The Fight Ahead: What’s Next in Attempts to Discriminate Against LGBT People in the Name of Religion?
‘Twas the season before the new legislative session and all through the house, not a creature was stirring, except for anti-LGBT lawmakers trying to pass laws that allow discrimination in the name of religious freedom.
As we prep for what’s to come in 2016, we must remember what we faced in 2015, when the Indiana Religious Freedom Restoration Act fight became a national and even that found its way into , , , and more.
In short, Gov. Mike Pence of Indiana gravely miscalculated where Hoosiers and Americans across the country were on whether religion should be used to discriminate. After the legislature passed SB 101 , the governor signed it into law in a private ceremony that included some . The ensuing controversy and relentless threw the state of Indiana into and Governor Pence into the most significant of his career (one from which he ). But more importantly, Indiana taught states like Montana, Nevada, Georgia, North Carolina, and Maine that the public will not countenance discrimination, no matter what its form or disguise. All of these states declined to pursue RFRA in 2015 after seeing what happened in Indiana.
The scorecard is overwhelmingly in our favor: Nearly 80 bills introduced in 2015 in more than half of all states, and all were defeated except seven.
Obergefell v. Hodges made marriage equality a reality nationwide. And across the country, same-sex couples have been marrying, largely . Unfortunately, some decided to use their religious beliefs to discriminate against others, including Kim Davis, a government clerk who not only refused to do her job, but also refused to let others in the office do their jobs. She claimed that her religious beliefs entitled her to this special treatment, to the detriment of same-sex couples and all taxpayers in Rowan County who pay her salary. And while the public is rejecting her efforts , some politicians are jumping onto the bandwagon.
We’ve seen this playbook before — have laws on the books that allow some combination of doctors, hospitals, and nurses to refuse to provide necessary reproductive care to patients under the guise of religion. Our opponents have shown that they will not relent, to the point that even when you have a legal right, they will maneuver and scheme to undermine those rights. It’s what my colleague Ian Thompson once called “.”
We are continuing to see such attempts in the post-Obergefell world, where there are demands for exemptions that would erode the promise of equality contained in Justice Kennedy’s . The RFRA fight is not yet over, as the 2015 bill in Georgia will be in play in 2016 in a brief, 40-day legislative session. In addition, we already are seeing legislation that would:
- allow governmental employees to pick and choose whom they will serve
- allow businesses to refuse service to same-sex couples
- permit discrimination by government-funded organizations based on their belief that “marriage is or should be recognized as the union of one man or one woman.”
We are also bracing ourselves for bills — like — that could make it harder for children in our adoption and foster care systems to find loving homes, and others that would require public colleges and universities to fund discriminatory student organizations, or allow licensed professionals to provide sub-standard health care without consequences.
The heated fight in Indiana and its impact across the country was no accident. Powerful , , and and all spoke out because they know that the public will hold their feet to the fire if they don’t. We are winning — and can continue to win — only if you stay vigilant.
Follow the 2016 state legislative movements on our bill tracking page here.
Learn More About the Issues on This Page
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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.