The rising tide doesn’t lift all boats

TW: heterosexism, cissexism

A number of legal cases for marriage reform and the new state leadership in Virginia have combined to create the perfect storm in that state for the current ban on LGBTQ* marital recognition to be struck down. Elected only this past fall, current Attorney General Mark Herring campaigned on the basis of expanding marriage rights and in response to the various looming legal cases previously announced that he was “reviewing appropriate legal options” and has now filed alongside the plaintiffs in one Virginia case. This is a dramatic reversal to Virginia’s policy, which currently not only bans the recognition of those marriages but also the provision of any legal status to a same-sex couple with rights comparable to marriage.

Virginia joins a list of states, surprising to some, that have seen this issue recently come into question in spite of strict state-level bans. Both Utah and Oklahoma have in the past few weeks had federal judges strike down their policies, although granting same-sex couples marriage licenses has now been halted in Utah and not yet occurred in Oklahoma. All three of those states only had their sodomy laws, which banned sexual acts between same-sex couples, wiped out in only 2003 by the federal Supreme Court. To call this a quick progression seems like an understatement.

The expanding possibilities for many couples in all three of those states is highly limited, however, outside of the still uncertain changes to marriage laws. Housing discrimination against LGBTQ* people remains legal in all three. Likewise, none of those states collect or prosecute hate crimes against LGBTQ* people. Virginia is the only one of those states that has any protections against employment discrimination, which only applies to state employees and was only added earlier this month. All three also lack any sort of systemic protection for LGBTQ* people against harassment in schools or discrimination in accessing healthcare.

usa map - states with effectively no protections -
(The states shaded in above with red do not have any significant state-level protections for LGBTQ* people. They do not bar employment discrimination in either the public or private sectors for only cis LGBQ* people. They do not bar housing discrimination, again, even against cis LGBQ* people. They do not prosecute anti-LGBTQ* hate crimes, or even record them for federal purposes. Until this month, Virginia was also a member of this category.)

A common complaint in LGBTQ* activism is that the movement for recognizing their rights is overly focused on marriage and particularly avoids addressing the needs of transgender people. The evolving policies in these three states seems to suggest that, as they not only are far behind in protections other than marriage for LGBTQ* people, but they are among the most difficult states for transgender people to live in.

Oklahoma is among the few states that in a technical sense does not recognize transgender people – the state has no policy for or practice of changing the gender listed on a birth certificate. Utah and Virginia do modify birth certificates, but each with a catch. Utah fails to provide a new one, and simply “amends” an old one, which means that after modification it will come under increased scrutiny because of how it is “amended”. Virginia, alternatively, provides a new and authoritative certificate, but only after proof of an invasive surgery is offered. All three states fall far short of an ideal policy.

With one of several marriage cases already scheduled for January 30, majorities of Virginians in some polls supporting a turn from the current policy, and many legal experts comparing this issue to the push for legal interracial marriage (which was won nationally by a Virginian case), the next few weeks should hold some interesting developments. That said, Virginia, like much of the US, lags behind on the various other protections that LGBTQ* people find themselves in need of, particularly those most relevant to transgender people. Marriage reform is a necessary ingredient for resolving heterosexist and cissexist inequality in the US, but it isn’t sufficient on its own, which is among the “best” outcomes at the moment in those three and many other states. There may be a rising tide, but we’re seeing it fail to lift all boats at the moment.

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