A "National Emergency" for LGBTQIA Americans?

The Human Rights Campaign Jumps the Shark With its Bizarre and Potentially Harmful and Damaging Pronouncement

This week, the Human Rights Campaign (the “HRC”) declared a “state of national emergency” for LGBTQIA people in the United States.¹

In response, I’d like to borrow a phrase from my late Brooklyn-born grandmother, Bambi, that she would use when her grandchildren would get overly rambunctious:

“Okay! Cool it!”

Bambi’s phrase is definitely warranted for the HRC and any politician or celebrity joining them, in an attempt to fan the flames of crazy and panic.

We live in a remarkable age of progress for the LGBTQIA community.² What was once seemingly unimaginable has now occurred in our lifetimes:

• Same-sex marriage is legal in all fifty states.

• Gays, lesbians, and bisexuals can serve openly in the United States military.

• Thanks to a United States Supreme Court decision in 2020, authored by Justice Neil Gorsuch, the 1964 Civil Rights Act prohibits all sexual orientation and gender identity discrimination.³

• Professional sports teams now regularly host pride nights and celebrate Pride month.

• We have openly gay, lesbian, and bisexual people serving as United States Governors, United States Senators, and Presidential Cabinet Secretaries.

• Pride flags now fly at Congressional offices and at corporate headquarters.

In so many areas of life, sexual orientation and gender identity are being removed as barriers for Americans. We are finally free to be who we truly are and still pursue our dreams and goals like any other American.

Now, is everything rosy and perfect? No.

LGBTQIA people suffer the deep wounds of the closet, even decades after we come out. Most of us have experienced discrimination on the basis of sexual orientation or gender identity at some point in our lives. There are still societal biases we need to combat and barriers we must break.

Legally, the work is not done either.

• The United States Supreme Court has still not explicitly held that sexual orientation is a suspect classification for purposes of the Fourteenth Amendment (it should be).

• Federal laws (and state laws) that prohibit discrimination need to be amended to include direct prohibitions on sexual orientation and gender identity discrimination so that protections are clear-cut and not through judicial fiat.

But are we in a “national emergency”?

I still remember the 1990s and the early 2000s, when LGBTQIA Americans were clearly second class citizens even if we were far more visible. Anyone who lived through the HIV/AIDS epidemic can remember the government ignoring the plight of people suffering from deadly disease out of moral opprobrium towards the victims for being gay men.

When Republicans controlled the Los Angeles County Board of Supervisors in the 1980s and early 1990s, they ignored the HIV/AIDS epidemic and fought all efforts to stymie the disease, with Republican County Supervisor Pete Schabarum once saying “the vast majority of the public really has no interest in the subject of AIDS”.⁴

But even those days were better than the 1950’s and 1960’s, a true dark age for the LGBTQIA community in the United States. Back then, consensual gay sex was illegal in 49 out of 50 states, homosexuality was considered a mental illness, an outing destroyed one’s life, and many gays and lesbians were subjected to scientific experimentation akin to medical torture (Atascadero State Prison in California is well known for this).⁵

Though even that does not compare to the plight of gay men during the Holocaust. Gay men were rounded up by the Nazis, locked in concentration camps, senselessly murdered, with survivors kept incarcerated even after liberation from Allied Forces, and then erased as victims for over half a century afterwards.⁶

This is not meant as a grievance lecture, but instead serves as a reminder to have some perspective.

We live in the United States in 2023.

Frankly, I cringe whenever I hear commentators suggest sexual orientation discrimination is something that either never happened or is merely a thing of the past. Only twenty years ago did the United States Supreme Court finally get rid of laws that prohibited gays and lesbians from engaging in consensual sex.⁷

But overstating small risks and petty offenses, intentionally looking for “microaggressions”, and turning any little thing into a larger than life catastrophic event, is not the answer to that.

What is the greatest current risk to the LGBTQIA community in the United States?

Arguably, the potential perversion of the First Amendment by the current ultra conservative United States Supreme Court.

We have worked hard to enact laws that prohibit discrimination on the basis of sexual orientation and gender identity. Laws requiring non-discrimination in public accommodations, employment, and housing are a cornerstone of protecting our great American system of capitalism and individual opportunity. It enables us to compete equally on the open market without unnatural interference inhibiting us.

Homophobic bigots and transphobic bigots have long sought to undermine these laws by claiming a personal exemption based upon the First Amendment.⁸ This is both centered around a belief that one’s personal religious views gives one the affirmative right to avoid laws applicable to everyone and a belief that one can claim a free speech exemption when that speech comprises part of an unlawful act.

Barney’s Beanery restaurant in West Hollywood used to prominently display a sign that read “FAGOTS STAY OUT!”⁹ The restaurant refused to remove the sign until West Hollywood incorporated as a city in 1984 and immediately enacted a non-discrimination law prohibiting sexual orientation in public accommodations.¹⁰

Now, some argue that “FAGOTS STAY OUT” is protected speech. Typically, that is protected speech under the First Amendment.¹¹

However, so is writing the expression, “Give me all the money in the vault or I’ll blow your fucking head off.”¹² I cannot be arrested, sued, fined, or censored for writing such a thing. However, if I walk into a bank, pull out a gun, aim it at the teller’s head, and say the same line, (or hand the teller a note saying the same) that is NOT protected speech under the First Amendment.¹³

Perverting the First Amendment would allow homophobic and transphobic bigots to decide they are the law unto themselves. And it would make political lobbying efforts pointless because whatever laws we enacted through the political process, the courts would hold the law doesn’t apply to those individuals who violate the law.

Thus far, the Court hasn’t fully adopted that position though it’s definitely edged close to that.¹⁴ We need to be weary. But we shouldn’t overreact to something that has not yet occurred. And we need to be pro-active in ensuring it doesn’t happen.

What is clear is that selective enforcement of non-discrimination laws will not be tolerated.¹⁵ Public schools can’t tell the on-campus Christian group they must accept gay and lesbian students but then tell the on-campus LGBTQIA group that they can have a “safe space” and reject straight people or reject Christians.¹⁶ Laws mandating the acceptance of LGBTQIA people will only survive the First Amendment when they are truly even handed.¹⁷

Truthfully, that’s not an unfair rule.¹⁸

Those of us who fight for sexual orientation and gender identity equality need to self-police in this regard. We must take steps to shut down selective enforcement of non-discrimination rules by the government. We must ensure that we live up to our principles of inclusivity in public accommodations. We also need to resist politicians on our side who engage in anti-religious activities as a payback for religious opprobrium to the LGBTQIA community.¹⁹

But again, while there is a definite risk of the perversion of the First Amendment, the term “national emergency” would be far-fetched.

What is HRC’s panic based on then?

Apparently, it is that Americans are having negative reactions to their top public policy priorities.

1. The HRC opposes laws that restrict the ability to minors to engage in experimental treatment to medically transition.²⁰

2. The HRC is upset over laws being enacted to restrict biological males, like Lia Thomas, from competing with biological women on competitive high school, college, and professional sports teams.²¹

3. States are enacting laws that prohibit people, like Lia Thomas, from showing their genitals to uninterested parties in opposite sex locker rooms where there is communal changing.²²

4. There also seems to be fear over the fact that many Americans dislike obnoxious Tik-Tok star and failed actress, Dylan Mulvaney, leading to backlash against corporations who hired her for advertising campaigns.²³

At the risk of sounding callous, this hardly seems like a “national emergency”. At least for most gay, lesbian, and bisexual people (and even transgender people).

At the outset, medical gender transition for children is a deeply complicated issue, with Sweden, Finland, Norway, and the United Kingdom all recently banning medical transition for minors after independent scientific review discovered significant health risks to minors.²⁴ The HRC is not claiming there’s a national emergency in any of these countries or that I should avoid visiting the United Kingdom or Scandinavia.

While some elected officials support laws restricting medical gender transition for minors are undoubtedly motivated by transphobic bigotry, not every opponent has that perspective.

When the HRC pushes for the medical transition of minors and opposes laws restricting it, they support the off-label use of puberty blockers for healthy minors to block adolescent development, even though the FDA has not approved puberty blockers for that usage and issued public safety warnings over their usage.²⁵ Just today, the National Health Service formally banned the use of puberty blockers in minors outside of their traditional purposes or in limited clinical research studies.²⁶

One prominent conservative trans activist, Sara Higdon, argues for banning medical transition for minors on the basis that it restricts their right to fully transition as adults.²⁷ She has cited cases where children medically transitioned and had been blocked from having normal adolescent development as minors, never developing fully functioning sexual parts.²⁸ As a result, when they sought to have sex change operations as adults, doctors were unable to perform successful sex change surgeries because these individuals lacked sufficient genital tissue to work with.²⁹ The results have been permanent sterilization, permanent inability to ever achieve orgasm, and in some cases, death.³⁰

A progressive, pro-choice, pro-immigrant, and pro-gay rights Democratic Texas State Representative, Shawn Thierry (D-Houston), voted with the Republican Party to ban medical transition, and defended her vote on the basis that all children should be allowed to go through normal adolescent development before making the choice whether to transition as fully developed adults.³¹

Now, I don’t know who I side with here. I am not qualified to give an opinion in an area where I lack knowledge and expertise. At least I will refrain until I learn far more on the subject. Like United States Supreme Court Justice Ketanji Brown Jackson, I am a constitutional lawyer, not a biologist or a doctor.

However, for the sake of argument, I will assume these opponents and European countries are wrong on this issue and that the HRC is correct. I can hardly describe these views in opposition as hateful or bigoted. An out and proud transwoman who has had a successful vaginoplasty arguing that trans children should be allowed to fully develop into adults so that they can enjoy the same surgical option she did is not hateful or bigoted.

Certainly, a debate on proper healthcare standards doesn’t constitute a “national emergency” of homophobic or even transphobic bigotry.

As to the other issues, many Americans oppose transwomen participating in women’s sports because of unfair advantages they have as well as safety concerns for biologically female players in physical contact sports with heavy physical play. In professional boxing, there are separate size categories for boxers. A 5’7, 125 pound boxer does not face off against a 6’5, 250 pound boxer. The separation is not made out of bigotry but out of safety concerns and concern for fair play and competition.

The concept of separate bathrooms and locker rooms based upon sex for the purposes of protecting personal privacy is not a meritless one, or even an inherently bigoted or conservative viewpoint.³² And although few have a problem with where people go to the bathroom, many have expressed concerns over locker rooms or other semi-private changing areas where people change in front of one another and people’s private parts are often on full display. This was an additional objection to Lia Thomas who reportedly changed in front of her teammates on the women’s swimming team.³³

Some of the objection is pure transphobic cruelty. But some have raised concerns about the safety of women that are more genuine. For example, in a 2021 protest of a day spa in Los Angeles’s Koreatown, women complained over a transwoman allegedly using their locker room facilities. While this led to violent protests, ostensibly in the name of LGBTQIA Civil Rights, it turned out that the transwoman in question was not a transwoman but a convicted sexual offender who enjoyed showing his penis to the ladies for his sexual arousal.³⁴

It begs the question.

Even if one agrees that Lia Thomas has a fundamental constitutional right to swim on the women’s team and show her private parts to uninterested parties in the ladies’ room, does opposition from women who dislike this constitute hateful bigotry?

Moreover, what is the true level of threat to the LGBTQIA community? Does a woman not wanting to see all that in the locker room pose a deep homophobic threat to me? Does a woman athlete who trains hard in a competitive professional sport who resents what she perceives, rightly or wrongly, as an unfair competitive advantage, pose a homophobic threat to me?

Frankly, there are dueling messages here. The HRC’s argument for multiple-stall gender neutral bathrooms is that segregating public bathrooms between men and women is the same as segregating bathrooms between whites and blacks, a segregationist tool now uniformly illegal in the United States. The HRC argues that sex is a purely social construct and there are no biological differences between men and women.

Following the HRC’s advice, the Santa Monica City Council recently passed a measure requiring multiple stall gender neutral bathrooms in all new commercial construction. A few Councilmembers lectured constituents who voiced concerns by telling them they were as bigoted as white southerners in the 1960s who opposed racially desegregated bathrooms.

However, the HRC, Lia Thomas, and other transwomen who insist upon their right to play on women’s sports teams and compete in women’s sporting competitions, are not arguing for desegregated sports teams and desegregated sporting competitions where all athletes compete regardless of sex.

Instead, they argue there should be sex segregated sports teams and sex segregated competitions but that they should be allowed to compete as women.

It’s confusing because both arguments are advanced simultaneously.

But if biological sex is not real and purely a social construct, then there should not be a separate women’s team and separate men’s team. Or separate sporting competitions for men and women. That would be akin to having separate sports teams for blacks and whites or separate sporting events for black athletes and white athletes.

One doesn’t need to decide which side of this issue they support to understand that this does not constitute a national emergency where LGBTQIA people must fear for our rights and even our lives. This is a public debate that suggests more discussion is needed and more public persuasion is needed. Many argue that if transwomen are not allowed to compete on women’s teams, they will commit suicide. That’s an argument that needs to be explained to the public.

But simply dismissing concerns as bigotry and declaring opposition is part of an effort to roll back the clock on fundamental rights is not the way to do that. And making these issues the end-all, be-all of LGBTQIA rights amounts to what can only be described as overly dramatic hyperventilating.

Is there a cost to all this bluster?

Unfortunately, it is akin to the fable of the boy who cried wolf. A boy seeking attention cries wolf repeatedly leading to nearby village people rushing to help him. When they show up, they see that there is no wolf. They go back to their daily business. But the boy once more yells that there is a wolf present, leading once more to a response by villagers, only to see there is still no wolf present.

Eventually, the people in the village realize he’s just making it up. And they stop responding to the boy’s cries. Ironically, a wolf does eventually show up, leading the boy to once more cry out for help. But this time, the village ignores the boy’s cries because everyone thinks the boy is making it up again.

When there are cries of a “national emergency”, “genocide”, and “systematic campaign of hate”, the public will eventually ignore those cries when they learn what those cries are for. When a real threat rears its head, people won’t be so quick to respond.

There are places in the world right now where it is NOT safe to be LGBTQIA. In Uganda, a bill is being considered to execute gay people.³⁵ In the Middle East, during the reign of ISIS, gay people were rounded up and killed.³⁶ In Chechnya, gay people are thrown out of windows.³⁷ In Iran, gays and lesbians are given two options upon discovery: death or forced sex change operations.³⁸

A drag queen performance group may be unhappy that the local Catholic diocese doesn’t want them to provide entertainment at their annual Fourth of July community event. Now, that’s probably the local Catholic Church’s loss. But despite what State Senator Scott Wiener (D-San Francisco) and others like him claim, the rejection of the drag performers by the church is not genocide.

Moreover, the calls of a “national emergency” have the potential to create a negative self-fulfilling prophecy for the LGBTQIA community that harms LGBTQIA people.

Anxiety is a very debilitating condition. It often clouds thinking, leading people to make bad decisions that are counter-productive and harmful. In some cases, anxiety can lead to individuals making bad decisions that result in the realization of their worst fears. Anxiety can dissuade people from following their passions and pursuing their talents. It can cripple one emotionally and socially, so much so that it can dramatically lower the quality of one’s life.

When national organizations (and politicians who line up to embrace and repeat every single word they say without question) casually throw out words of fear and danger, it can have a significant impact. If LGBTQIA people feel like targets because we constantly hear that we’re in a “national emergency” and hear politicians and advocates casually toss around terms like “genocide” and “hate”, the increase in individual anxiety will occur. That will be extremely harmful to the community.

To be sure, there are real life threats to fear. If a ski-masked donned axe wielding maniac breaks into your home in the middle of the night, you have every right to be afraid. Indeed, you probably should be afraid and take appropriate measures to protect yourself.

However, if you spend all of your time fearing that a ski-mask donned axe wielding maniac will break into your home for no apparent reason, and your daily life suffers as a result, you might wish to seek out professional help. That irrational fear can destroy you.

Members of the LGBTQIA community should not live our lives in fear of something that does not exist. It’s pointless and self-defeating.

The HRC’s call of a “national emergency” is wrong. We are not having a national emergency. It is not unsafe for LGBTQIA people to simply exist. At least not here in the United States. There are debates on certain controversial policies. There are potential legal threats against us. But there is no genocide or rush to discriminate.

To the HRC, as well as the other organizations, politicians, and celebrities falling all over themselves to echo their sentiments, I will simply conclude by saying:

“Okay! Cool it!”

1. https://www.newsnationnow.com/lgbtq/hrc-declares-national-state-of-emergency-for-lgbtq-people/?utm_campaign=socialflow&utm_medium=referral&utm_source=t.co

2. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

3.

4. https://www.latimes.com/archives/la-xpm-1989-05-20-me-143-story.html

5. https://www.kqed.org/news/11917624/how-a-young-gay-man-survived-one-of-the-darkest-eras-in-california-queer-history

6. https://time.com/5953047/lgbtq-holocaust-stories/