Protecting the LGBTQ Community When the State Attacks

From the bathroom bill to marriage equality, can Austin fight back?

The Equality March at the State Capitol in June (Photo by Jana Birchum)

Protecting the LGBTQ Community When the State Attacks

Stephanie Martinez is no longer proud to be a Texan. In July, shortly after state lawmakers reconvened for their special session, the local activist was kidnapped, beaten, and robbed. After several weeks of talking to a man who contacted her online to learn more about trans issues, the two had decided to meet and discuss the topic over lunch. Martinez said she frequently meets with people to help educate them about the community; this time felt no different. She drove to the man's house and waited outside his apartment for him to join her. When he did, he was accompanied by his brother. They told her they had a gun as they got into her car. Martinez drove until they told her to stop and get out of the vehicle. Then they punched her twice in the face, knocking her to the ground and breaking her dentures. Though they pulled at her purse, Martinez didn't release her grip until one of them picked up a log and threatened to hit her with it. That's when she realized: "I could replace anything in my purse. I can't replace myself."

Martinez was lucky. Her assailants ran off with her bag, but because she had a phone number, Austin police were able to arrest one of the brothers before the day was over. The second turned himself in the following day. Both have been charged with aggravated kidnapping and robbery. APD Chief Brian Manley's assessment of the incident has been unwavering: Martinez was targeted specifically because she is transgender.

Martinez has called Austin home for the past 21 years. She never used to lock her door and says she didn't question her safety, until the bathroom bill battle began. "It didn't hit home, though, before my attack, but it's crazy what can pass through your mind in a moment," she said. "I was lying on the ground with that log over my head thinking that they're going to read my name on November 20," the annual Trans Day of Remembrance. "I thought about my fiancé. We're getting married this fall. What's he going to do without me? That memory doesn't want to go away."

The Texas Hammer

The remnants of Austin Pride won't quite yet be swept away when House Bill 3859 goes into effect Sept. 1. The wide-reaching religious liberties law, which makes it legal for child welfare providers to discriminate against LGBTQ youth and would-be foster parents, was signed by Gov. Greg Abbott at the tail end of the regular legislative session. Days later, same-sex marriage suffered a blow from the state's Supreme Court (see "Meanwhile, in Houston"). Though Texas seems to have narrowly escaped an anti-trans bathroom bill, it's been a brutal eight months of battle for queer and transgender Texans that has left many feeling scared, angry, and uncertain of the state they call home.

Mayor Steve Adler insists that, in Austin, "we'll continue to be who we are," and that's "visible and active and loud." This summer, the city introduced its LGBTQ Quality of Life Advisory Com­mis­sion, as well as mandatory training for the Austin Police Department's 1,845 sworn officers, plus victim services counselors, public information officers, and additional civilian staff, on how the department can better understand and show compassion for LGBTQ, trans, and gender nonconforming communities. Though neither are direct responses to state and federal discrimination, both will attempt to counter the work being done by conservative policymakers by protecting and empowering Aus­tin's queer and trans communities. It remains to be seen if this work will be enough.

Stephanie Martinez (Photo by Jana Birchum)

"What we saw during this legislative session appeared to be a deliberate and coordinated attack on LGBTQ Texans on many aspects of their lives," said Kali Cohn, an attorney with ACLU Texas. These attacks are happening "across the country in what appears to be a coordinated effort."

Cohn is right. LGBTQ communities in Texas, and across the country, have spent the better part of 2017 under attack from state and federal lawmakers looking to strip away rights and protections for sexual orientation and gender identity in the name of conservatism and religious freedom. By the time the Texas Legislature gaveled in back in January, Lt. Gov. Dan Patrick had not only secured an author for his bathroom bill; it had been filed, along with a growing list of additional anti-LGBTQ bills. Before Janu­ary's end, the state Supreme Court agreed to reopen a same-sex marriage case questioning the legality of "taxpayer-funded benefits" the city of Houston provides to same-sex spouses.

“What we saw during this legislative session appeared to be a deliberate and coordinated attack on LGBTQ Texans on many aspects of their lives.” – Kali Cohn, ACLU Texas

The regular session saw the introduction of more than two dozen anti-LGBTQ bills, including 17 proposed religious liberty laws designed to protect Christians with "sincerely held religious beliefs" by granting them free rein to discriminate against lifestyles and religions contrary to theirs. Chuck Smith, the executive director of LGBTQ advocacy group Equality Texas, said he believes the Supreme Court's 2015 ruling legalizing marriage equality triggered a "direct backlash" from conservative lawmakers against queer communities – and now "we're getting it from all sides."

Both the regular and special sessions served also to reignite the battle over state and city control. Abbott and other GOP leaders rallied against plastic bag bans, heritage tree ordinances, and short-term rental limitations. Even the Texas Privacy Act – Senate Bill 6, the first bathroom bill filed by Sen. Lois Kolkhorst, R-Bren­ham, which sought to force transgender folks into restrooms and other public facilities aligning with the gender marked on their birth certificate – was intended to overturn bathroom safety ordinances in multiple Texas cities, including Austin.

It's an unfortunate reality that no matter how hard Austin fights back, the state still holds the cards when it comes to pre-empting local ordinances and municipal laws. Adler said, "We're going to do everything we can locally as we have continued to do. That's important for us to be who we are, but it's not going to undo the harm that the state can do. ... That said, we'll continue to mitigate the best we can. And continue to do what we do in Austin."

Real Lives, Real Money

Chuck Smith believes these political attacks against the queer and trans communities are "interconnected," and says he's seen firsthand the physical and emotional toll it's taken on the community. Both bathroom bills were met with hours of public testimony – mostly in opposition; according to the Human Rights Campaign, 794 people testified on SB 3, only 58 in favor – which went largely ignored by conservative senators who passed both bills to the House shortly after hearings wrapped. "It makes people feel like they're not being listened to and it's wearing them down," said Smith. "Some are questioning whether or not to stay in Texas."

Drew Riley, a local activist and artist, echoed those sentiments: Testifying felt "futile" to her, but not testifying wasn't an option. "I went into the special already feeling exhausted by the regular session and the constant news barrage," she said. "I felt like I was pushing past my limits to show up and testify, because listening to the traumatizing talking points about whether or not I'm a threat in a bathroom or a burden on the military follow me after I turn off the news or leave the Capitol."

Drew Riley (Photo by Jana Birchum)

Riley, who thrice testified against anti-LGBTQ bills this session, is not alone in this. In July, The Trevor Project, the country's largest LGBTQ youth suicide prevention organization, reported that the number of calls their hotline received from Texas' queer communities "more than doubled" after SB 3 – also filed by Kolkhorst – was introduced. The Project receives an average of 284 calls from Texas queers each month. In June, that number jumped to 380, then dropped only slightly in July, to 333. Calls from trans folks doubled (from 7.3% of its total received calls to 14.7%) after the bathroom bill returned for the special, and those numbers spiked even higher (17.5%) directly after Trump's ill-fated tweet declaring trans folks would no longer be allowed to serve in the military. As Amit Paley, the Project's CEO, put it: "Our elected officials can no longer ignore that their anti-transgender rhetoric is putting lives at risk."

The state’s obsession with who pees where has lost the city of Austin $9,539,910.

And it's not just lives. The state's obsession with who pees where has lost the city of Austin $9,539,910, according to Visit Austin (formerly Austin Convention & Visitors Bur­eau). A spreadsheet they gave the Chron­icle shows that four conferences, including OpenStack's – which would have brought in $9 million on its own in June 2019 – have already pulled out of Austin due to the bathroom bill debate and other hateful legislation. If the bill had passed (or if it manages to return like a bad horror trilogy) the city would face a definite loss of at least $18 million, with another $72 million in question from businesses and conferences who've threatened to pull out should the bill become law.

The Bathroom Bill's Dangerous, Elusive Cousin

HB 3859 by James Frank, R-Wich­ita Falls, goes into effect on Sept. 1 and will directly impact the Texas foster care system by allowing state-contracted caregivers to discriminate against qualified couples – or aspiring single parents – based on sexual orientation, gender identity, or religious affiliation if the agency has religious objections. The Atlantic reports that before HB 3859 was signed into law, Texas' private and publicly funded foster agencies already had the right to deny interested families based on sexual identity, church attendance, and other debatably relevant factors. But Frank's bill protects these agencies from being sued – or closing – due to discrimination. Since 2006, Catholic-affiliated foster care and adoption agencies in Massa­chusetts, California, Washington, D.C., and Illinois have closed shop for refusing to place children with same-sex couples (hence violating state laws recognizing marriage equality). In May, shortly before Abbott signed the bill, the Texas Catholic Conference of Bishops applauded the Legislature for passing HB 3859. In an online statement, the organization said they will now be able to "remove themselves from actions in direct violation of their faith." It's no coincidence that HB 3859 was passed while Patrick and Abbott were calling on faith-based organizations to assist the state in repairing its crippled foster care system.

"Most Catholic charities in the state had withdrawn from serving foster children," the Bishops' statement continued. "The new law removes a significant barrier to Catholics serving children in the foster care system and will trigger greater recruitment efforts by Catholic parishes and ministries."

But it gets worse. Smith told the Chronicle that as "horrible" as this part of the law is, he's more concerned for the youth in foster care. As the law is written, foster parents and providers can deny children emergency contraceptives, abortion services, hormone access, and anything else that goes against their religion. Under HB 3859, it will also be legal to send LGBTQ children to gay conversion therapy. Smith added, "The bill's provisions are very slanted in a way that does not protect the best interests of youth in foster care, and puts 100 percent of the burden on the kids to seek help if they're uncomfortable or feeling threatened." The bill does require that referrals be made to other agencies if providers refuse services, but it remains unclear how that will work – especially in smaller, more rural areas with fewer resources. Children within the system will likely experience further displacement from family, school, and friends if they request alternative placement.

Despite child welfare groups' opposition to the bill, they're unable to file a lawsuit on discriminatory grounds until after the bill takes effect. Smith says he expects to see litigation in the future, but it "may take some time to find people harmed by it." The ACLU, Equality Texas, LGBTQ public policy and litigation nonprofit Lambda Legal, and child welfare organizations will all be monitoring HB 3859 for any detrimental effects it has on children and would-be parents. But especially after an appeals court recently upheld a religious freedom bill in Mis­sissippi because the challenging plaintiffs lacked standing, Smith said any involved groups must be careful selecting the right plaintiff: "You don't file a suit you can't win, and with laws like these you need to show direct [hurtful] impact."

Adler agreed, noting that he'd "expect" the city to "do everything we could to challenge in court unconstitutional laws passed by the Legislature." But which particular role the city plays is dependent on which laws pass. Regarding HB 3859, the best figure to challenge the bill will likely be someone rejected or constrained unconstitutionally as a foster parent. But until that person(s) is identified ... we wait.

Keeping Austin, Austin

If there's a silver lining to Martinez's attack, it's the way that APD handled it. She said that after she told the two responding officers she's trans, they confirmed her pronouns and "never brought it up again. Honestly, they were awesome."

Despite Martinez's kidnapping – and a few other attacks against members of the trans and queer communities since the November election – Manley doesn't believe Austin's LGBTQ communities have seen a spike in targeted violence, but he hopes the new training he's implementing, "It's Complicated," will improve both safety and the relationship between LGBTQ folks and APD. "The department realizes the importance of police and community relations," Manley explained. "We want people to know we're focused on the safety and well-being of the community, not [legal] status or lifestyle."

Austin Police Chief Brian Manley (Photo by Jana Birchum)

"It's Complicated" could not have come at a better time, but it's not a response to the political attacks LGBTQ communities have faced this year. Instead, it stems back to Monica Loera's January 2016 murder and the subsequent misgendering of her by APD and media sources. A Council resolution approved last May instructing the city manager to evaluate the department's policies on identifying trans and gender nonconforming victims led to APD's new "victim-neutral" affidavits (which will remove the name and gender of violent crime victims to reduce the potential for officer error by allowing additional time to confirm gender identity). But according to Manley, he and stakeholders realized it was "much more important to bring officers together and engage them in conversation about the LGBTQ community to break down misconceptions and discuss how to interact respectfully with LGBTQ folks." Earlier this month, the chief was one of APD's first officers to receive the training designed by LGBTQ officers, including Sergeant Michael Crumrine, president of the Lesbian & Gay Peace Officers Association, and Charles Loosen, APD's LGBTQ Community Liaison, with input from community stakeholders, including the city's Public Safety Commission, Transgender Education Net­work of Texas, UT's Gender Marker Project, Human Rights Campaign, and the Anti-Defamation League.

APD hopes to roll out the first class by early fall, but Crumrine said it's most important that they get it right first. Once introduced, officers will have 90 days to complete the three-hour training, with the goal of having every sworn officer trained prior to January. The new affidavits will be adopted as soon as training rolls out. Municipal court judges who review these affidavits will also receive a video training on the looming changes.

While community members voiced concerns about covering the entire queer spectrum and intersectionality in just three hours (both Crumrine and Loosen said it's the maximum time they've been allotted), the training still feels like a step in the right direction. Crumrine said the program has already created "roads and bridges" between the department and LGBTQ communities "that have never been there before." It's his hope that these connections help make Austin's queer and trans communities feel protected despite the state's anti-LGBTQ attacks. "I want to get the message out: In Austin, no matter how you identify – if you're a victim of a crime, APD wants to help." Manley concurred, saying he's "proud we're a progressive department and as the police chief it's very important to me that we're respectful of all people."

For Martinez, this training cannot counter the state's onslaught of discrimination, but she said she feels more confident about reaching out to APD if needed. Mayor Adler called the program a "manifestation" of the city continuing to "be who we are by taking political and social positions in our community. I'm really proud to live in this city, and we want to make sure that everybody here is safe and respected."

In that same vein, the city's new LGBTQ Quality of Life Advisory Commission also hopes to address disparities they identify in Austin's queer, trans, and QTPOC communities. As the first openly gay man to serve on City Council, Jimmy Flannigan's first task was to usher in the commission's creation. The CM believes that as a city and as an LGBTQ community, "We have to hold ourselves accountable to ensure we're doing what we can. We need to think about places where LGBTQ folks exist and where our voices are not heard and we need to get a seat at those tables."

And if those tables don't exist? "To change things sometimes you have to create new tables," Flannigan said. Which is exactly what Council and Adler did with this commission. Flannigan hopes it will help steer changes to make the city more accommodating for all members of the LGBTQ community. As a step in that direction, commissioners submitted their first recommendations last week, including one from commissioner Paula Buls requesting that Council reaffirm its commitment to serving and supporting Austin's trans and queer communities in light of Trump's and Abbott's political agendas.

As city officials work to keep protections in place and build bridges between LGBTQ folks and law enforcement, activists and advocacy groups are reminding people that leaving Texas isn't necessarily the right answer. "It's easy to see other places with protections in place as more welcoming," Smith admitted, but he encouraged community members to stay and fight. Though it can feel futile, without throngs of people to push back against discriminatory legislation, the lawmakers waging this war win. Martinez agreed: "If we all run and leave – who will be here to fight for the people who can't? For the kids?"

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LGBTQ Rights, Stephanie Martinez, Steve Adler, Brian Manley, Chuck Smith, Michael Crumrine, Kali Cohn, Jimmy Flannigan, Drew Riley, Amit Paley, Monica Loera, Austin Pride, Pride 2017

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