LGBTQ+ Equality

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This is a collaborative knowledge base; feel free to propose edits/additions that you believe are important for others to know. Contributions will be reviewed and approved based on quality and accuracy.

How You Can Resist
How You Can Resist
[edit]

  • Call your senator by dialing tel:844-6-RESIST and tell them to oppose the American Health Care Act (AHCA) and to support legislation that supports LGBTQ+ equality.
  • Find out when your Senators and US Representative are holding Upcoming Events/Opportunities. Show up and tell them to support LGBTQ+ equality.
  • Click here to find an organization looking for volunteers.
  • Connect people who may need them to Trans/LGBTQ+ Crisis Resources.

Recent Updates[edit]

  • 6/26/2017: The Supreme Court agreed to hear the case of a Colorado baker sued for discrimination for refusing to bake a cake for a same-sex wedding because of his religious beliefs. The Supreme Court decision could settle whether businesses can use the First Amendment to refuse service to same-sex couples.[1]
  • 6/20/2017: NPR published a letter from the Housing and Urban Department (HUD) to the Census Bureau, dated June 30, 2016. In the letter, the HUD requested that the Bureau collect data on LGBTQ+ individuals through the federal surveys. HUD needs this data to fulfill its mission. The Census Bureau announced in 2017 that it would not include questions on LGBTQ+ individuals in its surveys.[2]

Actions Taken by the Federal Government
Laws Proposed by Congress
[edit]

Legislative Actions[edit]

Legislation that Supports Equity and Justice

  • S. 411 would end profiling by law enforcement, including on the basis of sexual orientation or gender identity.
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  • H.R. 1447 or Fair and Equal Housing Act of 2017 would prohibit discrimination in housing based on sex or sexual orientation.
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  • S. 662, also known as NO HATE Act, would strengthen laws fighting hate crimes.[3]
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  • HR 1957, also known as the Safe Schools Improvement Act, would require schools to adopt anti-bullying policies that specifically include LGBTQ+ students.[4]
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  • S. 928/HR 2119, also known as the Therapeutic Fraud Prevention Act, would outlaw conversion therapy for LGBTQ+ people.[5]
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  • S. 954, also known as the Tyler Clementi Higher Education Anti-Harassment Act, would require universities and colleges to prohibit discrimination based on sexual orientation or gender identity.[6]
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  • S. 1006/HR 2282, also known as the Equality Act, would prohibit discrimination based on sex, sexual orientation, or gender identity.-
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  • HR 2491/SB 1172 would require the State Department to ban foreigners who have committed significant abuse against LGBTQ+ people from entering the US and to document this abuse in the annual human rights report.-
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  • SB 1258 would improve data collection on the sexual orientation and gender identity of the victims of violence and improve the documentation and reporting of such acts.[7]-
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Harmful Legislation
Harmful bills that should be opposed:

  • HR 1881/SB 811 would allow child services organization to discriminate against LGBTQ+ foster parents on religious grounds[8].-
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See also the State and Local Pages for state-by-state legislative tracking.

Transgender Rights[edit]

There are few federal laws protecting transgender people from discrimination. However, recent court decisions have made it clearer that federal laws against discrimination based on “sex,” such as Title VII of the 1964 Civil Rights Act, do give transgender people some protection.[9] Without clear federal laws, though, these decisions can be reversed based on individual judges' opinions. This is why states have begun to pass laws protecting transgender people in some places, such as schools. The states are also responsible for many other rights that affect transgender people, such as the ability to change their name and gender marker on their identity papers, or have their health care included in state Medicaid. See the State and Local Pages to see where your state stands on these issues.

Military[edit]

  • Trump and his security advisors oppose allowing transgender soldiers to serve openly and to ban discharging people based solely on their gender identity.[10] They have called it "social engineering" imposed on the armed forces.[11]Secretary of Defense Gen. James Mattis has also criticized civilian leaders for their "progressive agenda" that he thinks could weaken the Army. Mattis could easily undo the Pentagon's policy on transgender people by notifying Congress 30 days in advance—no legislation would be required.[12] But this would affect from 1,320 to 6,630 soldiers (numbers from a 2008 RAND report[13]) and leave them without protection.
  • When Vice President Mike Pence was a congressman, he voted against the repeal of the ban on openly gay troops—as did Jeff Sessions.[14]

Schools[edit]

The Trump Administration withdrew an Obama-era guideline on non-discrimination policies for transgender students. This guideline stated that schools "must not treat a transgender student differently from the way it treats other students of the same gender identity," and was based on Title IX of the Educational Amendments of 1972. Removing this guideline means that state or local school boards can now require students to use bathrooms and changing rooms that correspond with their biological gender, rather than their gender identity. It also may prevent students from playing on sports teams that correspond with their gender identity. School boards can still implement their own protections, and people and advocacy groups can appeal to federal courts if a transgender student's rights have been violated.[15][16]

Supreme Court[edit]

The Supreme Court recently considered Gloucester County School Board v. G.G., the case of a transgender boy who wants to be able to use the boys’ bathroom at his Virginia high school. The school board had enacted a policy requiring students to use the bathroom that corresponds with the sex that they were assigned at birth. On March 6, 2017, the Supreme Court decided to send the case back to the 4th Circuit Court of Appeals after the Trump Administration rescinded the Obama-era guidance advising schools to allow transgender students to use the bathroom matching their gender identity. Both sides had previously said that the Court could and should still have decided whether the board’s policy violates Title IX, the federal civil rights law that bans discrimination in education. The 4th Circuit Court will now examine the case again to decide whether Title IX applies to transgender students.[17]

ACA Repeal[edit]

  • The repeal or replacement of the Affordable Care Act (Obamacare) could have severe effects on transgender people. Section 1557 of the ACA prohibits health-care providers and insurers from discriminating on the basis of gender. The Obama administration issued a rule based on this section banning discrimination against gender-nonconforming and transgender people[18], including for transition-related care and gender reassignment surgery.[19] If the ACA is repealed, then this protection would no longer be in effect. Since Secretary for Health and Human Services Tom Price opposes other protections for transgender people,[20] he will likely not reinstate this protection.
  • Before the ACA, “transsexualism” was considered a preexisting condition. In case of a repeal, and if the AHCA was passed, health care could become much more expensive for transgender people. [21]

See the Healthcare section below for more information.

Healthcare[edit]

LGBTQ+ people are affected by all the government's decisions about health care, but some decisions and issues impact the LGBTQ+ community in particular. One of these areas is the fight against HIV/AIDS: the disease affects everyone, but according to the Center for Disease Control, gay and bisexual men are more severely affected than any other groups in the US. Transgender people, especially transgender women, are also more at risk than others.[22] Discrimination and stigma can make it more difficult for LGBTQ+ people to get diagnosed and then treated.[23]

This section focuses on issues affecting the LGBTQ+ community, including the fight against HIV/AIDS. More information on healthcare can be found on the Manual's healthcare page.

American Health Care Act[edit]

On May 4, 2017, the House passed the American Health Care Act of 2017, which would repeal and replace the ACA (Obamacare). This bill is very controversial. The ACA provides access to key health care services for many people, and its repeal would disproportionately impact LGBTQ+ people.

  • A 2014 Gallup study found that LGBT Americans were more likely to report being uninsured, but the percentage of uninsured LGBTQ+ adults decreased by 11% after the ACA was passed.
  • The ACA also includes essential healthcare provisions for LGBTQ+ people and people living with HIV/AIDS: It bans discrimination in healthcare treatment and access and encourages the collection of data on sexual orientation and gender identity (which improves treatment and prevention) and encourages training to improve care to LGBT patients.[24][25]

The new law does not include many of these provisions, and would severely impact LGBTQ+ individuals.

  • The AHCA cuts $839 billion dollars from Medicaid over the next 10 years and freezes the Medicaid extension in 2020, which would cause millions of people to lose their coverage.[26][27] The Medicaid expansion through the ACA was very important in the fight against HIV/AIDS: a report from the Kaiser Foundation found that Medicaid became the single largest insurer of people with HIV/AIDS in the US. It covered more than 40% of people with HIV/AIDS in care and made up 30% of all federal spending on HIV/AIDS care, not including prevention services.[28] The repeal of the ACA and the elimination of the Medicaid expansion would mean that many HIV/AIDS patients would lose their coverage, and any interruption in care means that the epidemic could surge: when HIV-positive people are treated and their viral load is suppressed the risk of transmission is almost zero, but if treatment is interrupted and the viral load goes up, the virus becomes transmissible again.[29] Medicaid is also the largest payer for behavioral health, which means the cuts would diminish access to mental health services. Because of harassment and discrimination among other factors, LGBTQ+ individuals are nearly three times more likely to experience mental health conditions and would therefore suffer even more if access to mental health care is made more difficult.[30]
  • The ACA also created the Medicaid requirement that states provide 10 essential health benefits, including prescription drugs. The AHCA would end this requirement, so it is unclear what the states would provide HIV/AIDS patients if the AHCA became law. By limiting Medicaid, the AHCA might also decrease people's access to HIV testing or PrEP[31] (a drug that reduces the risk of getting HIV, usually used by HIV-negative people at risk of getting the virus).
  • The AHCA allows annual and lifetime caps on coverage under certain conditions and for everyone on Medicaid after 2020, so patients with lifelong illnesses (such as HIV/AIDS) could lose coverage when they reach a certain spending limit.[32][33][34]
  • The AHCA would let states waive ACA protections against discrimination against people with pre-existing conditions. States could allow insurance companies to charge more money to cover patients with pre-existing conditions, including HIV/AIDS, or put them in “high-risk pools,” which typically charge much higher premiums and provide less coverage.[35]

2018 Budget[edit]

The White House proposed its 2018 Budget on May 24, 2017, and Congress will now discuss it. This proposed budget probably won't be passed, but it does give an idea of the White House’s priorities: it would increase spending for the military and border security, but decrease spending for programs for the poor, including food stamps and disability benefits. It would also affect LGBTQ+ people:

  • The fight against HIV/AIDS would severely suffer. The proposed budget calls for a $59 million cut in the Ryan White program, which provides health care to people living with HIV/AIDS who cannot get health insurance. It is the third-largest source of federal money for HIV/AIDS care in the US, after Medicare and Medicaid.[36] The budget would also cut Medicaid by $610 million in 2018 (which is in addition to the $880 billion cut that the AHCA would cause over the next decade).[37][38]
  • The budget would prohibit many institutions funding abortions, such asPlanned Parenthood, from receiving any federal funding. This would have a drastic impact on the LGBTQ+ community. Planned Parenthood is one of the largest providers of health care for trans people. The cut would dramatically impact trans people’s access to health care.[39][40]. However, the spending agreement passed in April 2017 continued funding for Planned Parenthood, despite the White House's proposal. Federal funding makes up about 40% of Planned Parenthood’s overall budget. Most of this reimburses Planned Parenthood for treating Medicaid patients.[41]
  • The budget calls for deep cuts in scientific and medical research, including a $5.8 billion cut to the National Institutes of Health (NIH) and a 11% cut ($776 million) for the National Science Foundation. The Fogarty International Center, which trains scientists in HIV/AIDS and tuberculosis research, would be eliminated. The budget would also cut the position of Secretary of Health and Human Services Minority HIV/AIDS Initiative. These cuts would severely affect HIV/AIDS research. The budget of the US Centers for Disease Control and Prevention would also be cut by 17% ($1.2 billion), which includes an $186 million cut from programs fighting HIV/AIDS, viral hepatitis and sexually transmitted infections and promoting tuberculosis prevention;[42][43][44] the CDC is also the main source of funding for HIV prevention, which would be deeply cut under this budget.[45] The Administration had proposed cutting funding to the National Institutes of Health (NIH) in 2017, but the 2017 spending agreement that Congress passed in May gave the NIH a $2 billion increase in funding instead.[46]

HIV Criminalization Laws[edit]

Some states have passed HIV/AIDS criminalization laws[47] that make it illegal for an HIV-positive person to “knowingly expose” another person to HIV. In some states, this means that it is illegal not to disclose HIV-positive status to a sex partner. Many laws criminalize acts that are unlikely to lead to HIV transmission, though.[48] Some laws also allow the saliva or blood of an HIV-positive person to be classified in court as a “deadly weapon.”[49] Because these laws focus on disclosure, not actual transmission, they serve no purpose: All states have other laws that can be used to prosecute transmission of HIV, so these laws just single out HIV-positive people and reinforce the image of them as “dangerous.” HIV criminalization laws also disproportionately target people of color, mainly African Americans, and gay men.[50]

See the State and Local Pages to see if your state has such laws.

Marriage Equality[edit]

Same-sex couples got the right to marry across the US through the 2015 Supreme Court decision Obergefell v. Hodges. However, no federal law was passed, so the Supreme Court could still reverse the decision. Some states are also trying to challenge the right to marriage equality. See the State and Local Pages for information on your state.

Supreme Court[edit]

The Supreme Court's new justice is Neil Gorsuch. He will probably generally agree with the conservatives on the bench and oppose Obergefell v. Hodges. If Trump ends up nominating other justices to the Supreme Court, he could change the composition of the court so that it would overturn Obergefell if a marriage-equality case came to the Court again. Since the Obergefell was a narrow decision, 5–4, marriage equality could end if another conservative judge was appointed.

State Challenges[edit]

  • The Texas Supreme Court will review a decision that gave equal benefits to same-sex married couples. At least one judge has said that marriage is a right but benefits are not.[51] The case could end up being heard by the US Supreme Court, and depending on its balance, marriage equality could be at least partially ended.

Other Discrimination Issues[edit]

Federal laws do not clearly prohibit discrimination against LGBTQ+ people, so they remain vulnerable to laws and court decisions that limit their rights.

Administration's Position[edit]

  • Vice President Mike Pence and members of Trump's cabinet, including Steven Bannon, Jeff Sessions, Tom Price and Betsy De Vos, have advocated for and/or implemented policies that discriminate against LGBTQ+ people.
  • Heather Wilson, the nominee for Secretary of the Air Force, has also often opposed legislation protecting LGBTQ+ people.[52]. The new head of the Department of Health and Human Services's Office of Civil Rights, Roger Severino, is a leading anti-LGBTQ+ activist.[53]
  • Trump himself has advocated for policies that would directly affect the LGBTQ+ community. Trump promised to "cancel every unconstitutional executive action, memorandum, and order issued by President Obama" on his first day in office, and he has begun to do this. On March 28, 2017, he signed an executive order rescinding Obama's order that required companies doing business with the federal government to provide their records on discrimination. Since 2014, companies receiving large federal contracts had to show they had followed federal laws that banned discrimination based on sexual orientation or gender identity for at least three years.[54] Only 19 states currently have such protections.[55]

Federal Courts[edit]

The Circuit Courts of Appeals review rulings made by other courts in their districts and are the final word on most cases in the US. Only the US Supreme Court is above them. When laws passed by the states are blocked by lawsuits, the cases are then argued in front of the Circuit Courts.[56]Their rulings are very important to protecting LGBTQ+ people against discrimination.

Current cases:

  • In 2016 Mississippi passed HB 1523, a law that said that there could be no retaliation against a religious organization that acted on their belief that marriage should be between a man and a woman and that sexual relationships should only exist within such a marriage. This led to cases of discrimination in employment and health care. Mississippi state courts blocked the law, and the governor then sued to have it reinstated. The 5th US Circuit Court of Appeals Court is now hearing the case.[57]
  • In 2017 the 6th Circuit Court of Appeals will hear the case of EEOC v. R.G. & G.R. Harris Funeral Homes. The case is between a funeral home and its former funeral director, who was allegedly fired because she is transgender. The Court will consider whether Title VII of the Civil Rights Act, which prohibits discrimination based on sex, also protects transgender people. The ruling could set a crucial precedent expanding protections for LGBTQ+ people at the federal level.[58]
  • In 2017 the 6th Circuit Court of Appeals also revived the case against Kim Davis, a Kentucky clerk who refused to issue same-sex marriage licenses after the Supreme Court legalized it. A couple she refused a license to is seeking damages, and the Court ruled that they can sue even if they finally obtained a license. The case has been sent back to the relevant District Judge in Kentucky.[59]

Past rulings:

  • On April 4, 2017, the 7th Circuit Court of Appeals ruled that Title VII of the 1964 Civil Rights Act, which prohibits discrimination based on sex, does extend to sexual orientation. The Court was examining the case of Kimberly Hively, an instructor at Ivy Tech Community College in South Bend, Indiana, who was fired because she is a lesbian. The 7th Circuit is the highest Federal Court ever to protect LGBTQ+ people under Title VII.[60]
  • On May 1, 2017, the US Supreme Court held up a ruling stating that California's law prohibiting conversion therapy for minors is constitutional and does not infringe on religious liberty. This law prohibits mental health counselors licensed by the state from offering "therapy" to change sexual orientation in minors. This verdict could encourage other states to adopt similar protections for LGBTQ+ minors.[61]
  • On May 30, 2017, a three-judge panel of the 7th Circuit Court of Appeals upheld a ruling in favor of a transgender boy seeking to use the boy's bathroom at this school. The court found that he is likely to succeed on his claim that he is protected by Title IX of the 1972 Education Amendment, which prohibits discrimination based on sex, and that his school is wrong in imposing a policy that prevents him from using the bathroom matching his gender identity because there is no "exceedingly persuasive" reason to do so.[62]

Religious Freedom[edit]

Religious Freedom laws protect people's right to practice their religion and limit laws imposing on that right. They were intended to protect religious minorities. However, they have recently been used to say that individuals' or businesses' rights may be violated if they are not allowed to deny service to LGBTQ+ people.

  • Executive Order

On May 4th, 2017, Trump signed an [Executive Actions | executive order] aimed at protecting religious freedom, which many feared would include discriminatory provisions. However, the actual order is widely seen as not having any concrete effects: it calls for a review of religious-based exceptions, including in healthcare, but does not make any changes for now.[63] The order does not give exemptions to those opposed to marriage equality or LGBTQ+ equality.[64] However, the order requests the attorney general to issue guidelines for federal agencies that "interpret religious liberty protections in Federal law," and so many activists are worried that this may later increase discrimination against LGBTQ+ people, among others, on religious grounds. The order could eventually permit discrimination in access to spousal benefits or health care.[65][66]

  • Supreme Court

In May 2017, the Supreme Court delayed hearing arguments in a case involving LGBTQ+ rights and religious freedom for the seventh time. The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, involves a bakery that refused (for religious reasons) to bake a wedding cake for a gay couple. The couple then sued for discrimination, and the case could settle the question of whether religious rights can be used as a justification to discriminate against LGBTQ+ individuals.[67]

  • First Amendment Defense Act

Trump has said that he will sign into law the First Amendment Defense Act (FADA) if Congress passes it. Congress first introduced it in 2015. The law would prohibit any kind of action against any corporation, organization or person if they acted according to the belief that marriage is the union of one man and one woman or that sex should be limited to such a marriage. This act could legalize discrimination against LGBTQ+ people in many situations, including access to medical care and spouse benefits, and prevents the Federal government from fighting this discrimination.[68] For an example, an adoption agency would be allowed to refuse to place kids with LGBTQ+ parents and still be entitled to government/taxpayer funding.[69] Attorney General Jeff Sessions was a sponsor of FADA when he was a senator. When Vice President Mike Pence was the governor of Indiana, he signed a Religious Freedom Amendment allowing people to discriminate against LGBTQ+ people. A similar amendment was attached to a 2016 defense authorization act, but it was removed because President Obama promised to veto. Under President Trump, such an amendment or law could be passed.[70]

  • Similar laws have been introduced or are being considered in various states. See the State and Local Pages to see if your state has one.

Data Collection[edit]

  • The Department of Health and Human Services (HSS) has eliminated questions about LGBTQ+ people from two annual surveys that evaluate the performance of federal services, the National Survey of Older Americans Act Participants and the Annual Program Performance Report for Centers for Independent Living. Without this data, it will be hard to tell whether the programs included in these surveys meet the needs of all their recipients, including LGBTQ+ people.[71][72] On April 27, 2017, 19 senators from both sides of the aisle sent a letter to the HSS to ask for the questions to be restored, and two weeks later 49 House members asked the HHS to restore the questions in the National Survey of Older Americans Act Participants.[73][74]
  • The Census Bureau will not include questions on sexual orientation and gender identity in its 2020 census. It will miss the opportunity to provide lawmakers with more accurate data on their constituents and the best way to meet their needs.[75]

2018 Budget[edit]

The budget put forward by the White House proposes cutting civil rights offices in various departments across the government, including at the Justice, Health and Education Departments, as well as eliminating 249 full-time positions at the Equal Employment Opportunity Commission, which enforces federal laws against discrimination. It also diminishes the powers of the agency which enforces the executive order prohibiting federal contractors from discriminating against LGBTQ+ employees.[76]

Vulnerabilities in Republicans' Strategy[edit]

  • FADA would require 60 votes in the Senate to overcome a Democratic filibuster, which means that Democrats can block it from passing if enough of them oppose the law.
  • The fight against HIV has in the past been supported by both Republicans and Democrats, and many members of Congress have criticized Trump's 2018 proposed budget.[77] Trump's proposed budget probably won't be passed, and funding for HIV should not be affected as much as it would under that proposal.
  • Laws that go against Supreme Court rulings, such as the failed North Carolina attempt to ban same-sex marriage[78] and the current Texas challenge to the Supreme Court ruling on marriage equality,[79] will probably not be passed.
  • States and local councils can pass laws when they find that federal laws are lacking. The city of Jackson, Michigan, passed a law protecting LGBTQ+ people from discrimination, and many other states and cities have passed similar laws. See the State and Local Pages to see where your state stands on antidiscrimination laws.
  • Popular opinion tends to shift towards acceptance, and researchers are starting to see positive impacts of equal rights. A study showed that allowing trans kids to transition is very beneficial for their mental health. Trans kids who transitioned were no different from their peers or siblings in terms of development and self-reported depression or anxiety.[80] Another study found that when states adopt marriage equality, suicide rates among teenagers and young adults (especially LGBTQ+ youth) decrease significantly.[81]