The war on LGBTQ rights is more hostile than ever

Anyone who thought it was over hasn't paid attention to history. But once again, standing up to hate--not cowering--is the greatest resistance. Just ask Montana's Rep. Zooey Zephyr.

A stunning bill introduced into the Texas legislature would make merely identifying as transgender a felony, with prison time.

In nine states, Republicans have recently introduced bills to undermine same-sex marriage.

And the Supreme Court yesterday ominously decided it would hear a case that seeks to overturn laws banning conversion therapy by quack therapists treating LGBTQ minors.

Some people thought, having survived Donald Trump’s first term—which saw a stripping of LGBTQ rights—that, once again, the fight was over.

President Joe Biden had restored the rights that were assaulted—rights affecting health care for LGBTQ people, transgender people serving in the military and discrimination against LGBTQ students, among many other impacts on queer people. And Congress passed the Respect for Marriage Act—with Republican support in the Senate—to protect against any attack by the Supreme Court on marriage equality, as the court’s extremists have shown their zeal to overturn Obergefell.

But Trump is back. As the title of my last book, published in 2015 just before Trump’s rise, stated, “It’s Not Over.” And it’s never over. The fallacy is in believing that rights are ever fully won and that you don’t have to be engaged in the fight constantly—because they will always try to take them away.

Trump’s new assault is more aggressive and coming more swiftly. We saw a dizzying array of executive orders brutally targeting transgender people specifically, and a slew striking at diversity, equity and inclusion, all of which are an attack on all lesbian, gay, bisexual and transgender people and every marginalized group.

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And that has emboldened MAGA politicians, in Congress and in many states. Bathroom bills and “religious liberty” legislation meant to discriminate against LGBTQ people—at one time beaten back with the help of corporate America threatening boycotts of states—are back. Corporations are now retreating, fearful of retribution, throwing LGBTQ people and many other groups under the bus as they strip DEI programs.

Even with a majority of Americans supporting marriage equality, Republicans in nine states are trying to eradicate it. This is the age—the new Trump Age—of minority rule and authoritarianism. They no longer care what the majority thinks as they move to consolidate power. The anti-marriage equality bills passed in recent weeks have taken two forms, as NBC reports:

Five of the measures, including one introduced Tuesday in Michigan [in addition to Idaho, Montana, North Dakota and South Dakota] urge the Supreme Court to overturn its 2015 landmark ruling in bergfall v. Hodges, which granted same-sex couples nationwide the right to marry

Lawmakers in at least four additional states — Missouri, Oklahoma, Tennessee and Texas — introduced bills that don’t refer to Obergefell but that would, if they are signed into law, create a category for marriage called “covenant marriage” that would be only for one man and one woman.

The bills urging the Supreme Court to overturn Obergefell don’t have any force of law. But they show the brazenness of Republicans, who are passing such resolutions to galvanize the haters, plain and simple.

Similarly, the anti-trans bill introduced in Texas last week by Republican state Rep. Tom Oliverson is not likely to pass. It would charge any person who “knowingly makes a false or misleading verbal or written statement”—such as declaring they are not their “biological gender”—with a felony punishable by up to two years in jail and a $10,000 fine. What it is meant to do, however, is embolden anti-LGBTQ forces.

And the Supreme Court—where Trump appointed three justices—is doing its part in the attack on LGBTQ rights.

The court appears set to allow states to ban gender-affirming care for minors, after hearing arguments late last year. And this week it decided to hear a challenge to Colorado’s law banning dangerous conversion therapy for minors—harmful therapies that attempt to make queer people straight—by a “Christian” therapist who says her rights are being violated.

Over 20 states have laws banning this odious quack science. The Supreme Court has turned away similar challenges, refusing to take the cases, including in December 2023, when Justices Kavanaugh, Thomas and Alito dissented, saying they would take up the case.

It takes four justices for the court to take a case, so it’s unclear who the fourth might be this time. And it is possible that the court is stepping in because there have been splits among the appeals courts. The 10th U.S. Circuit Court of Appeals in Denver upheld the Colorado law, while the 11th U.S. Circuit Court of Appeals in Atlanta struck down local bans in Florida, as Politico notes. So it’s possible the Supreme Court is stepping in to settle it once and for all and allow states to regulate medical providers, as states do routinely.

But as Mark Joseph Stern at Slate explains, we can’t trust a Supreme Court that just two years ago allowed a web designer to turn away gay couples who might want her services for their same-sex marriage, claiming it inhibited her “religious freedom”—even though she’d actually not had any gay couple ask her, thus no “rights” were challenged. He warns that the court is once again using “religious liberty” to restrict rights on behalf of the GOP and its anti-LGBTQ agenda.

The Supreme Court taking aim at "conversion therapy" bans for LGBTQ minors is yet another example of the conservative justices weaponizing the Constitution against blue states and progressives—forcing victims of Republicans' culture war to fight back with one hand tied.

All of this is appalling and provokes anxiety. But as I said, we’ve been here before—under assault after thinking we’d beaten back the hate for good. And the same tried-and-true ways of fighting back are called for now—and they’re already working.

Zooey Zephyr is the fearless Montana transgender state legislator who was targeted by her Republican colleagues, who silenced her—banning her from speaking on any bills for the rest of the session back in 2023—because she spoke out forcefully against anti-LGBTQ bills, saying that when her colleagues bowed their heads in prayer, she hoped they would see the "blood on [their] hands."

But she also gained a lot of support from people across Montana and the country. Zephyr never stopped fighting. And this year, just in the past week, she and her colleague Rep. AJ Howell, who is nonbinary, galvanized not only Democrats but also Republicans to beat back two anti-trans bills—including a ban on drag—as well as the aforementioned resolution to ask the Supreme Court to overturn marriage equality. Her floor speech was electric:

When the sponsor closed on this bill, he said, this bill is needed… and I quote his words… ‘because transgenderism is a fetish based on crossdressing.’ And I am here to stand before the body and say that my life is not a fetish. My existence is not a fetish.

I was proud within a month ago to have my son up in the gallery here. Many of you on the other side met him. When I go to walk him to school, that’s not a lascivious display. That is not a fetish. That is my family.

Zephyr also gave the legislature a history lesson about drag, and about policing people regarding their clothing:

I first want to start off and say, At its core drag is art. Drag is a beautiful art. Drag has a deep history in this country, and it is a history important to my community.

You know, if you are a women in this body wearing a suit today, you are challenging gender norms that existed long ago. And in some ways, drag does exist to challenge those norms. There were three “articles of clothing” laws 50 years ago that said that if you wore three articles of clothing that were indicative of the opposite gender, the police could stop you and arrest you.

It was those laws that led to the police raiding an LGBTQ bar in New York and led to the Stonewall riots, one of the most important civil rights moments in my community’s history.

She continued with strong and persuasive remarks, surely worth watching in full. As Heartland Signal, WCPT Radio in Chicago, reported:

Surprisingly, such rhetoric struck a chord with local Republicans. For HB 675, 13 Republicans joined Montana Democrats in striking down the bill. For HB 754, a whopping 29 GOP members would cross the aisle.

This was an example of how organizing locally, far beyond the Beltway, is key, and how visibility—having powerful examples of queer people who are out and proud—is so important.

There’s no question we need public protest and pressure on Democrats in Washington to get them to push back loudly. But we also need people standing up everywhere, including in the states, people who are out front, hitting hard and showing us the way to beat back this anti-LGBTQ purge.