The Movement for Basic Nondiscrimination Protections for LGBT Americans Just Took a Big Step Forward
The movement for basic nondiscrimination protections for lesbian, gay, and bisexual Americans just took a big step forward. Gay people all across the country now have a place to turn if an employer fires them because of their sexual orientation. That’s a big deal because explicit protections for lesbians and gay men are almost nonexistent in federal law, and 28 states also lack any explicit state-level protections.
The advance comes from a by the United States Equal Employment Opportunity Commission that employment discrimination based on sexual orientation is a form of sex discrimination, which is outlawed by longstanding federal law. Back in 2012, the EEOC issued that discrimination based on gender identity or expression is also a form of sex discrimination that violates federal law. Both rulings are landmark advances for civil rights. Now anyone, in any part of the country, who works for an employer with 15 or more employees can file a charge of sex discrimination with the EEOC if she is discriminated against because of her sexual orientation or gender identity or expression.
Now that same-sex couples have the freedom to marry nationwide, the LGBT movement has refocused its energy on securing nondiscrimination protections in employment, housing, public accommodations, and education, among other aspects of daily life.
We can create those protections in two ways: Update federal, state, or local laws to explicitly cover LGBT people, or get courts or administrative agencies to recognize that discrimination against LGBT people is a form of sex discrimination, which is already barred in many contexts under federal and state law.
The EEOC ruling significantly advances the sex discrimination path to comprehensive civil rights protections for LGBT people. The next step is for Attorney General Loretta Lynch to follow former and make clear that the Department of Justice interprets the federal ban on sex discrimination in employment to cover sexual orientation discrimination as well. The ACLU has urged the DOJ to do just that.
There are some important limits to the sex discrimination path, however. First, while the EEOC’s interpretation of sex discrimination is now crystal clear, not all courts agree. That should change with time, given how much sense the EEOC’s ruling makes. But the law is still developing and for now private employers do not have to follow the EEOC’s decision in all parts of the country because of the patchwork of protections.
Second, the EEOC’s ruling applies to employment discrimination, but does not directly affect other federal laws banning sex discrimination in housing, education, or credit. And, since there is no federal ban on sex discrimination in federal funding or public accommodations, the sex discrimination path simply can’t get us truly comprehensive nondiscrimination protections at the federal level.
The unsettled legal landscape illustrates the need for congressional nondiscrimination legislation that expressly covers lesbian, gay, bisexual, and transgender people and that also covers the full range of civil rights contexts — not just employment but housing, public accommodations, education, credit, and federal funding as well. Such legislation would not only protect LGBT people from discrimination, but it would also help eliminate uncertainty and confusion for businesses by providing employers and employees alike with one set of clear rules that everyone knows and can follow.
We’ll keep working for those clear protections, but the EEOC ruling is a monumental step forward and provides important protections for millions of LGBT Americans. That’s something to celebrate!
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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.