In the past seven days, the House of Representatives has held two historic hearings on the Equality Act, HR 5, a bipartisan bill that would add explicit protections from discrimination based on sexual orientation and gender identity to our civil rights laws, and update the laws to provide increased protection for all women and people of color. What was most notable from the hearing is that (apart from one witness), no one denied that it is wrong to discriminate against someone because of their sexual orientation or gender identity.
Opponents of equality are faced with the undeniable truth that a significant majority of the American public . So during the hearings we saw them turn to rehashing arguments that the laws are too vague, that protecting trans people will somehow take away rights from non-transgender women and girls, and that freedom of religion will be imperiled.
As we know from decades of experience with similar state laws that protect LGBTQ people, these laws help ensure that people can go about their day-to-day lives free from discrimination. They give clarity to employers, schools and businesses about their obligations under the law. There is nothing vague about protecting LGBTQ people from discrimination. Opponents argue that the Equality Act is “vague” because, they say, it is impossible to know if someone is really trans. That is both factually and legally wrong.
All of us have a gender identity, and there is no reason to question the sincerity of transgender people’s identities. And there is no requirement that a protected characteristic have outward and objective manifestations. We don’t, for example, require that one prove their race or religion with scientific markers. Nor is there any history of people using trans-inclusive laws to fake being trans in order to be protected from discrimination or to take away benefits from non-transgender women.
The next argument — that protecting trans kids and adults from discrimination will result in harm to cisgender women and girls, particularly in sports — echoes that nondiscrimination protections will result in harm in restrooms. They’ve those arguments were fabricated. Here, too, nothing in the Equality Act or any other local, state or federal non-discrimination law threatens to undermine women’s sports or any other women’s activity or space. Women and girls who are transgender are women and girls. They are not male. And protecting people from discrimination based on gender identity doesn’t allow anyone to take advantage of the law by pretending to be trans. That’s why women’s rights and gender justice organizations are supporting the Equality Act. In fact, far from harming women, the Equality Act expands sex discrimination protections for all women – for the first time prohibiting sex discrimination by businesses open to the public and those that receive federal funding.
Finally, our civil rights laws and freedom of religion will continue to co-exist under the Equality Act, as they have under the civil rights laws for over half a century. The Act leaves in place all of the existing exemptions for religious organizations and individuals. It also clarifies that the Religious Freedom Restoration Act cannot be used as a claim or defense to any civil rights claim – because the government’s interest in enforcing those laws is so important, and allowing people to claim their religious beliefs entitle them to discriminate would let those beliefs be used as a sword.
Watching , and eight-year-old sitting in the committee hearings, and hearing their stories, I was struck by their strength and their courage. The reality is that discrimination is real and pervasive — nearly two-thirds of LGBTQ Americans report having experienced discrimination in their everyday lives, and those rates are even higher for LGBTQ people of color. Carter, Jami and Kai are not alone.
That’s why we need clear, consistent protections nationwide in employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.
Updating our civil rights laws won’t change everything. But it will give people a tool to fight for equal dignity and respect. And it will send the message that the government cares about whether and how LGBTQ people live.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.