BY: MICHAEL D. BRAUNSTEIN
Decades after the start of the movement against lesbian, gay, transgendered, bisexual, and queer (“LGBTQ”) discrimination,[1] LGBTQ citizens have finally earned a long-sought victory. On June 26, 2015, the Supreme Court ruled by a 5-to-4 decision that the Constitution guarantees a right to same-sex marriage.[2] Although this was undoubtedly a huge win for the LGBTQ community, the question still remains: how, if at all, will this decision affect the current problems with LGTBQ discrimination? As further explained below, the answer to this question may not be as apparent as the Obergefell decision suggests.
In recent years, LGBTQ discrimination by police officers has been a big problem for members of the LGBTQ community.[3] This discrimination has been present for quite some time, perhaps most obviously when looking at the enactment and selective enforcement of certain laws, such as anti-sodomy laws and “crime against nature” statutes.[4] For example, even though the Supreme Court ruled that anti-sodomy laws were unconstitutional in Lawrence v. Texas,[5] this decision has not had as far-reaching practical effects as one might suppose.[6] Further, the vague wording of some statutes allow for selective enforcement.[7] These vague crimes such as “solicitation to commit prostitution” can lead to biased arrests for actions such as “walking while trans.”[8]
The discrimination against LGBTQ persons does not stop with police officers; it continues within the courts and in the prisons.[9] Some of the most egregious examples of LGBT discrimination within the courts come from the insensitive language used by the judge, jury, and even the person’s own attorney.[10] One respondent to a California survey on LGBTQ people in the courts stated that “jury members suggested that a witness was gay and therefore his testimony could not be trusted.”[11] Beyond the obvious rape-related problems in the prison system, prisoners who are perceived to be gay or gender non-conforming are punished for consensual sex with another inmate and even some non-sexual behavior.[12] Being a transgendered inmate also poses the problems of a heightened risk of sexual assault and limited access to gender-affirming medical care.[13]
The legal system is not the only problematic area for LGBTQ persons;, they are subjected to discrimination everyday within society, particularly within the workplace.[14] Further, the recent controversial story of Kim Davis, a Kentucky clerk who refused to issue a marriage license to a same-sex couple, directly illustrates that LGBTQ discrimination within the public is not going to go away just because of the Obergefell decision. [15] The legal system and society alike should strive to accept the LGBTQ members of our society for who they are rather than judging them based on one characteristic. We have all seen the effects of such discrimination—how long and difficult the road to equality can be—and can only hope that history does not repeat itself once again.
[1] Elizabeth A. Harris & Adriane Quinlan, Where the Fight Began, Cries of Joy and Talk of Weddings, N.Y. Times, June 25, 2011, at A3 (“Crowds gathered, screamed and embracedin Sheridan Square near the Stonewall Inn, where the gay-rights movement began more than40 years ago.”).
[2] Obergefell v. Hodges, 135 S.Ct. 2584 (2015).
[3] Joey L. Mogul et al., QUEER (IN)JUSTICE, at 47 (2011) (noting that recent statistics show that “law enforcement officers were the third largest category of perpetrators of anti-LGBT violence”).
[4] See e.g., Phil Willon, Chief Quits Over Gay Sex Sting, L.A. Times, Jan. 11, 2011, at AA1.
[5] 539 U.S. 558, 578 (2003).
[6] See id. (“The present case does not involve minors. It does not involve persons who might be injured or coerced or are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.”); See also M. Blake Huffman, North Carolina Courts: Legislating Compulsory Heterosexuality by Creating New Crimes Under the Crime Against Nature Statute Post-Lawrence v. Texas, 20 Law & Sexuality 1 (2011).
[7] Mogul et al., supra note 3, at 61.
[8] Id.
[9] Todd Brower, Multistable Figures: Sexual Orientation Visibility and Its Effects on the Experiences of Sexual Minorities in the Courts, 27 Pace L. Rev. 141 (2007).
[10] See Todd Brower, Multistable Figures: Sexual Orientation Visibility and Its Effects on the Experiences of Sexual Minorities in the Courts, 27 Pace L. Rev. 141 (2007); Todd Brower, Obstacle Courts: Results of Two Studies on Sexual Orientation Fairness in California Courts, 11 Am. U. J. Gender Soc. Pol’y & L. 39 (2002); see also Sarah Valentine, When Your Attorney Is Your Enemy: Preliminary Thoughts on Ensuring Effective Representation for Queer Youth,19 Colum. J. Gender & L. 773 (2010).
[11] Mogul et al., supra note 3, at 75.
[12] Id. at 97.
[13] Id. at 110-17.
[14] See e.g., Lesbian, Gay, Bisexual, Transgender Workplace Issues, Catalyst, May 26, 2015, http://www.catalyst.org/knowledge/lesbian-gay-bisexual-transgender-workplace-issues.
[15] See April D. Miller, Kim Davis Denied Me A Marriage License, Time, September 10, 2015, http://time.com/4029400/kim-davis-denied-me-a-marriage-license/.
