Dalila Ali Rajah
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'It Takes Us Back to the 1960s': Mississippi Reacts to Hateful Law

Susan Mangum and Brandiilyne Dear

Brandiilyne Dear and her wife, Susan, were married in 2015, just weeks before the Supreme Court legalized same-sex unions nationwide. The couple would spend their second anniversary in Lubbock, Texas, after the state of Mississippi, where Brandiilyne and Susan call home, passed a bill striking at Obergefell v. Hodges, the marriage equality decision.

House Bill 1523, signed into law in April 2016, would allow individuals, organizations, and private businesses to deny services to LGBT people based on their “sincerely held religious beliefs,” including that marriage is solely a union between a man in a woman. After HB 1523 was blocked from going into effect by U.S. District Judge Carlton Reeves, it would be appealed in the U.S. Court of Appeals for the Fifth Circuit.

When a three-judge panel of the court unanimously ruled last week that HB 1523 would stand, the women were at Disney World.

“Here I am on vacation at the Happiest Place on Earth, and I get the phone call that the stay has been lifted by the Fifth Circuit,” Dear told The Advocate. “It’s just been a roller coaster of emotions. I felt angry and disappointed thinking about my community. This bill is damaging to our dignity and our safety.”

On Thursday, the court cleared the path for legalized discrimination in Mississippi by ruling that the plaintiffs did not have standing to challenge the law’s constitutionality. Attorney Roberta Kaplan, the lawyer who successfully fought the Defense of Marriage Act, and groups like Mississippi Center for Justice and Lambda Legal charged that the law violated the Equal Protection Clause of the U.S. Constitution. Part of the Fourteenth Amendment, it states that no one can be denied equal protection of the laws.

But because the suit was preemptive, filed before HB 1523 went into effect, the judges ruled that the plaintiffs had not demonstrated harm.

Robert McDuff, a civil rights attorney who was among those fighting HB 1523, issued a statement calling Fifth Circuit decision “wrong” and saying that a person “should not have to live through discrimination in order to challenge this obviously unconstitutional bill.”

But as Dear told The Advocate, LGBT Mississippians already endure the pain of discrimination every day. The state has no law banning discrimination on the basis of sexual orientation or gender identity — meaning that queer and trans people can legally be fired from their job, denied housing, or refused health care because of who they are. When Brandiilyne and Susan began dating, they were kicked out of their church.

Dear said that facing that normalized discrimination, many LGBT people in Mississippi learn to “not be who they are completely because of fear and shame.”

“LGBTQ people navigate through life by avoiding the places where we believe we will receive discrimination or looked at differently,” said Dear, who is a pastor at Joshua Generation Metropolitan Community Church in Hattiesburg. “Many people stay in the closet, or they won’t hold their spouse’s hand in public. These are things that other people take for granted every single day — like walking into a restaurant and enjoying a meal with your loved one or being able tell them that you love them.”

Kaplan, who called the Fifth Circuit decision “deeply upsetting” in a press release, said the legal team would continue to fight the ruling, but that the nation’s most anti-LGBT law could have disastrous impacts on Mississippi’s most vulnerable populations.

Daniel Ball, faith and outreach organizer for the Human Rights Campaign in Mississippi, said the law would “take us back to the 1960s.”

“Back before the civil rights era, religion has been used to justify oppressing so many different groups of people,” Ball told The Advocate in a phone interview. “It was used to justify oppression against women, segregating the races, and slavery. Even now in this day and age, it’s being used to justify discrimination against LGBTQ people.”

The issue is an extremely personal one for Ball. He lives in Jackson with his teenage nephew, whom Ball recently adopted. Both of them are black. Laws like HB 1523 could allow foster and adoption agencies to turn away LGBT parents if placing the child would conflict with the agency’s “sincerely held religious beliefs.” In 2017, states like Texas, Alabama, and South Dakota have passed religious refusal bills giving adoption centers broad license to discriminate.

But these are just some of the groups that stand to be harmed by HB 1523. Ball said the legislation could be used to discriminate all kinds of groups. In addition to the anti-LGBT provision, HB 1523 protects the right to conscience of those who believe “sexual relations are properly reserved” for marriage. That means the legislation could target single mothers, unmarried people, and anyone who has intercourse outside of marriage. If a cohabitating couple turns in their application for an apartment and the landlord believes they are having sex, he could legally turn them down.  

Malaysia Walker, transgender advocacy and education program coordinator for the American Civil Liberties Union of Mississippi, noted that the law particularly singles out one population for harm: trans people.

The third and final belief HB 1523 protects is that “biological sex” is “objectively determined by anatomy and genetics at time of birth.” That language may be used to deny lifesaving health care to transgender people in a state where this population may be in need of critical care. Jackson has the fourth-highest rate of HIV infection in the country, and that epidemic has hit gay and bisexual men and transgender women especially hard. Four in 10 gay and bi men in the state capital have HIV, reports an Emory University study.

Data isn’t currently available for Jackson’s trans population, but transgender women of color are more likely than any other group to contract the virus. And many of those newly diagnosed with HIV live in the South, according to the Centers for Disease Control and Prevention.

“HB 1523 hurts us in so many harmful ways,” Walker told The Advocate. “In Mississippi, many people don’t recognize that transgender people exist. Our fight has been to gain inclusion in society — to be treated as people and let people know that we are here, we do exist, and we have a voice. We want to be treated as equal.”

ACLU lawyer Beth Littrell said the law will serve to embolden anti-LGBT forces in Mississippi, allowing others to “discriminate against LGBTQ people just because they object to their existence.” In order to prevent others from jeopardizing the health care, safety, and even the lives of queer and trans people in the state, the legal team plans to appeal the Fifth Circuit decision to the entire court. During what’s called en banc review, all members of the court would hear the case — not merely the three judges.

The Fifth Circuit has yet to state whether it would rehear the case, and the battle over HB 1523 could go all the way to the Supreme Court.

Despite the three Fifth Circuit judges’ ruling, Littrell believes that the harms of HB 1523 are “self-evident.” After the bill was passed last year, one of the plaintiff involved in the case had to hire extra security at their church — for fear that LGBT congregants would be targeted by the backlash. This law’s passage, she said, has “created a climate of fear and prejudice in Mississippi — even before it went into effect.”

But if the battle over equality means taking the case all the way to Washington, the Dears are ready for it.

“We’re not only fighting for ourselves,” Brandiilyne said. “We’re fighting for the rights of the people we love. Our state says that we don’t count and we don’t matter, and we are here to say that we do. This is just a bump in the road, and we’re just going to keep driving toward our goal.”

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