FOR LGBTQ COMMUNITY, THE BATTLE CONTINUES - The ping pong back and forth has to end
It is legally permissible in 21 states to refuse to rent an apartment, bake a cake, serve food at a restaurant, and lend money to a LGBTQ person. Fortunately, New Hampshire is NOT one of those states. New Hampshire is one of the enlightened states, or so I thought.
When it comes to employment, the U.S. Supreme Court in 2020 finally ruled that Title VII of the Civil Rights Act protects LGBTQ people from discrimination in all the states. This case explicitly included “sexual orientation” and “gender identity” as protected classifications. Justice Gorsuch, a Trump appointee (much to the chagrin of Trump), wrote the majority opinion.
Prior to the 2020 Supreme Court ruling, it depended on who was in the White House as to whether transgendered people were protected from discrimination in federal employment. Obama issued an Executive Order in 2014 protecting transgendered people. In 2017, Trump reversed Obama’s order with his own Executive Order. Trump also reversed Obama’s order to allow transgendered people to serve in the military.
Over the years Congress has attempted to add “sexual orientation” and “gender identity” to the Civil Rights Act, calling the bill the “Equality Act.” It passed in the House during the Trump administration but he promised to veto it, so it never went anywhere in the Senate. On February 25, 2021, the Act passed in the House again, but the likelihood of it passing in the Senate is negligible due to the filibuster rules requiring 60 votes. Biden would not veto the bill if it miraculously passed in the Senate.
For decades the LGBTQ community has been like a ping pong ball gaining and losing anti-discrimination protections, not knowing which way to turn. We have had to engage in voluminous legal battles to gain protections against discrimination. In all of the cases the parties who sought the protection to fire LGBTQ people did so without any qualms or moral equivocation. They just plain wanted the “special right” to discriminate because of fear, animosity, or because their religion required them to.
On top of that, because of freedom of religion guaranteed in the First Amendment, religious institutions can close their doors to the LGBTQ community or refuse to conduct marriages, which was finally legalized by the U.S. Supreme Court in 2015. The conservative wing of the Methodist Church is seeking to break away from the main church because they do not want to be inclusive or be forced to conduct same-sex marriages.
So, it is no wonder that people still feel emboldened to say LGBTQ people have “deviant sexuality,” which the Republican representative from Manchester, Rep. Dick Marsten, was quoted as having said at a committee hearing on HB 238, a bill attempting to address the use of “gay panic” defense in cases involving manslaughter.
What surprised me more than the comment made by Marsten was the fact that the chairman of the committee, Rep Daryl Abbas, a Salem Republican, immediately rebuked Martson and ordered the hearing be adjourned.
In the 1990’s, I attended many committee hearings and floor hearings at the State House when we were advocating for the inclusion of “sexual orientation” as a protected class in the state’s anti-discrimination law, which finally passed in 1997. I cannot tell you how many times members of the legislature and public called me “sexually deviant,” an “abomination,” or that I was someone seeking “special rights” or “special privileges.” Never once was a hearing adjourned or a person rebuked when that happened.
My community had to grow thick skin back in those days in order to fight for due process and equal protection under the law guaranteed by the 14th Amendment of the United States Constitution. I had to stuff many angry feelings, especially when protesting against Fred Phelps and his Westboro Baptist Church members holding signs that said “God Hates Fags” and “Thank God for 9/11.” They even showed up at soldier’s funerals believing they were killed as a result of God punishing the U.S. for having "bankrupt values" and tolerating homosexuality.
I’ve wept every time another news story comes out about a gay man, lesbian woman, or transgendered person being murdered or lynched by a mob of homophobic or transphobic thugs. Today, transgender people of color are killed at higher rates than any of the other categories.
It was heartening to see Abbas take a stand in defense of the LGBTQ community, but I’m afraid he may have stepped on another right guaranteed by the Constitution, the First Amendment right to free speech. Yes, Marsten had the right to say what he said because it was his opinion and belief. But as a state representative he should be more thoughtful about his public remarks and rise above spewing the same old tropes about the LGBTQ community.
Considering the make-up of the current Republican leadership and the uneven examples of discipline already handed out, I doubt whether Marsten will be called to the carpet for his insensitive remarks. HB 238 has been tabled, so the subject of the “gay panic” defense will not be brought up again until next year.
In the meantime, my hope is that people will recognize that LGBTQ people have feelings and in this day and age, after so many decades of open hatred and harassment, I’d like to think people will think twice before uttering derogatory and offensive words against their fellow citizens. After all, we are all protected by the 14th Amendment.
P.S. The above essay was submitted on March 5 and many things have happened since then. First, Rep. Marsten issued a sincere apology and I want to thank him for that. It goes a long way toward healing. Second, the NH Legislature is considering a bill that will prohibit transgender youth from participating in sports. This is just another example of people feeling emboldened to discriminate against their fellow citizens. They are out of touch with reality. Third, this morning (3/12) I heard on NPR that South Carolina is entertaining a Hate Crimes bill that would enhance criminal penalties for crimes motivated by hate against a person’s race. The bill specifically excludes the LGBTQ community in order to appease the Republicans who would refuse this bill if it included them. This is a blatant violation of the equal protection clause of the 14th Amendment. This assault on the LGBTQ community must stop!