After Orlando, the Road to Equality Just Got Longer

Pulse – the gay bar in Orlando that was recently the scene of the worst mass shooting in U.S. history – first opened its doors in 2004, just as gays and lesbians started gaining legal support for their relationship rights. At that point, more than forty states had barred marriage equality, and their fight was contentious. But eleven years later, the Supreme Court would disband those restrictions and declare as constitutionally protected the right for same-sex couples to marry.

Many hoped that marriage equality would change the climate—that Supreme Court intervention would help heal a divided nation. And to a degree it has. But marriage equality comprises only one aspect of LGBTQ life—and affects only a portion of LGBTQ individuals.

Marriage is in fact only the beginning rather than the end of the push for full equality. The massacre at Pulse and the (increasingly vitriolic) debate over transgender bathrooms betrays a continued hostility towards members of the LGBTQ community and highlights just how far we need to go.

Transgender students and their parents are among the most recent LGBTQ advocates to demand a more expansive conception of equality—one that extends far beyond marital recognition. From elementary schools to universities, in small neighborhoods and bustling college campuses, transgender students have demanded access to bathrooms that match their gender identity.

Bathroom access represents a critical hurdle to equality. In addition to the obvious degradation that accompanies being forced to use a bathroom populated by individuals that do not share your identified gender, transgender students also endure physical and emotional threats and abuse when safe bathroom facilities and policies are not in place. In a survey commissioned by the Williams Institute, 68% of transgender respondents reported having been verbally harassed while attempting to use their preferred bathroom. Nine percent reported physical threats. A Washington, D.C.-based survey found that 70% were either verbally or physically threatened. Perhaps even more startling, one study found that a majority (61%) of transgender individuals who reported having been denied bathroom access had attempted suicide—a significantly higher rate than for participants who had not encountered bathroom hostility.

Importantly, transgender students face these threats even when they use bathrooms that match their birth-assigned genders—as some public officials and administrators currently require. Payton McGarry, a transgender male and advocate, recalls having been “screamed at, pushed, shoved or even slapped” when he attempted to use the women’s restroom after his body had begun to develop more masculine attributes. Mara Keisling, executive director of the National Center for Transgender Equality (and a transgender woman) used the women’s bathroom in the office of North Carolina Gov. Pat McCrory, who has been an outspoken supporter of transgender restrictions. Although according to state law she should have used the men’s bathroom, there would have been a commotion, she remarked, “had I used the men’s room in front of all those police officers.”

With these attendant risks, many transgender students delay bathroom use until they are at home (increasing the likelihood of urinary tract or kidney infection), travel lengthy distances to find less risky accommodations, or (if permitted) use facilities that are further stigmatizing (like a janitor’s closet or a faculty lounge).

In the face of these concerns, transgender students, from elementary school- to college-age, have compelled school boards, administrators and legislators to change policies and earmark funds to increase the number of gender-neutral bathrooms in schools, on campuses and in public spaces. California now requires all K-12 settings to provide gender-neutral facilities to students. The cities of Charlotte, North Carolina, and Houston, Texas, recently passed ordinances barring discrimination based on sexual orientation and gender identity in all public accommodations—including public or commercial restrooms.

The Obama administration has bolstered these efforts. While the federal government has yet to pass legislation barring discrimination based on gender identity, federal agencies now read current civil rights policies regarding sex discrimination as protecting transgender rights. Effectively—as long as Obama’s directives remain in place—all schools receiving federal support must allow any transgender student access to facilities that comport with their identified gender.

LGBTQ individuals still face an uncertain (and unwelcoming) world. Political and social struggle remains the rule, not the exception. Marriage equality, while a necessary beginning and important accomplishment, has not changed that fact.

In several instances, the private sector has also responded. A Kroger grocery store in Athens, Georgia, was one of the first to receive national attention when it decided to replace its binary gender bathroom signs with unisex signs. Target now permits all customers and staff to use the restroom that most closely correlates with their own gender identity. Starbucks, Barnes and Noble and Saks Fifth Avenue are implementing similar measures.

But for every incremental step toward progress, there’s been equal or greater hostility and backlash.

One month after Charlotte passed its LGBTQ ordinance, North Carolina passed sweeping legislation (HB-2) outlawing any city or county in the state from enacting measures that would surpass state-level policies—an act that effectively bars LGBTQ residents from seeking non-discrimination protections.

Anti-gay advocates in Houston, Texas, went to court to pressure the city to seek voter approval for their gay rights ordinance. After anti-gay forces prompted widespread panic that the policy would permit any man to use facilities designated for women, Houston voters overturned the ordinance. The state is now considering following North Carolina’s lead.

Eleven states have signed on to a lawsuit condemning the Obama administration for its regulations regarding transgender students. And the Kansas State Board of Education just voted to officially ignore Obama’s directive.

Other states have addressed resident aversions to LGBTQ rights advances by passing faith-centered policies. Mississippi now explicitly permits any state resident with faith-based objections to deny employment, housing or any service to LGBTQ individuals. Tennessee passed legislation allowing any therapist or psychologist with faith-based reasons to refuse to treat LGBTQ clients.

Additionally, buoyed by state action, some anti-gay rights leaders have either directly or implicitly called for individuals to take up arms against LGBTQ progress. Anita Staver, the head of the anti-gay Liberty Counsel, tweeted that she will now carry a “Glock .45 to the ladies room” in Target. A Texas Republican candidate for sheriff posted a similar directive on Facebook, warning that “if my little girl is in a public women’s restroom and a man, regardless of how he may identify, goes into the bathroom, he will then identify as a John Doe until he wakes up in whatever hospital he may be taken to.”

Prominent evangelical James Dobson lamented the loss of 19th century mores in his recent criticism of Obama’s transgender directive. “If you are a dad,” he implored, “I pray you will protect your little girls from men who walk in unannounced, unzip their pants and urinate in front of them…If this had happened 100 years ago, someone might have been shot. Where is today’s manhood? God help us!”

Paradoxically, rather than protecting women, this rhetoric is endangering women. These calls for violence against transgender women have encouraged individuals to take the law into their own hands—increasingly against birth-assigned women who identify as women but who are mistaken for men. Aimee Toms was using the women’s restroom in a Danbury, Connecticut, Walmart when a stranger called her “disgusting” and said “you don’t belong here.” Aimee realized, after a moment of shock, that, because of Aimee’s pixie haircut and baseball cap (Toms had just donated her hair to a children’s cancer charity), the stranger had assumed she was transgendered.

In all, LGBTQ individuals still face an uncertain (and unwelcoming) world. Political and social struggle remains the rule, not the exception. Marriage equality, while a necessary beginning and important accomplishment, has not changed that fact.

Hours after the Orlando shooting—yet before its full significance came into light—some public figures intimated that the slaughter may have been deserved. As Texas’s Lt. Governor tweeted shortly after the massacre (and later retracted), “Do not be deceived. God cannot be mocked. A man reaps what he sows.” Yet, despite the location, timing and victims of the crime—and the lingering homophobic responses—it has been difficult for many to acknowledge this act as a crime of hate, as an extension of our nation’s history of homophobic policies, politics and practices.

When we seek to erase the identities of the victims and the context of the violence, we disparage their legacy and downgrade its significance. This crime was committed against individuals who are routinely vilified by many Americans, in a setting lambasted by many Americans, and by an individual who recycled the homophobic rhetoric used by many American elected public officials.

As Justice Kennedy foretold in Lawrence v. Texas, “state sponsored condemnation” licenses further “discrimination both in the public and private realms.” The forces that compelled North Carolina legislators to pass one of the nation’s most crippling anti-gay policies; the beliefs that inspired 11 states to sue the Obama administration; the environment that has allowed Mississippi and Tennessee to grant the use of faith to propagate hate—these are the forces, beliefs and environments that permitted the murder of 49 innocent people whose only crime was to live openly as LGBTQ people of color—and to seek out a place of inclusion and empowerment. The fact is, this occurred on our watch, under our roof, against our community and with the encouragement of those charged with protecting our rights. Our only hope of stopping the violence is to acknowledge the nature of the crime, root out its causes and demand change.

Alison Gash

Alison Gash is the author of Below the Radar: How Silence Can Save Civil Rights (Oxford University Press, 2015). Her work on LGBTQ rights has also appeared in Politico, Newsweek, Slate, Huffington Post and The Conversation. She is an Associate Professor of Political Science at University of Oregon. Views expressed are solely her own and are not meant to represent those of the University of Oregon.