Opinion | LGBTQIA+ Civil Rights 2017: A Year in Review

I doubt very many of us thought 2017 would be a banner year in terms of civil rights gains in our community.

I also highly doubt many of us saw coming the bizarre, chaotic, and cryptic direction of this administration regarding Federal recognition of the basic human rights and civil liberties of our community.

Nor could we have predicted the vicious cultural backlash, particularly affecting those whose experience is based on an intersection of oppressions, such as Trans women, most especially Trans women of color, against MSM men of color, against HIV+ folk, against LGBTQIA+ immigrants, against LGBTQIA+ people with disability, Trans and LGBTQIA+ youth (especially of color), homelessness, and of course LGBTQIA+ folk in poor economic circumstances.

We’ve had losses, from the Trans Military Ban to the end of LGBT worker protection enforcement for the employees of federal contractors.

But we’ve had some wins, too, from increasing scrutiny and bans of the gay/trans panic defense, to bans on conversion therapy, and the defeat of FADA and RFRA legislation.

I’ll attempt to look at both here.

By no means is this list complete or comprehensive, nor is it meant to imply that we had as many wins as losses in 2017.

Challenges/Losses:

Protecting transgender and gender nonconforming children in public schools:

We saw in February 2017 the Department of Education and the Department of Justice rescind President Obama’s Title IX guidance. This guidance had reiterated a growing legal consensus on Title IX of theEducation Amendments of 1972, which protects students against discrimination and harassment in our nation's schools on the basis of sex. This guidance was important because it provided clarity to schools receiving federal education funding regarding the federal government’s understanding of schools’ obligation under existing law to allow transgender students to attend school safely in a manner that doesn’t single them out.

Visibility of LGBTQIA+ folk in Federal planning:

Unfortunately, the current administration has removed LGBT people as a category from most surveys, studies, and investigations. This means we are made “invisible” when it comes to budgeting and planning to meet our community’s needs. If we aren’t being counted, it’s like we don’t exist. Particularly hurtful was the current administration’s decision to remove LGBT people from the 2020 Census as a category. It would have been the first time the Census “saw” us, and would have provided very valuable data for advocates within our community as well as our allies.

Federal interpretation of Title VII Protection for Trans people

May of 2017, we saw a memowhich redefines guidance of the reach of the Civil Rights Act of 1964, particularly Title VII, compared to the previous Obama era guidance.

The Civil Rights Law’s language bans sex discrimination in the workplace. Civil rights advocates have long argued that this includes transgender people, because discrimination against someone based on their gender identity is fundamentally rooted in sex-based (gender) expectations. So if someone discriminates against a Trans woman, that’s largely based on the employer’s understanding of her gender.

The new guidance specifically excludes “transgender” as an included status under the anti-sex discrimination language.

Now gay and trans citizens lack all federal protection as far as DOJ/Federal enforcement of Title VII. Some states have protection for sexual orientation, some have protection for gender identity, some have both, and some have none. Illinois’ Human Rights Act protects both. Missouri’s protects neither.

Loss of enforcement of anti-LGBTQIA+ discrimination protections for employees of federal contractors:

Only weeks into 2017, just a few months after promising to keep the order in place, the White House quietly gutted key provisions that required contractors to prove they are in compliance with LGBTQIA+ nondiscrimination obligations. Without any requirement to report whether federal government contractors are obeying these laws, they have no teeth.

Workplace harassment and bullying of LGBTQIA+ employees:

More than HALF of all workers who are lesbian, gay, bisexual or transgender (56%) said they were repeatedly bullied in their workplaces, according to a recent survey of 3,420 full-time workers (by jobs website CareerBuilder).

These actions have a significant impact on LGBT workers’ mental health as well as long-term career and income prospects; this is why we need comprehensive inclusion for LGBTQIA+ Americans in all civil rights legislation. One solution for this would be for Congress to pass the Equality Act, but unfortunately, this Congress did not permit the bill to leave committee.

Transgender Military Ban:

In August of 2017 the White House announced intentions to ban transgender Americans from service in the military, reversing yet another policy ushered in by the Obama administration that had lifted the longstanding ban on Trans people serving. This placed an estimated 15,000 currently serving transgender troops at risk. While the ban is currently on hold due to a federal judge’s injunction, it will be interesting to see what General Mattis in the Pentagon has to say in February 2018 when announcing final policy determinations.

Wins/Opportunities:

Increased municipal and local LGBTQIA+ civil rights legislation:

While a blitzkrieg of anti-LGBT bills in state legislatures made headlines in 2017, U.S. cities were quietly adding up victories in the fight for equality. (This legislation included FADA bills (First Amendment Defense Act) and RFRA (Religious Freedom restoration Act), both intended to legalize discrimination against LGBTQIA+ people.)

A record 68 cities earned perfect scores (100) for advancing LGBTQIA+ inclusive policies and practices in 2017, according to the Human Rights CampaignMEI, or Municipal Equality Index. Also a bright spot: 22% of cities scored in 2017 offered health care benefits for city employees that included transgender specific medical procedures(111 of 506 reporting), compared to only 4%(5 of 137 cities reporting) in just 2012.

Conversion therapy bans:

“Conversion therapy” is the extremely harmful practice of using brainwashing, torture, and other methods to change someone’s most basic core identity, i.e., change sexual orientation to “heterosexual” and gender identity to “cisgender”. Increasingly, state legal bans prohibiting licensed mental health practitioners from subjecting minors to harmful "conversion therapy" practices are coming in to play. Nine states (including Illinois) and D.C.now have bans outlawing the practice.

Unprecedented numbers ofLGBTQIA+candidates and elected officials:

Nov 8th2017 was a night of many firsts, from trans woman Danica Roem elected to the Virginia House of Delegates (state legislature), and Andrea Jenkins, the first Trans woman of color elected to public office, now serving on the City Council in Minneapolis.

In addition to Roem and Jenkins, five other transgender candidates won their races, amid a field of diverse candidates, including newly elected Jenny Durkan, former U.S, Attorney and now Seattle’s first lesbian mayor.

“Gay” and “Trans” panic defenses banned:

Such “panic” defenses have come up in court opinions in about half of U.S. states since the 1960s, according to a 2016 study by the Williams Institute at the University of California Los Angeles’ law school. Essentially, the murderer or perpetrator of violence against an LGBTQIA+ person claims “they didn’t know” their sex partner was queer, and they “panicked”, forcing them to injure or kill n “self-defense”.

Increasingly, the defense has been unsuccessful, but its influence is hard to track and identify. No state recognizes it as a free-standing defense in the criminal code and it’s often used in conjunction with insanity or self-defense claims.

The American Bar Association called for a national prohibition in 2013. California outlawed the defense in 2014 and in 2017, Illinois became the second state to outlaw these prejudicial legal fictions.

Expanded gender identity legal recognition under Title IX:

Young Trans man Ash Whitaker won a key decision in Kenosha Wisconsin in May 2017 when the Seventh Circuit Court of Appeals(Illinois, Indiana, and Wisconsin) ruled that transgender students are protected from discrimination by Title IX and the Constitution. It marked the first time a federal appeals court had made such a ruling and will hopefully become an important piece of case law precedent.

We’re playing more defense in ’17 and ’18.

That’s probably how it’s going to be as long as the party that controls 34statehouses, 32 state legislatures, both houses of Congress, and the White House continues its policy of rolling back human rights for LGBTQIA+ citizens.

But that doesn’t mean we can’t fight back and it most certainly does not mean that one day, ultimately, we will win. I’m betting on us and our allies.

For a more comprehensive look at the state of LGBTQIA rights in the first year of the current administration, click here.