This law intends to give parents greater control over their children’s upbringing and comes at the heels of a raging debate around critical race theory (CRT) and its purported instruction in schools (K-12). Debates around the bill also culminated in the passage of another bill- HB 7:The Individual Freedom bill, which quite ironically curtails speech by prohibiting classroom instruction, curricula design, and workplace training on particular kinds of discussions about race, color, sex, or national origin. Once again, the law does not define what those restricted forms of speech are. The intent of this law is to crack down on what DeSantis calls “wokeness”.

Advancements in Gay and Lesbian Rights over the Years: What went wrong?

While these two laws are specific to Florida residents, ongoing hysteria over sexuality, gender, and race in American classrooms has a long political and legal history. On the issues of sexuality and gender in particular, the United States has made tremendous progress over the years. Pew research data show that three decades ago, nine-in-ten American adults (89%) would have been upset if their child told them they were gay. But by 2015, that number fell to just four-in-ten adults (39%). On the issue of same-sex marriage too, support has risen meteorically over the years. In 2005, only 36% of adults favored legalizing same-sex marriage, while a much larger 53% opposed it. By 2015, opinions flipped and 57% of adults favored same-sex marriage, while only 39% opposed it. However, this support/opposition was pretty much confined to party lines, with 65% of Democrats and 65% of Independents showing support for same-sex marriage, compared to only 34% of Republicans (as of 2015). At the time of this Pew survey, same-sex marriage was already legal in 36 states and the District of Columbia but wasn’t yet legal nationwide. Yet almost 75% of voters across party lines believed it would inevitably become the law of the land (this indeed occurred in the landmark 2015 US Supreme Court ruling, Obergefell v. Hodges). So how did the United States go from legalizing same-sex marriage in 2015 to banning certain types of classroom and workplace discussions on gender and sexuality in 2022?

Most of the activism over the past three decades focused on securing rights for gay and lesbian Americans, which meant same-sex marriage was typically the key issue at stake. As far back as 1986, the US Supreme Court ruled in Bowers v. Hardwick that the US Constitution did not grant homosexuals the constitutional right to engage in same-sex conduct (“sodomy”) even within the privacy of their homes. Further, the Court repudiated a lower court’s ruling that ‘gay rights’ emanated from the Due Process Clause of the Fourteenth Amendment. Seventeen years later in 2003, this judgment was overruled in Lawrence v. Texas, in which the same Court held that the reasoning in Bowers was flawed because the Fourteenth Amendment did in fact protect homosexual people’s liberty to engage in private and consensual same-sex conduct. 

By this time, debates around the (ill)legality of same-sex marriage had also taken center stage in American politics, with Congress passing the now-infamous Defense of Marriage Act (DOMA) in 1996. DOMA defined marriage as a “legal union between one man and one woman” for federal purposes (under Section 3 of DOMA) and allowed states not to recognize same-sex marriages recognized in other states if they so wanted (under Section 2 of DOMA). Section 3 of DOMA was eventually overturned by the Supreme Court in United States v. Windsor (2013), and Section 2 fell in Obergefell v. Hodges (2015). With Obergefell legalizing same-sex marriage nationwide, any state ban on same-sex marriage was invalidated, effectively overturning DOMA. 

It should be noted that Windsor and Obergefell were decided by narrow 5-4 margins, and both victories emanated from decades of sustained efforts by gay and lesbian lawyers and activists. Such was the opposition they faced that a detailed 45 page report by the Committee on the Judiciary accompanied the DOMA legislation, which cited the need for an Act like DOMA. The report spelled out the fear that legalizing same-sex marriage, even at the state level, would “divide people unnecessarily” and adversely affect governmental interets. These interested were not confined to “defending and nurturing” heterosexual marriage but encompassed a fear of state sovereignty “subversion” and the “impingement” of scarce government resources. 

At that time, no state in the US had yet recognized same-sex marriage. However, in May 1993, the Hawaiin Supreme Court held in Baehr v. Lewin that the denial of marriage licenses to same-sex couples may constitute discrimination on the basis of sex. It was this ruling in Hawaii that then-Congressman Charles Canady and others called a “significant threat to traditional marriage laws,” leading to multiple same-sex marriage bans and restrictions across the length and breadth of the US over the next three decades, with DOMA being just the beginning.

While gay rights activists may have ultimately won the same-sex marriage debate, new and unfamiliar issues now animate voters, specifically conservatives. These issues include the rights of transgender people and those beyond the lesbian and gay sexuality spectrum (i.e. those beyond the “L” and”G” of LGBTQ+). Since 2017, sixteen states have considered passing “bathroom bills” that would prohibit transgender and gender non-conforming people from accessing multiuser restrooms, locker rooms, and other sex-segregated facilities of their choice. Instead, these laws would compel them to use rooms corresponding with their biological sex. As recent as April 2022, Alabama’s state legislature passed an expanded “bathroom bill” that would not only limit transgender and gender-nonconforming people’s bathroom access but also prohibit certain discussions of gender and sexuality in classrooms from kindergarten through fifth grade (very similar to Florida’s HB 1557). 

Florida’s law has been named the “don’t say gay” law by opponents because of its vague language proscribing classroom discussions on gender and sexuality in any manner not conducive to state standards. Moreover, parental notification rules in the law have raised speculation by critics that teachers may be compelled to “out” LGBTQ+ students to their parents under this law. Conservatives, however, have pushed back on these claims, arguing instead that the law “protects” children from sexual predators and “groomers“. By re-defining this law as an “anti-grooming” law, conservatives effectively draw from age-old tropes about homosexuality, such as the idea of a “gay agenda”- one that popular American evangelical commentator and theologian Dr. R. Albert Mohler Jr. once described as “propaganda for immorality” and “poisonous to Christian morality.” He was, however, referencing the increasing representation of gay and lesbian characters in Hollywood. Nonetheless, the same reasoning is applied by conservatives today to address gender and sexuality in school pedagogy. 

What lies ahead?

Ever since Lia Thomas became the first transgender athlete to win the NCAA swimming title, conservative media has run a series of non-stop transphobic smear campaigns against her, which included multiple instances of intentional misgendering that eventually ignited a new debate about ‘women’s rights’ and the ‘protection of women’s sports’. Some US States have already passed laws banning transgender girls and women from participating in sports corresponding with their gender identity, while others have banned gender-affirming care for minors with gender dysphoria. This fixation with ‘protecting’ women and children has now become a common thread in many Republican-backed laws – from anti-abortion “pro-life” bills, to “don’t say gay” bills, to the slew of anti-transgender bills. The conservatives of today may have made a begrudging truce with same-sex marriage, but they still consider other LGBTQ+ issues a form of “dangerous woke propaganda” that is detrimental to children.

Clearly the path ahead is rocky. While gays and lesbians may have won the hard-fought right to marry, there is still a long way to go. Americans are still uncomfortable discussing sexuality, gender identity, and gender nonconformity, and only time will tell how all of this will play out in the courts and in the upcoming midterm elections.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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Pew survey data from 2021 shows that while most Americans (59%) believe that abortion should be legal in all or most cases, a sizeable minority (39%) still believe that it should not. More troubling, these trends have remained more or less stable over the last quarter of a century. In 1995, 60% of Americans supported the legalization of abortion while 38% didn’t; in 2009, only 47% supported its legalization while 44% did not.

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Compare these statistics with data on same-sex marriage. In 2002, 35% favored legalizing same-sex marriage, while 57% opposed it. Support has risen steadily over the years, with the tables now completely flipped, with 61% for and 31% against legalization. Why, then, has a controversial issue like legalizing same-sex marriage garnered so much public support, even among some conservatives, while abortion remains a source of profound division?

A Point of Division

Columnist Katha Pollitt argues that although both issues are highly polarizing, their underlying values are fundamentally different. Unlike abortion, same-sex marriage strengthens an age-old conservative institution — matrimony. Thus, even though the institution of marriage is rooted in patriarchy, queer-erasure, racial inequality and exclusivism, most same-sex marriage proponents don’t advocate for its annihilation. Rather, they call for it to be more inclusive, welcoming and non-discriminatory.

The right of access to safe abortion, on the other hand, calls for a much more radical reclaiming of a woman’s bodily autonomy at the expense of the unborn child. Herein lies another crucial difference between the two issues. While opposition to same-sex marriage primarily stems from religious conservatives and moral crusaders, one could still argue that legalizing marriage for sexual minorities would in no way trample upon heterosexual people’s right to marry. This argument was explicitly laid out in Obergefell v. Hodges.

The question of abortion rights, however, implies that any substantive extension of reproductive rights for women would effectively entail a concomitant curtailment of the rights of unborn children. This is an issue that irks not just conservatives and moralists, but many women as well. Norma McCorvey, the plaintiff in Roe v. Wade, is a prominent example of this.

While articulating his dissent in Obergefell v. Hodges, Supreme Court Justice Clarence Thomas argued that legalizing same-sex marriage was at odds with the US Constitution not only because of the way traditional marriage was strictly understood but because it was, in his opinion, not the court’s duty to reconstitute the meaning of marriage for a certain group of people who were never deprived of their liberty in the juridical sense.

More significantly, the court stated that although the First Amendment allowed people of faith to expressly oppose same-sex marriage if they so wished, faith alone could not be used to deny equal rights to same-sex couples.

The political and legal debates around abortion are far more complex. Not only is abortion condemned by a majority of white evangelical Protestants (77%) and by a sizeable group of Catholics (43%), most of them also uphold the extra-judicial rights of the unborn by cleverly deploying science to refute pro-choice arguments.

The Rights of the Unborn

In “Defending Life: A Moral and Legal Case against Abortion Choice,” Francis J. Beckwith, professor of philosophy and jurisprudence at Baylor University, argues that the fetus must be considered a “full-fledged member of the human community,” meaning it was entitled to the same constitutional protections as any other living being.

Beckwith’s arguments are not theological. Rather, they are grounded in legal theory and philosophy. In a scathing critique of Roe v. Wade, he posits this critique: “What is it, then, about that vaginal passageway that changes the child’s nature in such a significant fashion that it may be killed without justification before exit but only with justification post-exit?” Indeed, this question continues to haunt pro-choice advocates.

Some of Beckwith’s postulates were countervailed by Dean Stretton, who argued that the unborn fetus could not be accorded the same rights as the living. However, popular opinion on this issue remains split, with influential young conservatives like Meghan McCain and Candace Owens aggressively galvanizing support among women for the pro-life movement, effectively challenging the notion that it is primarily men who are trying to control women’s bodies.

Indeed, to frame the abortion debate solely through the lens of women’s rights may not be completely correct given that 37% of American women continue to oppose abortion. A more appropriate framing, perhaps, could be to challenge the extra-judicial status of the unborn child and to argue against extending constitutional protections to embryos and fetuses.

Indeed, if judicial conservatives like Clarence Thomas truly see themselves as textualists, then surely even they would appreciate the fact that the intended meaning of the Constitution was never to extend protections to those who even its framers didn’t recognize as “people.”

Science and the Pro-Life Movement

For decades, sexual minorities in the United States and around the world were vilified by the scientific community for embodying an “unnatural” and “abnormal” sexual identity. In 1973, homosexuality was finally delisted as a mental illness by the American Psychiatric Association after years of advocacy. Today, almost all globally recognized and respected psychiatric bodies have followed suit.

Meanwhile, the genetic origins of homosexuality are being studied. While there exists little to no scientific consensus about whether sexual orientation is biologically determined or socially constructed, public support for homosexual people has doubled in the past three decades, more so than for any other group over the same period in the United States. This is reflected in the increasing support for same-sex marriage over the years.

With abortion rights, however, not only is public opinion more divided, but there is ongoing discourse within the realms of science, religion and philosophy about what constitutes human consciousness and “being”— a key question at the heart of the abortion debate. While delivering the majority opinion in Roe v. Wade, Justice Harry Blackmun took the stand that even though a right to privacy was not explicitly enshrined in the US Constitution at the time, the appellant (Roe) was entitled to it while seeking an abortion. However, such a right could not be absolute and had to be curtailed by the state to protect potential life.

Furthermore, the court refrained from answering the question of when and where life began. Instead, the court saw itself as rightfully positioned to interfere with a woman’s pregnancy only at the point of viability, when the fetus would be able to survive outside the womb. This point was determined to be after the first trimester. In other words, even though the majority opinion upheld a woman’s right to abortion, the court also carefully balanced its decision to protect potential life.

In a later Supreme Court decision in Planned Parenthood v. Casey, Roe v. Wade was upheld in a bitter 5-4 decision (as opposed to 7-2 in Roe), but new legislative standards were introduced to safeguard potential life. This decision also overruled Roe’s rigid trimester system, giving individual states the power to restrain a woman’s right to abortion even in the first trimester, subject to a number of restrictions.

Both pro-life and pro-choice activists were disappointed by the Casey ruling because it was seen as an unholy compromise by both sides. On the one hand, Casey reaffirmed Roe, but, on the other, it wiped away the blanket first trimester abortion protection. The court also observed that because of scientific and medical advancements, the point of viability could no longer be biologically fixed at the first trimester.

Overturning Roe

The conservative supermajority on the US Supreme Court is set to hear Dobbs v. Jackson Women’s Health Organization, which directly challenges Roe v. Wade, later this year. Given the lack of ethical, moral, spiritual and scientific consensus on what constitutes conscious existence, it is plausible that the court may either overturn its landmark ruling or water it down by expanding the constitutional protections of the unborn and reassessing the constitutional meaning of potential life and viability. 

Abortion rights activists are right to worry — the Supreme Court has overturned its own judgments in the past. Moreover, in her confirmation hearing, Judge Amy Coney Barrett underscored that she did not view Roe v. Wade as a super-precedent, meaning that if she and her conservative-leaning colleagues on the court deemed it appropriate, they could collectively overturn Roe v. Wade in the Dobbs case.

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According to the Center for Reproductive Rights, all jurisdictions in North America and Western Europe have at present decriminalized abortion in some form. In an unexpected twist, Mexico’s supreme court struck down a restrictive abortion law in the northern state of Coahuila just a few days after the neighboring US state of Texas passed its near-total abortion ban. The Department of Justice has sued the state of Texas over the new legislation, but the measure is forcing migrants in Texas to consider returning to Mexico to access safe abortion.

As the US Supreme Court reconvenes to hear the ongoing Dobbs case, it will be interesting to observe how this new bench defines personhood. Remember, the judges in Roe v. Wade defined a person strictly in the postnatal sense. If personhood is indeed extended to include the unborn, then women in America could face anything from a near-total to complete abortion ban similar to the kind currently in force in Texas.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post For Americans, Abortion Is More Controversial Than Same-Sex Marriage appeared first on Fair Observer.

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The late 1990s were a time when offline contact between Indian queers for non-sexual purposes was largely unimaginable, possibly because homosexuality itself was still a crime back then. Moreover, public attitudes toward homosexuals were fiercely negative, even among liberals. “When I was active in the women’s movement in Delhi from 1978 to 1990 as founding co-editor of Manushi, India’s first feminist journal, homosexuality was rarely if ever discussed in left-wing, civil rights, or women’s movements, or at Delhi University, where I taught,” recounts historian Ruth Vanita.

Globalization of Gay Rights

With time, things began to change. The policies of globalization, liberalization and privatization of the late 1990s opened up sections of the Indian economy to the world market in novel ways. These policies, which were a part of India’s overall structural adjustment program, marked a tectonic shift from old dirigiste ways of working and heralded a new era of sweeping economic reforms.

A chief consequence of these changes was the information technology boom of the 1990s. Starting in the 1970s, it eventually led the way for the proliferation of new technologies on the Indian market throughout the late 1990s and early 2000s. These included Nokia smartphones, desktop computers like the famed HEC-2M, black-and-white television sets and so on. Over the years, not only did these technologies evolve, but so did their ownership patterns. In 2012, Neilsen reported that the number of smartphone users in urban India was approximately 27 million. That number shot up to 76 million in 2013 for urban and rural India, and has been rising steadily ever since. By 2025, India is projected to have approximately 974 million smartphone users.

These economic changes, however, weren’t merely restricted to urban areas. A 2019 report by the Internet & Mobile Association of India and Nielsen found that with 227 million active internet users, rural India had already surpassed urban India’s 205 million users. With 504 million active internet users over five years of age in 2019, India was the second-largest internet-user market in the world, just behind China with its 850 million users. The United States, by comparison, has 280-300 million users.

What did the changing contours of the digital landscape in India mean for queer people? The late 1990s were a time when the Indian government finally allowed certain sectors of the economy like IT and telecommunications to engage private investment. As the strangleholds of the erstwhile permit-license raj began to loosen, queer activism also witnessed a genesis of sorts. In 1994, AIDS Bhedbhav Virodhi Andolan (ABVA) filed the first-ever petition in the country’s history against Section 377 of the Indian Penal Code, an infamous British-era law that criminalized homosexuality in postcolonial India.

Various lesbian support groups also emerged during this time in response to widespread protests by Hindu right-wing groups that displayed violent disdain over the screening of Deepa Mehta’s lesbian romance film, “Fire.”

These changes were intimately related to the economic transformations of the time resulting from the transnational circulation of capital, ideas, people and funding that helped give the queer movement the impetus it needed to thrive and survive. The advent of gay rights mobilization in India, for instance, arose as a consequence of international funding for HIV/AIDS prevention in the late 1980s and early 1990s.

The easing of certain regulations in the Indian economy and the greater flow of capital and people from abroad also paved the way, directly and indirectly, for the eventual scrapping of Section 377. As one scholar succinctly put it, “queer politics in India has come to be embroiled in the politics of globalization, and many believe that this history of queer politics is inseparable from the rise of neoliberal agendas in the Indian sub continent.”

Queering Cyberspace

A lot has changed over the years. Most notably, in 2014, India’s Supreme Court recognized the third gender in its landmark NALSA judgment. In 2018, the same court decriminalized homosexuality. By constitutionally recognizing these hitherto delegitimized subjects, the very shape and form of queer politics had radically transformed. Today, queer identification in urban pockets is more common than ever before. Corporations have also joined the queer bandwagon by placating homocapitalist sentiments under the problematic guise of LGBTQ+ inclusivity.

With the COVID-19 pandemic having haltered in-person queer events around the world, much of queer organizing, dating, socializing and networking has now shifted online. This is a space that continues to boom.

On the one hand, online spaces can be liberating for those who can access them. These spaces promise queer people the possibility of digitally connecting with others with a mere click of a button. This is why the IT boom was so significant: It paved the way for greater internet access and made it possible for marginalized and discreet queer people to explore their identities in ways their geographic locations wouldn’t otherwise allow.

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While no official government data on queer populations exist (for obvious reasons), and despite the police and the state actively harassing queer people over the years — even after decriminalization, they continue to do so — technology has ushered in what some are calling a “sexual revolution in India.” The technological boom has ignited and kindled a new generation of young Indians’ desires for sex, romance, intimacy, and even sex work in unimaginable ways.

These desires and aspirations are being facilitated through chat rooms, instant messaging applications like WhatsApp and social media platforms like Facebook, Twitter, Instagram and Snapchat. Indeed, these changes have “teased the imagination of a young India, expanding her horizons and aspirations with the click of the button.”

However, such spaces also feature as sites of discrimination, bullying and violence. Take, for instance, Rohit Dasgupta’s assertion in his 2017 book, “Digital Queer Cultures in India,” that “The concept of being ‘too transgressive’ is a growing issue within queer representations in India.” Thus, only certain queer bodies and identities are typically seen as normative in queer spaces; for example, gay men who pass as straight. Those who transgress cis-normative and heteronormative ideals — like effeminate gay men — are typically shunned by queer people (mostly gay men).

Caste Supremacy

It has been argued that even though the 1991 reforms had a positive impact on India’s economic performance, their uneven implementation exacerbated existing socio-cultural inequalities. We see these inequalities manifest in queer cyberspace today, where certain privileged queer voices (mostly dominant caste, urbanized and Westernized gay men) dominate, while others (mostly queer women, and queer people from marginalized castes and classes) are systematically silenced by those in power.

On the issue of caste, for example, there is a deafening silence among queer activists in India to even acknowledge the presence of caste inequalities within the movement. This should come as no surprise because most queer activists in India (including the author of this article) belong to oppressor castes. Because of this, the issues, concerns and traumas of queer people from marginalized castes such as those from Dalit, Bahujan and Adivasi communities are sidelined.

While most of this marginalization is implicit, some of it also happens explicitly. Take, for example, writer-director Aroh Akunth’s account of how caste intimately shapes desires on gay dating platforms. Thus, “attractiveness,” skin color and a “good background” become ideas projected onto a caste, while politics of “respectability” becomes a politics of caste supremacy.

Another pressing issue in queer cyberspace is the growing popularity of right-wing homo-Hindu nationalist aspirations. It should be noted that this problem plagued the queer movement long before the pandemic pushed everyone online. It’s just that these groups, like many others, have adapted to the new normal by moving online. They fashion themselves as advocates for queer rights while simultaneously peddling jingoism, Islamophobia anti-Black Lives Matter/Dalit Lives Matter propaganda as well as casteism.

Take for instance, “hindu_lgbt,” an Instagram handle that affiliates itself with the right-wing Hindu nationalist group, the Rashtriya Swayamsevak Sangh (RSS), which supports the decriminalization of homosexuality in India but not the legalization of same-sex marriage. As an ideology, Hindu nationalism is premised on the political and cultural construction of citizen-state relationships and subjectivities that are homogenized and in synch with orthodox notions of the Hindu faith, sometimes referred to as Hindutva philosophy.

It should be noted that there are many social formations in India that support this ideology. The protests against Deepa Mehta’s film “Fire,” for instance, were spearheaded by the Mahila Aghadi of Shiv Sena, Bajrang Dal and others, while resistance to decriminalize homosexuality in India came, in part, from Bharatiya Janata Party (BJP) and RSS ideologues.

However, RSS views of gay rights have drastically changed over the years — perhaps more so than the views of orthodox Christian and Muslim organizations — partly due to the ruling BJP Hindu nationalist government’s relative silence on the issue, and partly because the RSS is itself trying to grapple with the ongoing social changes in India. In order to brand itself as an upholder of “inclusive” traditional family values, the RSS approach seems, on the one hand, to respect the Supreme Court’s judgment on Section 377 while, on the other hand, refuse to support any further legislation, such as the legalization of same-sex marriage, that might radically challenge existing family structures in India.

Web Citizenship

With the third COVID-19 wave expected to hit India in the coming months, online spaces will, in all likelihood, continue to facilitate queer networking for the foreseeable future. But with greater smartphone access and the increased democratization of content creation — what some scholars have called the rise of “web citizenship” — queer advocacy in contemporary India faces newer challenges.

The first is an issue of privacy. In its 2017 Puttaswamy judgment, the Supreme Court of India recognized sexual orientation as an intrinsic part of privacy but was silent about its applicability in the online realm, where catfishing and identity theft are rampant. The second is an issue of legality. Digital spaces transcend the boundaries of nation-states, thereby calling into question the juridical purview of national privacy and security laws. How do queer people facing harassment, bullying and extortion from international actors report such crimes to the police in India?

A contemporary example of this was the infamous gay marriage scam, as detailed in a UK-based investigation by VICE. This expose sent shockwaves through sections of the queer circles both in India and abroad, bringing to the fore the inadequacy of Indian laws, which, unlike those in the UK, neither recognize gay marriage nor extortion that specifically targets queer populations.

The queer movement in India is currently at a crossroads. On the one hand, it has to tackle the increasing popularity of right-wing Hindu nationalist sentiments; on the other, manage the tensions and contradictions associated with Indian law.

Indeed, the challenges are many and the means to address them are few. One way of effecting change is by pursuing the law and lobbying lawmakers like Dr. Shashi Tharoor of the Indian National Congress, Supriya Sule of the Nationalist Congress Party and Tejasvi Surya of the ruling BJP, all of whom have expressed support for queer rights in India. While some scholars are skeptical of using the law as a vehicle for bringing about social change in India, others, like Arvind Narrain, are less skeptical. To date, this dispute remains unsettled — as does the inclusion of the BJP into this discussion.

The other way of effecting change is by radically reimagining queer spaces as zones where people of all identities can be made to feel safer. This exercise is perhaps harder to carry out because it has no prescriptions and is contingent on the ability of privileged queers to self-reflect. Thus, would dominant-caste queer men be willing to cede space to marginalized-caste queer women and transgender people? We should hope so. All in all, queer cyberspace in India is both a stuffy and an expansive zone. Its contradictions and contestations make it an exciting site for further scholarship into queer mobilization in India.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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