Last Thursday, Dec. 8, the U.S. House passed the Respect for Marriage Act without a hitch. The bill formally repeals the 1996 Defense of Marriage Act (DOMA), which was previously rendered unenforceable by the 2015 Obergefell v. Hodges Supreme Court ruling that established marriage equality as the law of the land. President Biden signed it into law on Tuesday, December 13.
Six days earlier, without much fanfare, Oklahoma representative Jim Olsen filed a bill that could medically detransition every trans person in Oklahoma under the age of 21. The contrast between these two moments—the sweeping, sentimental, high-profile victory for the Democratic administration, and the brutal attacks going on at the state level—seemingly sums up the state of LGBTQ2S+ politics in America at the end of 2022.
Marriage equality is, of course, one of the landmark civil rights victories in recent history. It was unthinkable as recently as fifteen years ago—Barack Obama himself wouldn’t touch it in 2008—and is now buttressed by staunch bipartisan support. (Ohio governor and Republican presidential candidate John Kasich famously attended a gay wedding; not only was this not a scandal, he used it in his presidential campaign to position himself as a “moderate.”) The victory was hard-won and bitterly fought, and the rights secured thereby are not minor.
Yet there are things about marriage that make it an easy sell. Marriage is respectable; it redeems sexual desire by locking it into a legible social arrangement. “Marriage is a keystone of our social order,” wrote Supreme Court Justice Anthony Kennedy, delivering the court’s opinion in Obergefell. Thus, same-sex married couples (not that all queer couples are same-sex, but …) seek “equal dignity in the eyes of the law,” not to the overturn of “the law” or social order itself. Marriage is a sentimental victory, easy to promote and celebrate with “love is love”-style messaging that stresses the dignity and tenderness of queer partnerships.
Right now, at this moment, the GOP is not looking to legislate queer hearts. It’s looking to control queer bodies. The bill in Oklahoma is very far from the only one of its kind. Most notably, on Oct. 28, Florida’s Board of Medicine voted to draft a rule that would detransition every trans Floridian under the age of 18. The battleground here is not affection, it’s bodily autonomy—and Democrats have been strikingly unwilling to fight for queer and trans people on those terms.
Let’s backtrack to the reason that it became urgent to Respect Everyone’s Marriage in the first place: The very recent overturn of Roe v. Wade, which established the constitutional right to abortion. By overturning Roe, the Court essentially ended the idea of a constitutional “right to privacy,” upon which several other crucial civil rights cases—including Obergefell—depend. Reproductive rights advocates loudly warned that if Roe were overturned, gay marriages “could be next.” Presumably, they were hoping to drum up solidarity. In reality, what has happened is that Congress moved to codify Obergefell v. Hodges into federal law without codifying abortion, leaving Roe twisting in the wind.
Democrats moved to protect the social right, and not the medical right—and that set of priorities is wildly unlikely to protect trans people. Medical transition is a medical process, and the right of the state to interfere in the relationship between patient and doctor is precisely what’s at stake in most transition bans.
Roe is not the only Supreme Court ruling being left unprotected. Lawrence v. Texas, the 2003 ruling that overturned sodomy laws and decriminalized queer sex, was also decided on the “right to privacy”; there has, so far, been no widespread activism to defend it, or any attempt to pass it into law. We’ve managed to codify the right for gay people to marry without codifying the right for them to be gay, thus leaving the most vulnerable parts of the LGBTQ2S+ community—unhoused people, trans people, sex workers and people of colour—potentially open to police entrapment and violence down the line.
Roe and Lawrence are not about love, or about fitting into the social order. They’re about the bodily sovereignty of women and queer and trans people, which is a direct challenge to that order. Queer sex, like abortion, affirms the right to have sex for non-reproductive purposes. Transition, like abortion, is a form of healthcare that allows marginalized people to control their own reproductive anatomy. Put bluntly: queer sex, transition and abortion are all exercises of the same basic right; they all enable someone to determine the course of their own life, rather than having it determined for them by their genitals.
This is deeply threatening to American conservatism, which is built around the idea of “the family” (read: the white, Christian, patriarchal nuclear family) as the only acceptable way of life. It’s no wonder that Republicans never stop attacking bodily autonomy. What is a wonder, or at least a shame, is that Democrats have done such a piss-poor job of defending it.
The much-vaunted Equality Act, for instance, would have extended anti-discrimination protections to LGBTQ2S+ people across the board. It foundered in the Senate, not just because of Republican opposition, but because Democratic senator Joe Manchin reportedly objected to its protections for trans students. The Transgender Bill of Rights, introduced in the House last June by Rep. Pramila Jayapal and others, explicitly framed LGBTQ2S+ rights in terms of bodily autonomy, and included “expanding access to gender-affirming medical care, codifying the right to abortion and contraception” and “banning forced surgery on intersex children and infants.” Even at the time, analysts expected the bill to be a largely symbolic gesture, with no chance of passing into law, and so far, that’s all it has been.
We currently have a year—if that—before the grisly engine of the 2024 presidential election revs to life. Obsessive focus on rolling back trans and queer rights failed to deliver the Republicans the overwhelming Congressional majority they expected, but that is no guarantee they’ll abandon the strategy for the presidential election, especially not when the field of Republican candidates is expected to include both Donald Trump and Florida governor Ron DeSantis.
Republican Presidential candidates have been promising to overturn Roe v. Wade and institute federal abortion bans for decades, and they have delivered on at least half of those promises. It is entirely likely that a candidate will vow to pass a federal transition ban at some point in 2024, and that promise, too, may take on a life of its own. Unless there is a robust and proactive defence of queer and trans rights on the grounds of bodily autonomy, Democrats will cede that ground, and trans people will be left without political allies at the moment we need them most.
Love is love, but hate is hate, and it’s pretty clear which shape this particular hatred is taking. To stop it, we have to stop looking for easy wins and start fighting the tougher battles at hand.
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