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The LGBT rights movement is a social force consisting of people interested in removing the social stigma from homosexuality, bisexuality and transness, and allowing gay and trans people to be equal participants in society with the same rights as others. Despite arguments to the contrary, there is no homosexual agenda, nor is there a trans mafia, a lesbian occupation force, or any other vast LGBT conspiracy to undermine society as we know it. Sadly.
Gay and lesbian rights
LGBT activists do not argue the morality of homosexuality; rather, they work against immoral laws that deny people their rights as equal members of society on the basis of their sexual orientation. LGBT folk simply wish to have the same rights that straight/cis people have enjoyed since the dawn of time as well as not be discriminated against.
Gay rights activists make one of two arguments:
- Homosexuality is an immutable trait, and discriminating against immutable traits is wrong (cf. race discrimination), or,
- Homosexuality, if not immutable, is highly correlated with personality, and discriminating against such deeply rooted notions of self is wrong (cf. religious intolerance).
Legal success in the United States
Courts, including the Supreme Court of the United States, have accepted either one or both of these rationales. In Romer v. Evans, the Court found that discriminating against homosexuals could only be explained by a rationale of animus laid bare, which was not enough even to allow state condemnation of homosexuality under the rational basis review test. Romer, then, protects the status of homosexuality from undue discrimination that occurs without a rational basis.
Homosexual conduct was formerly illegal in many states. In the last decade of the twentieth century, although these laws existed, they were rarely (if ever) enforced. Without disclosing whether it saw homosexuality as a status protected from discrimination at as high of a level as gender and race, the Court struck down bans on homosexual conduct, framing it as an expansion of its privacy jurisprudence. 13 states still have anti-sodomy crimes on their statute, but there are no reported cases of prosecution (and any future prosecution is unlikely given that the laws have been invalidated by Lawrence v. Texas). However, in April of 2014 Louisiana's House of Representatives voted to keep the anti-sodomy law on the books, just in case. Although totally unenforceable, reports suggest that people were still being arrested for "crimes against nature" in Baton Rouge.
Recently, some Southern states have introduced legislation which would make it perfectly legal to deny a person goods and services based on their sexual orientation, if that sexual orientation goes against your religious beliefs. Arizona was the first to introduce and pass such a bill, one that critics claimed provided legal backing for "gay segregation". Governor Jan Brewer eventually vetoed the measure, in a rare intelligent move.
Mississippi was the next to fall foul, with two segregation bills going forward. The first was the standard, run-of-the-mill "religious freedom" bill that included the definition of a person to include businesses (thereby allowing corporations to discriminate on the basis of sexual orientation as well) and is called Religious Freedom Restoration Act. Under this Act, people could deny gay, lesbian or bisexual people housing, groceries, legal representation and any other services based on sexual orientation. The second was a sister bill called The Mississippi Student Religious Liberties Act, which applies directly to students and educational institutions. It protects students from being criticized or punished for anti-gay works, either written or through verbal opinion. Both bills passed the Mississippi legislature and were signed by Governor Phil Bryant shortly after.
Kansas has a similar "Religious Freedom" Act on the table, but Chair of the Senate Judiciary Committee Jeff King refused to consider it, making its passing highly unlikely..
Indiana's "Religious Freedom Restoration Act" effectively allows individuals businesses to use their religion as an excuse in legal proceedings, which is apparently so Christian businesses can legally discriminate against LGBT customers. This was infamously used by a pizzeria whose owner said they would not cater gay weddings due to their religious beliefs, even though no gay couple has ever asked them to cater a wedding. The law does, however, allow members of the Church of Cannabis to freely smoke without fear of legal repercussion.
During the late 20th and early 21st centuries, queer Americans fought for their rights in both Federal and state courts. Key cases include:
- Baker v. Nelson (1972) - The US Supreme Court dismissed an appeal from the Minnesota Supreme Court, which had found that the US Constitution does not require states to recognize same-sex marriage.
- Commonwealth v. Bonadio (1980) - The Pennsylvania Supreme Court found that Pennsylvania's anti-sodomy law, which criminalized "deviate" sexual intercourse including most same-sex intercourse, was unconstitutional.
- People v. Onofre (1980) - The New York Court of Appeals determined that New York's anti-sodomy law was unconstitutional.
- Bowers v. Hardwick (1986) - The US Supreme Court found that state anti-sodomy statutes were not unconstitutional.
- Braschi v. Stahl Associates (1989) - A plurality of the New York Court of Appeals recognized long-term same-sex partners as "family" for purposes of New York's rent control laws. This was the first decision in US history that granted any form of legal recognition to same-sex families.
- Commonwealth v. Wasson (1992) - The Kentucky Supreme Court determined that Kentucky's anti-sodomy statute was unconstitutional.
- Baehr v. Levin (1993) - The Hawaii Supreme Court found that it was presumptively, but not definitively, unconstitutional under the Hawaii constitution for the state to prohibit same-sex marriage. In response, the Hawaii State Legislature and Hawaiian voters amended the state constitution to specify that the state could ban same-sex marriage.
- Romer v. Evans (1996) - The US Supreme Court struck down as unconstitutional a Colorado constitutional amendment that banned any anti-discrimination policies from protecting queer Coloradans. This decision, which seemed to contradict Bowers, was considered a turning point in the jurisprudence of LGBTQ rights, after which the Federal courts became far more likely to rule in favor of queer plaintiffs.
- Baker v. Vermont (1999) - The Vermont Supreme Court held that under the Vermont Constitution, the state had to provide same-sex couples the "common benefits and protections that flow from marriage", though not marriage as such. The Vermont legislature responded by establishing civil unions, or legally-recognized unions that provided the same benefits and obligations as marriage. This made Vermont the first state to offer same-sex couples legal status that was effectively equivalent to marriage, though Hawaii and California had already offered more limited forms of legal status to same-sex couples.
- Lawrence v. Texas (2003) - The US Supreme Court directly overruled Bowers, holding that anti-sodomy statutes were unconstitutional.
- Goodridge v. Department of Public Health (2003) - The Massachusetts Supreme Judicial Court found that under the Massachusetts Constitution, the state could not limit "the protections, benefits, and obligations of civil marriage to opposite-sex couples". The court later clarified that Massachusetts had to legalize same-sex marriage as such, and that a separate-but-equal status like civil unions would still violate the constitution. As a result of this decision, Massachusetts became the first state in the country to fully legalize same-sex marriage.
- In re Marriage Cases (2008) - The California Supreme Court held that under the California Constitution, the state could not limit marriage to opposite-sex couples, but had to "extend the designation of marriage to same-sex couples". California voters nullified this ruling just six months later by adopting a constitutional amendment that recognized "only marriage between a man and a woman".
- Kerrigan v. Commissioner of Public Health (2008) - The Connecticut Supreme Court held that under the Connecticut Constitution, "gay persons are entitled to marry the otherwise qualified same sex partner of their choice". This decision is noteworthy in that Connecticut already offered civil unions to same-sex couples. The court was thus making it clear that this separate-but-equal status was not sufficient, & that the state had an obligation to treat same-sex couples as truly equal to opposite-sex couples.
- Varnum v. Brien (2009) - The Iowa Supreme Court held that that Iowa Constitution required same-sex couples to have "full access to the institution of civil marriage".
- Hollingsworth v. Perry (2013) - The culmination of litigation before the US Supreme Court, the Ninth Circuit Court of Appeals, & the California Supreme Court, this decision held that California's constitutional amendment banning same-sex marriage was unconstitutional. Same-sex marriages were thus able to resume in California.
- United States v. Windsor (2013) - The US Supreme Court held that the Defense of Marriage Act, which denied Federal benefits to same-sex couples even when those couples were legally married under state law, was unconstitutional. This decision meant that in states where same-sex marriage was legal, same-sex couples effectively had the same marriage rights as het couples. Windsor & Hollingsworth were decided the same day, and together were seen as a sign that the US Supreme Court would soon legalize same-sex marriage. Anticipating this development, numerous state legislatures, state supreme courts, & US Circuit courts legalized same-sex marriage over the following two years.
- Obergefell v. Hodges (2015) - The US Supreme Court held that state prohibitions on same-sex marriage were unconstitutional and that same-sex couples had a right to marry in every state.
- Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) - The US Supreme Court held that Colorado's anti-discrimination commission, in requiring a bakery to bake a wedding cake for a same-sex couple, violated the baker's First Amendment right to free speech. The decision was narrowly grounded, objecting to the specific acts of the commission rather than to a general prohibition on anti-LGBTQ discrimination. Nonetheless, this case was widely seen as a sign that the US Supreme Court was becoming less willing to protect the rights of LGBTQ Americans.
- Bostock v. Clayton County, Georgia (2020) - Despite Masterpiece Cakeshop & the judiciary's general rightward turn, the US Supreme Court delivered a sweeping victory for LGBTQ+ rights. The court held that Title VII of the US Civil Rights Act, by prohibiting discrimination on the basis of sex, implicitly also prohibits discrimination on the basis of sexual orientation and gender identity. This ruling provided queer people throughout the United States with broad protection against discrimination in employment, and likely in many other areas where Federal law explicitly prohibits sex discrimination. Queer Americans & their allies had expected the court to rule the other way, & were surprised to see that conservatives Neil Gorsuch & John Roberts both voted in favor of protecting LGBTQ rights.
The status of homosexuality before the law, then, is in some degree of flux. While bare discrimination against homosexual status is facially unconstitutional and lacks a rational basis, and while preventing homosexual conduct is similarly unconstitutional, the Supreme Court has held in these landmark cases that the state may discriminate against homosexuals to preserve an "institution that the law protects" - namely, marriage. As such, the standard to be applied in deciding if discrimination against homosexuals is wrong is somewhere in between rational basis review and strict scrutiny review. Justice Antonin Scalia thinks that this uncertainty will surely be resolved in the favor of gay rights, and he warns that such a legal erosion will result in the downfall of the law's moral authority. Surely, society will end shortly thereafter.
There have been similar successes in other countries, some greater, some less.[more detail please]
Legal success in the United Kingdom
LGBT rights, when legislated upon, have usually only taken the form of gay rights legislation. Bisexuality and lesbianism have de facto kept up with any pro-gay laws, and are rarely legislated on specifically. Trans issues have largely been ignored, with some exceptions recently.
In Britain's earlier history, homosexuality was punishable for over 400 years, from the passing of the 1533 Buggery Act until the passing of the 1967 Sexual Offences Act. The 1967 Act only applied to England and Wales, but Scotland and Northern Ireland decriminalized homosexuality over a decade later, in 1980 and 1982 respectively. The gay rights movement largely stagnated until the 2003 Sexual Offences Act, which created an equal age of consent (of 16) for gay and straight intercourse.
Two Equality Acts of 2006 and 2010 put the law solidly on the side of LGB people when it came to discrimination. The Acts make discrimination in the workplace or through goods and services a sueable offence.
In recent history, the United Kingdom has passed three Acts which define marriage as one man, one woman - the Marriage Act 1949, the Nullity of Marriage Act 1971, and the Matrimonial Causes Act 1973 (a reiteration of the 1971 Act).
No legal recognition of same-sex relationships existed until the 2004 Civil Partnership Act, which was largely seen as a compromise between gay rights activists and more conservative Members of Parliament. The act passed after much debate but failed to secure property and pension rights for couples that had been together for at least 12 years. This meant that the fight for legal recognition of gay couples was not over.
Before his election, David Cameron ran on the promise of extended gay rights, which eventually evolved into full government-backed support of same-sex marriages in 2012 despite a quite disastrous interview. The 2013 Marriage (Same Sex Couples) Act ensured that marriage was gender neutral and allowed for gay marriages as of the 29th of March 2014. The Scottish equivalent of same-sex marriage was passed in February 2014.
Like in the gay rights movement, trans rights advocates argue that some or all transgender identities deserve dignity and respect. However, a major difficulty is that the vast majority of people are unfamiliar as to what transgender or transsexual exactly mean, though most find it easy to get what homosexuality entails. Since much of the recent success of the gay rights movement on the popular level is due to a simplification of message, the vast cultural ignorance of transgender people makes it generally harder to advance trans rights and dignities. This is further compounded by the fact that rabidly anti-LGBT religious organizations tend to consider transgender people "super-gays." The sheer number of different trans identities is daunting to most people who've lived in the gender binary their entire lives, presenting yet another obstacle to understanding.
In the United States, trans people have most if not all of their rights and protections as a result of legislative action at the local or state level. There has been only one important Supreme Court case regarding gender identity, which, far from deciding anything specific, merely left the question of gender nonconformity discrimination in employment open. As such, sixteen states, Washington, D.C. and several municipalities outlaw discrimination based on gender identity or expression in areas such as employment, housing and public accommodations (hotels, bathrooms, etc.).
Worldwide, the extent of trans advancement and rights varies considerably. Generally, countries with more gay protections have more trans protections, and countries with few to no gay rights have few to no trans rights. South Africa is by far the most advanced African nation on LGBT rights; oddly enough, Iran boasts criminalization of homosexuality but not of transsexualism.
Worst cases around the world
Some nations are especially hostile to LGBT rights, even going so far as to make being gay a crime punishable by death. Some of the most extreme cases of institutionalized and nationalized homophobia are as follows:
- Brunei - Passed a "stone the gays" law which was phased in from May 1st, 2014.
- Dominica - Imprisons LGBT people or places them in psychiatric hospitals for "treatment".
- Iran - Routinely executes gay people, but claims that no person is executed because they are gay, but because they totally committed rape or theft.
- Saudi Arabia - People caught engaging in same-sex activity may be stoned to death under Shari'a law.
- Somaliland - Rife with anti-gay militias and vigilante groups due to partial lawlessness in the region.
- Sudan - Flogging or imprisonment applies to gay and lesbians caught engaging in same-sex activity, and the death penalty is mandated for gay men on their third offence, lesbians on their fourth offence.
- Uganda - Noted for the "Kill the Gays" bill which received massive international condemnation in 2009. The bill would have mandated the death penalty for people caught engaging in same-sex activity, but was later revised (under international pressure) and issues life imprisonment instead. (Yay, that's so much better. -_-) The bill and the attention surrounding it drew international attention to homophobia in Uganda (and the links between Ugandan homophobia and American Evangelicals). The country is now considered one of the most dangerous places on Earth to be gay.
- Yemen - Officially, Yemen denies that it has any gay people but the state mandates floggings and the death penalty for people caught engaging in same-sex activity.
As of 2014, 7 countries mandate the death penalty for homosexuality, and a total of 82 countries (~41% of the world) criminalize homosexuality.
There are numerous aspects in society that LGBT people feel do not treat all sexual orientations and genders equally, and LGBT rights are by no means restricted to wanting same-sex marriage and protection from discrimination. Some of these other desired rights include the following:
- The right to adopt (gay couples are often barred from adopting a child together)
- The right to donate blood (many jurisdictions have a ban, either lifetime or a number of years, on men who have sex with men donating blood)
- The right to be openly gay or trans when serving in the military (See: Don't ask, don't tell)
- The right to have a same-sex partner as a successor and recipient of assets in the event of death
- The right to have sex reassignment surgery and to have your gender legally recognized on official documents
- Hate crime laws (while some jurisdictions allow victims to sue their attackers, many do not provide special legislation for hate crimes)
- Anti-bullying laws (specifically for schools and other educational institutions)
- Equal opportunity in employment
- Equal ages of consent
- Allen R. Schindler, Jr
- Lawrence v. Texas
- Reparative therapy
- Romer v. Evans
- Substantive due process
- Day of Silence
- American Equality Bill
- Well, there is, but there's a rigorous training program and a strict selection process, so you probably won't qualify.
- Romer v. Evans, 517 U.S. 620
- See generally Bowers v. Hardwick, 478 U.S. 186
- Lawrence v. Texas, 539 U.S. 558, Justice Anthony Kennedy, in the Opinion of the Court, found this in his historical analysis.
- Lawrence v. Texas, 539 U.S. 558
- Louisiana House Votes to Keep Unconstitutional Sodomy Law, Huffington Post
- East Baton Rouge Sheriff's Office plans to change practices, after report says deputies were ensnaring gay men, Nola.com
- Mississippi Passes Discriminatory Religious Freedom Bill, New Civil Rights Movement
- Mississppi Governor Has Now Signed Not One But Two Anti-Gay ‘Religious Freedom’ Bills Into Law, New Civil Rights Movement
- Kansas Senate Won't Consider Gay Couples Discrimination Bill, CJonline.com
- Indiana Pizzeria: No Pies for Gay Weddings
- The First Church of Cannabis was approved after Indiana’s religious freedom law was passed
- Lawrence v. Texas; Kennedy & O'Connor both reached this conclusion explicitly.
- Lawrence v. Texas, Scalia, J., dissenting.
- Commentary by Autumn Sandeen
- See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
- Brunei: ‘Stone the gays’ law to be phased in from tomorrow, Pink News