As the Supreme Court takes up the challenge to California's Prop 8 today, and the ACLU's challenge to DOMA tomorrow, it's clear that we've reached a tipping point on marriage for same-sex couples. Public opinion on this issue has reached approval levels that couldn't have been imagined just a few years ago – it seems like every time you open the paper there's another person or organization expressing support for the freedom to marry. On Sunday, New York Times columnist Frank Bruni that March 2013 will likely be recalled as "the month when the political balance on this issue shifted unmistakably from risky to safe."
So how did we get here? An essential driver of this change is that gay people have come out all over the country, having conversations that make the issue personal for their families, friends, and co-workers. And those conversations have been facilitated by the work of many LGBT advocacy organizations, including the ACLU, who for decades have pushed for equality in our laws, for the right to be ourselves and to talk about it, and for a wider public conversation about what it means to be LGBT. Indeed, prompting opinion change on LGBT rights issues is our goal even more than changing legal rules is, since it's the opinion change that actually makes the world better for LGBT people.
As we note the rise in national support for marriage to 58 percent in recent polls, it's worth remembering the work that has led to this moment. Here are just a few of the things that the ACLU is proud to have done to bring us to this tipping point:
We have fought hard for LGBT people to be able to talk publicly about being gay and about their support for LGBT rights. Way back in 1936 (in our first gay rights case), Boston authorities censored Lillian Hellman's play, The Children's Hour, because of its lesbian content, and we sued to keep it onstage. In the 50s, we defended Allen Ginsberg and Lawrence Ferlinghetti in San Francisco's attempt to suppress the gay content of Ginsberg's Howl. Today we continue this free expression work, often in the context of representing LGBT teens who bravely come out in public schools, only to face censorship from school officials.
TheACLU has systematically battled government discrimination of all sorts against LGBT people since the 1950s. In 1956, we challenged a police raid on a popular gay bar in the San Francisco Bay Area and in 1965, challenged another police raid on a high-profile New Year's Eve charity fundraiser sponsored by the Council on Religion and the Homosexual. In 1996, we were co-counsel in Romer v. Evans, in which the Supreme Court struck down an amendment to Colorado's constitution that would have barred any non-discrimination protections for gay people. And in 2008, we represented Diane Schroer, a decorated Colonel in the Army Special Forces when she was denied a job as a terrorism researcher because she came out as a transgender woman – litigation that resulted in a landmark decision holding that federal law banning sex discrimination protects people who are changing gender.
We started fighting the military's ban on gay people back in 1970, and brought Witt v. United States Air Force, in which a federal court held that Don't Ask, Don't Tell was unconstitutional, just before it was repealed by Congress.
The ACLU has fought state bans on gay people being adoptive or foster parents for years as well. We got the Arkansas Supreme Court to strike down that state's ban on foster parenting by gay people, and also its ban on adoption or foster parenting by any unmarried couples, gay or straight. And, after five lawsuits over 20 years, we succeeded in getting Florida's courts to strike down that state's ban on adoption by gay people, passed back in 1977 in Anita Bryant's famously anti-gay campaign.
The ACLU brought the first federal freedom-to-marry lawsuit for same-sex couples, in Minnesota in 1970, and we were co-counsel in the case in which the California Supreme Court declared that gay couples have the freedom to marry. And of course we're part of Edie Windsor's legal team in her challenge to DOMA.
Though many of these cases were legal milestones, the ACLU did not bring them just to win in a court of law. Each case we bring is designed to have its biggest impact in the court of public opinion. We know that court victories do not stay won unless the public fully accepts them, and so we use media and every means we can to spark the conversations about our issues that are how hearts and minds get changed all across the country.
When added to the amazing work of our colleague organizations, this advocacy has changed the American legal and cultural landscape for LGBT people. Not only have LGBT people and our issues become part of the country's conversation, that conversation is becoming more accepting of and knowledgeable about gay people and our lives. This week's Supreme Court cases will deepen that conversation, but however the Court rules, there's no question that the conversation will continue. This change is so far along that there's no turning back, either for us or for America. Full equality for LGBT people is on its way.
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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.