- Elaine Benken
For people who are LGBTQ, Pride is a time to sigh in relief. Walking through Downtown, Pride celebrations are a time to stand together in solidarity and safety.
It's a time when holding your partner's hand isn't given second glances.
A time to get dressed and not overthink whether that outfit is too masculine or too feminine — or that if you choose wrong, you could be putting your life at risk.
While it can be all of those things, Pride is also a marker of miles left to go in protecting LBGTQ Hoosiers.
RELATED: The LGBTQ rights Hoosiers still don't have
Sadly, we remember the LGBTQ Hoosiers who are hurt or even killed for who they are and who may never see justice.
On the eve of Circle City IN Pride, happening all over the city from June 4 - 11, we're taking stock of LGBTQ rights in Indiana.
- Mark A. Lee
- Hearings at the Statehouse during HJR-3
Maintaining the rights we have
In 2015, Indiana's Religious Freedom Restoration Act (RFRA) brought a fight that could have ended in businesses legally being able to deny services based on sexual orientation or gender. In 2016, HEA 1337 stripped away reproductive rights from all Hoosier women and hit lesbian couples who want to use artificial insemination with a blow.
RELATED: Indy's LGBT history and the traveling photo exhibit that's documenting it all
But nationally we have moved forward. The U.S. Supreme Court decision on Obergefell v. Hodges in 2015 allowed same-sex couples to get married in all 50 states. And a recent order from President Obama declared that schools must allow transgender students to use the bathroom of their choice. In the last few years, federal rights have slowly made strides. But in our state, advocates have had to continuously fight to maintain the very little protections we have.
It's something that Jennifer Drobac, a professor with the IU McKinney School of Law, is very aware of. In a recent conversation, Drobac noted that according to Indiana Code 22-9-1-16, an employer who fires someone for being gay has to agree to be sued in court.
Yes, you read that right — they have to sign a dotted line saying they want to be sued.
"In order to get into court under the Indiana Human Rights Act, the employer has to agree in writing to be sued," says Drobac. "So what they give with one hand, they take away with the other."
Indiana state law still does not cover discrimination based on sexual orientation.
"But it does cover discrimination on the basis of sex," notes Drobac.
- Mark A. Lee
She goes on to explain how someone might be able to take a case of discrimination based on sexual orientation and make it a sex case under Title VII (sex discrimination by harassment) or IX (sex discrimination by denial of participation). She gave the example of someone saying they wouldn't hire a masculine presenting woman because she didn't fit the gender normative standard.
But for a sexual orientation or a gender discrimination case, there are currently no teeth when it comes to getting a jury trial or damages.
"Indiana has a human rights act — big deal, it's worthless, says Drobac.
"Anybody facing sex-based harassment or racial discrimination or discrimination based on LGBTI status, you're going to have to go federal law," says Drobac. "And federal law obviously doesn't protect on the basis of sexual orientation or transgender status yet."
Currently federal law has not explicitly included LGBTQ rights under the Civil Rights Act.
- Mark A. Lee
What RFRA really did
Sarris has worked closely with legislators as a lobbyist since her move from Chicago to Indiana decades ago. For her, the motivation to fix RFRA was the impact that it would have on those in the service industry.
"I did it because, from my point of view, if all the sudden we had conventions canceling and events canceling. I personally wasn't going to be hurt by it, but having had a restaurant, I knew it would affect servers, line cooks, people who are cleaning hotel rooms," says Sarris.
She and fellow Indiana Equality Political Action Committee member Chris Douglas began to meet with House leader Brian Bosma, proposing that clarification be added to RFRA stating that a business could not refuse service to someone based on their sexual orientation or gender identity.
- Mark A. Lee
Businesses with fewer than six employees can still refuse to hire or choose to fire someone based on a religious reason. Religious-based groups, schools, churches or non-profits can also deny someone service or employment based on sexual orientation or gender identity.
RELATED: A young girl's transition journey and the fight for her right to play sports
According to David Orentlicher, also a professor at the IU McKinney School of Law, the human rights ordinance in Indianapolis does cover housing, employment and public accommodations.
"It's pretty good, because there are anti-discrimination statutes that protect on the basis of orientation and gender identity," says Orentlicher.
There is a state order that prevents discrimination based on sexual orientation and gender identity in state employment. Former Governor Mitch Daniels created the order, which remains to this day.
Indianapolis added protections in 2005. Bloomington — although having included sexual orientation since 1993 — added in gender identity in 2006. In the wake of RFRA, communities around Indiana began adding it to their own city ordinances, discouraging business owners from denying services. If Merrillville and East Chicago would add the protections then well over half of the population in Indiana would be covered.
- Clara Doti
"That was the problem of RFRA," says Drobac. "It was hitting us everywhere.
"The other problem that I think we face in Indiana is that even though the RFRA is gone, this whole religious orientation is coming through in the abortion statute," says Drobac, referring to HEA 1337, a law that added new restrictions to a woman's right to an abortion in Indiana earlier this year. "People think that is just an LGBTQ issue, but it's not because the way our RFRA was written ... It affects women. An employer was within their rights ... to discriminate against women who engage in premarital sex, who access birth control, have used in vitro fertilization."
RELATED: Women's rights in Indiana are dead
She noted that lesbians will be particularly affected by this, since in vitro fertilization carries a risk of birth defects. Women who are pregnant and see that their child has life-threatening diseases must carry the child to term under Indiana law.
It's one of the most restrictive abortion bills in the nation.
"Our new law now requires people who have gone through extraordinary lengths in order to be loving parents; it now requires that you carry a child that has tay sachs, spina bifida, cystic fibrosis, children who will die — you have to carry that child to term, says Drobac. "This law is clearly unconstitutional, and Indiana made it law anyway."
- Mark A. Lee
- Girls Night Out Indy
Planned Parenthood of Indiana and Kentucky are challenging the law in federal court. The ACLU of Indiana filed the case on behalf of Planned Parenthood, which is working its way through the court system.
"In that sense women are close allies — should be — working with the LGBTI community ... to combat this," says Drobac.
"I also think we should also be protecting under the basis of sexual orientation and transgender and other trans status, so on a general basis," says Drobac. "And we will at some point; the question is when."
- Mark A. Lee
- Girls Night Out
She added that a disconnection between civil and criminal law in Indiana can particularly be harmful for LGBTQ youth.
"We have a sexual exploitation reporting law," says Drobac referring to what she calls the "Park Tudor Case." This states that any adult in Indiana must report any kind of abuse, including harassment, of a minor. She voiced concerns that even highly respected attorneys and school officials don't always know that every adult in Indiana is required to report such abuses.
"That would include LGBTI youth who are being harassed and abused and discriminated against," says Drobac. "As a neighbor, if you know a minor is being sexually abused or exploited you are required to report.
"That same minor who is abused or exploited by a teacher may not be able to recover civil damages because that same consent can be used against them in a court of law even though it was no defense in a criminal case — it might serve as a complete defense in a civil case," says Drobac.
Her recent book published by University of Chicago Press, Sexual Exploitation of Teenagers, discusses the conflict in detail. The same disconnect was found in California, until the legislature rectified it in January.
"What happens is under the human rights act and Title VII, which protects against discrimination and sex based harassment ... consent is a complete defense," says Drobac. "It is often used against the ones who are groomed, manipulated, exploited. They are often the ones who are somehow manipulated into a consent and they cannot file civil damages."
This does apply to middle school students, but not secondary or collegiate minors.
Drobac began to see this when she was representing trans individuals in 1993 in California.
She currently does not have a license to practice in Indiana.
"Much of the climate in Indiana reminds me of the climate I was facing [in California], I guess that was 25 years ago," says Drobac. "People didn't want to hire transgender individuals [and] the whole bathroom issue ... There is no protection in Indiana based on transgender status.
"There just aren't laws to protect the LGBTI population in Indiana, and we need to work to change that," says Drobac. "Until those laws exist, we as neighbors and as friends and as concerned Hoosiers need to step up and stand up for our LGBTI friends."
- Mark A. Lee
- Indy Pride 1992.
Looking over your shoulder
"The concern is it's important to send a message because you shouldn't harm someone or deny someone services causing physical injury, says Orentlicher. "Then we get into whether we are punishing people for what they think or what they do."
Those on the other side of the debate voice fears that charging someone with a higher sentence based on their thoughts instead of the action alone will lead to a slippery slope. However, in most states with hate crime protection it is rarely prosecuted. It serves more as a stance that the state will not tolerate the behavior.
Based on past debate in the legislature, it seems highly unlikely that Indiana will ever enact such protection before a federal statute mandates it. Today, one of the most vulnerable groups are those who identify as transgender individuals. In 2015 the Human Rights Campaign placed transgender homicides at an all time high, particularly against trans women of color.
- NUVO file photo
- The transgender flag
The next fight: transgender protection
More violence has followed. Hawthorn Mineart, founder of the Indiana Transgender Network, noted that Tajshon Ashley Sherman was murdered just two years ago — and there's likely been many more. Many trans individuals are often misidentified as the wrong gender by police and coroners. Their deaths often fall under their "dead name," the name given at birth instead of the name trans individuals choose after coming out.
RELATED: LGBTQ healthcare resources and how med schools need to make a change
A few of the other major systemic issues for transgender individuals center around identification changes in Indiana. Mineart notes the process to get a new driver's license, Social Security, passport, and birth certificate with the correct name and gender is often a long battle.
- Mark A. Lee
It begins with getting a court order, and it's truly up to the judge whether they grant that or not. Obtaining one usually consists of showing the judge that you have been receiving medical treatment — like hormone therapy — related to transitioning. Such treatment is often a point of privilege, reserved for those who can afford medical care.
One of the biggest issues, Mineart adds, is as simple as going to the BMV. Each branch is different. Mineart contends that some make a bit of a scene, like saying a trans person's dead name out loud, or loudly calling corporate to discuss the name change. This can make a person feel very vulnerable and even put them physically at risk — and remember, there's no hate crime law in Indiana.
RELATED: Transgender people end up behind bars at a much higher rate than others.
"That can be a huge strain on your life," says Mineart. "The healthcare issues are a major stressor for most trans people who are seeking transition-related healthcare, whether it's hormones or major surgeries...," says Mineart. "And if you do find a doctor who will do transition-related healthcare, often times insurance companies are not supportive."
The result means an out-of-pocket payment. Soon, transition-related care must be covered under the Affordable Care Act. Until then, many have to travel over state lines to receive treatment. Indiana opened its first trans health clinic at Eskenazi Health earlier this year. And currently there is only one surgeon in Indiana who can complete gender reassignment surgery. Mineart notes traveling for care can be a huge stressor.
"[It's] a major burden to have to travel out of state for surgery then have to travel back during your recovery," says Mineart.
"Right to Pee" bills
"These bathroom bills are just really doing a number on the community," says Mineart. "People are scared, and they are talking about being scared, and they are having strategies."
Mineart says that they have heard of people making sure to use a buddy system and always having someone who can protect you.
Indiana had a bathroom bill in the works, which fortunately died earlier this year.
"I think they ... more than likely learned lessons from RFRA," says Mineart. "... For us, even though there is not a specific law, there is still harassment going on ... It's not just affecting transgender folks, it's affecting anyone who doesn't fit a specific gender profile."
For Mineart one of the first steps will be strong hate crime legislation.
"I think just in general it's a message to everybody, that we don't tolerate discrimination," says Mineart. "I think it allows us to say, 'Hey when we are walking in to get our gender identity changed, you know we really need to have more consistent ways to do that'. Not having consistent ways to do that, a way that's easy, so one court can say one thing and one court can say another, and license branches discriminating, we can say, 'Look this is an issue of discrimination.' It would help us get closer to helping fix that kind of issue. In general I think that would help when it came to medical care as well. It would mean feeling safe when we go into restaurants, when we go into retail stores, having access to the kinds of things people do in their everyday lives, knowing that there was some kind of civil rights protection and we can't just be turned away."
Bathroom safety should be particularly considered during Pride. But the systemic issues hardly stop at health care, protection and identification. The impacts particularly are problematic for youth.
- Mark A. Lee
- A child at the celebration in front of the Statehouse after DOMA was overturned.
An executive order came from Obama earlier this year barring schools from preventing trans students from using the restroom of their choice. That level of exposure is a huge step forward.
"I think for trans people, visibility has made things change quite a bit because of the visibility on a national level ... and people in our community feeling comfortable to be visible and be out," says Mineart. "And that comfort can change things. A lot of it involves people being open and coming out. Personally, that's what really changes things. A personal interaction in the community."
That personal connection is something that Mineart spends a lot of time helping foster with the Indiana Transgender Network, an online publication that publishes information and pointers, like which BMVs and judges are best to go to for identification changes.
"Somebody needs to write all these things down, so it's not just through word-of-mouth, but that's how these things get passed along," says Mineart.
Trans activist Korvin Bothwell feels the problems are extremely social and systematic.
"I think it's contextual," says Bothwell. "Social issues that are facing transgender people in Indiana right now are the ever growing population of people who are buying a false narrative that transgender people and pedophiles have a link. That's a problem."
There have been over 40 pieces of anti-trans legislation nationwide.
- Mark A. Lee
- Religious clergy at a protest against HJR-3
"I think the motivation is there are groups of people who have been connected to lobbying groups who have been trying legislate morality in the United States for decades," says Bothwell. "They focused in on the LGBT community. They lost their battle with gay marriage, now they are coming after trans people.
"The biggest issue that LGBT face right now is the mad flood of people in the moveable middle who are watching all of this go down and are not critically thinking they are weighing in on the issue and instead just buy this line of line of balderdash," says Bothwell. " They have no horse in the race one way or another, so rather than thinking it through and spending some time critically assessing the arguments, they say, 'Well I have this vague sense of fear and you people feel really strongly about it so rather than trying to connect to anyone or push my own opinion, or push my judgements on the situations, I am just going to let the status quo continue and sit idly by while people just get ... wiped from society.' "
He noted that legislation like SB 100 and SB 344 thread that needle. Bothwell notes that a problem that he has run into with legislators is they often want to know about ways that he personally has been discriminated against, instead of letting him speak as a representative in those meetings, much like the legislators themselves.
"If you don't feel discrimination then we don't need to extend an anti-discrimination law to your group," says Bothwell, discussing the way some senators feel. "There is no reason to amend the language in our civil rights law to protect you and this thought and sentiment is going out while a senator is trying to [legalize] that discrimination (SB 100). And no one is saying anything about it. It is the best example of double speak ever ... If you are not personally being assaulted, if you're not personally being violated, if you're not personally losing your job — which there are plenty of people being assaulted, violated and losing their job — then they see no reason to change this law, even though they can't see that their colleagues in their own chamber are trying to do the very thing that we are requesting people not to."
- Mark A. Lee
- After DOMA was overturned LGBTQ couples across the country could legally marry.
For him it's as simple as a two word and a comma fix to the civil rights code to include LGBTQ citizens, preventing trans individuals from being attacked at the most volatile points in their lives.
"This period of time is when we are most vulnerable and this is the period of time when legislators are also trying to attack us," says Bothwell, referring to trans individuals who do not wish to have surgery, or plan to and have not had it yet.
"We are fighting for ... the most basic blueprint on how not to be hostile towards trans people," says Bothwell. "It's not a massive coup to say that you can't fire me for being who I am ... No one would say racism is over even though it's illegal to discriminate based on race. So the next step is to continue to dismantle transphobia."
One of the biggest issues is making sure that law enforcement receive continuing education concerning trans individuals, not just a single set of sessions.
"When we get killed, when we die, if we don't have all our identification in order then cops are going to [misidentify us]," says Bothwell.
The result is no true list of those who are killed, their names being erased from history — lost somewhere between an insurance company who won't cover them and a BMV employee who fears what they don't understand.
With each session we grit our teeth, crack our knuckles and get ready for a new battle. What matters is to never stop fighting. In the words of the poet Robert Frost — there are still miles to go.
- Mark A. Lee
- Celebrating the overturning of DOMA