It’s no surprise Governor Phil Bryant of Mississippi is one of the few prominent Republicans left defending Donald Trump. Governor Bryant already proved his stubbornness when he was the only public official to appeal the enjoining of Mississippi’s radical anti-LGBT legislation passed this spring. Lawyers on both sides are currently gearing up for briefing and arguments in the Fifth Circuit over Mississippi’s religious refusal bill, HB 1523. HB 1523 provides explicit, special protections designed to allow individuals and businesses in Mississippi to discriminate against LGBT individuals and families if they believe that marriage is between a man and a woman, sex should be reserved to such a marriage, and/or that the gender a person is assigned at birth is immutable. [...]
Epstein fails to account for any of these grave realities on the ground. He also seems to not understand the reality of the bill itself. He imagines HB 1523 as limited to private “market-regulated” spaces, but the bill’s scope extends far beyond that. HB 1523 prevents the state from interfering in a foster parent’s decision to “guide, instruct, or raise” a child in accordance with the favored moral beliefs. One section of the bill allows counselors to deny mental health services to a lesbian teenager struggling with coming out on the basis that the provider believes marriage is between a man and a woman (without any requirement of a referral). The bill extends this protection to state employees, such as a school counselor at a public school, which for many young people is their only access to mental health services. This is in a state, mind you, with one of the highest risks of suicide for LGBT youth. There is nothing hyperbolic about saying that this is about life and death for LGBT individuals in Mississippi. When mental health care providers turn away HIV positive patients, doctors and public health professionals have already warned us what the likely outcome will be.
Richard Epstein believes that although racial anti-discrimination protections were previously justified as a “necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today.” That may better describe where Richard Epstein teaches law and contemplates his academic theories: New York City. But for LGBT Mississippians who received KKK flyers in their driveways, Epstein’s assertion that the risk is gone is laughable. Don’t take my New York word for it: listen to the voices coming directly from Mississippi. For LGBT citizens in Mississippi there’s not just the “risk” of a Jim Crow South, it’s their daily reality.
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