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Ky. LGBTQ activist: While ‘historic,’ federal marriage legislation lacks needed protection

The White House
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President Joe Biden signed the Respect for Marriage Act this week.

Ahead of the 2023 legislative session that starts next month, a Republican lawmaker pre-filed two bills aimed at LGBTQ youth. One of them would ban trans students from using their gender-aligning bathrooms in school. The other would prohibit doctors from identifying a child’s sex as anything other than male or female.

Kentuckian Chris Hartman and his partner, John Adams, were married on the White House lawn Tuesday, shortly after President Joe Biden signed the Respect for Marriage Act into law.

“It was an incredible and auspicious day,” Hartman said. “We certainly seized the moment to solemnify our marriage.”

Hartman is executive director of the Fairness Campaign, an organization that advocates for the civil rights of LGBTQ people. He said the White House invited him and others who work in this space to attend the signing.

While the Respect for Marriage Act doesn’t cement the Supreme Court’s 2015 decision granting LGBTQ couples the right to marry into law across the country, it offers some federal protections. Those include the requirement for states lacking marriage equality laws to acknowledge LGBTQ marriages, even those from other states and countries.

Hartman said urgency to pass the measure followed Supreme Court Justice Clarence Thomas' concurring opinion this summer in the Dobbs v. Jackson ruling, which upended nearly half a century of reproductive freedom and abortion access precedent in the United States.

“He said that he wanted to use the precedent of that decision to unravel same sex marriages, access to contraception. Out of that fear grew a desire to pass a law that would federally protect marriage,” Hartman said.

Almost immediately after the Dobbs decision, LGBTQ advocates spoke up about the potential harm of Thomas’ suggestion.

Hartman said Wednesday the new federal law could help in some ways.

“If that Supreme Court decision were to disappear, Kentucky would revert back to not issuing marriage licenses,” he said. “But the Respect for Marriage Act would require that Kentucky offer all of the same state benefits to same-sex married couples that it does to opposite-sex married couples.”

Hartman said he believes it’s unlikely the Supreme Court would overturn the 2015 landmark ruling that same-sex marriage is protected by the U.S. Constitution. If it were, the Respect for Marriage Act would allow LGBTQ couples in Kentucky, where the constitution defines marriage as between one man and one woman, to marry in a state with equality laws and for their union to be legally recognized in the Commonwealth.

However, Hartman stressed that while this is monumental legislation it fails to fill gaps in discrimination laws for members of the LGBTQ community.

“I can't overstate the historic nature of what happened Tuesday at the White House. For a sitting president to sign into law something that protects LGBTQ people and LGBTQ couples,” Hartman said, referring to the rarity of pro-LGBTQ measures becoming federal law. “But it still leaves so many LGBTQ folks, particularly transgender people and queer people of color, lacking the protections that they desperately need in so many areas of daily life.”

The pending Equality Act aims to amend the 1964 Civil Rights Act to explicitly prevent discrimination based on sexual orientation and gender identity. It would provide comprehensive protections when it comes to public spaces, education, federal funding, employment, housing and more. It’s currently stalled and unlikely to be considered or voted on before the end of the congressional session, just as previous versions of it have been for decades in the legislature.

“In most of the United States of America today, you can be married in the morning and be denied service at a restaurant in the afternoon,” Hartman said. “Without the federal Equality Act…discrimination is going to remain legal.”

Hartman said he’s not confident those protections will pass in the newly Republican-controlled U.S. House of Representatives next year. He echoed that doubt about passing progressive LGBTQ legislation — or a constitutional amendment to strike discriminatory language from Kentucky’s constitution — in the GOP-run state legislature.

“This year and last year alone, we faced more anti-LGBTQ bills proposed in the Kentucky General Assembly than in the past decade combined,” Hartman said. “They have landed on the rights of transgender Americans and particularly transgender kids.”

He said he expects more anti-LGBTQ measures in 2023, and said there’s “no likelihood” of passing a bill that would expand the definition of marriage in Kentucky’s constitution.

“The reality is that we are still in a place where LGBTQ people and particularly trans kids and youth are under attack with a flurry of anti-LGBTQ laws that w’ere bound to face when the legislature convenes in January of 2023,” Hartman said.

During the 2022 General Assembly session, Kentucky’s Republican-led legislature passed a measure targeting transgender girls and women in sports. The bill bans trans youth in middle, high school and university from participating in sports on gender-aligning teams.

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Yasmine Jumaa is LPM’s race and equity reporter. Email Yasmine at yjumaa@lpm.org.