By: Sarah Hartley
It has been over seven years since Obergefell v. Hodges was decided, granting same-sex couples the fundamental right to marriage which heterosexual couples have had for centuries. Over time, support for same-sex marriage continues to increase. In 1996, a Gallup poll found that only 27% of survey participants supported same-sex marriage. In 2015, the year in which Obergefell legalized same-sex marriage, the Gallup reported 60% of respondents supported this right to marry. This year, the Gallup has reached a new high with 70% of respondents supporting same-sex marriage.
Obergefell is often regarded as a landmark case in the fight for the equal rights of LGBTQ+ people; and, as noted above, public support has continued to increase over time. Gallup has also reported that the majority of Americans support passing laws that would grant broader protections to the LGBTQ+ community in general. The poll data undeniably shows increasing American support for the LGBTQ+ community, so why has the country seen the biggest increase in filing discriminatory bills this year? Why wait years to push back hardest against a group whose rights have already been established in not just one, but two major Supreme Court decisions?
In 2018, state legislatures across the country filed a total of 41 bills that were deemed to be anti-LGBTQ+. By March 20th of this year, there had already been 238 anti-LGBTQ+ bills filed, greatly surpassing the record of 191 in 2021, which was labelled as the “worst year in recent history for LGBTQ state legislative attacks.”
In Florida, Governor Ron DeSantis passed the “Don’t Say Gay” bill, preventing educators from discussing sexual orientation and gender identity in the classroom. The bill completely prohibits discussion of these topics in grades kindergarten through third, and restricts discussion in higher grades by only permitting conversations that are age or developmentally appropriate—the definition of which is unknown. In Arizona, a state with some of the most anti-LGBTQ+ bill proposals, Governor Doug Ducey has passed bills that will have a variety of implications for the LGBTQ+ community. Senate Bill 1399 allows third-party adoption agencies to discriminate against same-sex couples on religious grounds. Senate Bills 1138 and 1165 ban young trans people from receiving certain medical procedures and participating in sports alongside the gender with which they identify. Governor Ducey has also passed House Bill 2161 which grants parents access to their child’s entire record of school health and counseling visits, essentially outing students who have disclosed their sexual orientation or gender identity to a school faculty member but may still be hiding their identity at home. These are just two examples of the ways in which state legislatures are enacting anti-LGBTQ+ laws. Nearly all 50 states have introduced some legislation mirroring the discriminatory provisions of the Florida and Arizona laws.
So, what is the true motive behind the filing of these bills? Political strategist, Sarah Longwell, attributes most of this anti-LGBTQ+ rhetoric, which is reaffirmed and heightened with the passing of each bill, to the election year. She notes that LGBTQ+ issues are a wedge in the political arena, and because of this, conservative politicians tend to use these bills to gain more support from certain religious voters and those who align themselves with the institutions in traditional society. But can the election year really be the sole motivator behind LGBTQ+ discrimination? The 191 anti-LGBTQ+ bills filed in 2021 would seem to undermine that theory. Still, the numbers reflecting public support for LGBTQ+ rights and same-sex marriage are continuing to grow, so what are we missing?
While the number of anti-LGBTQ+ bills being filed are increasing, the subject matter of those bills is not staying consistent. As the numbers of filings increase, so does the percentage of bills which target trans people. In fact, while support for same-sex marriage continually upticks, transgender folk are failing to see the same amount of community support. A recent NPR poll showed that 63% of Americans do not support trans women or girls in competing on teams that align with their gender identity. When asked about state legislation that bans trans youth from accessing gender-affirming surgery, only 31% of Americans said they strongly opposed these bills.
Perhaps the answer is not easy to reach because there are several underlying reasons—the election year, the wedge issue, the lack of public support for trans rights and access to healthcare. Still, one cannot ignore the shift that has occurred over the years; a shift which has led to an increase in bills that negatively affect one sect of the LGBTQ+ community while the public simultaneously spouts its support for another. Obergefell established a fundamental right for same-sex couples nationwide, and since its passing, support has continued to grow. Is the solution to protecting the LGBTQ+ community, specifically trans people, within the power of the Court? Does the trans community need a landmark Supreme Court case in its favor to overcome the harmful rhetoric spread by politicians during election years? And how will the Dobbs decision affect this analysis if it someday leads to the overruling of Obergefell? These are all questions that are yet to be answered, but as state legislatures continue to pass anti-LGBTQ+ bills into law, one can only hope that the Court will one day take a stand in protecting LGBTQ+, and specifically, trans rights.
Sarah (she/her) graduated from the University of Pittsburgh with a B.S. in Psychology. She is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law and hopes to eventually work with juveniles being charged as adults. Her legal interests include indigent defense, criminal justice reform, post-conviction relief, and issues affecting the LGBTQ+ community. When not in law school, Sarah enjoys cooking, traveling, and learning new languages.