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As LBGTQ community girds for battle, advocates say time and the law are on their side

WASHINGTON — Harleigh Walker is just an ordinary American high school kid, but with one important difference: how she’s spending her summer vacation. 

The self-described “very happy” straight-A student, debate-team veteran and unabashed Taylor Swift fan enjoys listening to records in her bedroom and going to concerts with friends in her Alabama town of Auburn. 

Oh, and she loves to travel. Which is good, because she’s fast becoming one of the most prominent and eloquent advocates for transgender rights in the United States. 

That’s what she was doing again Wednesday, the first day of summer, in front of one of the most powerful Senate committees on Capitol Hill — just one of many U.S. forums where the country’s social divisions are on regular display.

“I’m just trying to be in a teenager in America, same as any other teen,” Walker said, her grey plaid pantsuit and poise under pressure making her seem older and wiser than her 16 years. 

“But I keep having to jump through hoops that other people don’t have to. I keep having to spend Spring Break lobbying for my right to exist while my friends are on vacation.”

This, in a nutshell, is the United States in 2023: riven by seemingly insurmountable cultural and social divisions that serve as rocket fuel for social media’s echo-chamber dynamics and provide fertile ground for political gain.

And with the 2024 presidential election cycle in full swing, the question of LGBTQ rights promises to be a popular talking point with Republicans, particularly in the dozens of U.S. states considering legislation that targets them. 

“We’re kind of living in two different Americas right now,” said Andrew Flores, an assistant professor at American University’s School of Public Affairs in Washington, D.C., who specializes in LBGTQ politics and policy. 

“Some trans people have a whole lot more protections because of where they live, and some trans people have a whole lot fewer protections just because of where they live.” 

At least 20 states have already enacted laws that limit or entirely outlaw gender-affirming medical care for transgender minors — just one component of a wide array of restrictions being imposed by Republican-led state legislatures. 

Others include limits on self-expression like drag shows and literature, access to facilities like public washrooms, marriage bans, rollbacks of protections against discrimination and the ability to obtain gender-friendly IDs. 

But it’s been schools and their students that have become the hottest flashpoint, in large part because of their political heft and the ability of opponents to frame the issue as one of student safety, parental rights and fairness. 

Also at Wednesday’s hearing was Riley Gaines, a former all-American competitive swimmer from Tennessee who has become an outspoken critic of allowing transgender women to compete against biological females.

“It’s not transphobic to say that you can’t change your sex — sex is down to a chromosomal level, and that’s not something that can be changed,” Gaines said. 

She described, often fighting tears, the climate in the locker room at last year’s NCAA Championships when she and others found themselves changing in the company of transgender competitor Lia Thomas.

Some of their rivals were so unnerved they opted to change clothes in a janitor’s closet instead, she testified.

“Sports is the one area where your sexual chromosomes matter,” Gaines said. “The overwhelming majority of people regarding this issue of fairness and women’s sports agree that having men in women’s sports is wrong, and that it’s unfair.”

That’s what makes it such a powerful political tool, said Flores, who also serves as a visiting scholar with the Williams Institute, a think tank at UCLA focused on the intersection between jurisprudence and gender identity issues.

“At least for now, people are viewing the sports question from a fundamentally moral perspective — it’s, ‘I’m right or you’re wrong,'” he said. 

Finding a middle ground on which to build policy is difficult when an issue is so complex and misunderstood, he added. 

“Eventually, there’s going to be a greater appreciation of what that complexity is, but it will take time, in part just because the American public is finally learning more about what the term transgender actually means.”

Despite the political and cultural climate, LGBTQ activists nonetheless feel they are on the cusp of a breakthrough akin to the advent of gay rights in the 1970s and 1980s, culminating in the legalization of same-sex marriage in 2015.

“I think we are in a moment in history right now where there is absolute division and there is absolute regress — but I actually think that it’s not nearly as bad as the media wants to make it,” said Todd Sears, a New York financial adviser. 

In 2010, Sears founded Out Leadership, a growing alliance of corporate leaders actively promoting LGBTQ inclusion and advancement in some of America’s most prominent boardrooms and C-suites.

“I have so many titans of business that have supported me and continue to support this movement that it’s almost like the death knell — (criticism is) the loudest right before it’s over. I think this is the dying gasp. 

“It’s bad, and I don’t want to underplay that. But it just shows how much progress we’ve made, how much farther we’ve come, just by the vitriol and the hatred and the intensity of the fear.”

Out Leadership released an index last month cataloguing how LGBTQ-friendly all 50 states are, with an eye toward promoting the time-honoured principle that diversity and equality are simply good business. 

New York, Connecticut and New Jersey topped their list, while Louisiana, South Carolina and Arkansas rounded out the bottom.

The prevalence of anti-LGBTQ bills across the U.S. prompted congressional Democrats to reintroduce the Equality Act, a proposed federal law designed to protect LGBTQ people from discrimination. 

“This is an insult to our ideals. It is a continuing stain upon our pride as a country,” New Jersey Sen. Cory Booker told a news conference Wednesday. 

“This is not a cause just for the LGBTQ. It is the call of all Americans who believe in our ideals.”

For Flores, the case law to date surrounding LGBTQ issues is simply too robust to imagine higher courts overturning it, even with the conservative tilt of the current U.S. Supreme Court. 

“The law as it relates to sex and gender is actually far more developed than even the law around sexual orientation, and what your rights are under that category,” he said. 

He cited the examples of two well-known U.S. cases that ran afoul of the U.S. Constitution: a state effort to establish a higher legal drinking age for men and a military institute in Virginia that wanted to exclude women. 

Both cases were predicated on similar outdated stereotypes about women, he said: that they were less likely to drive while intoxicated, and unlikely to withstand the rigours of a military curriculum aimed at male soldiers. 

“If there are stereotypes involved, that’s clearly going to be something that could be questionable,” Flores said. 

“There’s more legal grounding to say, ‘What are your motivations to make certain broad-based claims, and are those motivations based upon a stereotype about what you think about men and women?'”

This report by The Canadian Press was first published June 23, 2023.

James McCarten, The Canadian Press

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