2022 in worldwide LGBT rights progress – Part 1: North America

2022 turned out to be a major year for the advancement of LGBT rights with huge developments in every corner of the world. To celebrate this progress and highlight some of the challenges ahead for the global LGBT community, 76crimes is presenting this six-part series looking at the wins and losses queer people achieved in 2022.

Today, we’ll be looking at North America — Canada, the USA and Mexico. Finally in 2022, same-sex marriage became legal across North America’s three largest countries (with some exceptions among US Tribal Nations), and there were plenty of other developments for queer people to cheer and jeer across the continent.

This article originally appeared on 76crimes Contributing Editor Rob Salerno’s personal blog.

Canada

A law banning all conversion therapy nationwide came into effect in January.

Later in the year, Canada effectively ended the country’s ban on blood donation from men who have sex with men, moving to a risk-based, monogamy model for donors. This was actually two decisions by Canada’s two independent blood agencies, Canada Blood Services and Hema-Quebec. However, a ban on tissue and organ donation (including semen donation) remains in effect.

The federal government also announced its first 2SLGBTQI+ action plan. One of the items is that Canada is going to formalize the use of “2SLGBTQI+” (meaning Two-Spirit, lesbian, gay, bisexual, transgender, queer, intersex and additional sexually and gender diverse people) across the federal government. Other promises include an increase in funding toward community groups and services for 2SLGBTQI+ people, a ban on cosmetic genital surgeries on intersex children, a modernization of the “indecency” segments of the Criminal Code, new restrictions on prosecution for HIV nondisclosure (it’s already meant to be quite restricted under a 2017 policy), and an expansion of the expungement scheme for historically unjust prosecutions to cover more offences.

One thing to keep an eye on: The unelected Senate is on the verge of passing a draconian anti-pornography law that would effectively attempt to censor the entire internet. While it’s rare for Senate-initiated bills to get a hearing in the Commons, its entirely possible that this one could sneak through, and that would be disastrous for free speech.

Meanwhile, a couple other worrying trends appeared in Canada this year. In February, far-right protesters managed to lay siege to the city of Ottawa and several border crossings. They were ostensibly demanding an end to COVID restrictions and vaccine mandates but were actually calling for the overthrow of the government and included many of the usual anti-LGBT and anti-minority groups often found among these types of crazies. Most worrying is that they were warmly embraced by the federal and some provincial Conservative parties, including the newly elected Conservative party leader.

This is of a piece with an alarming trend at the provincial level, where conservative provincial governments have been giddily ripping up basic rights and constitutional and democratic norms for years, accelerating through 2022. The notwithstanding clause — a constitutional provision that allows federal or provincial governments to override certain segments of the Charter of Rights — has been used by the Quebec government to ban people from wearing non-Christian religious symbols while employed in the public service or receiving public services, and to restrict the use of languages other than French when receiving services. Ontario has used it to restrict third-party election advertising and restrict the right of public sector workers to strike (though was forced to back down on that last one after massive public outcry). Meanwhile, the governments of Quebec, Alberta, and Saskatchewan have been unilaterally amending the constitution to restrict minority rights and override federal jurisdiction. All minorities in Canada should be shocked and alarmed at the cavalier attitude conversative governments are taking toward human rights and constitutional law.

United States

The US Supreme Court’s deeply conservative majority wreaked havoc upon the rights Americans have come to count on this year, in a number of rulings whose long-term effects are still being discovered. For our purposes, the most important ruling was Dobbs, which overturned 50 years of precedent in deciding that there is no right to abortion in the US. Aside from immediately stripping reproductive rights from women in dozens of states, the ruling featured a rambling decision by Justice Thomas, who argued that the decision implies the court should review all of its due process decisions, including decisions that decriminalized sodomy and legalized same-sex marriage. The decision was not joined by any other justice, but it gave many queer Americans chills.

That got enough Republicans to overcome a filibuster for the passage of the Respect For Marriage Act, a federal bill that repeals the discriminatory 1996 Defense of Marriage Act, and requires every state and territory to recognize legal same-sex or interracial marriages performed anywhere (NOTE: no state currently has a law that bars interracial marriage; the last state to repeal such a law was Alabama in 2000). The bill does not require states to perform same-sex marriages.

In a first, the RFMA requires American Samoa to recognize same-sex marriage. Due to historical racism, the US Bill of Rights doesn’t apply to the US territory, and the state has resisted its obligation to perform and recognize same-sex marriage until now. The US Supreme Court has indicated that it wants to review the constitutional situation, but turned away a citizenship case that may have clarified the status this year.

The bill does not apply to sovereign tribal nations in the US. Among these, only the Winnebago Tribe of Nebraska and the Chickasaw Nation in Oklahoma legalized same-sex marriage on their territory this year. The Navajo Nation Council continued discussing a legalization bill, but has not advanced it. A newly elected council may take it up in the new year. It is the largest of US tribal nations that has not allowed same-sex marriage. The Choctaw Nation in Oklahoma said in December it was considering updating its marriage laws in accordance with the RFMA.

Lawmakers in California and Oregon have already discussed beginning the process of repealing the defunct state constitutional ban on same-sex marriage, while those in Pennsylvania have discussed repealing its statutory ban; Michigan, Colorado, and Alaska would need to do both. Any state constitutional amendments would have to be put before voters and the requirements vary in each state. Democrats in some states may attempt to put the referendums on November 2024 general election ballots to energize turnout in what is expected to be a very competitive election.

Earlier this year, Republicans killed a proposed amendment to repeal the defunct ban on same-sex marriage from the Virginia state constitution. But then in December, a Republican legislator proposed a new amendment that repeals the ban without inserting any other language protecting marriage rights. If the compromise goes forward, it will be on the ballot in 2024. Lawmakers have also proposed constitutional amendments to repeal same-sex marriage bans in Florida and Missouri, but these are unlikely to even get hearings next year in overwhelmingly Republican state legislatures.

New Jersey‘s marriage statutes were amended by the legislature last year, but signed into law in January.

The other effect of the Dobbs ruling was that it galvanized Democratic voters to minimize their losses in the midterm elections and pass substantive reforms at the state and federal level to protect rights Americans have come to depend on. Referendums in multiple states protected the right to abortion. Dozens of LGBT legislators were elected across the country. Democrats also managed to take over state houses in Michigan, Minnesota, Pennsylvania, and in Alaska, where Democrats are in a coalition agreement with moderate Republicans, but a Republican governor wields a veto.

In the event that the Supreme Court takes up a sodomy case and reverses its 2003 Lawrence decision decriminalizing it, gay sex could suddenly become illegal in several states that never amended their statutes to remove sodomy laws. Not all states that still have sodomy laws would be impacted by a reversal of Lawrence – some of these laws were struck down under provisions of their state constitutions. See map above. Democratic legislators in Michigan, Minnesota, Maryland, and Massachusetts have all announced plans to repeal their defunct sodomy laws next year.

Voters in Nevada passed a state constitutional amendment banning all discrimination based on sexual orientation or gender identity. A bill was introduced to add “sexual orientation” (but not gender identity) as a prohibited form of discrimination in the US Virgin Islands, but it was never brought forward for debate.

Anti-discrimination laws have also been proposed by incoming Democratic legislators in Michigan (where the state court ruled this year that LGBT are already protected under the category of sex in existing state law), Alaska, and Pennsylvania (where the governor banned it by regulation this year). Hate crime legislation could also be on the table in Michigan, Alaska, and Pennsylvania.

It should also be noted that anti-discrimination laws have also come under fire from the Supreme Court’s conservative majority. In the 303 Creative case was heard in December, a Christian web designer preemptively challenged Colorado’s anti-discrimination laws, claiming that she should be allowed to bar her services to LGBT clients seeking wedding web sites. The court is expected to rule in June, and conservatives were already frothing at the mouth with the opportunity to legalize discrimination against queer people.

Most of the states that have new Democratic majorities in their legislatures already have effective bans on conversion therapy, but lawmakers in Minnesota and Michigan have talked about codifying and expanding their regulatory bans into state law. Pennsylvania could also be on that list. Unfortunately, a freeze on conversion therapy bans has remained in place under the jurisdiction of the 11th Circuit Court of Appeals covering Florida, Georgia, and Alabama. The challenge to these laws is likely to be heard by the Supreme Court.

We shouldn’t rule out that Republicans can do the right thing on these sorts of laws, either (especially ones that don’t actually change facts on the ground). Lawmakers in Idaho repealed the state’s defunct sodomy law this year, while lawmakers in Pennsylvania deleted the word “homosexuality” from state obscenity laws. So there may be hope to pass such laws through states with divided or GOP governments in 2023 as well.

The Biden administration also quietly made nonbinary options available on passports and social security systems, and ended a ban on intersex people serving in the military. The administration also pushed cabinet departments to address anti-LGBT discrimination, prevent federal funding of conversion therapy, and investigate whether conversion therapy is a fraudulent practice that can be banned by the FTC. The FDA also began the process of ending the MSM blood donation ban.

Some of this progress is, unfortunately, tempered by the onslaught of anti-trans and anti-LGBT legislation that was proposed or passed at the state level. I don’t have the time to chronicle every single one of these bills here, but the marquee ones are Florida‘s draconian and intentionally vague “Don’t Say Gay” bill, which has already led to the banning of books and topics from classrooms and led some school boards to amend their bullying and discrimination codes to remove any references to homophobia and transphobia. And Texas led the nation in the cruelty of of its attacks on trans children, by initiating a policy of investigating the parents of any trans child for child abuse. A judge has put a stop to the policy, but it’s understandably put families on edge across the state. Other states have simply banned or criminalized standard medical care for trans minors, and even proposed extending such bans to adults. Drag performances have come under fire from some red states as well, with near-certainly unconstitutional bills floated to ban any drag performance.

Mexico

Mexico’s long journey to marriage equality finally came to an end, more or less, in 2022. At the beginning of the year, seven states had not yet legalized same-sex marriage: Yucatan, Durango, Veracruz, Mexico state, Tabasco, Tamaulipas, and Guerrero. By December 31, they all had.

The federal congress celebrated by giving final approval to a long-stalled bill to ensure equal treatment of same-sex couples in the federal social security plan.

Marriage equality isn’t quite complete in Mexico yet, however. Five states only have equal marriage due to court order or administrative action, and they need to bring their laws into compliance: Aguascalientes, Chihuahua, Chiapas, Guanajuato, and Nuevo Leon. Jalisco finally did this year, after the courts ordered marriage equality in 2016.

Some states also have laws on their books that prevent people living with HIV from getting married, even with the knowledge and consent of both spouses. The Supreme Court ruled this unconstitutional last year, but not all states have struck the laws, and some registries have been known to give problems to people living with HIV seeking marriage certificates. This repeatedly came up in Puebla this year, and Tamaulipas and Aguascalientes also have an HIV ban in their marriage laws. One source says the number of states with such marriage bans is nineteen.

Additionally, ten states have not updated their laws to allow same-sex married couples to adopt or permit automatic parental recognition for same-sex couples although the Supreme Court has required them to do so. But this year, Quintana Roo and Baja California Sur did update their laws to allow it.

The Mexican Senate passed a ban on conversion therapy, which is currently pending in the Chamber of Deputies. Meanwhile, Jalisco, Baja California, Hidalgo, Puebla, Sonora and Nuevo Leon all passed laws banning it in their states, bringing the total to 13/32 federal entities. A bill to ban it has been advanced in Quintana Roo.

Sonora also passed a hate crime law, brining the total to 17/32 states. Activists in Veracruz were calling for the creation of a special prosecutors office for anti-LGBT hate crimes amid a long-running crisis of violence and murders of trans women in particular, but legislation for it did not advance this year.

Sinaloa and Zacatecas became the nineteenth and twentieth states to pass a gender identity law, while Hidalgo became the first to recognize non-binary identities. The federal government also issued at least a few non-binary registrations, but it’s not clear if this a firm policy. The Supreme Court had already ruled that states must allow trans people to update their gender identities, and earlier this year ruled that requirements that trans people be at least 18 years old to update their gender are also unconstitutional.

The Nayarit state government reduced the fee for a gender change from 2000 pesos (approximately $100 USD) to 470 pesos ($24).

I wrote quite a bit more about the fight for LGBT rights in Mexico for Xtra Magazine in October. LGBT activists are determined to push ahead with all of these issues and more in each of Mexico’s states. In contrast to the United States, Mexico’s Supreme Court has been a strong advocate for LGBT equality — and in even greater contrast, earlier this year ruled that laws criminalizing abortion are unconstitutional.

Tomorrow, we’ll take a look at the rest of Latin America and the Caribbean, which saw some incredible progress on LGBT equality in 2022.