Cooler heads prevailed on Tuesday, when South Dakota’s governor vetoed a bill that would have made it the first state in the country to approve a law requiring transgender students to use bathrooms and locker rooms that match their sex at birth. Republican Gov. Dennis Daugaard, who initially reacted positively to the proposal, retracted and instead said he needed to research the issue further. He ultimately rejected the bill after the American Civil Liberties Union and Human Rights Campaign insisted it was discriminatory. In his veto message, Daugaard said the bill “does not address any pressing issue” and such decisions were best left to local school officials.
This is one situation in the last nine months where the LGBTQ community has come out on the winning end — but our margin is shortening with each win. In the last six months of 2015, more than 200 anti-LGBTQ bills were passed, and so far, we’ve counted 70 in 2016. Even though the significantly harmful South Dakota legislation did not become law, it is crucial to recognize that this is the first time that an anti-trans state bill has made it all the way through any state legislature and onto a governor’s desk. More than a dozen states have considered anti-LGBTQ bills this legislative session, but none has moved as far as South Dakota’s.
This bill, which was part of a package of anti-LGBTQ bills before the South Dakota legislature, would have forced schools to choose between violating state and federal law, which requires them to treat all students according to their gender identity and provide them with equal access to restrooms and other facilities. If passed, it would have opened schools up to costly and time-consuming lawsuits and put them at risk of losing their federal funding.
Laws like these also impose an impossible burden on schools by requiring them to police restroom use based on people’s chromosomes and is so reckless that seven national child welfare, medical and education groups — including the American Academy of Pediatrics, the American Counseling Association, the American School Counselor Association, the Child Welfare League of America, the National Association of School Psychologists, the National Association of Social Workers and the National Education Association — called on Daugaard to reject it. Major corporations also weighed in in opposition, including Citibank, Wells Fargo, Sanford Health and First Premier Bank.
As I mentioned above, South Dakota isn’t alone. Just two weeks ago, the Georgia Senate approved a controversial “religious-freedom” bill that would allow faith-based organizations to discriminate against LGBTQ people. The measure was approved 38-14 after only three hours of debate. Throughout the debate, the lead sponsor of the bill, Sen. Greg Kirk (R), defended his First Amendment Defense Act from critics who were concerned it would gut LGBTQ-inclusive nondiscrimination ordinances and policies of companies and cities all over Georgia. During the debate, opponents worried that the legislation would spark an economic boycott of the state, similar to what happened in Indiana and Arizona — and it did just that!
This week, Salesforce CEO Marc Benioff declared his opposition to the so-called “religious freedom” bill, as did Michael Dell, founder and CEO of the computer giant Dell, and Richard Branson of Virgin. LGBTQ and progressive activists, along with some faith leaders, denounced the bill as state-sponsored discrimination, especially as it would even allow faith-based organizations that receive public funds to discriminate against LGBTQ people.
The bill prohibits state and local governments from taking “discriminatory action” against people or faith-based groups acting on “a sincerely held religious belief or moral conviction” that marriage is between one man and one woman, and that sex is reserved to heterosexual marriages. So basically, instead of upholding anti-discrimination bills protecting LGBTQ individuals, this bill would eviscerate those and replace them with anti-discrimination protections for heterosexual people and their “sincerely held religious beliefs.”
The bill defines “discriminatory actions” as impacting the tax-exempt status of a faith-based organization; denying or withholding grants, contracts and licenses; denying public benefits; and withholding education facilities. Shockingly, the bill allows impacted heterosexuals to file claims for damages and attorneys’ fees. That’s right — a gay person could be sued for taking discriminatory action against someone’s sincerely held religious beliefs! Kirk said the measure simply is a “live and let live bill.”
Like most anti-LGBT bills, the legislation isn’t just bad for LGBTQ people. In short, it allows any individual or “faith-based” business and nonprofit entity to ignore any law that conflicts with its religious beliefs about marriage. This bill violates the free-speech and establishment clauses of the First Amendment and the equal-protection clause of the 14th Amendment on its face. As it stands, exempt entities could refuse anyone else rights, services and benefits because they are part of an interracial couple; are part of an interfaith couple; are single mothers; are part of a same-sex couple; are divorced; are remarried; live or have lived with a partner without being married; or have had sex outside of marriage at any time in their life.
This bill has made its way to the governor’s desk, and we will await its final outcome.
And then there’s my favorite state — Kentucky. Thanks to the pioneering work of Kim Davis, the state Senate approved legislation that creates different marriage license forms for gay and straight couples, with one Republican senator saying any form that does not include the words “bride and groom” is disrespectful to traditional families. The primary purpose of the legislation was to remove the names of county clerks from marriage licenses to show their support for “traditional” marriage after former Democratic Gov. Steve Beshear replaced “bride and groom” with “first party” and “second party” following the legalization of same-sex marriage.
This anti-LGBTQ backlash is not new. In my opinion, it is just finally coming to a head. In 2015, the LGBTQ community was dazed and confused with loss after loss at the polls and in state legislatures immediately post-marriage equality. Scores of antigay bills were filed in 29 state legislatures. This tells me that complacency is and will be our enemy, especially for those LGBTQ individuals who live in cities like Philadelphia, who are largely unaffected by happenings in South Dakota, Kentucky or Georgia. What’s more, I’m concerned that the new generation of LGBTQ young people and their allies won’t have their guard up and won’t be as incensed as previous generations to keep fighting for our rights. The LGBTQ community must remain vigilant and fight inequality in our hometowns, and if you happen to live in a Gayborhood, then fight for your LGBTQ brothers and sisters who aren’t so lucky and yearn for safety.