LGBTQ Equality Is on the Ballot — Just Not in the Way You Think

Explicitly anti-LGBTQ ballot measures are few and far between in the 2022 election, a fact that might lull LGBTQ people and their allies into a false sense of security. This feeling might be further bolstered by pro-LGBTQ rights measures on the ballot in some states. But make no mistake: Threats to LGBTQ rights and lives are on the ballot, albeit in ways that might be hidden from many voters because they are seemingly part and parcel of mundane, workaday ballot items like electing a secretary of state, an attorney general, a state legislator, a governor, a state court judge or a school board member.

We must ring the alarm bells and pull back the curtain, because those who are elected to these kinds of positions will return to statehouses, courthouses and state agencies to find waiting for them an overt, strategic, and coordinated campaign by the Christian nationalism movement to reverse LGBTQ civil rights gains and enact draconian and oppressive anti-LGBTQ laws.

The Christian nationalist movement can be hard to define because it’s not organized around or by a single institution. Instead, it is comprised of a collection of media and legal advocacy groups such as the Alliance Defending Freedom, as well as elected officials, working together within a “religious and political belief system that argues the United States was founded by God to be a Christian nation and to complete God’s vision of the world,” in the words of Eric McDaniel, associate professor of political science at The University of Texas at Austin. But its impact is not hard to observe. Its groups generate model legislation that may be, and often is, introduced in any number of states. These pre-written model bills provide “state politicians with a set of off-the-shelf pro-Christian” laws that often are introduced verbatim in states around the country.

Of course, the Christian nationalist movement needs legislators who are ready, willing and able to enact its anti-LGBTQ legislation, executive branch officials who will enforce such laws, and judges who are sympathetic to its agenda. This is why the Christian nationalist movement cares so much about who is on the ballot and why it has amassed millions of dollars in dark money to ensure the election of like-minded foot soldiers to state office and to persuade courts to achieve political and policy goals that it might not be able to achieve through the legislative process. The movement has enjoyed success in capturing both the Republican Party and the courts.

As such, the 2022 election is shaping up to show us two very different sides of the United States for LGBTQ people and our rights. These two sides reflect the ongoing cultural and political wars between the anti-LGBTQ Christian nationalist movement on the one hand, and the LGBTQ civil rights movement, along with a majority of Americans who largely support LGBTQ rights, on the other.

The first side is one of progress, acceptance and inclusion. In this side of the U.S., we find that 2022 is the first time in history that at least one openly LGBTQ candidate ran for office in every state and the District of Columbia. A proposed Equal Rights Amendment to the Nevada constitution includes sexual orientation, gender identity and expression within its protections. A proposed constitutional amendment in Oregon would require that state to ensure that every resident of Oregon “has access to cost-effective, clinically appropriate and affordable health care as a fundamental right” — a right that would sweep within it a right to gender-affirming care for transgender and nonbinary Oregonians. Also in Oregon, the Multnomah County ballot includes an initiative, Measure 26-230, which would remove binary gendered language in the county’s charter and replace that language with gender-neutral terms.

And then there is the other side of the U.S.: one of retrenchment, repression and fear. Because of the more recent LGBTQ legal and political victories, prompted by the move in social and cultural norms toward supporting LGBTQ people, the Christian nationalists have shifted their tactics and rhetoric to be less overtly anti-LGBTQ.

In the early decades of the movement, norms permitted and embraced explicitly homophobic and aggressive anti-LGBTQ rhetoric that branded LGBTQ people as pedophiles, “mentally ill” and “deviant.” Today, at least until recently, it is less socially acceptable to use explicitly homophobic rhetoric when talking about LGBTQ people or lobbying for anti-LGBTQ laws and policies. As a result, Christian nationalists now have two different tactics: using vague or deceptive language in labeling their bills and agenda to hide their true intent, and casting themselves as victims of an increasingly secular society who are unfairly cast as bigots and therefore in need of aggressive protection of their religious freedom.

While the rhetoric has shifted, the goals have not. Don’t be fooled: LGBTQ equality is on the ballot in the 2022 elections. It just might not look like it at first glance. In 2022 alone, anti-LGBTQ bills were proposed or passed in 36 states, including 155 anti-trans bills and nearly 240 anti-LGBTQ bills filed by March 2022.

Elected officials at every level of state government have the potential to advance or roll back LGBTQ rights. Here is a summary of how such elected state officials promoted the Christian Nationalist movement’s anti-LGBTQ agenda in 2022:

• Governors have power over executive agencies. For example, Florida Gov. Ron DeSantis vetoed funding for LGBTQ programs from the state budget. He appointed anti-LGBTQ people to serve on important boards like the state medical board, who in turn vote to ban gender-affirming care for minors. He signed anti-LGBT bills into law, like “parents’ bill of rights” laws that forbid teachers from recognizing a transgender student’s gender identity without parental consent. Meanwhile, Texas Gov. Greg Abbott issued a letter to state health agencies that some forms of gender-affirming care for trans youth should be classified as child abuse.

• Attorneys general are the chief legal officers of their states and have the power to help or harm statewide LGBTQ rights. Attorneys general may issue legal opinions, like the one issued in February 2022 by Texas Attorney General Ken Paxton, that equated parents’ decisions to provide gender-affirming medical care to their transgender children with child abuse. The officials also take positions in or initiate litigation involving LGBTQ rights.

• Secretaries of state are often tasked with overseeing and administering elections. In states with onerous voter ID laws, trans people risk being turned away from the polls. Voter ID laws are on the ballot in Arizona and Nebraska. Voter suppression is an LGBTQ-rights issue.

• State legislators operationalize the Christian nationalist movement’s anti-LGBTQ agenda by proposing and passing laws, like the slew of bills banning trans girls from competing on interscholastic girls’ sports teams, laws elevating “religious liberty” to discriminate over LGBTQ equality (one such measure is on the ballot in Arkansas in 2022), and voter suppression laws.

• State court judges are on the front line of deciding the legal questions surrounding LGBTQ rights, such as whether anti-LGBTQ laws passed by the legislature are unconstitutional under the state’s constitution. On November 8, 2022, 26 states have one or more state supreme court justices on the ballot, either for a retention or selection vote.

• State boards of education and local school boards are of enormous consequence to LGBTQ rights. They are the “boots on the ground” in communities that make decisions about whether K-12 schools will reject LGBTQ-inclusive curricula, or whether to ban LGBTQ-inclusive books from school libraries. They implement anti-LGBTQ state laws and policies, such as Florida’s “Don’t Say Gay” law that permits schools to fire teachers — and possibly revoke their teaching license — if they instruct young students on LGBTQ issues.

• Even local elected officials, such as mayors, county executives and county clerks are implicated in LGBTQ rights. For example, mayors and county executives have extensive powers such as enacting anti-LGBTQ policies that affect local constituents, hiring and supporting LGBTQ employees, and instituting discrimination protections in employment policies. County clerks are responsible for issuing marriage licenses, and when they refuse to do so based on religious beliefs, they deny LGBTQ people the right to marriage equality. The risk of county clerks denying marriage licenses to same-sex couples has increased in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson, the 2022 case that overturned the constitutional right to abortion found in Roe v. Wade, because the court’s reasoning in Dobbs to justify overruling Roe is also applicable to Obergefell v. Hodges, the decision that legalized marriage equality.

Of course, elected members of Congress also have the power to advance or roll back LGBTQ rights at the federal level. Americans are voting on all 435 U.S. House seats and 35 U.S. Senate seats in the 2022 election. The fate of bills like the Respect for Marriage Act — which would codify Obergefell and Loving v. Virginia by requiring the federal government to recognize the validity of same-sex and interracial marriages in the United States, as well as repeal the Defense of Marriage Act — hangs in the balance.

What are LGBTQ people and our allies doing to fight back against these threats that are hiding in plain sight? Many activists are emphasizing that from top to bottom, elected officials in each state will take actions that affect LGBTQ rights. As a result, they are pushing LGBTQ people and their allies to study equality scorecards and cast a vote on the entire ballot, including on candidates running for lower-profile positions.

The next chapter of the U.S.’s LGBTQ history will be written by its voters in the 2022 midterm election, even though it might not look like that when most people in the U.S. peruse their ballots on November 8. Whether that chapter will be one of retrenchment or progress is yet to be known. But what is beyond dispute is that the Christian nationalist movement will be waiting with bated breath for the new crop of state legislators, governors, attorneys general, judges, school board members and secretaries of state to begin their work. Whether the Christian nationalist movement will have a willing audience for its anti-LGBTQ agenda, however, will be determined in part by the votes cast on Election Day.