Fifteen years ago, I helped interviewed some 140 gay, lesbian, bisexual, and transgender students in seven US states about their day-to-day life in middle and high school. We heard grim reports of unchecked verbal abuse escalating into violence and of school administrators’ deliberate indifference when abuses were brought to their attention.
One lesson of that investigation was that laws, even when rarely enforced, can send a powerful message. Many teachers told us, with great shame, that they feared losing their jobs if they protected their students from attacks.
One reason was that in 2000, some states had laws on the books criminalizing gay and lesbian sex between consenting adults. Even if people were hardly ever prosecuted under those laws, they could be used to fire gay men and lesbians or withdraw job offers.
More generally, most state and local non-discrimination laws didn’t, and unfortunately still don’t, cover sexual orientation and gender identity. As a result, teachers feared they’d be presumed to be gay themselves if they tried to put a stop to anti-gay bullying, putting their jobs at risk.
The legal landscape was different in other ways. “Don’t Ask, Don’t Tell,” the ban on military service by lesbian, gay, bisexual, and transgender people who were open about their sexual orientation or gender identity, was official US policy, and would be for over another decade. Just one state, Vermont, allowed same-sex unions—but not, at that point, with all of the protections that come with marriage.
Fast-forwarding 15 years, same-sex couples can now marry in 37 states and the District of Columbia. Court rulings in seven other states have affirmed a right to marry, in decisions that have been stayed while they are appealed.
Anticipating a US Supreme Court ruling in June declaring equality in marriage the law of the land, Texas lawmakers are considering following the example of the chief justice of the Alabama Supreme Court, who ordered the state’s probate judges to disregard a federal court order that required them to issue marriage licenses to same-sex couples.
Elsewhere, states have pre-emptively moved to legalize discrimination in the name of “religious freedom.”
Most notoriously, Indiana passed the Religious Freedom Restoration Act in April to allow private businesses and individuals to decline to provide services to LGBT people, overriding local ordinances that forbid discrimination based on sexual orientation. The law would not only protect the caterers, photographers and florists who want no part of same-sex weddings, but presumably other people who wish to refuse to do business with LGBT customers by asserting that it would conflict with their religious beliefs.
After an outcry by local business interests, among others, Indiana lawmakers quickly amended the act to provide that it couldn’t override civil rights protections. But in most of the state one can still discriminate on the basis of sexual orientation, so the issue is far from resolved.
Other states have religious freedom laws, although most of those are designed to guard against government, not private, acts that burden the exercise of religion, meaning they’re not as far-reaching as Indiana’s. But among the dozen more that are considering such measures, some states are seeking to replicate what Indiana tried to do.
More state legislation can be expected if the Supreme Court upholds equality in marriage. It will be a way for opponents of same-sex marriage to attack it indirectly. One would like to think the courts will ultimately rule against such laws, but that doesn’t make them harmless.
What makes these measures particularly pernicious, even if rarely used, is the message they send. At the highest levels, states that enact such laws are saying that we’re not all equal, that some of us aren’t worthy of even-handed treatment. And that can be especially harmful to adolescents and younger children, who are still developing and getting comfortable with their identities.
“Names can never hurt me,” a children’s rhyme claims. That’s not really true, as I heard over and over again. Ugly words do hurt, and sometimes the damage they leave is longer-lasting than physical injuries.
Already, 93 percent of LGBT young people in Indiana report they hear homophobic remarks regularly. The last thing lawmakers should be doing is to give tacit approval for such sentiments, and for the escalation in abuse that can follow.
May 17 is the International Day against Homophobia. A great way to honor that day would be for lawmakers to withdraw their support for underhanded efforts to legalize discrimination and instead send a message that we are all equal in dignity and rights.
Michael Bochenek is the senior children’s rights counsel at Human Rights Watch.