LGBTQ+ rights have long been at the mercy of public opinion. This November will be no different.

LGBTQ+ ballot initiatives have long been used as a wedge issue to turn out the conservative vote and to give or take away freedoms that are usually guaranteed by the government. The 2024 election is no different. This November continues a decades-long tradition of leaving LGBTQ+ civil rights up to public debate.

New Yorkers will consider whether to add sexual orientation, gender identity, and gender expression to their anti-discrimination amendment in the state constitution. Reproductive rights are on the ballot in 10 states as well.

Related:

LGBTQ+ protestors once stormed a conference to declare war on psychiatry. I proudly was one of them.

I sat locking arms with a contingent on the floor while the psychiatrists yelled, “You’re sick, you’re sick you f**gots, you drag queens!”

And California, Colorado, and Hawaii voters will decide if their states will repeal their constitutions’ bans on same-sex marriage. 

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Same-sex unions have, in fact, always been the top issue on state referendums. 34 states have sent the question to voters since 1998, many passing state constitutional amendments against same-sex partnerships. Putting these amendments on the ballot was used as a strategy to turn out the conservative vote for George W. Bush in 2004, when 11 states passed them. 

Marriage equality lost at the ballot box every time until 2012, when it was put to a vote in Maine, Maryland, Minnesota, and Washington and won in all of them. This followed national public opinion polls, where support for same-sex marriage crossed the 50% threshold around 2009. 

All states’ anti-marriage equality constitutional amendments were rendered invalid in 2015 with the Obergefell v. Hodges Supreme Court decision, but the amendments remain in several state constitutions. As such, activists are fighting to repeal them, especially in the event the conservative-dominated Supreme Court overturns Obergefell – something Justice Clarence Thomas hinted was a possibility after the court overturned Roe v Wade.

“Saving” the children

The 1978 election in California introduced the first state ballot initiative related to LGBTQ+ rights. Prop 6, also known as the Briggs Initiative since it was sponsored by Orange County legislator John Briggs, garnered national attention and public denunciation from then-president Jimmy Carter (D), and even from then-California governor Ronald Reagan (R).

The initiative sought to ban anyone who engaged in “public homosexual activity” or “conduct” from working in California public schools. The proposal was part of a trend of other states repealing anti-discrimination measures, inspired by anti-gay activist Anita Bryant’s successful 1977 “Save Our Children” campaign to repeal Dade County, Florida’s ordinance banning discrimination based on sexual orientation, also done by popular vote. Harvey Milk helped to lead the campaign against Prop 6, which was defeated by a 16-point margin.

Other state ballot initiatives have sought to legalize or ban discrimination on the basis of sexual orientation or gender identity — and voters more often sided with anti-discrimination as the years went on. In Oregon in 1988, voters revoked the governor’s authority to ban discrimination based on sexual orientation, and in 2018, Massachusetts voters upheld a law prohibiting discrimination based on gender identity. 

Maine and Oregon have most frequently put LGBTQ+ rights to a vote. In Maine, voters first blocked same-sex marriage in 2009 and then approved it in 2012, both times with 53% of the vote. Anti-discriminating protections for LGBTQ+ people in Maine were denied by referendum in 1998 and 2000 and then approved in 2005. In Oregon, voters defeated a “don’t say gay” measure in 2000 by a 5.7% margin.

The concept of using sexual orientation as a protected identity at all was also put to a vote multiple times as a conservative strategy to block “homosexuality” from being added to anti-discrimination ordinances. In the 1990s, the majority voted to allow sexual orientation to be a protected identity in Oregon, Idaho, and Maine.

And it isn’t just laws explicitly about LGBTQ+ rights that affect the community. Other ballot-driven Voter ID laws, including those in Arkansas and North Carolina, will no doubt prevent some trans folks from voting, as well as other LGBTQ+ people who are intersectionality marginalized. 

Regardless of ballot measures, the state representatives voters choose this election will also have a significant impact on LGBTQ+ rights. Legislatures led by publicly-elected Republicans have introduced or passed hundreds of anti-LGBTQ+ bills in recent years, including banning or limiting access to gender-affirming health care, bathrooms, accurate IDs, inclusive education, inclusive books, drag performances, and sports participation. Voting for state-level and local candidates who support LGBTQ+ rights will impact laws for years to come, even when they are not put to referendum. 

Vote like your rights depend on it

Civil rights for other groups have also gone to public referendum dozens of times since 1868, like the question of legality of discrimination on the basis of race, sex, and disability. Like sexual orientation, voters supported discrimination in earlier years and began to support equal rights later on. Women’s rights, however, gained approval in the 1970s while LGBTQ+ rights didn’t see popular support until the 2000s.

The decision to provide or deny civil rights is more often determined by courts and legislatures — which are becoming more conservative — and the idea that constitutional rights can be determined by public opinion has allowed racism, sexism, homophobia, and other forms of discrimination to become enshrined into law. 

Public opinion about LGB and transgender rights is often conflicted and in flux, so ballot measures are not a safe option for gaining rights either, though the majority do currently support anti-discrimination laws for LGBTQ+ people. 

Nevertheless, LGBTQ+ rights are on the ballot. As such, it’s essential to vote this year — both on the LGBTQ+ rights referendums and for candidates who will have the power to enact pro-equality legislation.

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