When the Supreme Court delivered its ruling in June 2015 confirming marriage equality, it was greeted as an historic civil rights achievement. Over the past several years, mounting marriage victories combined with a cresting wave of trans activism had already pushed legal advocates to think beyond gay marriage, the issue that has absorbed the bulk of the movement’s advocacy, resources, and powers of mass mobilization. From the legalization of homosexual assembly to the repeal of anti-sodomy laws and now national gay marriage, legal gains for LGBT people since World War II have brought important benefits and legitimized the citizenship rights of people who are not straight or cisgender. It remains true, however, that despite improving attitudes toward gay marriage, LGBT people continue to suffer economic marginalization and violence. Mainstream advocates for gay rights must now join the calls that queer and trans critics have been making for decades to shift the agenda from “legal equality to lived equality.”
Marriage equality critics tend to separate the national legal organizations from more local, community-based work by describing the former as “the mainstream LGBT movement” or “Gay, Inc.” Urvashi Vaid, a community organizer and veteran attorney for LGBT rights, suggested that a more fruitful distinction might instead look at the strategies being pursued within and between different organizations at all levels of reach, separating the fight for formal legal equality from a broader analysis of inequality. Looked at from this point of view, it becomes less interesting to ask what a legal organization will do next and more important to evaluate the weaknesses of the gay marriage campaign and identify a new strategy for queer liberation. Although the gay marriage campaign has achieved many of its goals, eliminating a key site of homophobic discrimination and glossing gay relationships with the patina of legal legitimacy, the legal strategy also relied on promoting a narrow vision of gay life mostly constrained to the partnered white cisgender male. Proponents have argued that greater public sympathy leads to legal and social change, but having won gay marriage nationally, the queer and trans youth, elders, immigrants, and people of color still face disproportionate poverty and violence.
The crescendo of trans voices over just the past year has highlighted this inequity and demanded that the movement not only address trans issues directly, but attend to the needs of homeless youth, isolated elders, low-income, and immigrant LGBT people. Bamby Salcedo, president of the TransLatin@ Coalition, a national organization devoted to addressing the needs of trans Latin immigrant communities, feels that “the focus needs to shift. In our community we’re actually getting killed. And there’s no additional investment from LGB organizations about the importance of addressing the structural violence that trans people continue to experience.” As of July 2015, at least ten trans women were murdered in the United States; in 2014, twelve such killings were reported.
Salcedo brought these issues to Creating Change, the nation’s largest LGBT advocacy conference. With a group of protesters, she stormed the stage to prevent Denver mayor Michael Hancock from touting the city’s LGBT record just two weeks after a queer Latina teenager was gunned down by police. Salcedo explained that the protesters also hoped to draw attention to the dearth of trans people in leadership of LGBT organizations and to the lack of funding streams for the issues that most affect their communities. If the movement is going to use the LGBT acronym, “the T should be included equally in terms of programming, in terms of services, in terms of funding allocation, in terms of resources allocation,” she explained.
A survey of 101 trans Latina immigrant women conducted by Salcedo and the TransLatin@ Coalition found extremely low rates of employment and health insurance coverage and high rates of employment discrimination and poverty. Forty-one percent of respondents listed accessing safe and affordable housing as “very difficult,” while 45 percent described feeling “no support” from local authorities. Although the survey has a relatively small reach, the extent of marginalization is staggering. According to the National Transgender Discrimination Survey, trans people are twice as likely as cisgender Americans to live in extreme poverty, a multiplier that jumps to seven for Latin trans people. These results bolster a recent study by the Williams Institute showing consistently higher rates of poverty among lesbian, gay, and bisexual people. It also demonstrated the racialization of queer poverty with evidence that African-American gay male couples are six times more likely to be poor than their white counterparts.
It is true that a marriage contract carries an array of benefits, some of which are financial. Indeed, the argument that gay people should have equal access to those benefits has been the movement’s central plank. But there’s a problem: if marriage benefits shouldn’t depend on sexual orientation, why should they depend on relationship status? It makes basic components of survival like housing and health care contingent on marriage, when they should be accessible to all people, regardless of whom or how they love. The movement has focused on a campaign that treats marriage as an end in itself, instead of as one path to access housing and health-care privileges. William Eskridge, a professor at Yale Law School and an expert on LGBT law, agrees, commenting that “We also need to take this as an opportunity to interrogate and fight for the rights of people who do not want to get married, which includes a lot of LGBT people.” Premising the distribution of these rights on marriage legitimizes barriers to access that needn’t exist.
The problem is not the marriage litigation itself, but that it has been prioritized at the expense of directly battling economic inequality and violence. Successful litigation can be a powerful tool for changing political momentum and legitimating new social norms. Eskridge believes Goodridge v. Department of Public Health, the Massachusetts case that led to the first legally recognized gay marriage ceremonies in 2004, had an enormous effect outside the courtroom. “Courts can reverse the burden of political inertia,” he said. “Before Goodridge, to get gay marriage in Massachusetts you’d have to persuade the legislature and then Governor Romney. Goodridge said no, the default rule is now marriage.” The Republicans failed to rally against the decision, and the holding stood. At the time, public opinion was starkly against gay marriage.
Eskridge also cited the fact that “courts can give wind to your social movement by validating your norms.” The discourse of rights has enormous purchase in the public arena, where it can be invoked in more creative ways than the courtroom allows, if nothing else than as official validation of the representations the social movement makes about itself. Framing the debate as one over regular people’s right to get married, raise a family, and participate in the job market makes it much harder for opponents to rely on tropes about gay deviance and predation. As Eskridge elaborated, “a court victory can create the conditions for falsification of stereotypes.” At the same time, the litigation strategy has emphasized gay relationships that don’t challenge other social biases by choosing plaintiffs who are white and partnered. At a book talk for the Center for LGBTQ Studies (CLAGS) at CUNY Graduate Center in January 2014, Vaid explained that the power of law to change norms is a double-edged sword because “the mainstream movement’s imagined subject remains white middle-class more often male than not and gay.” At the same event, legal scholar Dean Spade argued that legal reform “stabilizes and preserves violent systems” and tends to “shift movements away from demands for redistribution” in favor of recognition alone. He reminded the audience that for the trans clients he defended as staff attorney for the Sylvia Rivera Law Project (SRLP), “most people have no winning claim” because existing laws do not “reach the kind of harm and violence that the people who are coming to SRLP are dealing with.”
Meanwhile, the handful of organizations driving the mainstream agenda and their even smaller handful of donors have prioritized gay rights over collective social justice. To these donors, social inclusion means having access to the same sources of power as comparably situated straight people; it doesn’t mean challenging the distribution of power that creates inequity in the first instance. But representation does not always lead to redistribution. Policy and consciousness might be changing, but in terms of material circumstances, there is less progress.
One of the biggest problems, as Bamby Salcedo emphasized, is just how little money is going to serve these communities. Funders for LGBTQ Issues recently reported that just $8.3 million of foundation money went toward trans communities, accounting for 0.015 percent of foundation spending nationwide. Of that amount, 40 percent went to civil rights issues, while only 4 percent went to fighting violence and transphobia and only 2 percent toward economic issues. This leaves trans people and queer youth twice vulnerable: they lack access to the resources of the wealthy, and they are marginalized for being queer. Their status cannot be improved with rights alone, but only through a radical redistribution of wealth and power.
The result is a political climate where support for gay marriage is an empty shibboleth, a test of progressive values without disrupting the status quo. Consider the massive outcry over the proposed Religious Freedom Restoration Acts (RFRA) in Indiana and Arkansas. Although RFRA did not add any additional anti-gay discrimination to state laws, the appearance of doing so caused a major public relations disaster in both states. Some of the most publicized support for gay rights came from corporations who do business in those states, including Salesforce, whose CEO promptly canceled all company travel to Indiana. In Arkansas, Walmart won nationwide acclaim for opposing the proposed RFRA bill. But opposing RFRA in Arkansas cost Walmart nothing; in fact it distracted attention from the lawsuit the company is facing for denying partner health-care benefits to a lesbian employee’s wife undergoing costly treatments for cancer in a state where gay marriage is legal. Under cover of supportive rhetoric, Walmart is denying sexual equality.
Twenty years ago, a Democratic president was able to pass the Defense of Marriage Act against only a small pocket of dissent, notably coming from civil rights legend John Lewis. Today, twenty-two states ban discrimination against LGBT people, and all states are obliged to allow same-sex marriage. The tides have shifted, and cities, states, and corporations throughout the country vocally support a version of gay rights. Yet a 2015 Harris poll commissioned by Gay and Lesbian Advocates and Defenders (GLAD) showed startlingly high negative attitudes toward LGBT people: a full third of respondents said they would be uncomfortable attending a gay wedding, the same percentage that would be uncomfortable seeing a same-sex couple holding hands, learning that a family member is gay, or learning that one’s doctor is gay. This snapshot of public opinion shows how much more work is left to be done.
Thankfully, the past two years in particular have been a period of remarkable growth for grassroots organizing that prioritizes queer and trans people of color. Much of the positive momentum is coming from outside the traditional boundaries of the LGBT movement, from the Black Lives Matter movement in particular. “Black Lives Matter is pushing the LGBT movement to think more deeply about intersectionality and deepen our commitment to that work,” contends Janson Wu, executive director of Gay and Lesbian Advocates and Defenders (GLAD).
Queer issues are already integral to these youth-led movements, but the LGBT legal organizations have not historically been so receptive to questions of race and class. Two new constellations of advocacy have emerged to address this imbalance. The fledgling LGBT Federal Criminal Justice Policy Working Group is “aiming to put the broad range of criminal justice issues on the LGBT agenda” and has brought together a wide range of organizations to push for administrative changes to criminal justice. Their first comprehensive report includes detailed recommendations for reform in prisons, immigration policy, and law enforcement, as well as in areas of criminalization for youth, trans people, and people living with HIV/AIDS, from foster care to sex work. A second new initiative, called the LGBT Poverty Collaborative, also seeks to coordinate efforts of service providers, community organizations, and research institutes currently seeking to reduce LGBT poverty. As Vaid sees it, “Very few queer organizations are involved in tax bills or weighing in on the way that public financing has been cut.” Economic and social disempowerment are linked and could be dramatically reduced if the gay marriage machine directed energy at broader policies affecting economic inequality.
There is no shortage of alternative models to fund. GLAD was one of the earliest sponsors of same-sex marriage litigation, and yet it defies the binary between pursuing formal equality and broader social justice. In 2013, the organization filed a suit on behalf of a teenage transgender woman who was denied access to both the women’s and men’s dormitories in a Massachusetts homeless shelter, forcing her to sleep on a mat on the floor of a storage closet. GLAD considers this important suit just one part of a larger intervention in the treatment of trans youth in homeless shelters. GLAD’s Janson Wu explained that “We know that policies are just words on a paper or binders on a shelf that can collect dust, and so much of our work is also making sure that those new victories are actually implemented and enforced.” In this case, that has included a know-your-rights educational tour for homeless transgender youth, attorney testimony before the Boston City Council, and distribution of a best practices guide called Shelter for All Genders. Wu noted that trans visibility is better than ever before, with the advent of the Trans Day of Visibility and Trans 100 list.
Some communities have already organized responses to violence that resist invoking law enforcement at all, using the restorative or transformative justice model to reduce violence outside the confines of the carceral state in recognition that strategies of containment and incarceration serve to replicate, not diminish, violence. Safe Outside the System of the Audre Lorde Project and Streetwise and Safe in New York, as well as Community United Against Violence in San Francisco organize and educate queer and trans communities to prevent violence without calling police. These organizations are part of a growing cohort within the LGBT constellation that seek ways to reduce intimate and state violence within a prison abolitionist framework. In stark contrast to the legal reasoning that advocates for increased penalties for hate crimes and discrimination, these organizations join the Black Lives Matter call to see the criminal justice system as a target for change, not an ally for protection.
The stakes are nothing less than the legacy of the gay marriage campaign. Will it be the first step toward lived equality, or will it neutralize queer and trans difference into a homonormative parody? GLAD’s Wu told me, “I think we have a real opportunity and I think there’s a real risk that our community may lose interest.” At the moment, only 4 percent of LGBT people donate to the cause, a sign of economic marginalization and of how much work remains in mobilizing our communities. It’s also an opportunity for queer and trans people to drive the movement toward connecting with ongoing struggles to raise the minimum wage, build affordable housing, promote reproductive justice, and end mass incarceration. Winning these campaigns could be a critical first step toward queer and trans liberation.
In January 1965, A. Philip Randolph declared that the civil rights movement faced a “crisis of victory.” A decade had passed since Brown, two years since the March on Washington, and Randolph was convinced that racial justice would only come through more radical change. Three short months later, his movement compatriots would begin to march from Selma to Montgomery, meeting violent resistance at the Edmund Pettus Bridge and prompting the Voting Rights Act, once ranked the most successful piece of civil rights legislation in American history.
Fifty years later the first black president stood by that bridge and laid claim to a progressive tradition by declaring, “We’re the gay Americans whose blood ran in the streets of San Francisco and New York, just as blood ran down this bridge.” Queer and trans Americans face our own crisis of victory: whether to accept Obama’s analogy, his implication that racism and homophobia have been conquered, or to use the successes of the past to launch a renewed effort to defeat economic inequality and endemic violence.
Excerpted from The Future We Want: Radical Ideas For A New Century edited by Sarah Leonard and Bhaskar Sunkara, published by Metropolitan Books, an imprint of Henry Holt and company, LLC. Copyright © 2016 by Sarah Leonard and Jacobin Foundation, Ltd. All rights reserved.