Analysis Law and Policy

Marriage Equality: As Go Millennials, So Goes the Nation

Debra Hauser

The movement on marriage equality is an example of how quickly change can now occur in our society when propelled by a generation that is technologically savvy and willing to challenge preconceived norms of older generations.

Inevitable. Since President Obama announced his personal support for marriage equality last month, reporters and pundits alike have said same-sex marriage is “inevitable.” That it is only a matter of time before gay and lesbian couples will be allowed to legally marry across the United States. And, now just last week a federal appeals court has ruled the Defense of Marriage Act unconstitutional because it denies equal rights for legally-married same-sex couples. With the personal backing of Vice President Biden, Secretary of Education Arne Duncan, President Obama, the NAACP, Latino singer Ricki Martin, and even hip hop mogul Jay-Z  it might just be the case that marriage equality is inevitable.

Of course, not everyone agrees with the President’s position. Opponents of same-sex marriage are numerous and vocal, the Defense of Marriage Act is currently still on the books, and 31 states have a constitutional ban preventing same-sex marriage.

So why does marriage equality now look inevitable? The answer may be found with the swiftly growing cultural acceptance of gay and lesbian rights and demographic changes that elevate the potential political power of Millennials.

The change in public attitudes on marriage equality has been rapid. In just eight years, the national polling shows a shift of 16 percentage points in favor of marriage equality1. And, only 16 years after President Clinton signed into law a bill defining marriage as the union between a man and woman, we have President Obama coming out in support of same-sex marriage and a federal appeals court ruling the law unconstitutional. The movement on marriage equality is an example of how quickly change can now occur in our society when propelled by a generation that is technologically savvy and willing to challenge pre-conceived norms of older generations.

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Millennials represent an ever increasing share of the electorate. Young people born between 1980 and 1991 comprise 64 million potential voters in 20122.  And they support marriage equality. If you look at any recent poll, the divide between those who support gay rights and specifically marriage equality, and those who oppose it, can be measured in years:  if you’re under 29 you are more likely than any other generation to support the rights of gay and lesbians and to support marriage equality– and politicians and other leaders have clearly taken notice. In recent months, support for marriage equality reached a new high with 74 percent of Millennials supporting legal recognition of marriage between gay and lesbian couples3.  

Despite the popular misconception of rampant homophobia within communities of color, support for gay rights is also strong among young adults of color. Over two-thirds (67 percent) of Millennials of color support some form of legal recognition of gay couples — either legal marriage (48 percent) or civil unions (19 percent). The numbers are similar to those of young adults across the country. In fact, only three in ten youth of color (29 percent) say there should be no legal recognition.  To break these numbers down further, 58% of African-American, 70 percent of Latino, and 76 percent of Asian Pacific-Islander youth agree that same-sex couples should receive legal recognition4.

While previous generations paved the way for change, Millennials are the first generation to see consistently positive images of gay men and women in the media, the first to grow up with Gay/Straight Alliances in their schools, and the first to routinely know families with two mothers or two fathers. They are also the first generation to be completely at ease with social media, using it not just as a means to exchange information but as a pathway for shifting norms, attitudes and beliefs among their peers.

Millennials grew up with gay characters featured prominently in the popular television shows they watched, and not just as guest appearances or in stereotypical roles, but in lead roles. Gay characters – particularly portrayals of gay teens – humanized gay and lesbian stories and became an important part of the collective adolescent psyche.

Millennials are digital natives – they have lived their whole lives with the Internet, social networks, and texting and most are completely fluent with these technologies. Three-quarters have created a social networking profile, eight in ten report texting in the last 24 hours, and a majority (54 percent) believes new technology brings them closer to friends and family5

Today, over six in ten Millennials say that they have a close friend or family member who is gay or lesbian,6 and personally they are more comfortable discussing their own sexual orientation than any prior generation. Social media has fueled this openness. With the ability to state your sexual orientation or relationship status as part of your most basic identifying information, Facebook has transformed the ability for gay and lesbian Millennials to live openly, and for their peers be more aware of the LGBT people in their lives.  

Millennials are not going to sit idle as friends, colleagues, and family members are denied their rights. They are already leading the charge on this issue, redefining conventional wisdom on marriage. Policy makers will continue to be seen as more and more out of touch if they refuse to follow suit. Possibly President Obama knew this to be true when he declared his personal support last month. In fact, one day, we may well divide the debate on same sex marriage by  before  and after Obama’s announcement. If, broadly speaking, marriage equality is now inevitable; Millennials will be the generation to make that future a reality.


Footnotes:

1. Pew Research Center Publications. “More Support for Gun Rights, Gay Marriage than in 2008 or 2004.” April 2012. http://pewresearch.org/pubs/2251/social-issues-gun-rights-gay-marriage-abortion-presidential-campaign.

2. Center for American Progress Action Fund. Democratic Change and the Future of the Parties. 2010.

3. Public Religion Research Institute. March PRRI/RNS Religion News Survey. March 2012.

4. Belden Russonello Strategies. May 2012.

5. Pew Research Center. The Millennials: Confident, Connected, and Open to Change. 2010.

6. Public Religion Research Institute. Survey – Committed to Availability, Conflicted about Morality: What the Millennial Generation Tells Us about the Future of the Abortion Debate and the Culture Wars. 2011.

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.

Culture & Conversation Human Rights

How One Couple Is Putting Bathroom Safety on the Map

Ryan Thomas

Like the Negro Motorist Green Book, the Safe Bathrooms map is not so much a novelty but a vital resource to protect the safety of its users at a time when history is repeating itself in a way that is marginalizing an already vulnerable population.

This piece was published in collaboration with Generation Progress.

North Carolina Gov. Pat McCrory (R) seems to think it’s a governor’s duty to classify which men and women are the “real” ones and which aren’t. Because of this, he has put the lives of all of North Carolina’s trans residents at risk by signing HB 2 into law.

Last week state legislators proposed changes to HB 2, but those changes do nothing to mitigate an unabashed blastoma of transphobia that is now lawfully spreading at a vicious pace.

In response to HB 2, droves of businesses and musicians have boycotted the state in hopes of stopping this unmitigated discrimination toward trans people from moving any further.

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People have banded together to show their support for the trans community, and businesses across the state and country have declared themselves safe havens for trans-identifying individuals by submitting to the Safe Bathrooms map.

The map’s creators—River William Luck, a trans community activist, and his partner (and as of recently, fiancée), web design specialist Emily Rae Waggoner—both live in Boston, but the fight to protect trans rights affects them on a deeply personal level: They’re both from North Carolina.

When HB 2 was signed into law, Luck says, “I was on guard, because I’ve been told I’m in the wrong bathroom my entire life as a masculine-presenting female for more than 30 years.”

Now his home state has become one big ”Do Not Enter” sign for him and his friends still there. Luck’s reaction, however, was not one of helplessness. His instinct, which he learned to follow after years of experiencing and bearing witness to bigotry, was to bind the community and help strengthen it through tangible acts of love and support.

One Reddit commenter likened the map to the Negro Motorist Green Book of the 1930s to 1960s, which was published to help Black travelers in the United States find safe passage in times when racial persecution was legal. Like the Negro Motorist Green Book, the bathrooms’ map is not so much a novelty but a vital resource to protect the safety of its users at a time when history is repeating itself in a way that is marginalizing an already vulnerable population.

Before the Safe Bathrooms map, Luck started mailing hundreds of buttons from the #IllGoWithYou campaign to friends and family back home. The #IllGoWithYou campaign was developed as a means for allies to offer solidarity and protection to transgender and non-binary individuals. By wearing a button, participants pledge to stand up and speak up during instances of harassment and physical endangerment.

“This is my way of paying it forward,” Luck says. “What I’ve done is buy a shit ton of buttons and if someone wants one, I send them one. If they can’t afford it, I send them one. If they want to know more about it, I write them a note and ask people to pick up more.”

His reasoning is simple: “I would have given anything to have seen one of these when I was in North Carolina.”

Luck’s meaningful gestures extends to the clothes he wears, as he frequently can be found sporting a t-shirt that says “No Hate in Our State” or a tank top with the words “Proud Transman” printed in bold. River models several lines of what he refers to as “activism wear,” as a product ambassador a variety of labels including a Greensboro, North Carolina-based company called Deconstructing Gender, and another called Proud Animals.

It’s actually the former that planted the seed for the Safe Bathrooms map, as Luck and Waggoner were inspired by the photos of gender-neutral bathrooms posted on the company’s Instagram account. While the two were talking to Deconstructing Gender’s founder and CEO Avery Dickerson, who was transitioning at the time, Waggoner said, “Wouldn’t it be nice if there was a map of safe bathrooms where trans people could go without hassle?”

And so with Waggoner’s web design expertise and Luck’s social media skills, the Safe Bathrooms map came to life as a child of both necessity and wishful thinking. As they built it, the people came in droves: businesses, affected community members, and media alike.

With over 200 businesses included to date, the two have put together a functioning survival guide for trans residents and travelers who also possess bladders.

Waggoner shared one email with Rewire that she received from a man who owns an architecture firm in Maine, who requested to have his business be included on the map:

I, therefore this business, stand for equality, acceptance, and kindness to all. As a gay man, and one living with HIV for 30 years now, I know too well that indifference to discrimination, condoned cruelty, and legalized oppression are terminal illnesses. These behaviors killed the dreams, and injured the very souls of our young, and further darkened the roads the rest of us continue to travel. It must stop.

To be included on the Safe Bathrooms map, businesses need simply fill out this form and verify their trans-friendliness with a photo of a gender-neutral bathroom placard or other clear form of expression. Upon approval, businesses are represented on the map as a roll of toilet paper. For those lacking, the Safe Bathrooms website goes one step further and shows businesses where they can obtain gender-neutral bathroom signs for their private spaces.

Waggoner and Luck know personally how useful such a map can be. Waggoner says she’s had to stake out bathrooms to make sure the coast is clear, like a Secret Service member. One time, she says, “We were in a restaurant waiting to use the bathroom. We could feel the tension in the air and feel the stares. And it became very uncomfortable because people at the bar were openly just watching which bathroom River was going to go into. And we feared for his safety and our safety.”

Luck continues, “We ended up having to leave and go to a friend’s house so I could use the bathroom and detoured the whole evening plans so I could pee safe.”

Clearly the problem won’t end once HB 2 and other anti-trans laws like it are repealed. The attitudes that brought these policies into being still exist and must be dealt with. But, as Luck attests, there is a definite support system of love and acceptance in North Carolina. He found it in Greensboro as a music teacher at New Garden Friends School, a Quaker school. “They were so open and embraced diversity that I could be an out lesbian,” says Luck.

Greensboro has very distinct pockets of support, which is where a lot of the safe bathrooms appear on the map. But even in places less supportive deeper south, Waggoner notes there are still good friends to be found: “It’s been cool to see some of the small-business owners in some of the more rural towns popping up. Like in Salisbury, North Carolina. It’s really brave of them to do that—to be the first in their town to speak up and say something, and be the first on the map.”

The outpouring of support may be having an effect: University of North Carolina President Margaret Spellings recently gave a statement saying that she would not enforce HB 2 or change any of the school’s current provisions. Spellings did originally plan to enforce HB 2. It wasn’t until U.S. Attorney General Loretta Lynch declared the state in violation of civil rights and threatened to cut up to $4.8 billion in federal funding to the school that Spellings changed her position (and McCrory sued the federal government).

Before Spellings changed her decision, students from various on-campus alliance groups held loud protests outside of buildings in which she was attending meetings, in efforts to sway her judgment. Students at schools across the state affected by the law are making their opposition known.

On a K-12 level, there are organizational efforts through nonprofit Gay-Straight Alliance groups such as Time Out Youth, which offers resources and aid to LGBTQ minors living in inclusive North Carolina and South Carolina school districts. Its website lists student rights, including the rights to gender expression, confidentiality, and respective pronoun usage, as well the right to attend school functions and report on instances of bullying (which state public schools are required by law to deal with).

Luck has spent most of his life traveling against the grain of society’s intolerance–from a misunderstood kid living with his grandparents, to a determined and proud trans man working hard to end the ritual persecution of his fellow person.

Growing up in North Carolina in a conservative Baptist household, Luck remembers being called a “tomboy” and being told “not to act like a boy” as young as 3 years old. Luck attended and was eventually kicked out of a Christian high school for identifying as a “lesbian” (this was before he identified as trans). Luck says he’s been working steadily since he was 13, when his first job was at a Chick-fil-A.

In college, Luck had a psychology professor who taught that homosexuality was a disorder.

“I remember sitting in the class waiting for someone to say something, because I didn’t want to say anything,” Luck says.

After going to the head of the psych department, and then the head of the school, Luck managed to get the homophobic lesson pulled from the syllabus.

“That was a time in my life where I realized if I didn’t say something, no one would. And so I had to. That’s when my activism really started,” Luck says.

Coming to Boston for grad school, Luck found his new home to be much less critical of his outward gender appearance, and found true love in his partner. Luck says Waggoner accepted and supported his transition every step of the way—from coming out (a second time) as transgender, to life-affirming surgeries and ongoing treatments, to his sweeping romantic proposal involving a trip to New York City, a rare Harry Potter book, and a cleverly inserted engagement ring.

Luck and Waggoner hope to expand upon all the ground they’ve covered in North Carolina and take their Safe Bathrooms map to national and international levels.

Luck says he wants to ultimately see the whole state of North Carolina become “a giant roll of toilet paper.”

“We’d [also] love for it to grow to be an international thing, especially given all the anti-LGBT sentiments in other countries. Because we’re everywhere. And everybody needs to have that access,” he says.

The two do have an app in the works to accompany their Safe Bathrooms map, which they hope to give a Yelp-like interface to allow community members to find safe bathrooms on the go, and review and share their own individual bathroom experiences.

All of this work points to a very simple goal: to make it so trans people don’t have to endure daily humiliation exercises to find a toilet that comes with no strings attached.

“The bottom line is … I’m a human being who happens to be trans. But before I would label myself trans, I would say I’m an activist, an actor, a student, an artist, a musician, a good partner, a good relative … All these other qualities that define me that have so much more weight,” says Luck.

To show support for the trans community and be included on the Safe Bathrooms map, visit SafeBathrooms.club.