Kate Kendell had spent most of her career advocating for civil rights for lesbian, gay, bisexual, and transgender (LGBT) people. She started with the American Civil Liberties Union (ACLU) in Utah as a staff attorney working on LGBT issues. She later became legal director for the National Center for Lesbian Rights (NCLR) in 1994, and ultimately Executive Director in 1996 and stayed in that position until 2018 (Gray 2018). NCLR is a national nonprofit organization whose mission is to advance “the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education” (NLCR 2020, Mission & History).
We were in the throes of collecting data for this research on nonprofit policy advocacy, and we had set an appointment to interview Kendell about her work. The appointment was for the afternoon of June 25, 2013. That morning, the US Supreme Court announced that on the next day they would issue their rulings on two cases affecting same-sex marriage: a challenge against the Defense of Marriage Act (DOMA), and another against California’s Proposition 8.
The former was a 1996 federal law signed by President Bill Clinton that only recognized marriage between a man and a woman. It was challenged in a case that highlighted the numerous legal benefits conferred by over a thousand federal laws to married couples—benefits such as tax savings, Social Security benefits, health insurance coverage, pension protections, and many more. DOMA effectively constrained those benefits to only heterosexual married couples. At the time, nine states had already recognized same-sex marriage, creating the legal conflict (Totenberg 2013).
The latter was a 2008 ballot proposition in California, adopted with 52% of the votes, that changed the state’s Constitution to define marriage as only between a man and woman. It followed an earlier state law that attempted to do the same thing, but was struck down by the state’s Supreme Court. That law, in turn, was an attempt to stop cities such as San Francisco from issuing marriage licenses to same-sex couples. That city had initially started doing so in 2004, when then-Mayor Gavin Newsom returned from President George W. Bush’s State of the Union address in Washington, DC, in which the president promised to defend DOMA (Rose 2004). Newsom reflected that the event “sparked a real sense of responsibility to do something” for his progressive city.
We arrived at Kendell’s office just before our appointed time, when she met us at the front door. She kindly asked us to postpone our interview, because she was “busy” with media requests from across the country, who wanted her opinions on the Supreme Court’s pending rulings. There were already local reporters at the front door with us, wanting Kendell’s views. We quickly rescheduled our appointment and let her return to her work.
On June 26, 2013, the Supreme Court announced their rulings. In a 5-4 vote, DOMA was essentially struck down, thus requiring the federal government to recognize—and confer federal benefits to—same-sex couples who were legally married. On Proposition 8, the ruling was less decisive. The court upheld a federal appellate court’s ruling that had struck down the constitutional amendment, but based their ruling on the plaintiff not having legal standing. Their decision effectively legalized same-sex marriage in California, but the court avoided the broader question of whether same-sex marriage must be recognized by all states. Neither decision legalized same-sex marriage nationally.1 Instead, they required the federal government to recognize same-sex marriages, while allowing individual states to continue to discriminate between heterosexual and homosexual couples.
When we finally met with Kendell a month and a half later, we asked what her life had been like since those court rulings. She replied that the organization has struggled with what to do next, following the “tipping point” of winning in California. She had no doubt that there was much more hard work ahead on same-sex marriage, as the ruling only affected California, and most states at the time did not license or recognize same-sex marriage. But the issue had just passed the metaphorical crest of the hill, and the issue’s speed would now accelerate, she correctly predicted. “We’re still a long way from the finish line. We’re not done by any means. But we definitely have the wind at our back now, and that is a different dynamic, and feels differently in our bones, than the grueling climb up the hill.” The Supreme Court’s rulings on these two cases weren’t a complete victory to Kendell or NCLR. But “striking down Prop 8 on standing, and striking down Section 2 of DOMA have transformed the landscape.”
Their policy advocacy strategies had to change as a result of the transformation, she said. NCLR is a legal organization, and as such their main approach to policy change is through the courts, both state and federal. It was the approach that inspired her to become a lawyer. “State legislatures did bad things. They passed discriminatory laws. And it was the courts that vindicated the rights of minorities.” That setting is changing, she said. “It’s now the case that courts have in many ways retreated from this role largely because of conservative appointments to the judiciary. So our strategies have to broaden. It’s not just about courts anymore. It’s state legislatures, it’s Congress, and it’s federal agencies, which we’re now able to advocate with in ways we were never able to.”
At the time, there were 37 states with no recognition of same-sex marriage, and about 32 with no protections for them. “You can be fired from your job,” Kendell explained, “in the vast majority of states in this country simply for putting a picture of your partner on your desk. Most people have no idea this is the case. They think it’s illegal. Well, it’s perfectly legal in most states. So our work now is really going to shift to the states where LGBT people are feeling left behind.”
“It Does Not Repair, and It Is Not Therapy”
While the weight of the court’s historic rulings was still palpable, Kendell wanted to tell us about another issue that she and NCLR had been working on for years. Sexual orientation change efforts first came to Kendell’s attention when she worked with the ACLU. The legal director at NCLR contacted her to ask if the ACLU would work with NCLR on a case involving a lesbian girl in Utah. The girl’s parents had put her in a psychiatric institution when she came out to them at age 15. Kendell agreed to the work, and they met with the girl and the institution’s staff, who admitted that the parents wanted the girl’s sexual orientation changed. Kendell was surprised to learn that there were several institutions like that one, throughout the state. There methods were “barbaric,” she said. For a boy, they would place a plethysmograph on his penis to measure blood flow while the boy was shown pornography. If the boy responded to pictures of two men, he would get shocked. It was aversion therapy, said Kendell, but misapplied. “Can you imagine the scarring this would do to you as a 12 or 13 year old?” she asked. This was in 1992, decades after the American Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973. NCLR filed a lawsuit on behalf of the girl, and she was eventually released from the institution.
Kendell carried that experience with her throughout her career, and when she joined the NCLR staff, the organization began work with multiple psychiatric organizations to condemn these practices, which proponents called “reparative therapy.” The problem is, Kendell told us, “it does not repair, and it is not therapy.” Some psychiatric associations at that time confirmed that it was ineffective and harmful, but few would condemn the practice, said Kendell.
For years, NCLR monitored the practice “privately,” meaning they advocated behind the scenes to debunk the practice, but they did not bring new lawsuits against it. Kendell explained that it was difficult to bring cases for those who had undergone sexual orientation change efforts, because many were ashamed and did not want to revisit the experiences. Plus, it was legal. At the time, no state had barred the practice.
In 2011, a window of opportunity opened for a legislative remedy to the issue. Representative Michele Bachmann of Minnesota was one of several Republicans vying for that party’s nomination for the 2012 presidential election, and her popularity among Republicans was rising quickly in national polls (Horowitz 2011). This brought heightened attention to her husband’s counseling center, which included sexual orientation change efforts. The public’s level of consciousness on the issue was raised, said Kendell. So NCLR took advantage of the situation to sponsor a California bill with State Senator Ted Lieu. Senate Bill 1177 was introduced in February, 2012, and originally sought an outright ban on sexual orientation change efforts in the state (California Legislative Information 2011–2012).
Kendell said this was NCLR’s first time being centrally involved with legislation. Usually, the organization had only gone so far as to provide “expert advice, memos, research, and testimony.” This was the first time they helped draft the bill and advocate for its passage. NCLR devoted significant time and resources to the public education component of the campaign. Initially, psychiatric associations did not want to co-sponsor the bill, because they did not want to constrain their members’ practices. But when the bill’s sponsors agreed to change it from an outright ban to one that only banned the practice on minors, they earned more support. So NCLR mobilized LGBT youth to tell their stories. “Kids who have gone through this have suicidal tendencies and problems with substance abuse,” said Kendell, “and this is generally a bad predic...