Today, the ACLU launched three new federal marriage cases – in Pennsylvania, North Carolina, and Virginia (this last as co-counsel with Lambda Legal). These cases are step two of our two-pronged, post-DOMA, post-Prop 8 plan for winning the freedom to marry nationwide.
The U.S. Supreme Court's decisions striking down DOMA and restoring marriage for same-sex couples in California are milestones on our journey towards the freedom to marry for the entire country, but of course much remains to be done. Here's a look at the next steps:
First, we'll work to improve the map of the country by winning the freedom to marry in as many states as possible. The ACLU has been a leader on this front since bringing our first marriage lawsuit in 1970 and we've been deeply involved in opening marriage up to same-sex couples in each of the 13 states plus the District of Columbia that now have marriage equality. Our goal is at least 20 states with the freedom to marry by the end of 2016, and we are working towards that goal using four different advocacy tools:
- Lobbying in state legislatures. We're working to pass freedom-to-marry laws in state legislatures, with a current focus on Hawaii, New Jersey, and Illinois. We have lobbyists in every state legislature and we have joined forces with our coalition partners to take advantage of the demise of DOMA to push for the passage of fair marriage laws.
- Organizing ballot campaigns. We need to repeal some of the 29 state constitutional amendments that exclude same-sex couples from marriage, building on our movement's amazing successes at the ballot box last year in Maine, Maryland, and Washington. Our immediate goals are to put the freedom to marry into state constitutions in Oregon (in 2014) and Nevada (in 2016), and we are working with state and national partners to build these campaigns.
- Litigating in state court. We're also working to persuade state courts that discriminatory marriage laws violate state constitutional protections. The ACLU is pursuing such cases pending in New Mexico (as co-counsel with the National Center for Lesbian Rights) and in Illinois (as co-counsel with Lambda Legal). Since these cases raise claims only under state law, and not federal law, the state supreme courts will have the last word and our opponents can't try to get the U.S. Supreme Court to overturn any favorable ruling we may get.
- Working with right-of-center voices. Conservative voices are the next frontier in building public support for the freedom to marry, so the ACLU has hired top Republican strategists to bring right-of-center voices both to the state legislative and ballot campaigns and to the broader effort to generate greater public support for fair marriage laws.
In the second prong of our post-DOMA strategy, we will litigate federal court cases that will bring the marriage issue back to the U.S. Supreme Court, which has the power to create a federal solution by declaring that the entire country must have fair marriage laws. The Supreme Court ducked the issue of the constitutionality of Prop 8 – and thereby the federal solution – just a couple of weeks ago, but it's already clear that this core constitutional issue will get back to the Court within a few years. Even before today's announcement of the ACLU's federal marriage lawsuits, there were seven cases with federal marriage claims pending all around the country.
Today we are adding three more cases to this mix in order to ensure that strong, well-resourced cases are presented to the federal appeals courts most likely to give the issue a fair hearing. The Pennsylvania case will bring ten couples in long-term committed relationships plus one widow before the Third Circuit Court of Appeals. Check out this moving video about the widow plaintiff in the Pennsylvania case.
In North Carolina, we're adding marriage claims to our existing case seeking second parent adoptions for families headed by same-sex couples. In light of the Supreme Court's focus in United States v. Windsor on how children are harmed by the exclusion of same-sex couples from federal recognition of their parents' marriages, it's clear that the harms at the center of our North Carolina case will resonate with the Court. There are great stories here as well. Both the North Carolina case and the case we will file in Virginia, in partnership with Lambda Legal, will ensure that the core constitutional arguments we make are seriously considered by the Fourth Circuit Court of Appeals.
But the second prong of our plan – the federal marriage litigation – has the best chance of succeeding if the first prong – winning more marriage states through other means – makes significant gains over the next few years. That's why the ACLU has launched an extraordinary fundraising campaign, Out for Freedom, to raise $10 million in special funds to ensure the success of our state-by-state marriage initiative. With these resources in place we will expand fair marriage laws across the country and relegate discrimination against gay and lesbian couples to the dustbin of history.
Learn more about marriage for same-sex couples: Sign up for breaking news alerts, , and .
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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.