As an LGBTQ person, it was hard to watch Donald Trump’s 2016 election without at least some worry—that one rainbow flag aside, he didn’t seem like much of an ally. Many LGBTQ activists, aware of the influence of right-wing evangelical hate groups (such as Alliance Defending Freedom and Family Research Council) on Trump and his policies, viewed his elevation with acute mortal dread. They were right to worry: The Trump administration has been hostile to LGBTQ people, and transgender people in particular.
Brett Kavanaugh’s confirmation to the Supreme Court has redoubled those fears. Most LGBTQ people instinctively know that a hard-right shift by the courts will be bad, but only dedicated court watchers understand exactly how bad. The current composition of SCOTUS is likely, in a matter of years, to destabilize or outright undo four decades of LGBTQ civil rights progress. Most of the cases that could be responsible for this are already wending their way through the federal court system, chaperoned by Alliance Defending Freedom, or ADF.
It is nearly certain, in my view, that marriage equality will be reduced to a state-dependent guarantee of a marriage certificate and a death certificate with both names on it and few, if any, of marriage’s other rights. Reparative therapy bans could be struck down as unconstitutional burdens on free speech. Nondiscrimination laws protecting LGBTQ people nationwide could be negated by constitutionally protected religious rights to discriminate. The de facto ban on transgender troops will be upheld.
The ADF is also pressing hard for the courts to find that transgender-inclusive policies in public accommodations like bathrooms and locker rooms create an inherently hostile environment, in violation of Title VII of the 1964 Civil Rights Act and Title IX. The organization’s goal appears to be to create a nationwide ban on transgender people in all gender-segregated facilities. With the current court, it is hard to envision a scenario where the ADF does not succeed.
And these are just the near-term scenarios. If Trump gets re-elected or a third conservative nominee is confirmed to the Supreme Court, it could get much worse. For example, the Family Research Council has been agitating for the administration to bring back “don’t ask, don’t tell” for lesbian and gay service members, which it could potentially do legally if the transgender ban is upheld. By invoking Justice Antonin Scalia’s language in his dissent in Lawrence v. Texas of morality being the basis for law, Attorney General Jeff Sessions has made veiled gestures to the ADF that seem to support reversing the case, which overturned sodomy laws in the U.S. in 2003. Currently, 12 states still have unenforceable sodomy laws on the books, and one in four Americans (presumably Trump’s base) want homosexual sex to be illegal again.
At the same time, there’s the reality that gerrymandering and voter suppression has made LGBTQ progress nearly impossible in the two-thirds of the U.S. where Republicans have built themselves an unassailable legislative majority. The 26 states where Republicans control every branch of government are much more likely to pursue anti-LGBTQ legislation and policies, which will eventually be reviewed by an equally unfriendly SCOTUS.
As a result of all of this, LGBTQ civil rights will certainly stall, and likely erode, for the foreseeable future. And any damage will be that much harder to repair because of stare decisis (deference to previous court rulings). Most LGBTQ people understand this looming threat instinctively, but I worry we don’t yet have the heart to acknowledge that we’re largely cut off from the traditional legislative and legal means of protection that have been the standard approach for nearly 40 years. We simply cannot win this fight with K Street lobbyists and lawyers, particularly when our own advocacy organizations aren’t necessarily on firm footing. The time for more radical tactics has likely come.
When a minority group is placed in extremis like this, when it does not have the ability to work within the power system to fight oppression, it must adopt legal, nonviolent strategies that work parallel to it. In essence, queer people must begin thinking like prisoners of war or resisters who have no inherent institutional power but do have the ability to alter the behavior of their captors through unified action.
The U.S. military’s Code of Conduct for POWs instructs them to organize and resist by all legal means available under the Geneva Conventions. So too should LGBTQ people organize and begin thinking like insurgents, taking every opportunity to resist, from malicious compliance and counter-oppressor messaging to protest and direct action. Luckily, the community has one advantage in this battle today: While the unrepresentative government is hostile to LGBTQ people, anti-LGBTQ antipathy among the public has dwindled greatly from its peak 30 years ago during the AIDS crisis. Now, LGBTQ people are generally accepted in many parts of the country—more so than a deeply unpopular president and Republican Party. Any sort of resistance must make use of this advantage, both in terms of the bigger picture and in our day-to-day lives.
When it comes to queer direct action and resistance, many people will look to ACT UP as a model. It’s a good one, but it didn’t have the internet as a tool nor widespread public support to use to its advantage. Fortunately, cultural and technological changes since the late 1980s and early ’90s offer even greater opportunity for effective resistance. The internet, with its ability to share information instantaneously, efficiently facilitates direct action. It allows a wider audience for both direct action events and “sting” operations and thus can have a greater effect on popular opinion. Stings are likely to become an even more important weapon in mobilizing the base and influencing the middle.
There are practical examples of each of these sorts of actions, some of which have been used (inconsistently) by the LGBTQ movement in the past. For example, a sting organized by LGBTQ activists was used to prove that Michele Bachmann’s husband was running a reparative therapy clinic and taking Medicaid money for it. Another example is Sacha Baron Cohen getting a Republican legislator to use the N-word, which led to him being forced out of office. Given how conservative legislators and religious figures are more terrified of angering their extreme right base than the rest of America, luring them into saying and doing odious things is relatively easy, especially when they believe them.
James O’Keefe’s highly edited (to the point of being fake and criminal) videos show the outsize influence stings can have on American politics. There is even more power in such videos when they’re done legally and accurately, exposing truth rather than creating a false impression out of whole cloth.
Online activism allows people to exert pressure from around the country with tangible effect. Businesses that refuse to serve LGBTQ people risk the serious threat of having their online ratings plummet, which, along with a reputation for anti-LGBTQ animus, can result in ruin. At the same time, search engine result manipulation (like what Dan Savage did by redefining Rick Santorum’s last name) can ensure that the first thing people see about a politician or business online is them behaving badly.
There is also a case for trolling with a focus on impact litigation. The Satanic Temple has regularly gone to court arguing that various laws impinge on their religious beliefs. With conservatives dead set on taking away all government oversight of churches and radically expanding the legal understanding of religious freedom, it makes sense to create a queer-centric religion whose beliefs are very deliberately designed to create challenges to laws and court rulings on the basis of the Religious Freedom Restoration Act. For example, how would you enforce an anti-sodomy law when the defendant’s church has tenets explicitly stating that queer sex is a mandatory religious sacrament to be performed at least weekly?
Such a move is essentially taking what the defense gives you. The opportunity to create a religion with the purpose of forcing conservative jurists into untenable positions is an absolute must.
Direct action also means getting in legislators’ faces and making them explain themselves. This recently happened with Sen. Jeff Flake and became a defining moment in the fight over Brett Kavanaugh. Similarly, Republican legislators have been heckled out of restaurants around D.C. While some argue that such supposedly uncivil behavior is counterproductive, the truth is that Republicans have rigged the system to escape all consequences of harming LGBTQ people, immigrants, Muslims, people of color, and others.
At this point in the failure of democracy we are witnessing, denying people a hot meal in peace when they have supported locking screaming, terrified toddlers in cages seems a trivial penalty. That’s the point of an insurgency: to do everything within your power to make the lives of your oppressors as unpleasant as (legally) possible. Visible, legal acts of resistance boost morale and can encourage others to find ways to contribute. They help you get by until someday, maybe, you win.