Pictured above: Mississippi State Capitol in Jackson.
Three years ago, Mississippi passed the most extreme anti-LGBTQ law in the United States. Two years ago, it went into effect.
Today, it remains in place—but you wouldn’t know it based on the lack of national news coverage.
Mississippi’s House Bill 1523 grants a sweeping license to deny service to LGBTQ people based on certain “deeply held religious beliefs.” It is the sort of law that should inspire sustained national outrage, like North Carolina’s “bathroom bill” did three years ago.
Instead of using more euphemistic language about “religious freedom,” HB 1523 goes a step further by naming specific beliefs that are protected by law, including the belief that marriage is between “one man and one woman” and that gender is “immutable.”
Mississippi Gov. Phil Bryant signed the bill in April 2016, only for it to be blocked by U.S. District Judge Carlton W. Reeves that June on equal protection grounds. But the following year—during Pride Month, no less—the Fifth Circuit Court of Appeals lifted the injunction, clearing the way for the law to go into effect in October 2017.
Now, two years after the Fifth Circuit Court of Appeals made its decision, HB 1523 is still in effect with no sign of a repeal on the horizon. The law’s stubborn persistence stands in sharp contrast to other state-level pieces of anti-LGBTQ legislation that were amended after widespread national attention.
The North Carolina state legislature, for example, walked back key portions of its infamous 2016 “bathroom bill” after one year and seven days worth of pressure from the LGBTQ community, business leaders, and the NCAA. In 2015, it only took Indiana one week to amend its Religious Freedom Restoration Act after boycott threats. So why has HB 1523 flown under the national radar?
“Mississippi has fewer big businesses and industries than other states,” Joshua Tom, legal director for the American Civil Liberties Union of Mississippi, tells NewNowNext. “Therefore, there is less financial and public relations leverage.”
In both Indiana and North Carolina, the economic impact of their anti-LGBTQ legislation was widely reported, keeping both states in the headlines. Whether it was Salesforce CEO Marc Benioff threatening to reduce investment in Indiana over the RFRA or the Associated Press estimating that the North Carolina “bathroom bill” would cost more than $3 billion over 12 years, there were relatively frequent developments for journalists to spotlight, often with eye-catching dollar amounts to attach to them.
That has not been the case in Mississippi, says Tom, where the business community has largely opposed the law, but the state hasn’t budged. Bans on non-essential travel from states like California and New York have led to some sports games cancellations but to no broader effect.
“Although the hospitality and tourism associations came out against the law—as well as several in-state businesses, educators, and other leaders—the governor refused to veto it and the legislature has since refused to repeal it,” Tom adds.
Because the GOP-controlled Mississippi state legislature is unlikely to repeal HB 1523, LGBTQ advocates have had only one place to turn for relief: the courts. Lambda Legal and the Mississippi Center for Justice filed a lawsuit opposing HB 1523 in June 2016, and the Campaign for Southern Equality also challenged it.
LGBTQ advocates were successful in securing a quick injunction in 2016, but on June 22, 2017, a panel from the Fifth Circuit Court of Appeals reversed it, writing that “the plaintiffs have not shown an injury-in-fact caused by HB 1523” and therefore did not have standing to challenge the law. (The Supreme Court refused to hear a challenge to that decision early last year.)
Today, from a judicial perspective, LGBTQ advocates are in a double bind: They can’t challenge the law unless they can prove it causes harm to LGBTQ people, but because Mississippi doesn’t have statewide protections for queer people anyway, it’s a difficult thing to prove.
“What we have had are regular reports of people experiencing acts of discrimination, but there’s just not that direct tie-in [to HB 1523],” Reverend Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, tells NewNowNext.
In essence, Beach-Ferrara explains, a service provider or employer would have to say to an LGBTQ person, “I’m refusing you service or turning you down for this job because of [HB] 1523” in order to bring a direct challenge to the law. (As it stands, there is no state-level law stopping service providers and employers from discriminating against LGBTQ people simply for being LGBTQ without needing a religious excuse.)
A handful of Mississippi municipalities, such as Magnolia and the capital city of Jackson, do have local LGBTQ-inclusive nondiscrimination ordinances. However, it’s still hard to find plaintiffs in these places, says Jennifer C. Pizer, law and policy director for Lambda Legal.
Because local nondiscrimination ordinances generally do not “provide much in the way of meaningful remedies,” Pizer tells NewNowNext, potential plaintiffs often “decide that they don’t want to proceed” given the amount of time and stress that a lawsuit would require, especially in a state like Mississippi with a less LGBTQ-friendly social climate.
“Do we think that the passage of [anti-LGBTQ laws] in Mississippi has had no effect? No, that’s not what we think,” says Pizer. “But sometimes, it takes a while for people to have a series of experiences that prompts them to want to become public.”
When people do want to come forward, Pizer says that Lambda Legal is “ready and eager to explore what can be done.” Until then, drawing more attention to HB 1523 will continue to be difficult.
The lack of continuing media coverage around HB 1523 hasn’t gone unnoticed in LGBTQ advocacy circles. Pizer attributes it, in part, to the way in which the Trump administration now dominates the news cycle. (Both Indiana’s RFRA and North Carolina’s “bathroom bill” were passed before Trump took office.)
With sparse media coverage and a muted national response, LGBTQ advocates worry that the long-term persistence of HB 1523 will continue to send a message to anti-LGBTQ groups that more conservative Southern states are fertile ground for damaging laws.
“I think they knew that a long time ago, and this reinforces that,” says Beach-Ferrara. “For that side, it’s an effective strategy for them.”
If it had been passed elsewhere, HB 1523 might still be in the headlines today. But because many people have already written off Mississippi, says Tom, the law “only reinforces our state’s reputation.”
Still, LGBTQ advocates promise that they’re not giving up on getting rid of HB 1523, whether that happens through another lawsuit, state legislative action, or the passage of federal LGBTQ protections.
“Laws like this cannot stand forever,” says Beach-Ferrara. “How it will be struck down, I don’t know, but it’s a horrible law.”