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

  • Call your Member of Congress by dialing tel:844-6-RESIST and tell them 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 to Trans/LGBTQ+ Crisis Resources who may need them.

Recent Updates

  • 4/19/2017: The 6th Circuit Court of Appeals is considering whether Title VII of the Civil Rights Act, which prohibits discrimination based on sex, also protects transgender people. The 7th Circuit Court recently ruled that Title VII does prohibit discrimination based on sexual orientation, so this could establish an important precedent to protect transgender individuals against discrimination too.[1]

Actions Taken by the Federal Government
Laws Proposed by Congress

Legislative Actions

Legislation that Supports Equity and Justice

  • S. 411 would end profiling by law enforcement and for other purposes, including on the basis of sexual orientation or gender identity.
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  • H.R. 1447 would prohibit discrimination in housing on the basis of sex or sexual orientation.
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  • H.R. 149 would facilitate the fight against discrimination in housing.
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  • S. 662 also known as NO HATE Act would strengthen legislation combating hate crimes.[2]
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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.[3]
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See also the State and Local Pages for state-by-state legislative tracking.

Transgender Rights

There are few laws protecting transgender individuals from discrimination at the Federal level. However, recent court decisions have made more and more clear that Federal laws against discrimination based on “sex” such as the Title VII of the 1964 Civil Rights Act - prohibiting discrimination on the basis of sex, among other criteria, by an employer with 15 or more employees – do protect transgender individuals to some extent.[4] In the absence of clear Federal legislation, this remains subject to the opinion of the judges and can be reversed. This is why States have begun to pass laws protecting transgender individuals in some particular places such as schools. Many other rights of transgender individuals are decided at State level, such as the ability to change their name and gender marker on their identity paper or have their healthcare included in State Medicaid. See the State and Local Pages to see where your State stands on these issues.

Obamacare repeal

The repeal or replacement of the Affordable Care Act could have dire repercussions on the transgender community. Section 1557 of the ACA prohibits health-care providers and insurers from discriminating on the basis of gender, and the Obama administration has issued a rule based on this section barring discrimination against gender nonconforming and transgender people,[5] including for transition-related care and gender reassignment surgery.[6] If the ACA is repealed, then the rules that interpret the law (including this protection) would no longer be in effect. Furthermore, given that the new Secretary for Health and Human Services, Tom Price, has objected to other protections for transgender people,[7] he is unlikely to try to reinstate a similar protection through other means. In addition, Planned Parenthood is one of the largest providers of health care for trans people, and blocking Medicaid patients from accessing its health centers, as stated in the replacement version of Obamacare proposed by Congress and the Administration so far, would dramatically impact trans people’s access to health care.[8]

Military

Trump and his security advisors have described the move to authorize transgender soldiers to serve openly and to ban discharge based solely on their gender identity[9] as ill-advised "social engineering" imposed on the armed forces.[10] Trump's pick for Secretary of Defense, Gen. James Mattis, has also voiced skepticism and criticized civilian leaders for pushing a "progressive agenda" that could weaken the Army. It is also worth noting that as a congressman, Pence voted against the repeal of the ban on openly gay troops—as did Jeff Sessions. [11] It would be easy to rescind or revise the Pentagon policy on transgender individuals, as Mattis would only need to notify Congress 30 days in advance and no legislation would be required,[12] but the move would impact an estimated 1,320 to 6,630 soldiers (numbers from the RAND report commissioned by the Pentagon in August 2008[13]) and leave them without protection.

Schools

The Trump Administration has withdrawn an Obama-era guideline on non-discrimination policies for transgender students. This guidance interpreted Title IX of the Educational Amendments of 1972 to mean that schools "must not treat a transgender student differently from the way it treats other students of the same gender identity." Withdrawing this guidance means that students can now be required, under the authority of state or local school boards, to use restrooms and changing facilities that correspond with their biological gender rather than their gender identity. It also limits students' eligibility to play on sports teams that correspond with their gender identity. It does still allow school boards to implement their own protections, and permits individuals or advocacy groups to appeal to Federal courts if a transgender student's rights have been violated.[14], [15]

Supreme Court

The Supreme Court recently considered Gloucester County School Board v. G.G., the case of a transgender student who identifies as a boy and wants to be able to use the boys’ bathroom at his Virginia high school against the school board, which 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 Administration rescinded the Obama-era guidance advising schools to allow transgender students to use the bathroom matching their gender identity, on which the ruling to be examined by the Supreme Court relied heavily. Both sides had previously contented that even without the guidance, the Court could and should decide whether the board’s policy violates Title IX, the Federal civil rights law that bars discrimination in education. The 4th Circuit Court will now examine the case again to decide whether Title IX applies to transgender students.[16]

Marriage Equality

The 2015 Obergefell v. Hodges Supreme Court decision established that same-sex couples have a right to marry. However, no Federal law has been passed in this sense so the Supreme Court, if its balance changed, could still reverse the decision. Moreover, some are trying to limit or challenge this right at State level. See the State and Local Pages to see where your State stands on these issues.

Supreme Court

Judge Gorsuch has been confirmed to the Supreme Court; given his track record, he is poised to align with the conservatives on the bench and oppose Obergefell v. Hodges. If Trump was in a position to nominate other conservative justices to the Supreme Court, he could change the composition of the court so that it would overturn the decision if brought to the court again. In other words, because this was a narrow 5-4 decision the first time, appointing one more conservative justice could result in rulings that revoke marriage equality.

State Challenges

  • The Texas Supreme Court has agreed to review a decision granting equal benefits to same-sex married couples, with at least one judge on record endorsing the idea that marriage is a right but spousal benefits are not.[17] The decision could lead to the case being examined by the US Supreme Court, and depending on its balance at the time the Obergefell v. Hodges decision could be at least partially called into question.
  • In April 2017 North Carolina lawmakers introduced a bill stating that the Supreme Court overstepped its authority as defined by the Constitution when it ruled to legalize same-sex marriage. The bill argues therefore that no same-sex marriages are valid in North Carolina as they had previously been banned by an amendment to the State Constitution in 2012.[18] The Speaker of the State House (R) announced shortly after that, considering the strong constitutional concerns, the bill would be referred to the House Rules Committee and would not be heard, effectively killing it.[19]

The Fight against HIV

HIV/AIDS 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, and reports show that transgender individuals, and transgender women in particular, are more at risk than others as well[20]. Discrimination and stigma can make it more difficult for LGBTQ+ individuals to access diagnosis and treatment[21]. Any law affecting HIV prevention and care therefore disproportionately affects the LGBTQ+ community, and current action at the Federal and State level could endanger access to treatment.

Medicaid

The Medicaid expansion through the ACA had a crucial impact on the fight against HIV: a report from the Kaiser Foundation states that Medicaid is now the single largest source of coverage for people with HIV in the US, covering more than 40% of people with HIV in care and accounting for 30% of all Federal spending on HIV care.[22] The repeal of the ACA, and the elimination of the Medicaid expansion, would strip many HIV patients of coverage. 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, it becomes transmissible again.[23] The ACA also created the Medicaid requirement that the states provide 10 essential health benefits, including prescription drugs, which means it is unclear what state would provide HIV patients if the ACA is repealed. Access to preventative services such as testing or PrEP[24] (a drug reducing the risk of contracting HIV, generally used by HIV negative people at risk of being contaminated) would also be impacted for low-income people currently on Medicaid in case of a repeal.

Proposed budget

The proposed budget put forward by the Trump administration calls for continued funding to the Ryan White HIV/AIDS providers, a program that provides health care to people living with HIV who cannot get health insurance (the third-largest source of federal money for domestic HIV care after Medicare and Medicaid) and the Administration has mentioned fighting against HIV as a domestic and international priority, maintaining funding to global organizations like the Global Fund to fight AIDS, Tuberculosis and Malaria(see the Foreign Policy page for more information on global health and HIV).[25] However, the elimination of the Medicaid expansion would mean a loss of coverage even with a maintained contribution to the Ryan White program, and prevention services would not benefit from it as the Ryan White program only covers people who are HIV positive.[26] Moreover, documents supplied by the White House to Congress call for a $50 million cut in the domestic HIV/AIDS budget and another $50 million cut to the CDC's Global HIV/AIDS program despite assurances that the fight against HIV would not be impacted by the budget cuts.[27] The same documents call for a $242 million reduction in the contribution to the President's Emergency Plan for AIDS Relief (PEPFAR), a US organization that provides 11.5 million people around the world with HIV treatment.[28]

State Laws

Some states have also passed HIV/AIDS criminalization laws[29] making 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, but many laws criminalize behaviors that are unlikely to lead to transmission.[30] Because the laws focus on disclosure, not actual transmission, they serve no real purpose. All states have other, non-HIV-specific laws that can be used to prosecute transmission of HIV, so these laws just needlessly single out and stigmatize HIV-positive people and reinforce the image of them as “dangerous.” It also allows the saliva or blood of an HIV-positive person to be classified in court as a “deadly weapon.”[31] HIV criminalization laws also disproportionately target people of color, mainly African Americans, and gay men.[32]

See the State and Local Pages to see if your State is affected by these laws.

Other Discrimination Issues

As long as discrimination against LGBTQ+ individuals is not clearly prohibited in Federal law, LGBTQ+ people remain vulnerable to laws and Court decisions infringing on their rights.

Administration's Position

Trump's vice president and cabinet appointees including Steven Bannon, Jeff Sessions, Tom Price and Betsy De Vos have systematically advocated for or implemented policies that discriminate against the LGBTQ+ community; the nominee for Secretary of the Air Force, Heather Wilson, and the nominee for Army Secretary, Mark Green, have also repeatedly opposed legislation and measures protecting LGBTQ+ individuals[33][34][35]; and the new head of the Department of Health and Human Services's Office of Civil Rights, Roger Severino, is a leading anti-LGBTQ+ equality activist.[36] Trump himself has advocated for policy decisions that would have direct repercussions on the LGBTQ+ community. Trump has, for instance, vowed 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 so: on March 28, 2017 Trump signed an executive order rescinding the Obama-era order requiring companies doing business with the federal government to disclose their records on discrimination. Since 2014, companies receiving large federal contracts had to show they had complied with federal laws prohibiting discrimination based on sexual orientation or gender identity for at least three years[37](only 19 states currently have such protections).[38]

Federal Courts

The Circuit Courts of Appeals review rulings made by other Courts in their districts and serve as the final arbiters of most cases argued in the US, as only the Supreme Court stands above them. When laws passed by the States are blocked by lawsuits, the cases are then argued in front of the Circuit Courts as well. [39]Their rulings are therefore crucial to protect the rights of LGBTQ+ individuals against many kinds of discrimination.

  • Current cases:
    • In 2016 Mississippi passed HB 1523 a law stating that there could be no retaliation against a religious organization acting upon the belief that marriage should be between a man and a woman and that sexual relationships should only exist within such a marriage. This includes cases of discrimination in employment, health care and others. The law was blocked by Mississippi state courts, and the Governor of Mississippi then sued in front of the 5th US Circuit Court of Appeals to have it reinstated. The Court is currently hearing arguments.[40]
    • In 2017 the 6th Circuit Court of Appeals will hear oral arguments in 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 individuals. The ruling could set an crucial precedent expanding protections for LGBTQ+ individuals at the federal level.[41]
  • Past rulings
    • On April 4th, 2017 the 7th Circuit Court of Appeals ruled 8 to 3 that Title VII of the 1964 Civil Rights Act, which prohibits discrimination "on the basis of 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 lesbian. The 7th Circuit is the highest Federal Court ever to protect LGBTQ+ individuals under Title VII.[42]

First Amendment Defense Act

The First Amendment Defense Act (FADA), introduced in Congress in 2015, has been mentioned again by Trump who said during the campaign that he would sign it into law if it came to his desk. FADA would prohibit any kind of action against any corporation, organization or person if they acted according to the belief that marriage is or should be recognized as the union of one man and one woman or that sexual relations should be reserved to such a marriage. This Act is broad enough to legalize discrimination against LGBTQ+ individuals in a wide range of situations, from access to medical care to spouse benefits, and prevents the Federal government from fighting such discrimination in any way[43]. It means, for instance, that an adoption agency receiving government funds would be able to refuse to place kids with LGBTQ+ parents and still be entitled to taxpayer funding. [44] Jeff Sessions was among the sponsors of FADA. As Governor, Mike Pence signed a Religious Freedom Amendment allowing people to discriminate against LGBTQ+ individuals. Recently a similar amendment was attached to the National Defense Authorization Act in December 2016 for Federal contractors, but it was removed under threat of veto by President Obama. Under President Trump, such an amendment or law might succeed in being turned into law.[45]

  • Similar laws, albeit with different ranges, have been introduced at State level as religious freedom laws. See also the State and Local Pages to see how your State stands on these issues.

Data Collection

The Department of Health and Human Services has eliminated questions about LGBTQ+ individuals from two annual surveys evaluating 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 much harder to evaluate if the programs evaluated through these surveys meet the needs of all their recipients, including LGBTQ+ individuals.[46][47] The Census Bureau has also announced it would not include questions on sexual orientation and gender identity in its 2020 census, missing the opportunity to provide more accurate data to lawmakers on their constituents and the best way to meet their needs.[48]

Vulnerabilities in their strategy

  • To pass, FADA would require 60 votes in the Senate to overcome a Democratic filibuster, which means that Democrats can block such legislation from passing if they are unified in their opposition.
  • The fight against HIV has historically received bipartisan support in Congress, and the proposed budget has been heavily criticized in Congress. Therefore, it is unlikely to be passed in its current form and funding for HIV should not be affected as much as it would under the current proposal.
  • Laws that go against Supreme Court rulings, such as the failed North Carolina attempt to ban same-sex marriage[49], and the current Texas challenge to the Supreme Court ruling on marriage equality[50] are not likely to be passed.
  • States and local councils can pass specific laws to make up for gaps found in laws at the federal level. Most recently the city of Jackson, Michigan, passed a law protecting LGBTQ+ individuals 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 these issues.
  • Popular opinion tends to shift towards acceptance, and researchers are starting to see the positive impact of an equal environment. A study has shown that allowing trans kids to transition is very beneficial for their mental health - trans kids allowed to transition showed no difference to their peers or siblings in terms of development and self-reported depressive symptoms or anxiety[51]. Another study has found that when states adopt marriage equality, suicide rates among teenagers and young adults decrease significantly, especially among LGBTQ+ youth.[52].