In a six-part overview at the end of the year, contributing editor Rob Salerno examines the changes in the international fight for LGBT rights. We’ll publish an article every day that examines the achievements and challenges in a diverse region of the world. In this article, we examine North America.
Rob Salerno’s World LGBT News Substack, which is available for free reading and subscription, is where this article first appeared.
Canada
Most of the significant 2SLGBTQI legal milestones that rights organizations have been fighting for around the world have already been reached by Canada, but that doesn’t mean there won’t be news to report here in 2023.
The most notable issue that has emerged in Canada is a movement known as “parents’ rights,” which is focused on the notion that students may alter the name or pronouns they use in the classroom. Similar activities are also taking place south of the border. On the surface, this seems sensible, but I’ve written about why it’s absurd.
This all began with the deeply unhappy conservative premier of New Brunswick making a surprise policy announcement, which resulted in the defections of two cabinet ministers. The conservative institutions of Ontario and Saskatchewan subsequently adopted the plan, with Saskatchewan passing a law shielding it from challenges under the Charter of Rights. Republicans in Manitoba tried to turn it into an election issue but were soundly defeated. In 2024, voters in New Brunswick and Saskatchewan may be able to put these policies to the test on the hustings as well.
In the meantime, under the new leadership of Pierre Poilievre, the national Conservative Party began to take a more aggressive stance against LGBT people in 2023. Despite the fact that the government has no authority whatsoever over education, he has made the issue of “parents’ rights” the main focus of his campaign. Although the next national election isn’t until 2025, it’s possible that the majority government will be overthrown before then.
Additionally, the national Liberals in charge have shown some fecklessness in this situation. In Quebec, where the ruling CAQ currently appears to be simply violating the Constitution for sport, they have essentially given zero reaction to a growing group of liberal provincial premiers attacking Charter rights.
However, it should be noted that despite the several promises it made to 2SLGBTQI Canadians in 2023, the federal government has made very little progress. A seriously troubling internet censorship bill proposed by a conservative lawmaker is just one vote away from being passed into law, and the federal government has likewise stood by while the promised bill to forbid medically unnecessary surgeries on transgender children has not yet materialized.
The United States
In 2023, bipolar attitudes toward LGBT issues persisted in the USA. Republicans in red states appeared to be vying to expose and pass the cruelest and meanest bills aimed at LGBT Americans, but Democrats in blue states got to work passing legislation to make their lives better.
Trans rights in America, particularly in red states, were the focus of the biggest story in LGBT issues. With a clear goal in mind, Republicans passed significant legislation in red states banning gender-confirming pediatric health care. They enacted carry performance bans, many of which the courts have ruled are illegal. Legislation prohibiting legitimate sex change was passed. They passed legislation prohibiting transgender people from changing apartments, sports teams, and sex-segregated restrooms. They outlawed discussing LGBT topics in classrooms or libraries, and once more, these are still up against legal objections all over the nation. They also criticized a trans-state representative in Montana for the most ridiculous reason: Republican-controlled state legislatures in some states have been using instruments to disparage Democratic minority legislators. Despite fierce local opposition and the vetoes of both Democratic and Republican governors, many of these bills were passed. To be honest, it has been challenging to keep up with the large amount of anti-trans regulations. For frequent updates on these laws across the nation, I advise you to subscribe to @ErinInTheMorn on Twitter and Substack.
And all this is a reflection of the troubling changes emerging from the courts. With its 303 Creative decision, the Supreme Court largely legalized bias in the delivery of goods and services in any company that calls itself a creative or expressive company. This judgment shattered the civil rights code significantly. On the other hand, Biden was able to name lots of judges to the national bench, but if Democrats lose the Senate the following year, this development may be halted.
On the other hand, legislators and governors have been pushing for ever-greater state rights in Democratic-governed states. For instance, “protection laws” protecting queer folks who migrate from red states to obtain trans health services or abortion services were passed in several states.
This pattern was especially pronounced in the states of Minnesota, Michigan, Massachusetts, and Maryland where Democrats won trifectas (both state houses and the governor’s office) in 2022. We observed some important initiatives being advanced in these states to enact gay rights. Bills to do the same in Michigan and Massachusetts have been introduced and have a good chance of passing next year (though the Michigan bill appears to be flawed in that it leaves an oral sex ban in place). Minnesota and Maryland have completely repealed their outdated adultery, infidelity, and immorality laws. A bill to repeal Texas’ adultery legislation was introduced and briefly appeared appealing when it received Texas House majority support, but it was never put to a vote. Florida, Georgia, Kansas, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, and South Carolina are the remaining states with adultery laws in effect.
Conversion therapy was outlawed in Minnesota and Michigan as well, and the newly elected Democratic governor of Arizona forbade the use of state resources. Wisconsin’s Republican-controlled legislature overrode a legal maneuver to prevent the Democratic administration from changing state law to outlaw conversion therapies. The Supreme Court rejected an appeal after Washington State’s ban on conversion therapy withstood a legal challenge. This oddly leaves the problem unresolved (the 11th Circuit Court ruled that such restrictions were unconstitutional and barred them in Florida, Alabama, and Georgia).
Delaware and, unexpectedly, New Hampshire, which is governed by Republicans, passed laws prohibiting the “gay/trans panic defense.” It’s pretty much the only positive development that came out of a Republican-controlled state this time. Michigan is also considering passing a queer panic legislation. Democrats in Congress reintroduced a national bill to outlaw the gay/trans panic defense, but it has absolutely no chance of passing.
Although this law is exclusively limited to “institutional desecration,” Michigan even passed its first hate violence law that is inclusive of LGBT people. The government is currently considering passing a more comprehensive hate crime law. Additionally, the Commonwealth of the Northern Mariana Islands passed a hate crime law in the US Territories that protects gender identity and sexual orientation.
Hate state and federal murder laws. Sexual orientation and gender identity are covered by violence laws in Colored states. In Orange states, hate crime regulations only cover sexual orientation. The TURQUOISE state has increased penalties for hate-motivated administrative desecration and just gathers data on hate crimes involving sexual orientation.
Sexual orientation and gender identity were thoroughly included in the updated civil rights laws of Minnesota and Michigan, which also closed any discrimination-related loopholes. The abortion laws in those states were likewise completely repealed. An LGBT non-discrimination bill was passed for the first time in Pennsylvania’s just Democratic-controlled state house, but it failed in the Senate, which was dominated by Republicans. This month, Democrats are attempting to seize control of the Senate, but it may be a difficult task.
And that’s a great introduction to the election-related great tale of 2024.
Most immediately, at least two states will vote on LGBT rights. California does have a referendum on repealing Prop 8– the former same-sex marriage ban – from its constitution, and New York does have a question on enshrining abortion and equality rights in the state constitution. Marriage ban discards have also been proposed in Hawaii, Oregon, and Michigan. Hawaii’s is probably the most likely to end up on the ballot given the state’s uneven Democratic control. Oregon Republicans blocked Democrats from passing a bill to put it on the ballot during this year’s session, and they may do so again in 2024. And it is incredibly unlikely that Michigan Republicans will give Democrats the supermajority aid in the state government required to put it on the ballot. Virginia Democrats, who recaptured the state legislature this time, are likely to try to restart the procedure for repealing its marriage restrictions with an eye on the 2026 votes at the earliest.
Minnesota Democrats are considering putting an abortion and similar rights issue on their ballot in 2024 as well.
Of course, wherever Democrats win, they create a bulwark against deeper encroachment against LGBT rights by Republicans, and in that respect, look for Democrats to try to earn control of state legislatures in Arizona, New Hampshire, Pennsylvania, and Alaska, while trying to blunt Democratic dominance or erase veto-proof majorities in Wisconsin, Kentucky, Kansas, North Carolina, Texas, and Florida, which may be bolstered in some cases by new decisions undoing some of the most extreme Democratic gerrymandering.
But legally, we’re headed for a very similar presidential election, likely re-running the 2020 Biden vs Trump matchup. Naturally, another Trump administration would be another disaster. Liberals are also facing a series of extremely tough races in the Senate, which they are likely to lose control of. Nevertheless, they may be able to restore the House, thanks to recent redistricting decisions, which may help provide at least some barrier against Republican excesses.
Other developments of note in 2023 include the US FDA suddenly ending the restrictions on blood donations from men who have sex with men, and the Pentagon beginning a review of the discharges of all persons who were honorably discharged from the military for being gay.
Among African American Tribal Jurisdictions, the Choctaw Nation legalized same-sex marriage within its jurisdiction. A bill to allow same-sex marriage in the Navajo Nation, the largest of the Native American Tribal jurisdictions, has been introduced but is currently being held up by some councilmembers who oppose it or want to hold a referendum on it. We’ll see how that develops in the new year.
Mexico
On paper, Mexico has advanced a lot of progressive policy for gay people, particularly over the last several decades. But, in 2023, some of that momentum seems to have stalled.
A bill to ban conversion therapy has stalled in the national Congress. When Congress returns from break in February, it is awaiting a final vote, which some lawmakers hope may occur. In the meantime, the states of Queretaro, Sinaloa, Quintana Roo, and Morelos passed local bans on conversion therapy, bringing the total to 18/32.
Growing calls for hate crime legislation have resulted from a wave of violence against LGBT people, particularly trans women. The second hate crime law to protect gay people was proposed by a national legislator last month, but it is still up for discussion. Bills have also been put forth in a number of states, but none have yet been approved. In Durango, a bill on hate crimes was also introduced, but Morelos state’s legislation has stalled. There is currently a hate crime law that applies to LGBT people in 22 of the 32 states.
Hate crime laws that include sexual orientation and gender identity have been passed in states in red.
The most recent state to allow trans people to change their legal sex was Durango, bringing the total to 21. Both the National Electoral Institute and the federal government started allowing people to use an “X” gender marker on voting cards and passports, respectively. In Mexico City, a bill was introduced to recognize non-binary gender.
A law prohibiting discrimination based on gender identity and sexual orientation was passed in Sinaloa. Discrimination based on gender or sexual orientation is now against federal law. A law prohibiting discrimination based on sexual orientation and either gender identity or sex has been passed in every state, with the exception of Mexico.
Despite a Supreme Court ruling that these laws are unconstitutional, I wrote for Xtra this year about the persistence of laws prohibiting HIV-positive people from getting married. They still exist in nine states, but Puebla was the most recent to lift its ban on HIV marriage this year after a couple whose marriage license was revoked gained national attention.
Dark states have laws that prohibit HIV-positive individuals from getting married.
Even though same-sex couples are permitted to marry in all Mexican states as of 2022, some states have not codified this into their regulations, particularly in the area of implementation. This year, none of these states did it.
I’ll return the next day to discuss changes in LGBT rights in the rest of the Northern Hemisphere.
