The passage of time has generally moved us in the direction of increased dignity and rights for members of the LGBTQ community in this country, with marriage equality officially recognized in 2015. But since then, the US Supreme Court has taken a sharp turn to the right, and we are now looking at the erosion of some hard-fought gains. This week on Sea Change Radio, we speak to Sasha Buchert, a senior attorney at Lambda Legal about the many angles from which the right wing is attacking America’s LGBTQ community. We look at the battle to maintain fundamental human rights, talk about the struggles that transgender children are facing in states like Florida and Iowa, and examine the impact that uniformed LGBTQ personnel are making in the military, nearly a decade into achieving the right-to-serve openly. We also distinguish high-leverage legal issues from provocative but less substantive culture war misdirects.
00:02 Narrator – This is Sea Change Radio, covering the shift to sustainability. I’m Alex Wise.
00:20 Sasha Buchert (SB) – The litigation that’s been put forward in Texas seeking to prohibit people from accessing mifepristone, you know in the court embracing stigma over science, in my opinion, there.
00:33 Narrator – The passage of time has generally moved us in the direction of increased dignity and rights for members of the LGBTQ community in this country, with marriage equality officially recognized in 2015. But since then, the US Supreme Court has taken a sharp turn to the right, and we are now looking at the erosion of some hard-fought gains. This week on Sea Change Radio, we speak to Sasha Buchert, a senior attorney at Lambda Legal about the many angles from which the right wing is attacking America’s LGBTQ community. We look at the battle to maintain fundamental human rights, talk about the struggles that transgender children are facing in states like Florida and Iowa, and examine the impact that uniformed LGBTQ personnel are making in the military, nearly a decade into achieving the right-to-serve openly. We also distinguish high-leverage legal issues from provocative but less substantive culture war misdirects.
01:49 Alex Wise (AW) – I’m joined now on Sea Change Radio by Sasha Buchert. She is a senior attorney at Lambda Legal. Sasha, welcome to Sea Change Radio.
02:00 Sasha Buchert (SB) – Thanks, Alex. Thanks so much for having me on your program.
02:02 Alex Wise (AW) – So we had the executive director of Lambda Legal, Kevin Jennings, on Sea Change Radio. He did a good job of kind of recapping where we were at the time in terms of LGBTQ rights and things have are obviously fluid. We have a very active right wing that is making hay wherever they can to try to escalate and divide people based on what seem like pretty set law at this point. Why don’t you give us a recap of what’s happened on your front in terms of the cases you’re keeping an eye on in in the last 18 months? The Supreme Court’s decision in the Dobbs abortion case and the concurring opinion by Clarence Thomas really seemed to open the door for further restrictions of rights within the LGBTQ community. Contraception, same sex marriage, etc.
02:58 SB – Yeah, yeah, that’s exactly right. I think it’s helpful in my opinion, just to think back a little bit further to the Trump administration and the attacks that we saw on the federal front, the attacks that we’re seeing on the state level, you know, certainly isn’t new. You know, we’ve seen an uptick every year and the number of bills that are being filed, but it’s really skyrocketed in the last year or two for sure. Yeah, I think that the Trump administration, the far right, was, really was activated, during that time and with the Biden administration coming in and moving quickly to, you know, address some of the real damage that we saw in the federal level, that was really a welcome, relief that had by doing things like resending the ban on open transgender military service and some of the healthcare. But I think that also polarized and galvanized the far right to pursue discrimination wherever they can, in my opinion. And they really seized the moment there and move to the statehouses to try to inflict the harassment and discrimination that they couldn’t do at the federal level targeting vulnerable communities and you know, and I think that that’s been supercharged to my opinion, as you said by the Dobbs decision that was issued just last year. It feels like it’s been in place for 20 years in some ways, but and there’s been. Massive harm that’s been done across the board. But I think there are some serious parallels, not just the clear language and the decision itself, you know, calling for, you know, the Court, to revisit cases involving LGBTQ folks and contraceptive care and privacy, that that alone is troubling enough, but I think that one of the biggest concerns that in just talking about that in particular that decision and the impact it’s had on the state attacks that we’re seeing is that the court in the decision throughout echoed what I would call a rallying cry from the far right with, you know, regard to the marriage equality fight, which is this demand that the majority trample the civil and human rights protections for vulnerable communities and impose a majoritarian rule and eliminate the backstop of the Supreme Court basically and throughout the adopts decision the Supreme Court repeats this motif that these kinds of decisions should be decided at the state level. And that’s troubling because, we’re not just talking about, general public welfare decisions about the appropriate age for alcohol consumption or things that have traditionally been decided by the states. Talking about constitutional fundamental rights that if they aren’t protected at the Supreme Court, states are going to do what they’re doing, they’re going to run rampant and you know, unfortunately we’ve seen this from, the civil rights movement going back to the 60s that, and personally, you know the way that the a lot of states you know run their business is that you know it’s a if given the opportunity they’re going to seize it and they’re going to impose a majoritarian, you know, terror on, you know, the vulnerable few. And I think that there’s also something to be said about the growing polarization in the country overall, you know there for a lot of years there were split houses that you know the Senate could be democratic and the House could be Republican and that was the case for in in a lot of it was a case in a lot of states. But I think for the first time ever, there’s only two states now that have opposite parties running different houses in the legislature. So I think there’s this just growing polarization that’s led to, you know, some of the growing partisan sponsored agenda, but I think another thing that just has to be tacked on to this discussion is the, you know, the impact that partisan gerrymandering has had on these issues gives the folks that are pushing a lot of this anti LGBTQ and particularly anti trans legislation aren’t appealing to moderate Americans anymore. You know, they’re appealing only to the folks that are the farthest on the right that they need to appeal to, to win their primary, to move forward in their election and you know that’s got serious human cost that we’ve already seen in this process. So it’s a really difficult time.
07:26 AW – And why don’t you take a step back also and explain to the listeners who missed Kevin Jennings on the show, the mission of Lambda Legal and then obviously your resources are limited. You can’t fight every fight. Where does Lambda legal view the real constitutional threats beyond the clickbait?
07:45 SB – Yeah. So land legal is the country’s largest and longest historical legal organization working to advance the rights of LGBTQ folks and people living with HIV. We were founded in 1973 and we are celebrating our 50th anniversary, you know, and we’ve, you know, been working on seminal cases such as you know, the Lawrence V Texas, you know decision was litigated by Lambda Legal bragged and V Abbott was litigated by Lambda Legal. We were involved with the Obergefell v. Hodges litigation. You know, the list is, goes on and on and on, into even in our most current wins that we’ve had in the courts addressing things like access to identity documents for trans folks access to healthcare protections for people living with HIV, the decriminalization of people living with HIV. So it’s just it, it goes across the board, for sure. So I’m just very proud to work for Lambda legal. I’m going to miss things, and responding to your question about how we are viewing, you know the threats and how to respond to the threats and what we’re seeing being passed in the in the state legislatures, in particular the strategy from the far right. It’s clearly been, and this has been mirrored on the federal level, you know, with the changeover in the House of Representatives to go after sports. They’ve pulled sports, you know, and they want to prohibit it involves, you know, policies that ban trans kids from playing sports consistent with their gender identity, you know, which means banning them from playing altogether, and they feel like this is something that’s, you know, something that can pry apart trans people from the rest of the LGBTQ movement and to, you know, really seize upon, you know, peoples insecurity about sports. And you know that everybody is concerned about their kid and the trophy and they feel like this is a real winner and they want to start with this, and they did last year, they passed a number of these laws throughout the country.
09:38 AW – It seems like such an antiquated argument. I remember as a kid in the 70s, the Renee Richards debate that was like 1975 or seven or something like that. And it’s like here we are 45 years later and it’s like it’s water cooler conversation again on cable news.
09:55 SB – Yeah, it’s kind of unbelievable, especially given the fact that trans kids are less than they’re 1.4% of the US population. So statistically, it’s not even possible then for them to dominate sports and, as a person who participates in sports myself, I’m always sad to see the low, low numbers of trans kids that are actually participating and there have been inclusive policies in places like Washington State and California for going on 20 years now where kids have been able to participate in consistent with their gender identity. And the sky hasn’t fallen, you know, and this it’s one of the things that actually drives me out of my tree the most in doing this work is that the folks on the far right, they seize upon this lack of familiarity that people have with trans people. And they really try to make it sound like this is some new dangerous thing. And if you allow trans kids to… it’s just going to they’re these super athletes that are just going to take over every sport possible. And by the way, you know the legislators that are sponsoring this legislation over and over again, there’s a great AP article about this. Can’t name one trans athlete in their state. They can’t name one. And most of the time, there’s a handful of trans kids that are, like, 10 in Utah, out of 68,000 kids that are participating, you know, so it’s just the my main point here is just that there have been policies that have in place forever and these threats that are always, you know, they’re used to scare people and fear monger, just have not proven to be the case.
11:34 (Music Break)
12:52 AW – This is Alex Wise on Sea Change Radio and I’m speaking to Sasha Buchert. She is a senior attorney at Lambda Legal. So Sasha, we were talking about trans rights in sports, would that be considered a a key strategic front for Lambda legal to fight on or is it more of a misdirection by the right, where they’re just throwing everything at the wall and seeing what sticks in the culture.
13:18 SB – I mean, I think that is certainly their strategy is to is to you know, get a foot in the door and try to create a space for discrimination. If you can demonize and dehumanize A segment of the population in one way that opens the door to dehumanize and demonize them and discriminate against them across the board. And I think that that is certainly their strategy. Our response to that has been no, we’re not going to let you get a foot in the door, you know, and we stood up and we were fighting that, you know, we won a huge victory in a challenge that was brought in West Virginia fighting back against one of those bills and you know, the court issued a really powerful injunction stopping the law from going to going into effect, you know, while the litigation proceeds, you know, unfortunately the same judge after a year and a half of stopping the law from going into effect, you know, let it go into effect for this one trans girl that just wanted to play cross, it was wanted to run with her team. And we appealed to the 4th Circuit and, you know, received a favorable decision so that she could try out and dissipate, but the state of West Virginia felt like it was so important to prevent this 14-year old girl from running cross country that they appealed to the Supreme Court. You know who denied it? Thankfully so, Becky can run with and this is what’s really important. You know what’s at stake here is that this.. it’s not just a political strategic discussion, I think what gets lost sometimes is the impact on real kids. A judge that was appointed by the Trump administration and an Idaho decision that enjoined their ban on sports kids on, on kids from playing sports, clarified that when you when you push forward these policies, you know the impact it has is that you’re banning them all together because as every trans kid I’ve ever talked to that wants to play sports, as communicated to me, you know, if these bands go into effect, they’re just not going to play and that the harm that has the irreparable long term harm. As you know, is just awful. It means that they’re not going to be able to bond with their peers. They’re not going to gain all those things that kids learn, you know, through sports discipline and stick to itiveness learn, teamwork, leadership, all those things just gone for those kids because of a handful of legislators, legislators that are trying to appease their far right base.
15:35 AW – And not every 14 year old wants to be Rosa Parks, right? They don’t necessarily want to go through a legal fight like Becky did.
15:41 SB – Oh yeah, no, and especially given current climate, you know where you know the, you know, unfortunately, all of the these television shows, you know, these news shows that, you know, they just really seize upon this in the language has just gotten so aggressive towards trans people. They’re talking about eradicating trans people, you know, and those messages trickle down to kids in school and and parents are frankly terrified and families are terrified in states where you know, they’ve really gone after trans people in ways that I’ve never seen in my lifetime. And it’s just a really, really frightening moment.
16:19 AW – What are some of the other fronts that Lambda legal is keeping an eye on where they think they need to be strategic in in fighting back?
16:27 SB – One of the most concerning threats that we’re seeing now are the attempts to prohibit trans folks from especially trans kids from obtaining healthcare to treat gender dysphoria. They’ve really gone out of their way to embrace stigma over science. And it’s not just with regard to the healthcare that trans folks needs it’s also you. Know the litigation that’s been, you know, put forward in Texas seeking to prohibit people from accessing mifepristone in the court. Embracing stigma over science, in my opinion, there.
17:02 AW – I can’t remember the state, but aren’t there some if you dive into the details, there’s some pretty horrific pieces of legislation that are trying to be set forward where there’s a actual like, gender inspection and things that that a child should not have to do.
17:16 SB – Yeah, yeah. I mean, that really goes to the sports ban legislation that we’re seeing and a lot of them do contain these genital verification procedures. And again, the point needs to be made, and this isn’t why these bills shouldn’t go forward. You know, I mean, it’s part of it, but I think that what people forget is the impact this will have. Heightened scrutiny that will be placed upon any kid that doesn’t fit gender stereotypes. You know, if your kid happens to not look like what the stereotype of a girl should look like, you know the other team has the right to impose this law to inspect genitals. If they have questions, it just really feeds into you know a lot of the distrust and gender verification.
18:02 AW – Just that term, gender verification seems so screwed up.
18:05 SB – And there’s a great New York Times article about this. This isn’t new. This goes back like, you know, 50-60 years, you know where they were, you know, where there was a ton of scrutiny. And it’s just, it’s just an awful, awful process. So yeah, it definitely is concerning. But the, you know, going back to the healthcare, you know, question, you know, a lot of these states, like Texas, for example, started to investigate parents who were providing care for their kids to treat gender dysphoria because they put forward all of these junk science arguments that are completely debunked and Lambda legal and ACLU stepped into the breach and, you know, filed lawsuits that prevented that from happening. But we’re starting to see, you know, similar legislation being introduced in places like Florida that still is seeking to try to strip care and eliminate. And it’s so ridiculous because the same care that we’re talking about that is provided for, you know, kids seeking care for gender dysphoria is the same exact treatment that’s provided to other kids for other conditions, so they talk about how dangerous this care is, but they’re not trying to ban it for anybody but for trans kids, so it’s just deeply concerning.
19:11 AW – And in terms of Obergfell being under threat, we thought that was settled law, but a lot of us thought Roe v. Wade was settled law long ago. So the Pandora’s box has been opened by this activist Supreme Court, and it’s pretty scary for a lot of Americans. How does Lambda Legal view the idea of it being settled law or not, like are there some cases that you’re keeping an eye on that that listeners should be aware of as they go through the dockets?
19:41 SB – Yeah, I think that it’s important to unpack a little bit about what the Dobbs decision says, and it’s just important to reinforce that their reasoning for overturning Roe V Wade in large part was this argument that only the rights that the court views is rooted in history and tradition are protected under the Constitution.
20:09 AW – Like slavery?
20:13 SB – (laughs) Check, women can’t vote. So you know, that’s deeply problematic reasoning, obviously. And there are and it’s riddled with exceptions that we don’t need to go into here. But the reasoning is not sound by any means, and I think it will be looked at, viewed at and history. As we view, you know, Plessy V Ferguson and other, you know, horrific decisions, but it is, you know, this argument that basically does away with a lot of the reasoning that grounds the Lawrence v. Texas decision, the decision that struck down, you know, laws that prohibit intimacy, you know, among same sex couples and Obergefell v Hodges, the fundamental right of same sex couples to marry. Yes, the Congress did break its logjam and move forward and pass legislation this year that would protect marriages to some degree, but if a hostile state take Iowa, for example, which introduced legislation this year, decided to, you know, move a case up to the Supreme Court challenging that decision, you know, they could undermine Obergefell v Hodges in a really dangerous way by overturning it, which would allow states to refuse to, you know, advance, you know, same-sex recognition within that state, it would still be recognized because the federal legislation that passed. But, I think the heightened animus that we’re seeing towards the LGBTQ community, you know, of course, trans people and non-binary people are experiencing the brunt of this. But I think that you can start to see that that’s not enough fascism as an endless appetite for rolling back human rights. And I feel like it won’t end with non-binary/trans rights. We’re already starting to see that you know with the attacks on drag queens.
22:09 AW – So that was one of my next questions is this is getting a lot of press in in Florida. It seems completely ridiculous on so many fronts and unenforceable. But is it a real legal threat, or is it more clickbaity? To me it sounds so out of bounds legally that there isn’t sound footing, but I’m not a lawyer.
22:33 SB – No, I mean you’re right, it’s first, it’s like it’s the most if we have to compare and comparisons are odious. But if we have to compare, I would say it’s the most constitutionally suspect of them all. It’s a clear infringement on 1st amendment principles, but it’s hard for me to say that with a straight face. And thinking about some of the folks that you know, we as an organization opposed that were folks that were up for judicial nominees in the last administration who had no made no effort to hide their views about LGBTQ folks and civil rights and human rights generally, and I think we’ve seen some of the fallout from, you know, the folks that have been confirmed and placed in in lifetime appointments on the bench. So you know, it’s hard to say how courts will come down on some of these issues, but. It does demonstrate, though, that this is this is not the end. This is the beginning, I think for a lot of these folks. And it’s just so important that, you know, we continue to fight.
23:38 (Music Break)
24:27 AW – This is Alex Wise on Sea Change Radio and I’m speaking to Sasha Buchert. She is a senior attorney at Lambda Legal. I know Lambda Legal is a nonpartisan organization, but looking at it through a more hopeful lens, if we can for a second, all of this hateful legislation that’s getting pushed forward in in multiple states. It seems like political suicide from a strategic standpoint, if I were a Republican strategist and I was trying to gain a foothold in a younger demographic of a younger slice of the American electorate, I don’t have the polling data in front of me, but I don’t really see the end game for them, except it seems very short sighted.
25:14 SB – I mean, it’s hard to speak in generalizations like this, but you know, for, you know, the party who you know was focused on, you know, denying elections and after January 6th, it’s just hard for me, see them doing anything but appealing to, you know, the folks that are on the farthest, you know, branch of the right wing tree. And I completely agree with you that you know the numbers you know of youth who are supportive of LGBTQ people is, very, very high and, we will see that games, if not, in the next 10 to 20 years, certainly after that. And it’s just sad to witness, you know, this the harm and damage that’s going to be done, you know, during the interim. But I do feel like they’re going to have to, you know, make those decisions at some point, for sure.
26:04 AW – And lastly I wanted to touch on one issue in the culture wars that we heard a lot more about in the 80s and 90s, which was gays in the military that was like this issue and you’re of openly transgender marine as somebody who has served their country, what’s the status right now, legally, and is that under threat? Are things moving in the right direction on that front with the Biden administration in place?
26:36 SB – Yeah, absolutely. You know, the Biden administration came in and, you know, did away with that nonsense, you know? So what folks had been serving just talking about the open trans service. I mean, just having, you know, the right to serve doesn’t mean that you don’t experience discrimination, but it certainly is reassuring to those families that you know, they can continue to do their jobs. Have to look over, look over their shoulder, and trans folks in particular have been serving since 2015 now, so they’re almost going on 10 years, I’d love to say there’s no threat.
27:07 AW – And the military has not self-destructed in that period I assume?
27:11 SB – (Laughs) And this is exactly the hypothetical you know, thing that drives me nuts. It’s just so ridiculous there’s like this what if…Look, you’ve got boots on the ground – actual real statistics and all of these folks. All that’s happened is these folks are serving with valor and distinction. So yeah, it’s just it’s just ridiculous. But I can’t say there is no threat. You know, if the administration changes and it’s someone who has expressed, great. If it’s the folks that are leading the ticket on the far right now, yeah, I certainly do believe that. So they might come in and try to do something similar to what we saw in the last administration.
27:55 AW – Sasha Buchert is a staff attorney at Lambda Legal. Sasha, thanks so much for being my guest on Sea Change Radio.
28:01 SB – Thanks so much.
28:17 Narrator – 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 Donna Summer, Anastasia Sheverenko & INGA and Sylvester. To read a transcript of this show, go to SeaChangeRadio.com stream or download the show or subscribe to our podcast on our site or visit our archives to hear from Doris Kearns Goodwin, Gavin Newsom, Stewart Brand and 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.