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Dr. Martin Luther King, Jr. famously instilled optimism with his proclamation that, “The arc of the moral universe is long, but it bends toward justice.” He was speaking in relation to the long struggle for racial equity, but the words are also applicable to the advancement of civil rights for lesbian, gay, bisexual, transgender, and queer people. This week on Sea Change Radio, we speak with Kevin Jennings, the CEO of Lamda Legal, one of the nation’s leading advocacy groups for the LGBTQ community. We look at some of the key legal battles unfolding in courtrooms around the country, discuss the political ramifications of social wedge issues, and examine the efficacy of hate crime legislation.
Narrator 0:01 This is Sea Change Radio covering the shift to sustainability. I’m Alex Wise.
Kevin Jennings 0:18 They picked a convenient scapegoat that they can paint any way they want. Because most people don’t have tremendous knowledge about trans people, most non trans people, I should say, cisgender people, and they’re taking advantage of the fact that there hasn’t been the kind of education that needs to happen in our country around that issue to demonize and terrified people, even if it is based in myth, like the idea that somehow trans people are running around in bathrooms, assaulting people, which there’s no criminal evidence of any kind to support.
Narrator 0:49 Dr. Martin Luther King Jr. Famously instilled optimism with this proclamation that the arc of the moral universe is long, but it bends toward justice. He was speaking in relation to the long struggle for racial equity. But the words are also applicable to the advancement of civil rights for lesbian, gay, bisexual, transgender, and queer people. This week on Sea Change Radio, we speak with Kevin Jennings, the CEO of Lambda Legal, one of the nation’s leading advocacy groups for the LGBTQ community. We look at some of the key legal battles unfolding in courtrooms around the country, discuss the political ramifications of social wedge issues, and examine the efficacy of hate crime legislation.
Alex Wise 1:41 I’m joined now on Sea Change Radio by Kevin Jennings. He’s the CEO of Lambda Legal. Kevin, welcome to Sea Change Radio.
Kevin Jennings 1:49 It’s nice to be here with you, Alex. Thanks for having me on.
Alex Wise 1:52 So Lambda Legal is one of the foremost organizations of its kind to protect LGBTQ rights. Why don’t you tell us a brief history of the organization and what the mission of your organization is?
Kevin Jennings 2:08 Sure, Lambda Legal is actually America’s oldest LGBT rights organization. We were founded in 1973. And we work to achieve full legal and lived equality for all LGBTQ people and everyone living with HIV. We do this through three means what we’re most famous for is our impact litigation, where we bring lawsuits to make new law to protect the rights of LGBTQ people and everyone living with HIV. We have been doing this for almost 50 years. And one of the things that I think most listeners might be interested to learn is that most of the major advances for LGBTQ rights that have happened over the last 50 years have come through litigation, not legislation. For example, the right to marry which Lamba legal was co counsel before the Supreme Court and the Obergefell versus Hodges case in 2015, six years ago, was one through an impact litigation lawsuit that was heard by the Supreme Court, it was not passed by legislatures. So Lambda Legal has been a part of virtually every major advance for LGBTQ rights Since our founding in 1973, including such things as winning the rights of students to have college LGBT student groups, or to have high school based gay straight alliances, winning protections for students from being bullied or harassed because of their sexual orientation or their gender identity, getting so called sodomy laws thrown out of court by the Supreme Court as being unconstitutional in 2003, or winning the right to marriage equality. As we look towards the future, what we’re really focused on is the fact that despite all the advances that have been made, there’s still many rights that LGBTQ people don’t have. It’s probably a surprise to many of our listeners to learn that there is no comprehensive civil rights laws that protect people based on sexual orientation and gender identity. The Equality Act, which was first introduced into Congress in 1974, is still pending 47 years later. So we’re going to work to make sure that everyone in our community has protections, while also trying to stop those who are seeking a roll back the victories we’ve already won.
Alex Wise 4:13 And there’s been a recent victory. The US Passport Agency just marked its first passport with an X when it comes to the sex question on passports and Lambda Legal was intimately involved in that struggle. If you can summarize what that case was all about. That’d be great.
Kevin Jennings 4:31 Well, I think that one of the things that is important context for this is to realize that the next generation is revolutionizing the way we think about things like sexuality and gender. Many young people today do not subscribe to the idea that they should be male identified or female identified. They prefer to think of themselves as non binary existing outside of the traditional gender binary. And those folks have a right to have their identities reflected on their official Dock. So Lambda Legal brought a case several years ago on behalf of Dana Zzyym, a non binary American citizen who lived in Colorado, who wanted to have a passport that reflected their gender identity, which was neither male nor female. And we pursued that case through the courts and Wednesday, October 27, the Passport Agency has agreed to offer a third gender marker on passports so that people who do not identify themselves as either male or female will be able to have an identity document that accurately reflects their gender identity. So that is an example of the kind of new frontier of civil rights that is being pursued by Lambda Legal at this time. While we’re also working to protect people who are being denied equal treatment still based on sexual orientation. And example, that was a lawsuit we filed last week in Tennessee on behalf of Kelly Easter. Kelly Easter was a lesbian who is a realtor in Nashville. She read in the papers about all of the unaccompanied migrant children who don’t have homes here in America. And she applied to adopt one because she wanted to give one of these unaccompanied children a home. And she was denied the right to adopt that child by an adoption agency that was using federal funds taxpayer dollars, but said that she was an unfit mother because of her sexual orientation. Now, people should not be using taxpayer dollars to discriminate. That’s our belief that Lambda Legal. And we think that every child deserves a good quality home, such as the type that Kelly is seeking to provide to an unaccompanied refugee child. So we are now representing Kelly in court in Tennessee, suing for her right to provide a home to a child, which she was denied simply because she’s lesbian.
Alex Wise 6:54 And what’s the evidence of progress that you like to point to, you can see the arc of 10 to 15 years of marriage equality, culminating in a Supreme Court decision that allowed a lot of people to breathe more easily than ever before. Where’s the next legal fight that allies should and the community should be looking at?
Kevin Jennings 7:18 I think it’s hard for people to understand how incredibly different the world was when Lambda Legal was founded in 1973. In 1973, and 45, states same sex relationships were still a crime for which you could be put in prison. Homosexuality was still deemed a mental illness, which could get you institutionalized in a mental institution against your will, in 1973. hostility towards LGBT rights was so profound that here in New York where we began, literally the state turned down our application for charitable status because they felt we had no legitimate charitable purpose to exist. Lambda Legal was its own first client, we had to sue for our very right to exist in 1973. Now, we fought for 30 years against those laws that criminalize same sex relationships. And finally at the Supreme Court, and Lawrence vs. Texas, in 2003, we got those laws ruled unconstitutional and thrown out, then we fought for another 12 years to have those relationships not only not be illegal, but to be recognized under the law in America. And we won that in 2015 and Obergefell versus Hodges. So as somebody was born in 1963, when by the way, 49 states criminalize same sex relationships, and in case you’re curious, the only state that did not was Illinois, which had just repealed their law the year before I was born. The progress has been made since I was a small child is astounding. But it’s very important to recognize two things. First of all, as proud as we are of having one marriage equality, We’re under no illusion that for homeless LGBT youth, and 40% of all youth in this country who are homeless are LGBT, that their may need was the right to get married. There’s still enormous problems to be addressed, such as disproportionate rates of harassment and bullying in schools, disproportionate rates of homelessness, tremendous problems with discrimination against LGBT seniors when they seek senior housing, housing, employment, so on and so forth. There’s enormous challenges still to be made. Let’s not confuse marriage equality with equality. And the second thing is, the great thing about litigation is that it advances our rights. The bad thing about litigation is it can be overturned. And we’re now facing a much more hostile federal judiciary than we were when we won Obergefell in 2015 1/3 of the Supreme Court and 1/3 of the entire federal bench was appointed during his one term by Donald Trump. The highest number of judicial appointees admits during a single term by any president in American history. We have studied these people’s records, we know for a fact that many of them are deeply hostile to LGBT rights. And we are very concerned about efforts to rollback LGBT rights. In fact, it didn’t get noticed very much because it was the same week that Justice Ginsburg died. But the same way Justice Ginsburg died, Justice Alito, and Thomas on the Supreme Court issued an opinion inviting a challenge to Obergefell saying they wanted to fix quote, unquote, the decision on marriage equality. So we’re very aware that all the victories we’ve won are tentative and can be rolled back. And one of the ways in which our opponents of equality are trying to roll them back is through what they call religious exemptions. What they would like would be an exemption from obeying the law, non discrimination law, specifically, if it offends their religion. Now, I call that being asked to be granted a license to discriminate, because if we’re going to start saying that people don’t have to obey laws, because they disagree with their religion, are we really secular democracy? Are we on the road to becoming a theocracy? And that’s very, very, very disturbing to us at Lambda Legal, the fact that our opponents are basically have switched to the argument that they shouldn’t have to obey the law because they don’t like it based on their religion. If these suits succeed, and they are proceeding through the court system now and are headed for the Supreme Court, all of the non discrimination protections we’ve won will be vitiated, and will become essentially meaningless. Because if we start saying to people, you don’t have to obey a law, if you disagree with it based on your religion, we basically are making laws meaningless.
(Music Break) 11:50
Alex Wise 12:49 This is Alex Wise on Sea Change Radio, and I’m speaking to Kevin Jennings, he’s the CEO of Lambda Legal. Let’s turn to the political sphere where we saw in the 80s, the Moral Majority using God guns and gays as their classic wedge issues. And as their Republican voter base has aged and become more of a fringe party in terms of their beliefs, we see that the numbers don’t really add up for them when it comes to issues regarding sexual orientation and gender identification. The country has evolved in many, many ways on that issue. I mean, the next generation, there’s a very small percentage of Americans that are that are as homophobic as their parents were let’s, let’s say, is the Republican strategy to create more and more wedge issues now it looks like transgender issues and gender non binary issues. And is it a winning strategy for them? And at what point do they decide to join the 21st century?
Kevin Jennings 13:59 Oh, that is a fantastic question. And I really want to give a kind of nuanced answer to it. I think first of all, the use of wedge issues has not gone away. It was in the 80s God’s guns and gays, it’s now God, guns and trans people. This year in state legislatures across the country, over 300 Anti LGBT bills were introduced. That’s a record high, by the way, in American history, and most of them targeted trans people. So having realized that the Shall we put it, the gay dog won’t hunt anymore. They’ve moved on to the trans dog. So it’s still the same tactic, which is to demonize people and to try to rile up your base and get them out to vote. While let’s put all this in the context of widespread voter suppression efforts, where there are new laws being enacted across the country that are designed to disenfranchise progressive voters like people of color, like young people who have As you pointed out, are much more likely to vote vote for pro LGBT candidates. So I think it’s a two prong strategy. Number one, let’s disenfranchise the people who are inclined to vote against us. And then number two, let’s rile up our base. So they do turn out and vote. I agree that the demographics are not on the side of the people who oppose equality. So that’s why they’re resorting to dirty tricks like trying to disenfranchise people, and why they’re engaging in these culture wars, because they’ve got to make sure that there are smaller and smaller base votes at higher and higher rates, so that they can continue to win elections. The final issue we have to address here is that America has a system, which through the Electoral College in the US Senate biases in favor of rural white people. The fact of the matter is, you know, California has over 50 times as many people as Wyoming yet they get the same number of Senate seats. That’s ridiculous. And one of the results of that is progressive people who tend to cluster in urban areas are tech are underrepresented in the Senate, and also underrepresented to some extent in the House of Representatives on the electoral college. So the votes of people in Wyoming literally count more than the votes of people in California. So there’s a variety of factors that work there, the fact that we have a system that is biased in favor of rural, largely white states, that is getting worse, because our opponents are trying to disenfranchise more and more people who tend to vote for progressive candidates. And there is a new boogeyman, if you will, in the forms of the trans community that is being used by our opponents to rile up their base, you put that perfect storm of things together. And you’re going to find people in office that do not represent the typical attitudes of the typical American, which as you pointed out, are more and more in favor of equality for pro LGBT people from rural white America.
Alex Wise 16:57 I could see the the effectiveness of some of these wedge issues where it’s appealing to somebody who has to homophobic, white male, let’s say who has to say, Well, I’m not one of them, I need to clarify that I’m different than them, like they can do what they want, but just stay out of my marriage or whatever. The quote unquote Gay Agenda might be that offends them. Does the trans communities issues that are being put forth in both the legal front and media front? Do they appeal to that same demographic as effectively? I don’t really know the data. I just want to know if it’s working. And if it is, like, how do we battle it?
Kevin Jennings 17:40 In short, it is working and you know, one of the things that always love is, you know, you use the example of marriage equality. There’s a great bumper sticker going around for the a while that said, don’t like gay marriage, don’t marry somebody in the same sex. You know, my, my marriage is no threat to heterosexual person’s marriage. It’s just not. But to go back to the trans issue. You know, this is a historic pattern that we see cuts across so called minority groups. Supposedly Jews drank the blood of Christian children in the Passover Seder that was used to justify pogroms and you know, other persecution of Jews. Supposedly black men were after little white girls that was used to justify lynching. Supposedly gay people, recruited young people to be gay, and were pedophiles, that was used to justify discrimination against gay people. And the reason why this has worked historically is twofold. First of all, if you make people feel like in particular, their children are at risk, people become irrational very quickly. And number two, if you could take a group that people know fairly little about, you can make people believe anything about them. The reason why some of the anti lesbian and gay stuff doesn’t work anymore is because so many lesbian, gay, bisexual people have come out. Virtually everybody has an LGBT person in their family, in their workplace, in their neighborhood, in their school somewhere. They all know somebody who’s LGB that was not the case. When I was a child. There were very few out people now there’s millions of our people. Unfortunately, people are not as familiar and as not as comfortable as with trans people at this point, because the visibility has not been as high as that of lesbian, gay and bisexual people. And that makes it easy for opponents to demonize them. You know, there is never been a single case of a trans identified person assaulting someone in a bathroom that’s been brought to court. It’s a myth. But what happens here is you take people and I don’t like using words actually like homophobic or transphobic personally, because I think that if you take something that people are unfamiliar with, and you tell them that it’s bad, and they don’t know any better, they’re likely to go along. That doesn’t mean that they’re necessary. bigots that means they’re uninformed and uneducated.
Alex Wise 20:01 Nobody thinks they’re racist, right.
Kevin Jennings 20:05 And you know, what our opponents are taking advantage of is of the fact that many Americans don’t know many, if any trans people and don’t know much about trans people. So they’ve picked a convenient scapegoat that they can paint any way they want. Because most people don’t have tremendous knowledge about trans people, most non trans people, I should say, cisgender people, and they’re taking advantage of the fact that there hasn’t been the kind of education that needs to happen in our country around that issue, to demonize and terrify people, even if it is based in myth, like the idea that somehow trans people are running around in bathrooms, assaulting people, which there’s no criminal evidence of any kind to support.
Alex Wise 20:45 Let’s turn to a hate crime legislation, which has, many would say very noble beginnings. But when you combine it with a mass incarceration system, which is deeply flawed, the support of hate crime legislation becomes quite nuanced.
Kevin Jennings 21:03 I think that’s a really good and complicated question, Alex. Let me put this a little bit in context, because mass incarceration is a huge problem in America, which affects millions of people disproportionately, people of color. You know, what hate crimes have in common with mass and Carper car serration. They affect people who are disproportionately people of color. Now, to put a really clear point on this, the FBI reported 7554 incidents of hate crime bias attacks in 2020. So when you put that 7554 within the context of millions of people who’ve been in prison for say, marijuana offenses, we’re talking about hate crimes contributes in a negligible way to the larger problem mass incarceration. Now 62% of those incidents, the people victimized were people of color. So the reality is hate crimes. And by the way, 21% were LGBT people, those LGBT people and or people of color because some of the people being victimized, who are LGBT are also people of color, represent over 80% of all hate crimes incidents in America last year. So the people are being victimized by hate crimes are the same people being victimized by mass incarceration. Now, LM illegal, we understand the purpose of a hate crimes law. And that’s to have enhanced penalties for people who target someone simply because they’re the member of a group. And the result is they terrorized, not just that individual, but the entire group. You and I are old enough to remember the horrifying incident Matthew Shepard in 1998, when a gay college student was tied to a fence and beaten to death in Wyoming. That terrified everyone who is LGBT, not just Matthew Shepard and his family and the perps mind hate crimes laws is to create a deterrent, so that if you are targeting not just an individual, but an entire community, and everyone who belongs to that community, through your biased actions that should be recognized in the criminal justice system. Now, at Lambda Legal, we actually believe that we should consider more complicated reactions to hate crimes, such as civil penalties. And the use of things such as restorative justice, where people are asked to restore and repair the harm they have created through their actions. So we believe that the criminal justice system in America is fundamentally flawed, that it over penalizes poor people, people of color, which often are overlapping populations, LGBT people, we did a great report, just a few years ago called protected and served, which show that LGBT people were much more likely to be mistreated by the police and in the justice system. So the justice system systematically disadvantages people who are already disenfranchised. And we have an entire criminal justice initiative around correcting that. So the hate crimes laws that exist. Anyone who thinks that they are a comprehensive solution to the problem of hate crimes is really misguided. They are one piece and what needs to be a much more comprehensive effort, which really looks at the entire structure of our criminal justice system. And whether other means such as civil penalties or restorative justice practices can be used to redress when harm is done to a community.
Alex Wise 24:33 I guess one of the problems that springs up from the situation that you just laid out is that if you replaced hate crime legislation in our discussion with death penalties, we could see a political class that uses it in the same ham fisted way as a cudgel to say that they’re tough on crime when we don’t have a lot of data that points to death penalties, right reducing crime. People who who commit these crimes aren’t really thinking about the penalties when they’re committing them generally. So we know that the current punishment system is not effective in deterring it. I’m wholeheartedly behind restorative justice and the other civil penalties. But the current situation on a state by state basis tends to be very different. So with our comprehensive overhaul of our nation’s incarceration system, should there be hate crime legislations? As is on the books? Or do you think that we need to reform them? What is land lammed illegals position when it comes to advocating or for the expansion of hate crime legislation?
Kevin Jennings 25:46 Well, at this time, we’re not advocating for the expansion of hate crime legislation, because the current legislation does address LGBT issues, thanks to the Matthew Shepard Act, which was enacted under President Obama. So we’re not looking to see more and more criminalization occur. And I think there’s a three part answer to your question, Alex, I think first of all, we believe that hate crimes laws should be part of a larger panoply of efforts to reduce bias incidents in America, that needs to include education, it needs to include restorative justice, in these include civil penalties, we do not see hate crimes laws as the single the silver bullet, if you will, to solve the issue of bias crimes. Because as you’re pointing out, and this leads us to my second point, our entire criminal justice system is based on the idea of deterrence. Whether that works or not as an open question period, right? On any crime, many people commit crimes, knowing full well, they are committing a crime, and that they could be punished for doing so. So we need to start asking ourselves is our entire justice system based on a false premise? And, you know, I think that’s an open question. And I think the third thing that we need to look at here is, why does the United States, which has 5% of the world’s population have 22% of the world’s prison population. There’s something very wrong with our criminal justice system in America. And, you know, I think nibbling around the edges like repealing hate crimes laws, which as I pointed out, there are only 7500 reported incidents at the FBI last year. That’s not going to solve our larger problem here, which is that we incarcerate a percentage of our citizenry, unlike any other liberal democracy in the world, and we really need as a society to sit down and examine why that happens. Why we are so out of step with step with other liberal democracies, and to get at the root reasons that’s occurring. That goes well beyond the question of the death penalty or hate crimes laws in my opinion.
Alex Wise 27:54 Kevin Jennings, thanks so much for being my guest on Sea Change Radio.
Kevin Jennings 27:59 It’s really been a pleasure and a really thought provoking conversation, Alex, thank you.
Narrator 28:17 You’ve been listening to Sea Change Radio. Our intro music is by Sanford Lewis and our outro music is by Alex Wise, additional music by talking heads and Peter Tosh, check out our website at SeaChange Radio.com to stream or download the show or subscribe to our podcast. Visit our archives there to hear from Bill McKibben, Van Jones, Paul Hawken, many others and tune in to Sea Change Radio next week, as we continue making connections for sustainability. For Sea Change Radio, I’m Alex Wise.