In 2021, Our Fight for LGBTQ Rights Moved to the States
Several great strides for LGBTQ rights were made in 2021, but we also encountered an unprecedented upsurge in discriminatory legislation. Our vision of a world where LGBTQ people can truly live freely and openly is far from reality, particularly for LGBTQ people of color as well as trans and non-binary people. This year saw the passing of Jim Hormel, who helped start what is now the ACLU’s LGBTQ & HIV Project, and we also gained confidence that our work will continue thanks to the generosity of Jon L. Stryker and Slobodan Randjelović.
Here are some of the highlights — and lowlights — of 2021 in LGBTQ rights.
Biden Acts to Protect Trans Rights
On day one of his administration, President Biden issued an executive order directing all federal agencies to recognize that existing federal bans on sex discrimination protect against LGBTQ discrimination as well. This order recognized the incredible victories won by Aimee Stephens, Don Zarda, and Gerald Bostock at the Supreme Court in 2020, as well as many other victories by LGBTQ people in other courts.
On January 25, President Joe Biden repealed the transgender military ban enacted by the Trump administration. The ban was the subject of multiple lawsuits including Stone v. Trump which was filed by the ACLU, the ACLU of Maryland, and Covington & Burling LLP on behalf of six transgender members of the armed forces.
As we’ve seen before, however, a more supportive federal government means those who are opposed to LGBTQ equality moved their fights to the states.
More Anti-Trans Bills Were Introduced and Passed in 2021 Than any Other Year
2021 set a record for the most anti-LGBTQ bills passed during a legislative session. Over 100 anti-LGBTQ laws were proposed in 35 states around the country, and these bills overwhelmingly targeted trans youth. While the attacks differ — some would ban medical care for trans youth, some would ban trans youth from school sports, and others would make it harder for trans people to get accurate state IDs — they are not isolated. They represent a coordinated campaign to push trans people out of public life.
The ACLU has filed lawsuits in Arkansas, Idaho, Montana, Tennessee (twice), and West Virginia challenging laws passed since 2020. These lawsuits have already blocked enforcement of unconstitutional laws attacking trans people in four states.
Wins for Accurate Gender Markers on IDs
After years of advocacy by transgender, non-binary, and intersex people, the Biden administration in June announced that the Department of State will now update the gender marker on passports without requiring medical documentation, and will add an “X” designation option. In January, the ACLU launched its largest-ever campaign targeting the federal government on LGBTQ rights to urge the Biden administration to issue an executive order on accurate federal IDs across all federal agencies. Nearly 100,000 Americans contacted the White House in support of access to accurate IDs for all people, alongside a coalition of over 80 advocacy organizations and several Congressional offices.
They The People: Accurate Gender Markers for All
The latest on They The People: Accurate Gender Markers for All
Source: American Civil Liberties Union
A federal court sided with our clients Darcy and Destiny in January, finding that Alabama’s driver’s license policy, which refuses to provide accurate gender markers on licenses belonging to transgender individuals, violates the rights of transgender people. The state appealed and we expect an argument to be scheduled before a federal appeals court soon.
And in late March, The New York Civil Liberties Union and Legal Services of NYC sued the New York State Office of Temporary and Disability Assistance on behalf of our clients Jules and Jaime for discriminating on the basis of gender identity against non-binary New York residents by barring non-binary people from applying for or receiving benefits using an accurate gender marker.
Trans Women Fight Abuse in the Criminal Legal System
In New Jersey, the Department of Corrections recently to adopt a system-wide policy to help protect transgender, intersex, and non-binary people in prisons. This was the result of an agreement settling a civil rights suit brought by a woman who was forced to live in men’s prisons for a year and a half, represented by the ACLU of New Jersey.
In Illinois, a federal court the Department of Corrections to take immediate steps to improve housing and health care conditions for transgender people. The ACLU of Illinois brought a class-action lawsuit on behalf of transgender women. In the trial, Sora Kuykendall said:
“during strip searches I would break down and cry and shake, and when I would get back to my cell I would do the same.”
Supreme Court Again Refuses to Rule That the Constitution Protects a License to Discriminate
For the second time in three years, the Supreme Court once again refused to rule that there is a constitutional license to discriminate. The case involved Catholic Social Services, a taxpayer-funded foster care agency, which had sued Philadelphia claiming a constitutional right to discriminate against qualified same-sex parent families because of a religious objection. The ruling means other taxpayer-funded government programs such as homeless shelters, disaster relief programs, and health care should continue to ensure that LGBTQ individuals have equal access to necessary social services. And for the over 400,000 children in foster care across the country, the ruling will help ensure that placement decisions are made in the child’s best interest rather than based on an agency’s discriminatory beliefs.
Expanding Access to Gender-Affirming Care
Doctors agree that gender-affirming care is lifesaving care. Both courts and the federal government have agreed for much of the past decade that denying gender-affirming care is discrimination. Yet many private insurance companies and state-funded health care programs still turn trans and non-binary people away when they seek this medically necessary care.
Our lawsuit in — on behalf of Mika Covington and Aiden Vasquez — and our advocacy in — on behalf of Charley Osman — have led to changes in discriminatory policies. And the Supreme Court refused to hear a case that could have opened the door to even more discrimination in health care.
Shon Thomas and Gwendolyn Cheney of Georgia are still waiting for an end to their state’s ban on Medicaid coverage for gender-affirming care.
Financial Institutions Told to Stop Discriminating Against Sex Workers
MasterCard recently instituted a new and restrictive policy targeting adult content websites. This is bad news for many sex workers, whose safety and livelihoods depend on access to financial services and online platforms. The policy makes it harder for sex workers to do business online and makes sex workers more vulnerable, especially those who are trans women of color.
We’ve mobilized thousands of people who want to see MasterCard change their policies. Decriminalizing and destigmatizing sex work is key to ending the violence and harassment so often faced by sex workers.
We also took action to end discrimination towards trans and non-binary workers at , Alaska Airlines and .
Gavin Grimm Finally Wins
The Supreme Court declined to hear Grimm v. Gloucester County School Board, a victory for Gavin Grimm. Years after Gavin first spoke in front of his school board, and after multiple courts ruled in his favor, it was finally clear that his school violated federal law when Gavin was prohibited from using the same restrooms as other boys.
Unfortunately, not all Virginia lawmakers have gotten the memo that trans people belong in schools. In spite of Gavin’s victory and a new state law, the ACLU of Virginia recently the Hanover County school district for refusing to protect transgender students. A similar suit was by the ACLU of Indiana this year.
In 2022, we expect attacks on trans youth to continue: those who fought against marriage equality shifted to bathroom bills, then sports, then health care and now they are working to and curriculums that acknowledge the existence of trans people.
We will need your voice and your support to respond to these attacks in 2022 and beyond.
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.