When she was San Francisco district attorney, Kamala Harris spent Valentine’s Day of 2004 officiating same-sex marriages. Just two days earlier, Gavin Newsom, then the city’s mayor, had asked city hall clerks to start issuing licenses to same-sex couples. The state’s Supreme Court ordered San Francisco to shut down the weddings and nullified the marriages of 4,000 queer people the following month.
The Supreme Court wouldn’t settle California’s war over marriage equality until 2013. By then, President Barack Obama and Vice President Joe Biden had already come out in support of equal marriage.
Many queer voters have historically viewed 2012, when Obama publicly stated his support for marriage equality, as a turning point. Supporting marriage equality has been used to gauge a candidate’s true commitment to LGBTQ+ rights: Candidates who came out in favor of the issue before 2012 largely passed the test; candidates who backed equal marriage after just did it for political points.
For Kamala Harris, that has left a lot of room for bragging rights. In a field that started with roughly two dozen major contenders for the 2020 Democratic presidential ticket, Harris stood out as the candidate who could boast the earliest explicit on-record support for marriage equality (yes, Bernie Sanders backed LGBTQ+ rights in the 1970s; but he did not come out for marriage equality until 2009, favoring civil unions first).
In 2008, when California’s Supreme Court overturned the state’s LGBTQ+ marriage ban, Harris again officiated queer weddings. She helped create “an LGBTQ hate crimes unit” while district attorney of San Francisco.
When she was California’s attorney general, she battled the “panic defense,” a legal strategy in which a person claims that anti-LGBTQ+ violence or murder is justified because the victim made sexual advances toward the perpetrator. In 2011, she backed marriage equality by petitioning to the 9th U.S. Circuit Court of Appeals to repeal Proposition 8, the 2008 ballot measure that banned same-sex marriage.
But a lot has changed since 2012. A queer electorate that might have held up Harris as its champion eight years ago largely greeted her in 2020 with mixed emotions. At issue is her history as a prosecutor, a string of missteps on trans issues and recent support for bills cracking down on sex work.
Last February, Chase Strangio, the renowned attorney who fought the watershed Supreme Court employment cases, summed up the feelings up many progressive queer voters in an op-ed for OUT Magazine.
“As a prosecutor, Harris’s work has been as an arm of the state fighting to lock people in cages and defending policies that destroyed lives and communities,” Strangio wrote. “Now attempting to position herself as a criminal legal system reformer and an ally to the LGBTQ+ community, Harris seeks to rewrite her past rather than own it.”
Harris has faced harsh criticism because she fought to block gender-affirming medical care for a trans woman in prison in 2015. In 2019, she told the Washington Blade that legal briefs in her office were often written without her consultation and that as attorney general, she was obligated to defend the state.
“But the bottom line is the buck stops with me, and I take full responsibility for what my office did,” Harris said.
“Harris has taken full responsibility for this failing, and reiterated that transitioning inmates are entitled to receive the medical attention they require, need and deserve,” a Human Rights Campaign spokesperson said in a statement to The 19th.
Mychal Concepcion, a 50-year-old transgender man incarcerated at the Central California Women’s Facility and the former board president of Justice Now, a prison abolition group, said he is “super” excited that Biden chose Harris as his running mate.
“She has her own views and is not shy on speaking out,” Concepcion wrote in an email to The 19th. “I believe it will push Biden to be more progressive. He is part of an older generation. He is tied to white male privilege that was/is abusive. She will be the check and balance to that!”
LGBTQ+ advocates have repeatedly questioned Harris’ grasp of transgender issues. Harris backed FOSTA/SESTA, a 2018 package of bills that aimed to curb sex trafficking by shutting down sites used by sex workers like Backpage and Craigslist classifieds. But many sex workers, transgender sex workers especially, decried the measures as deadly, wiping out critical screening tools they used to keep themselves safe.
Sex work decriminalization has become increasingly popular among LGBTQ+ rights organizations. A disproportionate number of queer and trans people are engaged in sex work, often the result of employment discrimination. According to the 2015 U.S. Transgender Survey, transgender people are three times more likely than the general population to be unemployed (at 15 percent).
Harris now says she supports decriminalizing sex work, but in an interview with The Root says she doesn’t regret supporting FOSTA/SESTA — the site Backpage was profiting from ads trafficking children, she claims. Her unwillingness to re-examine the bills has left some uneasy about her as a candidate.
Courtney Trouble, a nonbinary trans sex worker, has some of those reservations.
“I feel like she’s really proud of the work that she’s done to get rid of Backpage and create FOSTA,” said Trouble. “And that’s something that really needs to be discussed with her, because if that’s how she feels about sex workers’ rights, then she has completely ignored an entire facet of community who could be her supporters.”
Publicly, LGBTQ+ groups have praised Harris as a longtime champion for equality.
“Senator Kamala Harris is nothing short of an exceptional choice for Vice President,” said Alphonso David, president of the Human Rights Campaign, in a media statement. “Throughout her groundbreaking career, Senator Harris has been an outspoken advocate for the LGBTQ community, standing with us when many, even sometimes those within her own party, did not.”
Equality organizations, like many voters, feel they can’t afford to do anything but push Biden to a win; the prospect of another four years under President Trump is too terrifying, they say. LGBTQ+ media organization GLAAD keeps a running tab of the president’s attacks on the community; at last tally the number was 167.
“Our community has a stark choice this November, four more years of a Trump-Pence administration dedicated to decimating our rights and dehumanizing us, or a new day where we are not only valued and accepted but put on a path to finally achieving the full equality all people deserve,” said a Human Rights Campaign spokesperson in a statement to The 19th.
But behind the scenes, some advocates say they have told the Biden campaign that Harris still has work to do if she wants LGBTQ+ support.
Monica Roberts, author of the blog TransGriot and one of the nation’s most prominent Black trans advocates, questions what more Harris can do to prove herself. Harris fielded tough questions from “Pose” star Angelica Ross and singer/songwriter Shea Diamond. Both said Harris answered those concerns and took accountability for past shortcomings on trans rights.
“I fail to understand why some of these trans folks act like people can’t evolve and grow,” Roberts said. “And if you can’t, or you have reasons to just ignore that fact, then your problem with Kamala Harris is racial, not policy.”
Biden himself represents a lukewarm option for many young progressive LGBTQ+ voters. Many are no longer captivated by his 2012 support for marriage equality, which has been the law of the land for five years now. This year is expected to be the deadliest on record for transgender people, and trans women interrupted this year’s forums demanding that candidates address the epidemic of violence facing their communities. Biden was the last presidential candidate to release an LGBTQ+ platform in March.
He has had his own gaffes on LGBTQ+ issues. At an LGBTQ+ forum last fall, he quipped that being gay no longer came with the same stereotypes — “gay bathhouses” and ”round-the-clock sex.”
The Biden campaign declined to comment for this story.
Harris, as a presidential candidate, dropped an LGBTQ+ platform in October 2019. On the menu was the usual fare: a rollback of Trump’s transgender military ban, an end to discrimination under the guise of religion, passage of the Equality Act. It was released on October 10, the morning of the Human Rights Campaign’s LGBTQ+ town hall. That same day, Elizabeth Warren unveiled a much larger 12-page platform, and Pete Buttigieg also dropped a hefty proposal.
Few talked about Harris’ LGBTQ+ platform. The Texas Tribune covered Beto O’Rourke’s pitch to queer voters last June, and NBC News reported on Mike Bloomberg’s LGBTQ+ proposals this January. Harris’ platform got little attention outside of queer media.
“Something that differentiates her platform from those of other candidates is a pledge to create a White House position dedicated to LGBTQ rights,” the Advocate noted.
Earlier in the year, at a CNN town hall in April, Harris was recounting her history working in the LGBTQ+ community. She drew attention to her work outlawing “panic defenses.”
“You’ll remember the tragic cases involving transgender men who were killed,” Harris said.
There was just one problem. Transgender murders victims are overwhelmingly transgender women.