“
That is what Edie Windsor imagined her late spouse, Thea Spyer, would have said after their love story brought down the core of the federal Defense of Marriage Act in United States v. Windsor. Edie and Thea did do it. They brought down DOMA and – along with hundreds of thousands of other same-sex couples and their families– they transformed our nation’s understanding of same-sex couples and their families.
Their victory, however, wasn’t total, as states could still deny same-sex couples their right to marry and the recognition of their existing marriages. But they started a fire that couldn’t be put out. Just weeks after the Supreme Court struck down DOMA, another couple facing one of life’s greatest tragedies embarked on a journey that now will end before the nation’s highest court as well. Only this time, a win would end marriage discrimination for good.
, long-time residents of Cincinnati, Ohio, had been together over 20 years when John was diagnosed with amyotrophic lateral sclerosis, or ALS, also known as Lou Gehrig’s disease. With John already in hospice care, the court’s Windsor decision gave Jim and John a chance to marry and receive the federal benefits that flow from marriage before John’s death. So on , Jim and John flew to Maryland, where same-sex marriage was legal, in a medically equipped plane. John was too sick to leave the plane so they wed on the tarmac before flying back to their home in Ohio.
A few weeks later, the two men filed a lawsuit in federal court challenging Ohio’s refusal to recognize the couple’s marriage, including on the last official document of John’s life – his death certificate. On that form, the state was going to say that John died “single,” leaving blank the line for surviving spouse.
Almost two years after filing the case, and 18 months after John’s death in October of 2013, Jim’s case, Obergefell v. Hodges, is at the Supreme Court. Just like Edie before him, Jim is about to make history.
On behalf of Jim and the other petitioners in the Ohio marriage cases – Obergefell v. Hodges and Henry v. Hodges – as well as the petitioners in the Kentucky marriage cases – Bourke v. Beshear and Love v. Beshear, – we today filed two briefs at the Supreme Court arguing for the freedom to marry. In addition, there are other couples at the Supreme Court from Michigan and Tennessee fighting for a right already recognized by 37 other states.
Arguing that Ohio’s marriage recognition bans violate the due process and equal protection provisions of the 14th Amendment, our brief in Obergefell begins:
Petitioners married seeking a cherished status that protects families throughout life, from cradle to grave. But Ohio refuses to respect the dignity and status conferred on Petitioners' marriages by other states. From the start of the marriage to the birth of children to the death of one spouse and beyond, Ohio erases the legal relationships of Petitioners' families. Ohio treats these spouses as legal strangers to one another and recognizes only one member of each couple as the legal parent to their children. Ohio even cruelly refuses to recognize Petitioners‘ marriages on death certificates when one spouse dies. Through its marriage recognition bans, Ohio strikes out at a class of individuals whose intimate, personal relationships have been afforded a solemn and special status by other states—men and women who love and marry a person of the same sex.
We call on the court to strike down the marriage bans because, among other things, “No more children should be demeaned by states like Ohio; no more loving spouses should die without the dignity that accompanies respect for their marriages, while the democratic process grinds its slow way towards justice.”
Jim and John had to wait too long to marry because the government thought it permissible to treat people different because of their sexual orientation. As Jim explained at the very first hearing in his case:
[T]his is about more than money or benefits. John will die soon. I love him deeply; more than any other person on earth. I want the world to know that we share the highest commitment two people can make to each other in our society. I recently reviewed a blank death certificate. When John dies he should be listed as married on that document and I should be listed as his surviving spouse. This is the last official record of his life. It breaks my heart to think that this record would omit the most important fact of his life – our marriage.
Now at the steps of the Supreme Court, with the nation watching, we fight for Jim and John, for Edie and Thea, for all the brave couples, families, widows and widowers who have dared to tell their love stories and fight for the rest of us.
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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.