State Rep. Josh Boschee is the first openly gay lawmaker in North Dakota history. Early last February, he stood from his seat in the state House of Representatives, picked up a microphone and fought to save a civil rights bill for LGBT people.
It didn’t work.
“Now don’t get me wrong, I’m not implying that you’re not born gay or anything else,” said Republican state Rep. Robin Weisz, addressing the chamber moments before Boschee spoke. “[But the law] only knows if you’re gay if you say so. So the reality is, the protections involve the lifestyle, and that’s where we run into some conflicts here.”
Boschee tried to send it back to committee. The House shot that down. Boschee asked to amend it on the floor and drew the same result. Then, in a 22-69 vote, the House killed it. The bill, which would have added LGBT people to the state statute barring discrimination—in housing, employment and more—was dead again.
It’s the fourth time in the past decade lawmakers have rejected LGBT-friendly updates to North Dakota’s discrimination law, in a state where voters approved a constitutional ban on gay marriage in 2004.
The issue is hardly going away, but neither is Boschee, who is mounting a campaign this year for secretary of state. If he wins, he’ll make history a second time.
“People use the word ‘courage,'” he said of his campaign stops, during which he said voters often thank him for being out and visible. “I don’t use the word courage, but other people use the word ‘courage.”
Boschee works at a realty firm in Fargo—by far his state’s largest city, with a metro population of a little more than 240,000.
He’s long been a proponent of LGBT rights: the AP recalls he wrote a column for Fargo’s alt-weekly called “the Gay Agenda.” He was involved with the first civil rights bill in 2009 as a private citizen. Shortly after he was sworn in—at age 30 in 2013—he was a sponsor of the second bill.
His current campaign website barely references his identity, though, and that quiet acknowledgement is a hallmark of the political image he’s crafted for himself. “I’m proud, I guess, to wear that banner,” Boschee told the Associated Press in 2013, “but for the most part I was elected by my people to legislate, to be a lawmaker, not because I was gay or because I wasn’t gay.”
His run comes at a pivotal time, during which the future of LGBT rights and equality—in North Dakota and across the nation—is still uncertain.
State Rep. Jake Blum, a 24-year-old Republican who voted for Boschee’s bill, sees a “generational gap” among GOP legislators that points to a friendlier future. Republican Gov. Doug Burgum supports updates in discrimination law, arguing that the growing, worker-hungry state needs to project a welcoming image.
There’s cause for optimism, proponents say, but they’re hard-pressed to say when statewide protections will materialize. Meanwhile, there are deep concerns that Trump’s next Supreme Court pick could join opinions limiting LGBT rights nationwide, from couples’ benefits to military service.
Heather Smith, state executive director of the American Civil Liberties Union, said the group’s local office gets “a fair amount” of calls from LGBT North Dakotans, sometimes worried they could be fired or suspect they have been fired because of who they are.
Though critics point at a patchwork of already available resources—like the Equal Employment Opportunity Commission, the state Department of Labor and Human Rights or the federal Fair Housing Act—advocates call it just that: a gap-ridden patchwork.
“It’s duct tape putting things together to make something … that doesn’t currently exist under the law,” said Smith. She said sometimes LGBT complaints can be pursued as sex discrimination, a “creative” way to skirt broader protections’ absence—but one that can provide a more difficult, convoluted path to resolution than simply banning LGBT discrimination outright.
“It was just a devastating feeling the first time the measure failed,” said State Rep. Corey Mock, a Democrat and the House minority leader, recalling the 2009 vote in his chamber. “People came out…and they just poured everything into this. Just, ‘I can be fired if I bring a photo of my family to work.’’’
As all four anti-discrimination bills have passed through the Legislature, they’ve been met with mixed success. Though the state Senate passed extended protections in 2009 and 2015, the failure in 2017 in the House was the lowest number of votes such legislation has drawn yet.
House Majority Leader Al Carlson, defending a vote against those protections, said he wants “equal rights for all, but we don’t want special rights for a few.” He gestured toward protections already in place, like the EEOC or the Fair Housing Act.
“If you are gay or transgender, if you come every day and do your work as good as the person next to you, it shouldn’t be an issue,” he said. “If you use that as an excuse (for incompetence)…that’s where the issue becomes boiling down to a point of ‘How do you decide that (it’s discrimination)’?’”
North Dakota is a profoundly conservative place, where Donald Trump more than doubled Hillary Clinton’s share of the 2016 vote.
For many advocates, Boschee’s visibility is important in a state said to have the lowest share of LGBT people in the country, per a 2013 Gallup poll, at just 1.7 percent—partly for low self-reporting, and partly because they leave the state, experts surmised at the time.
That conservative dynamic means Boschee might have long odds, if for no other reason than his party alliances. The last secretary of state race saw incumbent Republican Al Jaeger take more than 62 percent of the vote to keep a seat he first won in 1992. But Boschee, who is running on a platform to “modernize” the office, may have better odds than his predecessors—not only for this year’s expected Democratic surge, but because Republicans’ ticket is in disarray.
Jaeger lost his party’s endorsement this year to Will Gardner, a software executive, in April.
Weeks later, Gardner’s campaign was vaporized by the revelation that he’d pleaded guilty to disorderly conduct in 2006 after he “peeped in numerous female dorm rooms,” according to prosecutors in 2006.
A report on the incident, published in the Fargo Forum, included an array of details, including police officers’ observation that Gardner’s “pants were unzipped and his shirt front pulled out.”
Gardner dropped out after the decade-old incident was reported, and Jaeger said he will now appear on the ballot as an independent, albeit with the state GOP’s support. He added that, to him, Boschee’s homosexuality is not a campaign issue.
Boschee is focused for the next four months on his own race. But he said he’s pleased with the progress he’s seen in recent years—a slow process of “changing hearts and minds” that’s seen marriage equality and more.
But there’s still a long way to go, he said. The sparsely populated state is perennially concerned about brain drain, especially among those college students who simply pass through the state on to greener—or perhaps friendlier—pastures. For LGBT people, Boschee said, North Dakota laws make that choice easier.
“They’re going to continue to find places where they can go and not worry about that,” he said.