Last edited: February 14, 2005

Pro-Gay Trend Endures

Hostile Bills Outpaced in State Legislatures

Washington Blade, March 9, 2001

By Will O’Bryan

From the surface of statistics, the news coming out of the various state legislatures this year is decidedly pro-Gay — the pro-Gay bills are outpacing the anti-Gay bills three-to-one. The tally marks the third year in a row that the percentage of Gay-related bill in state legislatures that is anti-Gay has dropped. But at least one longtime Gay activist sees that good news as simply the "response" to years of bad news.

"You’re finally seeing, at the state level, a response to attacks that have historically been against us," said Nadine Smith, co-chair of the Federation of State Lesbian, Gay, Bisexual and Transgender Political Organizations. "If you don’t see many clear far-right bills being introduced, it’s because their point of view is the status quo."

So far this year, the tally finds 116 pro-Gay bills versus 38 anti-Gay ones. This time last year, the Blade’s annual search for introduced bills directly relevant to the Gay community found 81 bills favorable to Gays versus 24 hostile. While 58 percent of 84 Gay-related bills in 1998 were hostile to Gay civil rights, that percentage has been in steep decline for the past three years even though the number of bills overall has been greater. In 1999, anti-Gay bills made up only 36 percent of 116 Gay-related bills introduced at the beginning of the states’ legislative sessions; in 2000, anti-Gay bills comprised 33 percent of 105 bills, and this year 25 percent of 154 bills.

But the ratio of bills that are Gay-friendly to those that are Gay-hostile does not, in and of itself, give reason to think the tide has necessarily turned, said Smith.

Anti-Gay statewide political groups, she said, are well funded and are just as likely, if not more so, to be active in local government, rather than lobbying for bills in state legislatures.

"There are think tanks in every state, run by the far right," Smith said. "They’ve invested in their statewide infrastructure. They have been doing a lot of work at the policy level, on school boards and city councils. Financially, the far-right infrastructure has been in place and building for a long time. They’ve had in place what many in our community are just waking up to."

Of the 154 bills the Blade has identified so far this season, the bulk fall into four categories: anti-discrimination, hate crimes, partners, and sodomy.

Of the pro-Gay bills, the greatest number — 46 — falls into the anti-discrimination category. Within this category are comprehensive statewide anti-discrimination bills that seek to prohibit bias on the basis of sexual orientation in employment, housing, and public accommodation, on one end of the spectrum, and bills that are far more specific on the other end. In Maryland, for example, one anti-discrimination bill specifically targets policy at a certain regional sanitation department.

Legislators attacking equal rights for Gays have introduced only two bills aimed at making it easier to discriminate against Gays. Both of these bills — one in Virginia, the other in Missouri — are so-called "religious freedom" bills that seek to excuse religious institutions from obeying anti-discrimination laws that protect Gays.

Of introduced hate crimes legislation, 32 bills propose laws that would benefit Gays in some measure, while the opposition has offered no bills in this arena. Again, the scope of the proposed legislation is vast.

One of the highest-profile proposals is the James Byrd Jr. Hate Crimes Act in Texas, named for an African American man who was dragged to his death in a racially motivated assault in 1998. The Byrd family has endorsed the inclusion of sexual orientation as a protected category in legislation even though the inclusion has hindered past attempts to pass the bill. As governor of Texas, President Bush opposed the legislation. The Lesbian/Gay Rights Lobby of Texas has organized a march in Austin to support the act, scheduled for March 18.

Other hate crimes bills across the country seek to increase penalties for hate-motivated crimes, allow victims to sue their attackers, and add "sexual orientation" to existing hate crimes laws. In Utah, both House and Senate versions of a hate crimes bill that would define a hate crime as "motivated by bias against a group" died. The House did, however, pass a bill to increase penalties for attacking ranchers. That bill is now in committee in the Senate.

Laws prohibiting sodomy may be an endangered species, but where they exist, they still have teeth. In Arizona, Texas, and Virginia, legislative attacks were launched to repeal the measures, but in Virginia, the effort has already failed. Legislators in Virginia introduced two bills to strike at the state’s Crimes Against Nature law, which makes a felony of any act of oral or anal sex in the state, public or private. One bill would have abolished the law while offering stricter prohibitions against public sex. The other would have made sodomy a misdemeanor. Both bills died, despite a recent poll by Virginians for Justice, a statewide Gay-advocacy group, that shows 65.2 percent of Virginians support repeal.

Three "repeal of archaic laws" bills are pending in Arizona. Kathie Gummere, interim executive director of the Arizona Human Rights Fund, a leading opponent of the state’s sodomy law, said she is confident that there are enough votes on the floor of both the Arizona House and Senate to repeal the sodomy law, if only legislation can get through committee.

In Texas, a bill to repeal that state’s sodomy law, which applies only to sodomy between members of the same sex, has been sitting in committee since Feb. 1.

While legislators seeking to work for parity for Gays in their states struck hardest with anti-discrimination and hate crimes bills, the return fire has been aimed squarely at same-sex couples. In that category of legislation alone, the bills against equality for Gays outnumber those in favor, 26-18.

Not surprisingly, the state with the greatest number of bills attacking Gay couples is the one where same-sex couples made their greatest gain last year: Vermont. In 2000, legislators there obeyed an order from the Vermont Supreme Court to provide same-sex couples with the same state-level rights and benefits enjoyed by traditionally married couples. The legislators created a new institution called "civil unions."

While the unions fall short of marriage in that the "unionized" still don’t enjoy any of the federal rights of marriage, civil unions come closer to same-sex marriage than any other law in the United States. And last November, Republicans won a majority of the state House, giving opponents of equality for Gay couples some clout they did not have when the legislation was passed last year.

According to the Blade’s tally, legislators in Vermont have introduced nine bills directly related to Gay issues. Of those, eight deal with same-sex couples — and they are all hostile. The Marriage Restoration Act is the most heavy-handed, designed simply to repeal the civil union law. Two other bills seek to do the same. Although civil unions provide no legal benefit to out-of-state couples who journey to Vermont to enter a civil union, one bill proposes to limit the availability of civil unions to Vermont residents alone and it would make null and void any civil union license already obtained by out-of-state residents.

As Vermont becomes synonymous with civil unions — to supporters and opponents alike — the new law has influenced proposed legislation far beyond the Green Mountain State’s borders. In years past, state legislators on the right concerned themselves with prohibiting same-sex marriage. Now the push is to ensure that civil unions will not be recognized.

While several states are still looking at garden-variety bills to prohibit same-sex marriage, New Hampshire, Oklahoma, Texas, and Washington, as well as Vermont, have seen bills this season specifically aimed at invalidating civil unions. Conversely, legislators in California, Hawaii, Rhode Island, and Washington have introduced bills to seek to establish civil union recognition.

Julie Holler, the Texas Gay and Lesbian Rights Lobby’s field coordinator, said her group’s priority this year is fighting the Texas effort to pass a so-called "Defense of Marriage Act," which would prohibit Texas from recognizing same-sex marriages.

"We’re just trying to ward off Texas DOMA. We’re focusing on things we can actually win," said Holler. She added that, during this session, any push to bring civil unions to Texas "wouldn’t stand a chance in hell."

Bills attacking Gay couples have also been offered in Arizona, Colorado, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, New Mexico, New York, Oklahoma, Texas, Utah, Washington, and Wyoming. The bills against civil unions and same-sex marriage are the most obvious bills attacking couples. Some bills are subtler.

In Maine, one bill would prevent insurance providers from discriminating against domestic partners. The protection, however, would be granted only to opposite-sex domestic partners. A New Hampshire legislator has offered a bill to allow for first-cousin marriages while at the same time prohibiting marriage between members of the same sex.

Vermont’s civil union law is not the only inspiration for Gay-related legislation this year. Several legislators have taken a sort of passive-aggressive approach to attacking Gays by offering bills to mandate support for the Boy Scouts of America. Bills offered in Arizona, Connecticut, and Georgia are designed to prevent these states or the localities therein from withholding benefits such as use of space from the BSA in light of the Scouts’ Supreme Court victory last year that allows them to discriminate against Gays.

Other anti-Gay bills that fall outside of the four main categories include efforts in Arkansas and Indiana to prevent Gays from adopting or serving as foster parents. The Arkansas bill has already died. A bill to prohibit sexual orientation discrimination in adopting in Arkansas, however, is still alive and sitting in committee.

Bills outside the main categories seen as friendly to Gays include a bill in Tennessee that seeks to prohibit anyone who belongs to a hate group from becoming a police officer, and a measure in Rhode Island to aid those affected by the Holocaust, including Gays.

Legislators in California, Rhode Island, and Texas have introduced bills to help transgender citizens specifically. In California and Texas, bills seek to make it easier for transgender people to amend their drivers’ licenses to reflect a new gender. Another California bill seeks to prohibit employers from firing someone who dresses in a fashion that reflects a new gender. The Rhode Island bill is a gender identity anti-discrimination bill.

But the path from bill to law is not an easy one for pro-Gay legislation. In Virginia, of the eight Gay-friendly bills introduced, all have been "passed by, indefinitely." In a word, they are dead.

Regardless of outcome, however, the trend does indicate that the November 2000 election season did nothing to take the wind out of the political machine fighting for Gay civil rights.

Clear control, by either the right or left, is hard to come by. Democrats control both legislative houses in 15 states. Republicans control both houses in 17 states. Even that simple delineation carries less and less relevance as the nation evolves politically.

"We do have a lot of good Republicans," offered Gummere of the Arizona Human Rights Fund, a statewide Gay-advocacy group. Arizona is home to two of the country’s highest-profile Gay Republicans, state Rep. Steve May and U.S. Rep. Jim Kolbe. "A lot of our Republicans are actually more libertarian; they don’t want government in people’s lives. We also have some strongly religious [legislators] who are very opposed to any rights for Gays and Lesbians, and they’re not all Republicans. We have some very conservative Democrats and some very libertarian Republicans."

California provides a more conventional partisan portrait. That state now has four Lesbian state legislators, including its first state senator, Sheila Kuehl. All four are Democrats.

"I don’t want to say there are no Republicans who support us but it’s a very different environment right now. It’s more proactive," observed Eric Astacaan, legislative advocate for the California Alliance for Pride and Equality. "It helps to have four members of the state legislature who are Lesbians. How could members of the legislature attack Gay and Lesbian people when in their house they have members who are Lesbian?"

Florida’s Smith concluded, "If you look at the scope of state government control, from adoption and custody, to the public education system, to the ability to extend domestic partner benefits, so many things that affect the quality of day-to-day life get decided at the state level. Even those things we hope to pass at the federal level will be enforced at the state level. There is a great deal of work that has to be done at the local and state level."

  • Kara Fox, Brian Moylan, Bill Roundy, and Rhonda Smith contributed to this report.

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