Will Marriage Stay Equal? Was it Ever?

When Obergefell was codified in 2015, it was celebrated as a massive win for same-gender couples and marriage equality. After years of advocating for the legalization of same-gender marriage, the LGBTQ+ community celebrated a nationwide win. It was one of the biggest marriage equality wins in United States history, alongside Loving v. Virginia in 1967, which banned the restriction of interracial marriages.

It has now been almost a decade since Obergefell v. Hodges, and in that time frame, the United States has seen an increase in anti-LGBTQ+ rhetoric. Donald Trump winning the presidential election in 2016 led to an increase in the platforming of right-wing politicians, commentators, and media personalities.

This platforming of far-right politics, particularly on social media, played no small part in the subsequent rise of anti-LGBTQ+ rhetoric surrounding specifically transgender individuals, particularly trans women.

The current political climate has led LGBTQ+ folks to worry about the possible reversal of Obergefell v. Hodges, especially in light of the reversal of Roe v. Wade in 2022. And if not the total reversal, then insidious instances of permissions being taken away.

Thirty-five U.S. states including Texas, Florida, Wisconsin, and Arizona currently have inactive marriage bans that would be reactivated if Obergefell was overturned, as reported by journalist Jasmine Aguilera.

These bans would make it illegal for same-gender couples to be married in the state, deny them of privileges afforded by marriage such as tax benefits and healthcare decisions, and gatekeep lower-income couples from being able to marry in-state, as they would have to travel outside of their state to be married.

But when speaking of the privileges of marriage, there is still a big issue that is left largely unaddressed: the rights of disabled people in a marriage. In 2022, President Joe Biden signed the Respect for Marriage Act into law, which codified rights for same-gender and interracial couples. But people pointed out that the act did not address the issue of disabled marriage.

In the United States, a disabled person cannot marry a non-disabled person without having their federal benefits—such as SSDI, SSI, Medicare, and Medicaid—severely reduced or lost entirely. They also cannot cohabitate the same home without experiencing similar loss of benefits. And even if two disabled individuals marry, they could still incur a 25% loss of SSI benefits, according to journalist Shruti Rajkumar.

In a study done by the Human Rights Campaign, it was found that LGBTQ+ adults were significantly more likely to self-report having a disability than non-LGBTQ+ adults. 52% of transgender adults surveyed reported having a disability and 36% of LGBTQ+ adults as a whole reported having a disability, where only 24% of non-LGBTQ+ adults reported having a disability.

The issue of disabled marriage and LGBTQ+ marriage go hand in hand, as LGBTQ+ individuals will face additional discriminatory practices if they are disabled. When allies proclaimed that “everyone has the right to marry,” they overlooked disabled individuals and the intersection of LGBTQ+ and disabled people.

But it can also be noted that, though it is a valid fear, no moves have been actively made to strike down Obergefell, and it is mostly speculation based on a trend of events and words from a few right-wing politicians such as Ted Cruz and Clarence Thomas.

What has been tangibly on the rise is the passing of anti-transgender legislation, particularly targeting gender affirming care. In 2023, a record number of anti-transgender bills were filed, with 508 bills being introduced and 84 being passed into law, according to ABC News.

These bills primarily involved blocking trans minors’ access to puberty blockers and hormone replacement therapy. Twenty-two states currently restrict gender affirming care for minors, and states such as Florida and Missouri restrict Medicaid from covering gender-affirming care.

The bills outline a plethora of negative consequences for doctors who provide gender affirming care—in some states even making it a felony to provide gender affirming care for minors, sand driving down the rate of doctors who will prescribe hormones and other care.

Meanwhile, 21 states passed bills allowing high schools and colleges to exclude transgender girls and women from participating in sports consistent with their gender identity, according to the New York Times. Only five of these states extended the ban to include transgender men and boys, again highlighting the continued targeting of specifically transfeminine people.

And these are just a few of the anti-trans legislative actions that have been passed. Others include the barring of transgender students from using the bathroom of their choice in school and prohibiting the discussion of personal pronouns among teachers and students.

As of November 2023 in the United States, 53 transgender individuals were murdered, and 32 were lost to suicide, The Guardian reports. And these are only the cases made known to the public. The murders have disproportionately been of Black transgender women, with 61.8% of victims falling into that category, according to statistics by the Human Rights Campaign.

The argument can very easily be made that focusing on speculating if Obergefell will be rolled back does not take into account the much more present and actively damaging rise of anti-transgender legislation and violence.

As members of the LGBTQ+ community fight to be heard across the board, the possible rollback of Obergefell brings up issues of the rights of disabled queer people and the recent rise in anti-trans legislation across the United States.