Next week, Congress will be back in session in our nation’s capital. With the election right around the corner, we can expect to see a frenzy of legislative activity. The past several weeks have served as a reminder for why reforming the Religious Freedom Restoration Act of 1993 (RFRA) should be on the agenda of every Member of Congress who supports LGBT equality.
In 2013, Amiee Stephens gave her employer — R.G. & G.R. Harris Funeral Homes in Detroit — a letter explaining that she is a woman and would transition to presenting full-time as a woman. The letter explained that Amiee would soon start to dress in appropriate business attire at work, consistent with her female gender identity. Two weeks later, the funeral home — which had employed Amiee since 2007 — fired her, saying that her gender transition was “unacceptable.”
In 2014, the U.S. Equal Employment Opportunity Commission filed on Amiee’s behalf, alleging that her former employer’s actions resulted in sex discrimination in violation of federal law. The ACLU filed a friend-of-the-court brief in support of the EEOC’s lawsuit.
Unfortunately, on August 18 of this year, a federal judge held that the RFRA entitled the funeral home to fire Amiee. Invoking the Supreme Court’s deeply troubling decision in Hobby Lobby, the court reasoned that RFRA required the EEOC to accommodate the funeral home owner’s discriminatory religious beliefs by requesting that the owner adopt a gender-neutral dress code instead of holding the funeral home accountable for its unlawful discrimination.
By allowing the funeral home to completely escape liability for its actions, the court’s decision gives employers a dangerous new religious exercise argument to justify discrimination against transgender people.
Last week, emboldened anti-trans forces once again , this time in a lawsuit seeking to discriminate against trans people by denying them health care. On August 23, Texas and four other states — along with the Franciscan Alliance, a Catholic hospital system — filed a lawsuit challenging regulations from the U.S. Department of Health and Human Services that, in part, prohibit discrimination against transgender people in health care.
The rule ensures that trans people can access medically necessary treatment and procedures, have those procedures covered by insurance, and be respected for who they are in medical facilities. Arguing that these protections violate RFRA, the states and organizations who filed the lawsuit object to providing services (or even referrals) for transition-related care or providing insurance that covers such care.
Those opposed to trans rights specifically — and LGBT equality more broadly (not to mention reproductive freedom) — now see in RFRA a way to undermine and attack laws and regulations that prohibit discrimination. While this was not the intention of those who supported RFRA’s passage in 1993, it is what the law is too often used for today, thanks in large part to the Supreme Court’s Hobby Lobby ruling.
Representatives Joe Kennedy (D-Mass.) and Bobby Scott (D-Va.) have introduced legislation in Congress — the Do No Harm Act — that would place a much needed limitation on RFRA to ensure that it can only be used as a shield to protect religious exercise (something the ACLU strongly supports) and not as a sword to harm others. The Do No Harm Act would prevent RFRA from being invoked to justify discrimination, denial of health care, or other harms.
We need to continue to build support for this legislation. As the struggle to win full equality for LGBT people under the law continues, we cannot allow RFRA to continue to be used as sword for discrimination.
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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.