The Queer and Present Danger of the American Legal System
Say gay? I sure hope it does!
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The American legal system has been heavy on my mind today. It could just be that it’s Monday, or that I have been tracking live updates from Donald Trump’s first criminal trial which started jury selection today. Or perhaps it’s because today’s piece is the culmination of several offline conversations that tie together eight previous E4P installments in a Madame Web kind of way—who’s to say?
This week, I’m once again joined by Emily For President’s legal correspondent Skylar Corby to talk about the state of LGBTQIA+ rights in the face of an ever-growing number of discriminatory laws, the relationship between her sexuality and her profession, and what we can all do to combat the harmful legal challenges still yet to come.
Skylar Corby is a law student based in Brooklyn with a passion for queer civil rights and really good blazers. When she’s not being fastidiously studious, she can be found researching the best new restaurants in the city, over-caffeinating, and rating everything she watches on Letterboxd in great detail.
“Here Is the Worst News You’ve Ever Heard”
If you’ll recall, I talked with Christian Harvey last March about the staggering rise of anti-drag and anti-trans laws across the country. This came after we discussed the new Lavender Scare-style discourse that was steadily increasing, particularly in legal spaces.
After the Supreme Court overturned Roe v. Wade, Justice Clarence Thomas spilled the tea HARD, essentially spelling out the conservative justices’ strategy in his concurring Dobbs opinion: much in the way that they didn’t find bodily autonomy or medical privacy constitutionally protected, the right-leaning judges also wanted to circle back about marriage equality and the 2003 decision to decriminalize “private, consensual non-procreative adult sexual activities.” You know—things all normal people think about in their free time.
This is all to say that things have steadily worsened each time we talk. I don’t mean to fearmonger but I do want to set the tone for today’s piece appropriately. Or, as Skylar put it:
To kick things off, I wanted to know:
Emily: What is the state of LGBTQIA+ rights in the US right now?
Skylar: Not to start on a doom and gloom note, but things really aren’t great on that front. It’s honestly sort of difficult to explain because many LGBTQ+ folks probably have noticed little to no difference in how their lives operate because of where they live or their specific life circumstances that may help shield them from intense discrimination or legal scrutiny.
The reality is, though, the rights of LGBTQ+ people—and especially transgender and non-binary individuals—are deteriorating rapidly at the state level all over the country, and even federally in some ways via the Supreme Court. The proliferation of anti-trans laws in so many states is part of one of the most prominent anti-LGBTQ+ movements we’ve seen since Don’t Ask Don’t Tell and DOMA, more than 25 years ago.
Perhaps most dire is the sweeping trend of limits and bans on gender-affirming medical care for transgender minors, and even transgender adults in some cases, present in twenty-three states in the US as of January of this year, with more likely on their way by year’s end. For reference, that’s a five-fold increase from 2022, when only four states had implemented bans or limits on such care.
Additionally, sports bans for transgender youth have been a topic of conversation for a while, but now twenty-five states have laws and regulations explicitly banning transgender minors from playing sports on teams consistent with their gender identity, up from eighteen states less than a year ago. The National Association of Intercollegiate Athletics, the organization that governs all sports teams at most small, private colleges, just passed a new regulation days ago banning transgender athletes from participating on teams that reflect their gender identity.
And frankly, there are almost certainly more regulations just like it along the way, considering a federal bill banning transgender athletes from sports teams was passed in the House of Representatives last year. As long as Democrats have control of the Senate and the White House, that bill has absolutely no chance of getting passed, but come November, we could see some very swift, very negative changes.
Last year, the FBI released a report showing anti-LGBTQ+ hate crimes up a staggering amount—now making up more than 20% of all reported hate crimes—and hate crimes against trans and gender non-conforming folks specifically were up 33% from the year before. Crimes against Black trans women, specifically, have become a horrible commonality, making up more than half of reported murders of transgender people. I don’t like to be overly alarmist, but when I say things are getting worse fast, I’m really not being hyperbolic.
These anti-LGBTQ+ sentiments that promote ideas like grooming, child abuse, and child sexualization, they’re deeply influencing not only thoughts but also actions, in profound and dangerous ways.
While much of today’s conversation has come from things Skylar and I have, in a way, always been talking about, the conception for this specific piece rose from a recent tragedy. I asked Skylar:
Emily: Can you explain the Nex Benedict case, and how it fits into or exemplifies this current moment culturally and legally?
Skylar: In light of much of what I talked about in the previous response, just weeks ago, Nex Benedict’s story made headlines. Nex Benedict was a 15-year-old non-binary teenager from Oklahoma who was assaulted by a group of girls in the bathroom at their high school and then died the next day.
Despite the autopsy showing the cause of death being related to an overdose of over-the-counter pain relievers and allergy medication, I, along with many others, have doubts about the validity of that. How was this child kicked in the head numerous times on campus during the school day, and no school officials even thought to notify Nex’s guardians? Or even get them medical attention? Why do all of the details feel so shrouded in secrecy?
I never want to feed into conspiracy theories, and I won’t do so now, either. But in a state like Oklahoma that is so openly hostile to LGBTQ+ individuals, and especially minors, I’ve felt overcome with grief imagining the amount of pain and fear Nex must have experienced, regardless of their cause of death in the end.
They, and every other trans or gender non-conforming person who has been killed or abused at the hands of rabid queerphobia and a broken justice system deserved far better than this world gave them. May all of their memories be for a blessing, and a revolution.
For all the talk about “protecting kids,” it really does feel like our country is actually failing many of them.
I Love My Alive Gay Son
As I’m writing this, the Supreme Court has allowed Idaho to ban gender-affirming medical care for minors. On one hand, I can’t stop saying a paraphrased version of a joke from Maya Rudolph’s seminal performance as Dionne Warwick on The Unbreakable Kimmy Schmidt:
But on the other, which is my more serious hand, the news is indicative of how necessary this conversation is to have literally right now. Circling back to close the loop regarding why the SCOTUS feels the need to make medical decisions for people whose bodies they are not living in, I asked Skylar:
Emily: In 2022, Justice Thomas wrote in his Dobbs concurring opinion that he was eyeing overturning Lawrence v. Texas and Obergefell v. Hodges. How severe and immediate of a threat do you think this SCOTUS is to LGBTQIA+ rights?
Skylar: Unfortunately, this current Supreme Court has already shown itself as a threat to LGBTQ+ people, primarily with the decision last June in 303 Creative LLC v. Elenis. I talked a lot about that case when I was last on E4P, so I don’t necessarily want to bore everyone with all of the details again, but here’s an excerpt I wrote last time that outlines a rough summary of the case:
303 Creative LLC v. Elenis is likely the one you’ll have seen a lot of in the news in the last couple of weeks, and for good reason. This case revolved around a Colorado woman, who for legal purposes here is an “artist,” looking to get into designing wedding websites (note that she hadn’t actually started the business or designed a website yet).
There is a Colorado law (the same one at issue in the Masterpiece Cakeshop case a few years back) that says that businesses cannot discriminate against protected classes, including LGBTQ+ couples. And although a gay couple never even approached her about designing a website like she says they did, she brought the case anyway, looking for preemptive relief to say that she would not have to make websites for LGBTQ+ couples due to her personal religious belief.
I’ve now spent the last eight months researching that case and its predecessors for an academic publication, and the real TL;DR on the whole thing is: we don’t really know how much this case—or any other coming down the pipeline—is going to actually affect LGBTQ+ people from a legal standpoint, especially at the federal level.
As it stands now, I’d say the biggest threat is how ordinary people take that news and decide to apply it in their own communities, like the hairdresser in Michigan who banned transgender individuals from her salon, likening them to animals that should find a pet groomer instead. She posted this sign directly after the decision in 303 Creative came down, and even with assurance by Justice Gorsuch that this decision does not create a blanket ability to discriminate against LGBTQ+ individuals, those words are a cold comfort to many who are seeing increased hostility in their communities regardless.
I can’t speak to the future of the Court, and what cases will or won’t be brought in terms of same-sex marriage or same-sex sex, but I wouldn’t necessarily call it totally off the table either, considering the way several Justices said Roe would never be touched, and overturned it in Dobbs anyway.
Emily: As someone who is both queer and in school to be a lawyer, where’s your head at with all of this? How do you feel about your profession when it comes to deciding your rights, and how do you stay hopeful in moments like this?
Skylar: Being in law school at such a fraught political time has been an interesting experience, to say the least. But I think at the end of the day, the amount of volatility and difficulty facing the LGBTQ+ community has really only strengthened my resolve to finish my legal education and do what I can to help, in whatever way, shape, or form it’ll occur.
Change isn’t going to happen by sitting on our laurels and being in a field that is so deeply entrenched in people’s lives actually feels like a privilege and an honor, albeit stressful at times. I’m deeply proud of the individuals I know doing thankless work fighting these idiotic state laws and am looking forward to joining them in the coming years.
Staying optimistic can be exceedingly difficult with the state of things at the moment, especially on days when it feels like the bad news starts coming and doesn’t ever stop. But I believe hope, even on those days, is not foolish or wishful. Hope can be radical, a belief that working towards a better, more just world, is something that all of us can do. I don’t look at hope as naive, but instead, it’s an action—not just something to dream of, but something that we can get up and do.
Framing it that way has been instrumental in not losing all steam and giving up, even when that sounds far easier.
I fear I became something of a tin hat conspiracy theorist recently when, in the span of two weeks, the House of Representatives voted in favor of what is essentially a TikTok ban1, users discovered that Meta had added a default setting to its newest Instagram update that hides political content unless you manually turn the setting off, and Florida Governor Ron DeSantis signed a bill fully banning social media for kids under 14. The three felt inextricably connected, and part of the effort to “protect” children from queerness.
I think it’s because it has all reminded me of my conversation from 2022 with Mon Sucic about the role social media—and TikTok specifically—played in the lives of countless trans and gender-nonconforming members of Gen Z during the pandemic. As Mon explained,
Emily: What is the number one way TikTok has impacted Gen Z's notions of gender presentation?
Mon: It’s shown queer kids that there’s more of them out there and that everyone has their own unique way of expressing their gender. Through the For You Page, people get exposed to the same topics consistently from creators that are usually just like them or who are speaking on topics they’re interested in.
Emily: How has TikTok changed or reshaped the notion of community amongst trans and gender-nonconforming members of Gen Z?
Mon: A lot of queer teens find it easier to make/meet friends online, and TikTok is another way for people to do that. The app puts names to faces, or at least usernames to faces, and gives kids a (somewhat) tangible sense that there’s someone else experiencing the same things that they are.
Emily: What kind of impact can hearing about a variety of gender experiences have on someone who is grappling with their gender identity? How has TikTok shaped the way Gen Z experiments with gender presentation?
Mon: I think just the sheer exposure to and abundance of content allows people to see the different options available to them. It’s almost speedrunning the experiences that queer kids usually have to wait until college to experience; they’re learning about a plethora of identifiers and having the limits of what they knew on gender expanded.
For queer kids, social media can be a lifeline. Disrupting access to it as a means of protecting children can instead have the opposite effect. It can leave them feeling more isolated and, this might come as a shock to all of the homophobes reading this, it will not suddenly make them cisgender and straight. Adding to the Madame Web allegations, I remembered my friend Brady’s response to the question:
Emily: What do you see as the greatest threat/threats to the LGBTQIA+ community right now?
Brady: The greatest threat to the Alphabet Mafia is the deeply flawed belief that exposing children to non-traditional LGBTQ-centric relationships will corrupt their innocence. I'll never forget when my dad asked me not to tell my half-siblings (who are 12 years younger than me) that I'm gay. When I asked him why, he said, "Because they're too young to understand." I'll also never forget that one of my ex-boyfriends didn't want us to kiss in front of children. When I asked him why, he said, "Because it's inappropriate."
Let's get one thing straight: queer love is not pornographic. It is not indoctrination. Countless children's media show heterosexual cis-gendered love stories. In our society, that's the default. But it doesn't have to be.
By the way, if your kid's a homo, they're gonna be a homo no matter what, and no parenting style will change that. The only thing that changes is how soon your child learns to love themself, and potentially another person, or to become supportive allies for their queer classmates, brothers, sisters, etc. Parents can directly influence the trajectory of their child's life by introducing them to the beauty of queer love—the sooner the better.
But before I digress any further, I wanted to ask Skylar her thoughts on the matter:
Emily: Do you think three recent developments—the potential TikTok ban, Meta’s automatic content setting, and Florida’s age restrictions—have anything to do with policing queer kids and their lives online? If so, what do you think is the intended effect?
Skylar: This is a pretty loaded question and I can’t say anything with total certainty, but I hesitate to say it’s entirely unrelated, too. I feel like the TikTok ban and Meta’s setting are both probably less likely to have to do with policing queer kids, and more about a political then a financial play, respectively. Florida’s social media age restriction sets off the most alarm bells in my head because it feels so inextricably tied to this false idea that queer adults are purposely grooming children into also being queer.
When Ron DeSantis is parading these exact sentiments around, I find it really hard to believe it’s not strongly connected to this restriction, even if they aren’t saying it out loud (though, honestly, they probably WILL say it out loud if they think it’ll be a popular idea). Queer people have relied on the internet since its inception as a place to explore and discover their sexuality and/or gender identity without judgment, and taking that away from young teenagers feels deliberate and pernicious.
Those kids deserve a space to figure themselves out without constant surveillance or policing—and I really hope Florida’s ideas don’t catch steam anywhere else, though I’m not that optimistic on that front.
Preventing queer teens from accessing places online for them to learn and explore their identities will never stop them from being queer, but it will deny them the opportunity to form community when they can’t find it in real life. All that will do is make them feel shameful and alone and lead to far worse mental health outcomes. It’s not only unfortunate, it’s dangerous.
You’d Have to Stop the World Just to Stop These Damn Laws
When I think about Mon’s piece, I also unfortunately think of the time I was talking about it with a group of people the week I wrote it and one of them scoffed at the concept. It’s been two years and I still can’t shake how uncomfortable it made me to, first, experience it, and second, to realize it was a result of this person being so comfortable in whatever terrible conceptions they had about gender identity.
I’m very fortunate to love and be loved by so many members of the community,2 and though I’ll joke about being the token straight friend at the gay bar, I don’t take being invited and welcomed into queer spaces lightly. Of course, you don’t have to know, love, or berate members of the LGBTQ+ community with Wendy Williams memes daily to be an ally or to care about these issues. But as I personally have tried to become a better ally—sometimes flailingly—I’ve realized that it’s worth it to use this space for things that matter to me, and talking with and in support of my favorite people is what matters most.
That is, in part, why I wanted to ask:
Emily: How much of this shift towards discriminatory laws, acts, and legal decisions can be stopped or avoided? What, if anything, can we all (and allies, in particular) do to stop it?
Skylar: I urge people to use their voices and call their representatives when these discriminatory laws are being introduced or voted on, but in terms of stopping them at source, that’s far more complicated. That comes down to essentially changing regular peoples’ opinions AND fundamentally changing the operation of the GOP. I don’t want to be a pessimist here, but the likelihood of that is…low.
I also hate getting on a soapbox about voting when that sometimes hasn’t helped, but at this point, voting is most of what we’ve got left when it comes to preventing further harm against LGBTQ+ people at the legal level. I recently met with an attorney who has spent years working on cases for trans folks and trans civil rights, and she just left that field because she felt things had gotten so dire on the judicial front. With the state of this current Supreme Court, cases getting sent up that route are almost definitely not going to have a positive outcome.
I do wholeheartedly believe that the tide will eventually turn away from this particularly nefarious trend occurring right now, but it may take some time.
Allies are perhaps instrumental in slowing or stopping the spread of anti-LGBTQ+ laws and sentiments. Beyond voting, people need to be open about their allyship and make it clear that when the community, and especially trans people, are attacked, they won’t stand for it any more than those of us in the community do. In a similar vein, non-trans folks within the community who are able must stand up and speak out as well.
All queer people here must stand for all queer people everywhere, and that certainly must be the case now as anti-trans sentiment has skyrocketed. Attend protests and make noise—it’s the only thing we can do.
We know that we did not just fall out of a coconut tree and that we exist within the context of all in which we live and what came before us.3 The current historical moment we’ve been living in for the past eight years, give or take, has often felt unprecedented. But the history major in me—who hasn’t leaped out in a minute!!!—wanted to know if there was anything we could glean from our past:
Emily: Is there an era or moment in queer history that feels similar to right now? If so, how did the LGBTQIA+ community manage to persevere?
Skylar: I think it’s sort of difficult to really analogize our current situation to any major time in history regarding LGBTQ+ rights, mainly because it’s still true that acceptance of queer people is far higher than it was in times like the AIDS crisis, the time around Stonewall, or the Lavender Scare.
As I said at the start, there are plenty of queer people who live in fairly liberal areas whose lives probably feel entirely unchanged by the more recent issues facing the community. If I wasn’t as enmeshed in the world of queer advocacy and the general legal field, I myself probably wouldn’t notice much as a queer person living in New York City.
It’s undeniable, though, that many people very much ARE feeling the dangers of this current environment—for example, families with trans and gender nonconforming kids are having to move states to access basic affirming medical care and avoid actively hostile, discriminatory situations that are present in so many states.
The thing that absolutely does connote previous anti-LGBTQ+ movements is this phenomenon of the right wing generating a faux culture war over a minority community of entirely harmless, defenseless individuals that actually doesn’t affect much of anyone.
Transgender individuals make up less than 2% of the US population, but conservatives are convincing a large swath of people that queer folks are some clear and present danger here to groom and corrupt your children. This dog whistle has been around for a long while, popping up as early as the '60s, and recycled through the AIDS crisis, the fight for gay marriage, and so on.
It’s an old tactic, when the fractured Republican party feels like it is losing steam and support, it unites under a big cultural issue, stages a massive publicity campaign about it, and manages to bring people aboard the party. This comes right out of the abortion playbook, where they played the long game for 50 years and ultimately won (for now).
As any minority community in this country will tell you, perseverance is the name of the game when it comes to survival. The LGBTQ+ community has made great strides in acceptance in the last 30 or so years, and although things appear to be backsliding a bit now, I have faith that we’ll earn back any ground we’ve lost. Our job is to stand up, speak up, unite together behind our trans and gender-nonconforming siblings, and be stubborn as all hell until we see the change we need.
We’ve done it before, and we’re going to do it again.
I know I primed y’all with the acknowledgment that today’s piece was going to be heavy but I’ll never let you leave on a low note. I wanted to end by asking Skylar (after essentially begging her to make a Jojo Siwa joke):
Emily: Can you celebrate your queerness for a second?
Skylar: Considering “Good Luck, Babe” by Chappell Roan dropped this month, I currently feel extremely celebrated.
I’m only a little bit joking—seeing out, queer musicians, artists, actors, and the like feels more important than it has in a while, and I think seeing so many prominent individuals not only be able to be themselves but also so casually does a lot for my belief that all hope is not lost. Even times of difficulty—sometimes especially times of difficulty—breed some very beautiful instances of unification and togetherness that make us more resilient and powerful than ever.
I’m deeply, irrevocably proud to be a part of the queer community and look forward to continuing to celebrate and resist in equal measure for many years to come.
Always remember kids: say gay!
Thank you so much once again to Skylar!!! I don’t think she comes on here nearly enough, so we’ll have to rectify that in the future!!
For a good summary of why the bill is not simply asking TikTok’s parent company to sell it, as many of those currying support of it would have you believe, check out this video from Washington Post tech reporter Taylor Lorenz.
Google it. I don’t need to explain every piece of internet culture to you!!!