Pioneering policy
Sodomy, wedding bells, and a safe place to pee: how the West – and the rest of the country – will be won.

By Tali Woodward

SAN FRANCISCANS ARE smug. We brag about our city's temperate weather. We brag about all the delicious, affordable places to eat. And of course, we brag about our politics. It's often a source of pride that San Francisco is something of a political island, cut off and adrift from the rest of the United States. Which leaves us prone to pointing out the things that set us apart – like how even Mayor Gavin Newsom, considered conservative by some hometown standards, recognizes that the death penalty is barbaric, that medical marijuana makes sense, and that yes, of course, gay people should be able to get married.

The contrast with the rest of the country has been particularly stark over the past year. We have a president and a governor maybe seven of us voted for, and we're mired in a war most of us oppose. Our island has pretty much drifted off into the Pacific, and Washington, D.C., is about to collide with Spain (not that Spain deserves it).

And yet, when it comes to the rights of queer people (which we might be entitled to call our area of expertise), the rest of the country no longer seems to be moving in the exact opposite direction – though it may not always feel that way, particularly when you survey the actions of the federal government.

At several points during the past 12 months, the country's attention turned toward policy affecting queers – first regarding the legality of gay sex and later the legality of same-sex marriage, with reverberations into areas of dispute ranging from tax law and inheritance to adoption and medical decision-making for a partner. Yes, San Francisco was the grand marshal in the gay-marriage parade. But as hard as it may be to believe, stuffy Massachusetts almost beat us to the altar (or rather, the rotunda) – and several places that followed suit did so with greater success.

Mark Leno, who represents San Francisco in the state assembly, points out that the gulf between the Bay Area and the mainland is still wide. "In parts of the country the stigma is so profound, people live in fear. Lives are still damaged," he says. "Kids are still committing suicide. We are very much second-class citizens in this country."

So OK, there's little reason to strike up the band when it's still legal in 35 states to fire or evict someone because of his or her sexual orientation. And old, dusty laws aren't the only problem – the federal government has taken some alarming jabs at queer rights this year. But even if Washington politicians seem determined to pursue a path backward and sizable swaths of the country are ready to follow, many towns, cities, and states are intent on reform.

San Francisco's comprehensive civil rights protections and robust activism have kept us at the forefront of what promises to be the civil rights struggle of the decade, and lawmakers and advocates throughout the state and the country are looking here for guidance. Which is good news for local activists determined to use the year's momentum to influence the presidential election, get other towns to adopt civil rights protections, and educate the public about issues affecting queer communities – in other words, to make the rest of the country a little more like home. Taking stock of where we are is likely to bolster that distinctive San Francisco pride, but it's also a good way to assess where the country is headed.

Some setbacks

Our year of landmarks began almost exactly 12 months ago today, when, on June 26, the Supreme Court threw out sodomy laws in 13 states. Of course, it's hard to fathom why, in the year 2003, gay sex was still illegal, but hey, legal reform tends to take years, and it had been almost 20 since the court considered the constitutionality of banning homosexual sex.

The court's written decision in Lawrence v. Texas demonstrated a new sensitivity to the human impact of condemning gay life. "The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged," the decision stated. "The State cannot demean their lives or control their destiny by making their private sexual conduct a crime."

Many queer rights activists believe that decision paved the way – if not directly, then at least in the American psyche – for the year's other advances, like the Massachusetts court ruling in favor of same-sex marriage in September. But it also prompted a backlash, particularly in Washington.

Pretend, for a moment, that you haven't heard about the proposed constitutional amendment banning gay marriage. Now reconsider it: they're thinking about amending the constitution to prevent certain people from marrying. Never mind that Congress passed a law in 1996 that defines marriage as a male-female institution and allows states to disregard unions formed in other states. Or that the Constitution has always been a document that guarantees rights rather than takes them away. Or that President George W. Bush has so often expressed his dedication to championing liberty and the rights of states. As soon as it looked like some Massachusetts queers might be allowed to marry, he started talking up the amendment. That's how nervous he and his conservative allies are.

Unfortunately, they can do plenty of damage while they're quaking in their reactionary boots. And although Democratic candidate John Kerry is also critical of same-sex marriage, it seems that for most queer activists, another Bush term is the number-one threat these days. "In some ways it feels like there's this enormous potential for progress in social and economic justice – if we could just get out from under the yoke of such a backward president," says Kate Kendall, executive director of the San Francisco-based National Center for Lesbian Rights.

Activists fear Bush's antigay rhetoric, but they also fear more of the small, almost incremental policy changes the administration has made – many times without the scrutiny they deserved. Take, for example, the Food and Drug Administration's quiet announcement that after years of consideration, it was urging sperm banks not to let gay men donate, in a supposed effort to control the spread of HIV.

Outlined on May 20 and put into effect just five days later with little media play, the new guidelines may forbid any man who's had sex with another man within the past five years from anonymously donating sperm. No allowance is made for the fact that donors are already screened for a gamut of sexually transmitted diseases, including HIV, and that most sperm banks quarantine donations for six months – longer than it takes for the virus to show up. And the guidelines bar gay men who have been monogamous for a decade, while basically green-lighting heteros who've recently had unprotected sex.

Alameda's Rainbow Flag Health Services and Sperm Bank specifically recruits gay and bisexual donors, and director Leland Traiman has been following the issue since the feds began drafting standards for the use of human tissue in 1999. Though some say the rules may have legal weight, Traiman insists they're merely advisory and would never hold up in court. "On a technical basis we won, but they are still pursuing a policy of intimidating fertility professionals into not serving our community," he says. "And they do this without one scintilla of scientific evidence behind them. They're trying to please the right-wing nuts who are running our government."

Meanwhile, a few federal buildings away, the U.S. Office of Special Counsel – tasked with protecting government employees from discrimination – recently deleted references to sexual orientation from government literature, training slides, and a complaint form. Previous officials had interpreted the law governing federal workers, which states that no one can be fired "on the basis of conduct which does not adversely affect the performance of the employee," as covering sexual orientation. But when Bush-appointed special counsel Scott Bloch was questioned about the omissions in March, he said he was reviewing the rules because gay and lesbian employees aren't a "protected class" in federal civil rights law.

Again, the incident got little media coverage, but it did anger a number of lawmakers. In a letter to Bloch, two U.S. representatives wrote, "Your position is directly at odds with established practice, the plain meaning of the law, and how the law has been interpreted for decades.... You seem to have taken it upon yourself to withdraw legal protections for federal employees without any legal authority."

An April press release from Bloch's office stated, "It is the policy of this Administration that discrimination in the federal workforce on the basis of sexual orientation is prohibited." And yet at press time the language involving sexual orientation had yet to reappear on the agency's Web site.

Better news at home

Back in California, the battle for equity presses on, bolstered by the sense that the country has turned a corner. And San Francisco activists have been involved at the state and local levels.

Of course, the same-sex marriages that gripped San Francisco early in the year are still foremost in many minds. More than 4,000 gay and lesbian couples were married here before the state Supreme Court halted the ceremonies March 11, in response to a challenge by conservative groups. As we await a ruling from the court, which heard arguments in late May, we've managed to entertain ourselves by witnessing state-sanctioned gay marriages in Massachusetts and tracking the progress of Leno's bill to legalize same-sex weddings throughout California. Leno says he was inspired mainly by the Massachusetts decision, which states that anything short of marriage perpetuates "the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships."

The assembly's Judiciary Committee endorsed the bill 8-3 on April 20, but Leno decided to "take a half step back, for strategic reasons," not bring it to the floor for a vote, and reintroduce it in December with speaker Fabian Nunez as a joint sponsor, which will give it high priority. "I am very confident we can get the bill to the governor's desk about a year from now," he adds. "That is extraordinary movement on this issue. When I brought it up about a year ago, there was uncertainty even among the LGBT caucus."

That caucus – the first legislative group of its kind in the nation – was the force behind three historic laws then-governor Gray Davis signed last fall. A.B. 205 granted roughly 20 legal rights to registered domestic partners, including the right to make medical decisions for each other, pursue step-parent adoption, and inherit money and property. A.B. 17, modeled on a San Francisco law passed by the Board of Supervisors in 1997, requires that companies hired to do work for the state provide the same benefits to domestic partners of employees that they would to spouses. The third bill, Leno's A.B. 196, makes it illegal to discriminate against transgender people in housing and employment.

The latter piece of legislation represents a coming of age for the trans rights movement, which is still far from the fore – though gender issues are clearly integral to the entire LGBT struggle. The trans movement does, however, stand to benefit from the Lawrence decision: when the Supreme Court upheld sodomy laws in 1986, mainstream gay rights organizations responded by casting queerness as a fixed identity akin to ethnicity, rather than something that can shift over time. Now that gay sex can no longer be banned, they can – and hopefully will – be more explicit about the mutability and fluidity of sexual orientation and gender.

San Francisco has included gender identity in its nondiscrimination laws since 1995; right now local trans activists are focused on finding ways to limit the everyday problems that arise when you're transgender – such as the difficulties involved in using public bathrooms.

"Bathrooms are a site where transgender and other folks who don't fit gender norms run into harassment and violence continuously," says Bryan Burgess, who coordinates the Safe Bathroom Access campaign for the Transgender Law Center. "And it's a pretty natural and human need."

A community group called People in Search of Safe Restrooms is working to spread awareness of the issue, and last December PISSR influenced the San Francisco Human Rights Commission's new guidelines intended to prevent gender-identity discrimination. The guidelines state that people have the right to choose a bathroom based on their self-identification, and they urge businesses to make single-stall bathrooms gender neutral. Now PISSR is looking at ways to get more gender-neutral bathrooms installed throughout the city.

Also this year the HRC was the first government body in the country to hold a hearing on intersex issues, primarily concerns about genital surgeries often performed on intersex infants. The commission plans to complete a report on the issue sometime next fall.

The order of things

During the past year, the multifronted battle for queer rights sometimes seemed chaotic, with state-level court rulings here, proposed federal legislation there, and innumerable tweaks to local laws almost everywhere. But in retrospect, there appears to have been a certain unity or order to how things progressed. "In some way it's almost as if the chronological placement of these events was predetermined," Kendall says, going on to explain how Lawrence set the stage for the same-sex marriages, which caused a federal backlash, which in turn added steam to gay activism. "I think it is, without a doubt, the most extraordinary 12 months in queer-liberation history."

Like many, Kendall sees even the year's setbacks as evidence that the battle for queer rights is moving forward. The proposed federal marriage amendment speaks to the fact that opponents believe widespread legalization of same-sex marriage is a real and not-so-distant possibility. And though Bush has tried to make queer marriage a divisive issue in the campaign, Kendall thinks it's been "a miserable failure."

"The good news is that the country was much more prepared for the notion of gay and lesbian people marrying than the administration calculated," she says.

Similar bans being considered in many states are more worrisome, Kendall concedes, because "we're looking at another decade of legal wrangling." But those laws – the sort of backlash that often accompanies significant social change, then tempers with time – have little direct impact: they're not making anything better, but they're not really making it worse.

Leno emphasizes how quickly even seemingly entrenched attitudes can change, pointing out that when Bill Clinton first proposed the "Don't Ask, Don't Tell" policy regarding gays in the military, it was viewed as radical. Eight years later the policy was considered the conservative stance, and today 75 percent of the country flat-out opposes the ban on gay service.

And the open-mindedness of younger generations is a comfort to lawmakers like Leno: "As this generation comes of age, the demographic shift takes care," he says, of lingering opposition to things like same-sex marriage. Describing how 16-year-olds have come to his Sacramento office to lobby him on queer issues, he says, "I told them, 'Thirty years ago, when I was in high school, this would have been science fiction.' "

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