The Routledge Handbook of LGBTQIA Administration and Policy

Wallace Swan

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815366508
• eBook ISBN: 9781351258784
• Topic: Politics & International Relations
• Subtopic: City Planning & Urban Development
• Index: Politics & International Relations

The Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual, and Allies community (abbreviated LGBTQIA or "LGBT") is responding to a radically changed social and political environment. While a host of books have analyzed legal dimensions of LGBT public policy, this authoritative Routledge handbook is the first to utilize up-to-the-minute empirical data to examine and unpick the corrosive "post-factual" changes undermining LGBT public policy development. Taking an innovative look at a wide range of social and policy issues of broad interest—including homelessness, transgender rights, healthcare, immigration, substance abuse, caring for senior members of the community, sexual education, resilience, and international policy—through contributions from established scholars and rising stars, this comprehensive and cutting-edge volume will be a landmark reference work on LGBT administration and policy for decades to come.

1
Understanding What Is Happening to LGBTQIA Public Policy in the New Federal Administration

Wallace Swan

State and Federal Anti-LGBTQIA Activity

As the 2015 book entitled Gay, Lesbian, Bisexual, and Transgender Civil Rights: A Public Policy Agenda for Uniting a Divided America indicates, we are divided into two nations: The empowered states that give full LGBT rights (including marriage) to everyone, and the disempowered states that have given only marriage rights to everyone, solely because the U.S. Supreme Court by a narrow vote forced them to (Swan 2015). The latter states were briefly given full human rights by the Obama Department of Justice; but these rights were soon erased by the action of Secretary Jeffrey Session’s Department of Justice. The first group of states, the empowered states, have significantly higher levels of economic growth compared with the latter group, or disempowered states, which continue to fall behind according to all kinds of metrics, including hate crimes perpetrated, shootings, treatment of transgender persons, and economic development, among many others. As we have previously noted in the 2015 book, the reason for this is quite obvious: The empowered states that give rights to everyone attract creative people (as Richard Florida has noted), while the states that continue to deny rights to LGBTQIA people drive creative people out.

The Tax Cuts and Jobs Act of 2017 is one such method which was designed to even out those inequalities by ensuring that people in the empowered states are brought down to the level of the disempowered states: This was in fact done by eliminating many itemized deductions, including those involving state and local taxes which were typically higher in the empowered states, eliminating employment-related deductions, and making arrangements which were advantageous to married couples. Another approach involved eliminating private activity municipal bonds, which are often used by governments to fund economic development. These arrangements all typically had benefited those in the empowered states.

But even within the empowered states, people are divided into those who participate in what the urban theorist Richard Florida calls the creative class, and the middle- and lower-class people who are increasingly disempowered by the forces of globalization and automation (Florida 2017). This issue is discussed in this book in Wallace Swan’s chapter on “Equality and Inequality, Technological and Social Change, and Politics.”

Those states that gave their electoral votes to Donald Trump did so partly because the Electoral College provides a bit of an advantage to less populous states. This author went through the list of states that voted for each of the two parties, and found that with two exceptions (Iowa and Wisconsin), the states that voted for the new president were those previously labeled as disempowered states. They only gave marriage rights to LGBT folks because the Obergefell v. Hodges decision required this of them, but those states typically would not protect most other human rights for LGBTQIA people (unless they had large metropolitan government jurisdictions within them). The empowered states (the ones that give full rights to LGB and sometimes TIA people) typically voted for Hillary Clinton; while the disempowered states typically voted for Donald Trump.

Before the election of 2016, many LGBTQIA as well as marginalized people felt protected in their “bubble”; i.e. mega-cities and empowered states. But these people also were protected from opposing ideas, because they were not aware of how the remainder of the population was feeling about them. An interesting study shows that a variety of anti-marginalized minority messages were flowing throughout the country. This study shows the high frequency of anti-Black, anti-Hispanic, anti-female, and anti-gay as well as anti-transgender tweets by selected cities and by states, often but not always in disempowered states (Rodriguez 2015).

Hence many LGBTQIA people were shocked when their candidate for president did not do well. News (and fake news that was not based upon evidence, but which sometimes had all of the requisite “academic” footnotes) had cascaded onto the smartphones of millions of people; and some of that “fake news” appeared to be directed by clever micro-targeting to independents and people who would be susceptible to persuasion. And, of course, one cannot miss the fact that 77% of LGBTQIA voters supported Hillary Clinton while 14% of the members of the LGBTQ community voted for the Trump presidency (CNN Politics 2017). Because of the reactive characteristics of the new administration, the LGBTQIA community became a target of the new federal administration. It is ironic that those 14% of LGBTQIA people who voted for Donald Trump then had to watch as he systematically eliminated their federal rights. However, those federal anti-LGBTQIA efforts had been smoldering for many years in many of the 50 states.

State Anti-LGBTQIA Efforts

At the state level the Human Rights Campaign identified over 100 anti-gay bills in at least 29 states (Miller 2017). The backlash against the LGBTQIA community is most effectively described by six major categorizations, which include the following:

• Religious refusal—bills that allow people to deny service to LGBTQ people because of a person’s religious beliefs.
• Promotion of “reparative” or “conversion” therapy—which is designed to try to convert LGBTQ people to another sexual orientation.
• Laws opposing transgender rights.
• Nullification—also known as Local Government Pre-Emption, which involves the passage of state laws banning local jurisdictions from having anti-discrimination regulations that exceed the scope of state measures.
• Punishing the staff of the Courts (including judges) for supporting marriage for same-sex couples.
• Proposals for a Constitutional amendment to ban marriage for same-sex couples (or gradually working to reduce its scope).

Religious Liberty Laws

A problematic approach that is being used against LGBTQIA people in many states is what is informally called religious liberty laws. Let us take a hypothetical example of a religious liberty law and how it might impact LGBTQIA people: Visualize a situation where one member of a gay couple wants medical help because they are experiencing a heart attack. One non-profit hospital corporation in their community does not serve gay people, so the ill person must be routed to a county-run hospital that does serve gay people which is 100 miles away. A member of the ambulance staff does not wish to serve gay people, so another one must attend to the patient. The county hospital has a county board which has approved serving gay people, but the county administrator opposes this. This puts the administrator, who is a member of the American Society for Public Administration (a professional association with a Code of Ethics supporting LGBTQIA people), into an interesting but difficult position. The gay person experiencing a heart attack dies for lack of service on the way to the county hospital and the county administrator (who has compromised his involvement with the ASPA Code of Ethics) no longer has a problem. Was it ethical for the first hospital to choose to use religious refusal? Was it ethical for the ambulance staff member to choose to use religious refusal? Was it ethical for the county administrator to take a position against serving the patient?

Texas came close to allowing a draconian religious liberty law like this one (Lindell 2017). However, the opposition finally was able to stop it before it got to the Governor of Texas for signature. By contrast, in Mississippi the state passed a religious liberty law which has been ruled as constitutional by the federal Fifth Circuit Court of Appeals (Pender 2017). And, in point of fact, there is an actual case in Mississippi that involves refusal to bury a gay partner: This situation impacted a gay Mississippi couple, one of whose members was not permitted to use the services of a funeral home. The widowed partner had to travel 80 miles to another funeral home that would serve him; and there were problems dealing with the body of his partner. This is the concept of religious liberty at work at the state level (Somashekhar 2017).

“Reparative” or “Conversion” Therapy

These laws are designed to try to convert LGBTQIA people to another sexual orientation or gender identity, despite the fact that all major medical and psychological associations have studied the issue and found this type of conversion to be impossible. In the face of the “evidence,” one state (Oklahoma) has made such “therapies” legal. Eleven states currently ban this practice.

Laws Opposing Transgender Rights

The Transgender Law Center has put together a map which indicates the levels of gender identity protection in each state, which are not as prevalent as sexual orientation protection. The map shows the following levels of support (by tallying the various laws that are in place to protect transgender individuals):

• High overall policy tally (14 states and District of Columbia).
• Medium overall policy tally (4 states).
• Low overall policy tally (11 states).
• Negative overall policy tally (20 states).

This and other related maps may be found at the website of the Transgender Law Center (Transgender Law Center 2017).

Nullification

This approach, also known as Local Government Pre-Emption, involves states adopting laws banning local jurisdictions from having anti-discrimination regulations that go beyond the scope of state measures on the same subject. This approach has been proposed and/or implemented in a number of states including Texas, West Virginia, North Carolina, Tennessee, Michigan, and Montana.

Punishing Staff of the Courts for Supporting Same-Sex Marriage

A wide variety of approaches have been proposed to deal negatively with members of the courts who support same-sex marriage, including:

• Impeachment—Idaho
• Punishment—South Carolina, Texas, Oklahoma
• Defying the Obergefell v. Hodges decision—Alabama
• Voting them out of office—Iowa

Proposals to Reduce the Scope of the Obergefell v. Hodges Decision

As noted elsewhere in the book, the Texas Supreme Court in Pidgeon v. Turner decided that a trial court could determine whether marital benefits should be given to City of Houston LGBT employees who are married. The assumption was that state courts had the power to determine the scope of Obergefell v. Hodges, when they were granting benefits to employees. This issue was forwarded to the U.S. Supreme Court, which referred the case back to the Texas courts (Lindell 2017).

Federal Anti-LGBTQIA Actions

Once the Republican Party won the House, Senate, and the Presidency in 2016, the whole federal policy structure changed, including their positions encompassing (1) opposition to same-sex marriage; (2) support for the First Amendment Defense Act (i.e. religious liberty); (3) support for laws discriminating against transgender people; (4) belief in the efficacy of conversion therapy; (5) bulk collection of domestic calling records; (6) elimination of the Affordable Care Act, which failed several times by a very small margin; (7) the belief that homosexuality is a “sin”; and (8) making dramatic cuts in programs impacting LGBTQIA people.

LGBTQIA observers were initially alarmed at the way in which the November 2016 election seemed to create a new atmosphere for discrimination… . Reports on hate crimes derived from data collected by the Southern Poverty Law Center (Hatewatch Staff December 2016) increased in the period from November to December 2016 included (in rank order):

1. Incidents directed against immigrants
2. Incidents directed against blacks
3. Incidents directed against Muslims
4. Incidents directed against LGBT people.

From an academic position, we first saw the case of a professor at Orange Coast College in California, Olga Perez Stable Cox (who is in a same-sex relationship). She spoke out against the incoming federal administration. Her presentation was videoed and circulated around the country. She was then deluged by death threats which resulted in her leaving her home. This case has been documented as well as a variety of other firings of academics who opposed the new federal administration (Holley 2016).

But, observers in the LGBTQIA community thought they had caught a few breaks when the Trump administration took office: On January 30, 2017, the New York Times advised its readers that the new administration would not reverse the six pages of Executive Orders granting workplace protections to federal LGBT employees (Peters 2017). This level of support was presumably extended, on January 31, 2017, to ensure maintenance of the protections for LGBT people working for federal contractors.

Those interested in the federal government position were also watchfully awaiting congressional action on religious liberty proposals. The publication Politico subsequently noted that a draft Executive Order on Religious Liberty that would have devastated LGBTQIA protections was saved by intervention of Ivanka Trump and Jared Kushner. It was generous of the community to think that its entire federal civil rights structure depended upon the kindness of this young couple (Karni 2017). But this assumption was short-lived and the issue was reconsidered.

The LGBTQ community then started to see what was really happening:

• There was an appointee for Attorney General who supported a constitutional ban on same-sex marriage. There was a proposed appointee for Secretary of Health and Human Services who had supported a ban on same-sex marriage. Then there was a nominee for Education Secretary who had previously supported anti-LGBT causes. Then there was a Domestic Policy Coordinator appointed who believed in conversion therapy. LGBTQIA public administrators, especially those in the State Department (where the new administration requested a list of all gender supportive group members) began to recognize how deeply this administration opposed LGBTQIA rights; and the LGBTQIA community found itself with a nominee for U.S. Supreme Court justice—Judge Neil Gorsuch. Press coverage soon highlighted the nominee’s true colors (Signorile 2017).

The Appointments and Elections

On January 20, 2017, a Vice President, Mike Pence, was inaugurated. He was historically unsupportive of LGBTQIA people, which was illustrated by his record as Governor of Indiana; where he first supported a religious liberty law and then back-tracked on the issue. The LGBTQIA community found itself with a Vice President, in a position of significant influence, who also had a history of problematic relationships with the LGBTQIA community. Interestingly enough, in a single noticeable action of support for a gay person, Vice President P...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Biographical Statements
• Acknowledgments
• Preface
• 1 Understanding What Is Happening to LGBTQIA Public Policy in the New Federal Administration
• Demographics
• Social, Attitudinal, and Technological Change
• Life in Our Communities
• Health and Social Issues
• Immigration Issues
• Youth
• LGBTQIA Adults and Seniors
• LGBTQ Criminal Justice Issues
• Support of Community Organizations
• Where Does the LGBTQIA Community Go From Here?
• National and International Issues Interrelated
• Conclusion