Kriston Capps is a staff writer for CityLab covering housing, architecture, and politics. He previously worked as a senior editor for Architect magazine.
Sunday marks one year since a huge victory for marriage equality. But over that year, discriminatory legislation has exploded across the U.S.
President Barack Obama named the Stonewall Inn a new national monument Thursday, making making it the first cultural marker of the LGBT equality movement in the national park system. The new Stonewall National Monument honors the site of the Stonewall Uprising of June 28, 1969—the day the queer community refused to be suppressed by law enforcement any longer.
The designation of the Stonewall National Monument comes just days before the one-year anniversary of Obergefell v. Hodges, the U.S. Supreme Court decision that guaranteed the rights of same-sex couples to marry all over the nation. A Gallup poll released this week shows that nearly 10 percent of LGBT adults in the country are now married to a same-sex spouse. One year after Obergefell, same-sex marriages are surging in all 50 states and the District of Columbia.
These anniversaries arrive as the nation is still mourning the victims of the Orlando massacre, a tragedy that feels as if it has been with us for months or years, but happened less than two weeks ago. Both chambers of Congress are occupied by a debate over guns and terrorism (although the research is clear on the need for tighter gun restrictions). Despite recent victories for the LGBT community, lawmakers must not lose sight of the prize: meaningful protection, recognition, and inclusion for all LGBT people.
At the state level, many legislatures have worked to move in the opposite direction. Anti-LGBT animus is on the rise in the form of rear-guard legislation proposed across the country. Conservative lawmakers in dozens of states act as if the Obergefell decision never happened, as if the Orlando massacre were not a real backdrop for discussions about danger, safety, or homophobia.
The Human Rights Campaign reports that, in 2016 alone, state legislatures have introduced more than 200 anti-LGBT bills in 34 different states. More are expected this year, as some state legislatures are not yet in session. While most of these bills are dead for procedural or calendar reasons, HRC is currently tracking more than a dozen active anti-LGBT bills.
Using information from HRC and data from the American Civil Liberties Union, and drawing on state resources, CityLab has compiled a series of maps to show both the kinds of anti-LGBT legislation popping up today and where these bills are appearing. HRC does not share its detailed legislative tracking findings, so these maps represent a snapshot of legislative efforts in 2016. All the bills under discussion have appeared in at least these states, but some might be missing (and more may appear in statehouses soon). For reasons explained below, tracking anti-LGBT legislation involves parsing some slippery logic at times.
An explosion of anti-transgender “bathroom bills”
Easily the biggest conservative state legislative trend of 2016 has been the rise of so-called “bathroom bills”: legislation that requires transgender people to use bathrooms corresponding with the sex assigned to them at birth, not the one that corresponds with their gender identities.
North Carolina was the first state to pass an anti-transgender bill, with H.B. 2, a piece of legislation that has already cost the state hundreds of jobs and millions of dollars. But the Tar Heel State was very nearly beaten to the pass by South Dakota, whose legislature passed a law in February restricting the use of school bathrooms and showers by biological sex. South Dakota Governor Dennis Daugaard vetoed the bill in March, and a subsequent override failed three weeks before North Carolina Governor Pat McCrory signed H.B. 2 into law.
Lawmakers in Virginia, Tennessee, Washington, and a dozen other states have put forward bathroom bills so far this year. Most of these acts either died on the vine or were withdrawn. More are coming this year—Texas, whose legislature is not yet in session, is bound to try one—and other states that do not revive the effort in 2016 maybe try again in the next legislative session.
State efforts to preempt cities on LGBT rights
H.B. 2 did more than just deny transgender residents of North Carolina the dignity of access to restrooms that suit them. The bill also foreclosed on the rights of municipal governments to pass ordinances expanding civil rights protections to include sexual preference or gender identity. In fact, it was an effort by Charlotte to pass a more inclusive nondiscrimination ordinance that touched off the state action.
In Jackson, Mississippi, just days after the Orlando massacre, the Jackson City Council voted unanimously to expand the city’s nondiscrimination code to include protections for sexual orientation and gender identity. While the Mississippi state legislature has not yet put forward a bill preempting the city’s right to do so, it could happen when the legislature is next in session.
Preemption is a serious problem for local governments on a number of fronts, including minimum wage requirements, affordable housing, and environmental protections. In 2016, Oklahoma shot for the moon: One lawmaker proposed a bill prohibiting any municipal ordinances that didn’t adhere to state law.
Two models for nondiscrimination laws: robust and leaky
Lawmakers across a large swath of states put forward nondiscrimination bills at the state level in 2016. These bills took two forms—expansive or restrictive—and in some states, lawmakers proposed enacting both kinds of laws.
The ACLU describes one set of bills as affirmative and comprehensive: laws that prohibit discrimination on the grounds of both sexual orientation and gender identity. States with comprehensive nondiscrimination acts offer protections in a number of categories, including employment, housing, public facilities, and so on.
There are 17 states that have comprehensive nondiscrimination acts on the books currently. The map above depicts states where nondiscrimination laws were proposed in 2016. This gets confusing fast: For example, Utah already prohibits discrimination on the basis of sexual orientation and gender identity; however, a law proposed in February, S.B. 241, would have expanded the law to specifically guarantee those protections in public accommodations and business establishments.
Lawmakers in some states introduced incomplete nondiscrimination acts: bills that prohibited discrimination on the grounds of sexual orientation or gender identity, but not both. (Or neither.) And in six states, lawmakers proposed dueling bills, complete and incomplete.
A range of bills that all do the same thing: trump LGBT rights
In the wake of Obergefell, lawmakers across the country have proposed a wide variety of laws focused on protecting the religious rights of residents—that is, enabling them to continue discriminating against LGBT individuals. Those rights cannot reasonably coexist in the public square. The question is not if but when the courts will take up all of these questions as they are passed into law.
- First-Amendment Defense Acts: Literally unnecessary, given that the First Amendment is already enshrined by the Constitution, these are typically the broadest bills enabling discrimination against LGBT people, and therefore the most dangerous. These cite the First Amendment as enabling any employer, institution, or for-profit businesses to discriminate against same-sex couples, non-heterosexual relationships, or both. As my colleague Tanvi Misra reported, Georgia’s governor vetoed just such a bill in March, fearing the economic backlash that has greeted North Carolina.
- Access to Health Services, Adoption, and Foster Care: These anti-LGBT bills specifically restrict the rights of same-sex couples to receive the same benefits as heterosexual couples. Acts like these still exist in 2016. Note that the anti-transgender bill above differs from the map of bathroom bills, as it includes states where legislators have proposed bills that restrict coverage for medical procedures for transgender patients (for example).
- Marriage Exemptions: Some lawmakers resorted to truly desperate measures to try to work around the Supreme Court’s decision in Obergefell. Two representatives in Michigan proposed a law requiring all marriage certificates be signed by a clergy member to be legal. It didn’t work out.
- Religious Freedom Restoration; Government Employee; Pastor Protection; Religious Employers; Wedding Services: Your standard-issue “conscientious objector” acts. Kim Davis gonna Kim Davis. Several specify the right to discriminate by job category (what is up with cake bakers?). Some are more subtle: A Missouri bill would have altered the definition of “employers” to include religious institutions or even religious persons, making discrimination by pretty much anyone permissable under law.
- Colleges and Universities: The most liberal category of anti-LGBT legislation, these laws require state colleges and universities to provide facilities and resources to student groups even if they discriminate against LGBT students on religious grounds. That’s the law in Kansas and could be the law in California.
Needless to say, given dozens of bills, there is considerable overlap between one state’s First Amendment Defense Act and another state’s Religious Freedom Restoration Act. Many of these bills can be found on this helpful page maintained by the ACLU, though CityLab’s categorization differs somewhat from theirs.
The last two states in the Union to accept same-sex marriage
No one told lawmakers in Oklahoma and Tennessee about Obergefell, because these states were still trying to pass laws forbidding same-sex marriages in 2016. Oklahoma tried to forbid taxpayer funds or government salaries going to clerks who issued licenses for same-sex marriages, That’s right: The state tried to defund same-sex marriage. A bill in Tennessee enshrined “natural” marriage as the law of the land, “regardless of any court decision to the contrary”—which isn’t how the law works, but ¯\_(ツ)_/¯.
To be sure, many LGBT Americans are better off today than they were a year ago, the efforts of the country’s most backward lawmakers notwithstanding. The overwhelming majority of anti-LGBT laws (97 percent) went nowhere. That hasn’t stopped lawmakers from trying, and in some cases, succeeding—most notably in North Carolina. Many more states are getting it right than getting it epicly, disastrously wrong.
The sheer range of anti-LGBT bills nationwide (and clear unconstitutionality of so many of them), however, points to a different problem: Races for state legislatures are uncompetitive and broadly do not represent LGBT interests. In Georgia, for example, 80 percent of the races for state legislature this year will go uncontested. Ballotopedia finds that “close races” at the state level have all but disappeared over the past 40 years.
Ultimately, preserving the rights of LGBT Americans means adding sexual orientation and gender identity to the protected classes safeguarded by the Civil Rights Act. Barring that, LGBT persons and their allies need to find greater purchase in state and local government—since state lawmakers don’t appear to want to drop discriminatory ideas any time soon.