Oregon’s U.S. senators say that only national legislation, not Supreme Court decisions or state laws, will end discrimination based on sexual orientation or gender identity.
Democratic Sens. Jeff Merkley and Ron Wyden made their case for such legislation on Saturday, June 18, flanked by LGBTQ advocates — including a transgender college student — at an event where Merkley’s Portland office is located. It was also Pride weekend in Portland.
Merkley said that the current court, with its six-member conservative majority, could have indicated its future intentions with a leaked draft of an opinion to end a federal constitutional right to abortion. A final opinion is expected to be released this month.
If the court rolls back what it decided in the 1973 case of Roe v. Wade, Merkley said it opens the way for other reversals of past decisions that are not tied to federal legislation.
“That same logic could be brought to bear to strip rights from LGBTQ Americans — to strip the decision on (same-sex) marriage, and strip the decision previously made on banning employment discrimination,” Merkley said.
“Given this right-wing group that wants to legislate from the chambers in the Supreme Court, all of our rights are in danger. So it’s more important than ever that we establish protection of the LGBTQ+ community through legislation.”
In 2015, a 5-4 majority decided that marriages by same-sex couples have equal protection of the law under the U.S. Constitution. But two justices in that majority are gone, and a third is retiring.
In 2020, a 6-3 majority decided that the 1964 Civil Rights Act bars employment discrimination based on sexual orientation. A conservative judge was the author of the majority opinion, and Chief Justice John Roberts joined.
Merkley is one of the chief Senate sponsors of the Equality Act (S 393), which would bar discrimination based on sexual orientation and gender identity. The Senate passed a narrower version in 2013, when Democrats were in the majority. The House passed a similar bill in 2019 and 2021 (HR 5), both times when Democrats were in control.
A Long Fight
Merkley has been an advocate for such legislation since he came to the Senate in 2009, when a dying Ted Kennedy asked Merkley to take it on. As speaker of the Oregon House two years earlier, he shepherded passage of state laws to bar such discrimination and create domestic partnerships. (Same-sex marriages became legal in Oregon in 2014 — a full year before the U.S. Supreme Court acted — when a federal judge struck down the state constitutional ban that voters approved in 2004 as a violation of the U.S. Constitution.)
Merkley said that in an evenly split Senate, there are “three or four” Republicans willing to join Democrats — but at least 10 are needed to overcome a potential filibuster and advance the legislation.
Wyden, in his first year as a senator in 1996, was one of 14 who opposed the Defense of Marriage Act, which defined marriage as the union of one man and one woman. Mark Hatfield, a Republican who was in his final months in the Senate, was among the 85 who voted for it.
Wyden said he supports the efforts by Merkley, whose other chief Senate sponsors are Democrats Tammy Baldwin of Wisconsin — the first open lesbian in the Senate — and Cory Booker of New Jersey, one of three Black senators.
“We have learned in the past few months that you can’t build a fence around Oregon. We need to pass national legislation with real teeth in it,” Wyden said.
“It is equally important that we ensure that all of these advocates can speak freely and exercise their First Amendment rights. There is going to be a big push at the state level in particular by the far right to take away their right to talk freely about transgender rights, pregnancy and the like. It is in jeopardy right now.”
Wyden referred to state and federal efforts against online platforms, which under a 1996 law are not held legally liable for third-party content. The Supreme Court has blocked a Texas law barring social media companies from restricting user posts based on their political content.
Oregon is among 22 states, plus Washington, D.C., with legal protections for LGBTQ people — and three neighboring states share full protections, based on a 2021 scorecard by the Human Rights Campaign. But Idaho has virtually none, along with most Southern states.
Nancy Haque, executive director of Basic Rights Oregon, said gay pride celebrations in the state no longer are limited to Portland and large cities.
“We have protections in our state that more than half this country still does not have in 2022,” she said. “So we know that no matter what is happening in the rest of the country, we have laws that protect our rights in Oregon.
“But that is not to say that what is happening in the rest of this country does not affect us. Nationally, we are on the defensive now more than ever. Oregon is no exception.”
More recently, she said, Newberg’s board banned rainbow flags and other political symbols from schools. The Grants Pass board reinstated two educators who defied district policy to accommodate transgender students — that action spurred walkouts in support of the students. And Oregon Trail Elementary School in the North Clackamas district drew fire from some parents over a lesson about sexual orientation and gender identity.
Haque also referred to comments by two candidates for governor — Sandy Mayor Stan Pulliam, who lost in the Republican primary May 17, and former state Sen. Betsy Johnson of Scappoose, who seeks to be an unaffiliated candidate on the Nov. 8 ballot.
“All of this leads to an atmosphere for many trans people where they feel more unsafe now than ever before. That affects the mental health of our transgender youth,” she said.
“But we’ve shown how you can fight back and protect the communities that need it most — that there are people who will show up and shout out when our rights are under attack.”
Oregon voters rejected three anti-gay rights ballot measures between 1992 and 2000. Voters passed anti-gay measures in some cities and counties, but the Oregon Legislature ified them in 1993 with a law that pre-empted local governments from setting restrictions.
Jenn Burleton is the founder and director of the TransActive Gender Project, part of the graduate school of education at Lewis & Clark College in Portland. She said the political momentum against transgender people got “turbo-charged” when elements of the Republican Party joined with white supremacists, religious and anti-feminist extremists to promote more than 300 bills across the states, such as legislation barring transgender people from taking part in athletic competitions.
“My belief is that their ultimate goal is to eventually eliminate trans-sexual people,” Burleton said.
While Billie Henderson said “Oregon is a relatively safe place,” she encountered harassment and bullying since she came out as a transgender woman during her first year of high school.
Henderson, who now is a student at Willamette University, said she has the full support of family.
“But millions of trans kids who do not live in Oregon or do not have the same supportive families are not as lucky,” and that parents often face threats such as those in Texas, where the governor has directed state agencies to investigate gender-affirming care as child abuse. (A judge has blocked that order.)
Henderson said there should not be two Americas, where half the states target transgender children and adults, and half do not — and that congressional action is required.
“No one should have to feel so unsafe in their own homes. Not everyone can move out of their state. People do not have the same opportunities,” she said.
“Should Oregon be the only safe haven? Absolutely not. We have to take this conversation to the national level. We have to put pressure on Congress to ban these states from passing discriminatory laws based on gender identity.”