Why a Harris Presidency Promises Hope for LGBTQ Rights
For the past four years, the Biden-Harris administration has made LGBTQ rights a cornerstone of its policy agenda. Among other efforts, the Biden-Harris administration has consistently sued states to block anti-trans laws and policies, including asking the Supreme Court to lift bans on medically-necessary health care for trans adolescents.
While there remains work to be done to protect the LGBTQ community, we have seen significant progress under the Biden-Harris administration in undoing the anti-trans and anti-LGBTQ policies of Donald Trump’s administration. Given this strong record, should Harris win in November, we’re calling on her administration to continue to ensure that the rights and freedoms of LGBTQ people are protected and prioritized across the federal government.
Learn more in our breakdown.
Harris on LGBTQ Rights
The Facts: Given the significantly anti-trans policy environment that has emerged over the past four years, the ACLU would push a future Harris administration to build on the foundation established during Joe Biden’s presidency by using the power of the federal government to protect LGBTQ people from harm in as many ways as possible.
The Biden-Harris administration ordered federal agencies to protect LGBTQ people against discrimination by ensuring that the Supreme Court’s historic decision in Bostock v. Clayton County, in which the court held that the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation and gender identity, applied in the contexts of not just employment, but housing, health care, and credit lending. The administration also reopened the military to transgender service members, reversing the Trump administration’s ban. Additionally, the administration expanded access to gender-affirming health care through government healthcare programs, including in federal prisons, and expanded access to accurate gender markers on federal government identification documents, such as passports.
While a pro-equality president can do a lot to protect the rights and freedoms of LGBTQ people, they cannot achieve the long-sought goal of comprehensive federal protections on their own. From the earliest days of her service in the Senate, Harris consistently made clear her support for the Equality Act — legislation to provide LGBTQ people with explicit, comprehensive protection against discrimination – and, as vice president, has consistently urged Congress to pass the legislation. However, if Harris is elected and faced with a divided Congress, similar to what we have now, it will be essential for the Harris-Walz administration to remain vigilant against efforts to put anti-LGBTQ measures, including those banning access to gender-affirming care, in must-pass legislation, such as bills that fund the federal government.
Why It Matters: In addition to Trump-era policies that sought to actively disenfranchise LGBTQ people, without federal-level protections, the LGBTQ community continues to face discrimination in nearly every aspect of daily life.
In the last two years, states have considered 1,197 anti-transgender bills. Of those, 129 have been passed into law. Anti-trans or anti-LGBTQ laws restrict access to needed health care for adults and children, deny individuals the right to live freely and safely as they are, and hinder the ability to simply exist free from discrimination.
Harris on LGBTQ Rights
The ACLU will ensure that the Harris administration stays focused on protecting and expanding justice for the LGBTQ community.
Source: American Civil Liberties Union
How We Got Here: From its first day in office, the Biden-Harris administration set about undoing many of the Trump administration’s regressive anti-LGBTQ federal policies and enhancing federal protections.
However, when a new presidential administration takes office in January 2025, the LGBTQ community will still be confronting a dismal policy landscape in about half the country where trans adolescents — and increasingly trans adults — face unlawful discrimination. In many states, trans people cannot access gender-affirming medical care; are unable to use restrooms in schools and other government buildings; find that updating gender markers on identity documents is challenging or impossible; and cannot fully participate in society as their authentic selves.
Our Roadmap: To help a future Harris-Walz administration pass comprehensive federal nondiscrimination protections for LGBTQ people, we will continue to push Congress to reform the Senate filibuster and pass pro-equality legislation, like the Equality Act. The Biden-Harris administration has championed the Equality Act, but a vocal anti-LGBTQ minority has used the filibuster to delay its passage through Congress. The ACLU is prepared to use public pressure — including aggressive lobbying and grassroots mobilization — to compel Congress to finally act.
While the passage of explicit, comprehensive legislation protecting LGBTQ people from discrimination is the ACLU’s top LGBTQ priority in Congress, there are many other actions that a Harris-Walz administration should take to safeguard the rights of LGBTQ people. For example, one of the most significant and powerful ways for a Harris-Walz administration to support the needs of trans people is to issue an executive order on day one directing federal agencies to examine ways that they can affirmatively enhance access to gender-affirming care in federally funded programs. An executive order like this would provide clear direction to federal agencies, and do so in a way that will serve the goal of comprehensively addressing this issue.
Additionally, we expect Harris to work with the Justice Department’s Civil Rights Division to use litigation to protect trans people across the country from discriminatory state laws. The ACLU will continue this work in communities across the country by engaging our activists to join the fight for LGBTQ equality in their home states.
What Our Experts Say: “The Biden-Harris administration has a strong record of protecting and expanding the freedom of LGBTQ people at a time when those freedoms have faced an unprecedented assault. With further attacks on our rights and a landmark Supreme Court case on the horizon, we would encourage a Harris-Walz administration to continue this commitment and do everything in their power to protect our rights, our health care, and our freedom to be ourselves without fear.” — James Esseks, co-director of the ACLU’s LGBTQ & HIV Project
What You Can Do Today: Recently, dangerous and discriminatory efforts to strip trans people of their rights, including efforts to use the National Defense Authorization Act (NDAA) to limit care for trans servicemembers, have only increased. These tactics affect everyone.
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.