti-LGBTQ views were once mirrored in the law have been fighting hard to be able to continue to refuse equal treatment to LGBTQ people.

Last year, the U.S. Supreme Court rejected one such effort in its much-misunderstood Masterpiece Cakeshop decision. It reaffirmed precedent that has stood for five decades that the Constitution’s rightly valued protections of freedom of religion cannot be twisted by business owners into a license to discriminate. At the same time, however, the Court ruled that the bakery in that case had been treated unfairly by the state administrative agency that ruled against it, whose members the Court felt had expressed unwarranted hostility toward religion, thereby depriving the bakery of a neutral decisionmaker.

Undeterred by that reaffirmance of the rule that all who enter the world of commerce must play by the same rules, anti-LGBTQ groups like the so-called “Alliance Defending Freedom” (ADF) have switched gears.  Instead of relying primarily on freedom of religion, they have sought refuge under freedom of speech, asserting that at least businesses that create customized goods and services should not have to do so for events celebrating the now-lawful marriages of same-sex couples to which they object.  

On Sept. 16, a slim 4-to-3 majority of the conservative Arizona Supreme Court issued a narrow ruling in Brush & Nib v. City of Phoenix embracing this argument. It held that, under the Arizona Constitution’s free speech protections and an Arizona law known as the Free Exercise of Religion Act, a stationery and calligraphy business that designs and sells custom wedding invitations could refuse to do so for same-sex couples, notwithstanding a Phoenix ordinance prohibiting such discrimination. While the court confined its ruling to personalized wedding invitations, the humiliation and debasement of having a door slammed in your face as you seek to celebrate what for many people is the happiest day of their lives were ignored. So too, the majority seemed not to care how permitting businesses to say “we don’t serve your kind” in even this limited context would also shield discrimination based on persistent prejudices against members of racial and religious minorities and those in interracial or interfaith relationships as they plan their weddings. At least the ruling is cabined to Arizona. 

The federal Court of Appeals for the 8th Circuit reached a similar outcome last month, however, based on the U.S. Constitution’s protection of speech. In Telescope Media Group v. Lucero, it issued a divided ruling that a videography company that wanted to start making wedding videos only for different-sex couples could proceed with their challenge to a Minnesota law that bars sexual orientation discrimination by businesses. That case is ongoing.

While these rulings are distressing, they at least are limited to those who use words and pictures to create customized goods for sale. But anti-LGBTQ groups are determined to expand a “right” to discriminate far beyond that. On Sept. 11, ADF asked the Supreme Court to hear the further appeal of its Arlene’s Flowers v. Washington case, in which it claims that a florist was entitled to turn away same-sex couples planning their wedding based on a claim that flower arranging is speech protected under the First Amendment. If that were the case, what other vendors would be entitled to treat LGBTQ people unfairly? ADF’s arguments aren’t even limited to weddings but would apply to any events that businesses object to providing services to because of the identity of those participating in them.

In Arlene’s Flowers, ADF also is misreading the high court’s Masterpiece Cakeshop decision to argue that any decision by state authorities to enforce civil rights laws against those asserting religious justifications constitutes impermissible religious hostility. Such claims of selective prosecution, however, run squarely into Supreme Court authority upholding the broad discretion of government officials to decide when to enforce particular laws, which can be challenged only with proof of improper discriminatory intent.  

These cases raise fundamental questions about whether LGBTQ people are entitled to equal treatment as we go about our daily lives or whether, in at least some contexts, those with religious objections can treat us as second-class citizens with impunity. Yet, in a majority of states and at the federal level, we still do not even have express and enduring statutory protections against such discrimination.  

The U.S. Supreme Court will be hearing arguments on Oct. 8 in three cases about LGBTQ employment discrimination that will determine if federal law protects LGBTQ people.  These are the most important cases in LGBTQ history since we won marriage equality. But, even if we win them, we still will need Congress to finish the job by passing the Equality Act, which would ensure express and enduring nondiscrimination protections for LGBTQ people. Only a federal law will make sure that businesses like Brush & Nib that can no longer be sued in Arizona courts. Learn more about these cases and what you can do to get such a federal law passed by visiting the Freedom for All Americans website. Nothing less than whether LGBTQ Americans will ever be treated equally is at stake.

Jon Davidson is chief counsel for Freedom for All Americans.

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Opinion | The importance of marching for Black trans lives

Youth deserve to see their allies help create change



I am a member of the LGBTQ+ community, and an ally to the trans community. Identifying myself as an ally, rather than a member of the trans community is important to note. I could never assume a position of resonance, or complete understanding of the struggle and strife of trans folks. 

As the program manager for BSH, I have witnessed countless justifications, and matter-of-fact necessity, for the Black Trans Lives Matter marches. While escorting my clients to meetings with multiple institutions and organizations, I have often witnessed, even after the first correction, serial misgendering. My clients are young adults between ages 18-24. I fear that the resentment that surely multiplies, both internally and externally, with each misgendering experience, is likely to result in depression and anxiety. 

To dismiss one’s identity is to erase their existence. It is my duty as an ally, and a leader, to confront these scenarios head on, by identifying and educating misguided professionals, while setting a threshold of accountability during subsequent encounters. 

Trans youth deserve to know and feel allyship; they deserve to see an ally create change on their behalf. All trans people, including the youth of the community, have the fundamental right to exist and be recognized for who they know themselves to be; visibility matters beyond a community level. 

This year we lost one of our trans sisters in a cold city jail cell. Kim Wirtz’s life mattered. She was a Black trans woman who had not seen the likes of a courtroom but was sentenced to death, without the allowance of exercising her right to a trial. She was a sister, a daughter, an aunt and a friend. 

We march for reform, so that our sisters will never be forced into unsafe housing. We need reform and we need it now! No trans woman deserves to be forced to appear male because she is incarcerated. We march for those who started this work before many of us were born. We march in the legacy of Marsha P. Johnson and Sylvia Rivera. We march for the youth so they can grow up and be free to be themselves without shame.

 I ask that you march alongside us, as we inspire and create positive change, and as we churn the oceans of reform on behalf of our trans brothers and sisters, and subsequently, on behalf of all of us.

Tashi-Kali Acket is program manager for Baltimore Safe Haven.

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Claiming our power in the HIV-AIDS epidemic

‘It is my experience that our community is heroic’



Larry Kramer, gay news, Washington Blade
Larry Kramer (Washington Blade archive photo by Doug Hinckle)

“Unless we fight for our lives, we shall die,” wrote Larry Kramer in the New York Native in March 1983. Before Kramer’s article “1,112 and Counting,” gay people were doing what they could to care for the sick and mourn their dead with quiet dignity. 

After the article appeared in gay papers across the country, gay people grew increasingly unwilling to be quiet about the deaths of gay men and the preternatural silence about the epidemic from elected officials.

In San Francisco, the momentum generated by a July 1984 political march spiraled into support for an independent gay AIDS activist group in San Francisco. Gay community leaders tapped Paul Boneberg, then 31 and president of the Stonewall Democratic Club, to head the new group.

Mobilization Against AIDS came into existence in the fall of 1984 with the express goal of organizing street demonstrations, a goal it accomplished by staging monthly protests. Besides its street demos, Mobilization, beginning in 1985, took on the task of organizing the annual AIDS candlelight vigil that the San Francisco People with AIDS Coalition had started in 1983. 

As the 1980s wore on, and tens of thousands of gay men died with still no effective treatment for AIDS, Larry Kramer’s nerves were shot. 

In a March 10, 1987, speech Kramer gave at the New York Lesbian and Gay Community Services Center, today known as the LGBT Center of New York, he laid into the gay community as only Larry Kramer could. “If my speech tonight doesn’t scare the shit out of you, we’re in real trouble,” he told the group. 

By then, 32,000 AIDS cases had been reported across the country—nearly a third of them in New York. President Reagan still hadn’t spoken about AIDS to frightened Americans. 

“If what you’re hearing doesn’t rouse you to anger, fury, rage, and action, gay men will have no future here on earth,” said Kramer. “How long does it take before you get angry and fight back?” The crux of the speech was Kramer’s simple question: “Do we want to start a new organization devoted solely to political action?”

The answer was a resounding “Yes!” Two days later, about 300 people again showed up at the center where they formed ACT UP, the AIDS Coalition to Unleash Power. The group’s first demonstration—a protest on Wall Street against the exorbitant price of just-approved AZT, the most expensive drug ever to that point—introduced what became the group’s distinctive brand of street theater. ACT UP took the camp humor and theatricality of the Gay Liberation Front “zaps” to a whole new level.

As Kramer told me in our interview for “Victory Deferred,” “The fact that everybody responded to ACT UP, I think was more just a question of time, and moment, and frustration. It was the right time for it to happen.”

As in every catastrophe humans have faced throughout history, there were only two options for gay men when the viral cluster bomb erupted in the community: fight or flight. 

“AIDS made us choose,” said Paul Boneberg, in our interview in San Francisco for “Stonewall Strong.” “Most chose to stay and fight.” In his characteristically understated manner, Boneberg added, “It is my experience that our community is heroic.”

Larry Kramer put it a little differently in our 1995 interview. We talked in the living room of his Fifth Avenue apartment, the setting for some of gay America’s most historic moments, including the world’s first AIDS fundraiser in 1981 and, in 1982, the formation of GMHC, the world’s first AIDS service organization. Reflecting in particular on ACT UP, Kramer said, “Singlehandedly, we changed the image of gay people from limp-wristed fairies to guerrilla warriors.”

John-Manuel Andriote has reported on HIV-AIDS as a journalist since 1986. His most recent book, which he calls a bookend for acclaimed debut novel ‘Victory Deferred’, is ‘Stonewall Strong: Gay Men’s Heroic Fight for Resilience, Good Health, and a Strong Community.’ The research materials and recorded interviews for Victory Deferred comprise a special collection curated by the Smithsonian’s National Museum of American History.

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Opinion | This gay conservative wants Equality Act to pass now

Pro-equality control on Capitol Hill is likely fleeting



(Washington Blade file photo by Michael Key)

Limiting the heavy hand of government in the lives of everyday Americans naturally results in more personal freedom. To be sure, elected leaders that govern closest to their constituents are typically more accountable to us. 

Lately, however, the horrendous actions taken by legislatures across America to restrict the rights of transgender youth, a problem exacerbated by the current patchwork of state and local protections for LGBTQ Americans, makes clear that we still have much work ahead to ensure that LGBTQ people in all 50 states are treated with dignity and respect. That is why, as a conservative, I feel it’s critical to get the Equality Act passed through Congress.

Despite the fact that 80 million Americans cast a ballot in support of Joe Biden last year, we have yet to witness a leftward shift in the country’s politics in favor of Democrats. In fact, the Senate is merely one seat flip away from Mitch McConnell becoming majority leader. Surveying the electoral landscape in 2022, it’s more than likely that the GOP will assume control of one or both chambers in Congress. Pro-equality control on Capitol Hill is likely fleeting, so now is the time to advance LGBTQ rights and nondiscrimination protections. 

After working tirelessly to pass the Employment Non-discrimination Act (ENDA) through the Senate in 2013, I found myself sitting with a prominent lobbyist who argued that time would take care of moving the country in support of equality. It was believed then that culture wars would reignite, and the majority of Americans would take a stand to ensure full protections regardless of sexual orientation and gender identity. The notion that “time will take care of it” has been a consistent voice, however it ignores that discrimination is clear and present today. In many places it’s getting worse.

The Equality Act would update federal law to include express and enduring protections for LGBTQ Americans in key areas of life. Swift passage of the bill through the U.S. House with bipartisan support clearly illustrated the priorities of the Democratic leadership. With the bill now under consideration in the Senate, we should not expect a similar set of circumstances. Not even an elimination of the filibuster would allow Democrats to go it alone. To become law, the Equality Act will require compromise and cooperating with Republicans.

Democrats would be wise to heed the protestations of conservative, faith-based leaders regarding the merits of the bill. Even though recent public polling illustrates strong support for the basic tenets of the legislation from Catholics, Mormons, Jews and rank-and-file people of faith, legitimate concerns remain among some religious communities. 

Republican leaders in the Senate with a track record of support for LGBTQ issues, including Susan Collins, Lisa Murkowski, Pat Toomey and Rob Portman, have publicly illustrated the need for discussions around religious protections. Modest adjustments to the Equality Act, that will advance nondiscrimination protections while ensuring faith-based institutions can continue their work, will certainly lead to more inclusive communities that are less reliant on federal taxpayers for support.

Despite Democratic control of the White House and Congress, the reality is that compromise is essential in order for important bills to become the law of the land. Regardless of your ideological persuasion, we can all agree that now is the time for action. So, for the sake of a gay veteran searching for a place to live, or a transgender woman trying to find a job, or any one of the countless members of our community who continue to endure discrimination on a daily basis, Congress should work together find a bipartisan path forward to pass the Equality Act.

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