As you may already know, yesterday we announced the settlement of Constance McMillen’s lawsuit against her Mississippi high school for canceling the prom rather than allowing her attend with her girlfriend as her date and wear a tuxedo.
While a terrific personal victory for Constance and a vindication of her rights, the agreement is especially noteworthy in that it will result in the implementation of a policy banning discrimination and harassment on the basis of sexual orientation and gender identity in the Itawamba County School District – the first such policy to do so at a public school in the state of Mississippi. The fact that, in the year 2010, there was not one policy at any public school protecting LGBT students from discrimination and harassment in Mississippi prior to this agreement is a sad reminder of how vulnerable LGBT youth remain.
The ACLU’s own work advocating for equal protection for LGBT students across the country is replete with examples of those who have suffered discriminatory treatment at the very hands of those tasked with providing them with an education and ensuring their safety within schools. For example:
- faced daily anti-gay harassment and discrimination from teachers and school staff and was required to participate in a school-sponsored “counseling” group designed to discourage students from being lesbian, gay, bisexual, or transgender.
- A male freshman at a high school in Tennessee was sent home from school for wearing a T-shirt that said, “I [Love] Lady Gay Gay.” Before that, he had long been subjected to daily anti-gay harassment at school, including threats of physical violence. He was not only unable to get help from the school, he was told by school employees that he had “brought it on himself by coming out.”
- A female student in a public high school in Orange County, California was repeatedly singled out for discipline (including a one-week suspension), had her sexual orientation revealed to her family without her permission by school officials, and was forced to transfer to another school in the middle of the second semester. The student, who previously had straight-A grades and a spotless disciplinary record, was punished for occasionally showing affection towards her girlfriend, even though heterosexual students were routinely allowed to hold hands, hug and kiss on campus.
These three examples, rather than being the rare instance of discriminatory treatment, speak directly to the experiences of daily life for many LGBT students. entitled the National School Climate Survey, nine out of 10 LGBT students reported that they had experienced harassment at their school in the past year. Additionally, three-fifths felt unsafe at school because of their sexual orientation, and about one-third reported that they had skipped a day of school in the past month because of feeling unsafe. Such a toxic environment denies LGBT students their right to an equal education, and contributes to unacceptably high rates of absenteeism, dropouts, adverse health (including mental health) consequences, and academic underachievement.
Thankfully, there is currently legislation pending in both the House of Representatives and Senate that would provide LGBT students across the country with a comprehensive federal prohibition against discrimination in public schools. This legislation – known as the Student Non-Discrimination Act (SNDA) would protect students based on their actual or perceived sexual orientation or gender identity and would provide victims of such discrimination and harassment with effective legal remedies. Currently, SNDA has the support of 121 members in the House of Representatives and 23 members in the Senate.
Similar federal protections already exist for public school students on the basis of their race, color, sex, religion, disability or national origin. Despite the fact that LGBT students are particularly vulnerable to experience discrimination and harassment at school, they remain glaringly absent from such federal civil rights statutes. Congress needs to act to ensure that what happened to Constance and so many other LGBT students just like her at schools across the country will no longer be allowed. Simply having the federal government affirmatively on the side of protecting LGBT students would send a very powerful message in and of itself.
There are many compelling reasons why passage of the Student Non-Discrimination Act (H.R. 4530 and S. 3390) is so important. Constance McMillen and the LGBT students, both known and unknown, of Mississippi are but one.
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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.