Much of our focus on LGBT rights centers at the federal level, but there are also several ongoing battles in several states concerning equality.
The first is South Carolina legislators’ attempt to introduce a bill defining same-sex marriages as “parody” marriages. This laughable reasoning is a direct violation of the Obergefell v. Hodges language, which invalidates state laws “to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” However, with such severe constitutionality issues, it’s doubtful it’ll see a vote.
In Anchorage, Alaska, Proposition 1 is an effort to mandate “intimate facilities,” such as restrooms and locker rooms, be protected for one’s birth sex. The proposition is set for an April vote.
In Massachusetts, lawmakers are seeking to repeal a 2017 antidiscrimination law put into effect to protect gender identity in public places like hotels, restaurants and stores. While the Anchorage legislation only affects the Alaska city, Massachusetts’ bill would override every statewide local ordinance.
Pennsylvania sought to limit medical expenses to CHIP (Children’s Health Insurance Program) recipients barring transition-related coverage. Thankfully, the bill died in committee, but a more invasive bill in New Hampshire seeks to limit transition-related services covered under Medicare. It also prohibits minors seeking gender-confirmation surgery and allows medical-care professionals to refuse treatment based on “religious, moral or ethical convictions.”
No promo homo laws
Seven states currently have laws prohibiting positive LGBT education, including human sexuality. While many of these laws were enacted in the 1980s and ’90s, Indiana is seeking to enact a law in 2018. SB65 would require written parental consent for students to receive human-sexuality education, including information on sexual activity, sexual orientation and gender identity.
Perhaps more commonly in the limelight is religious-exemption legislation. A bill in Kentucky would prevent government interference with religious exercise, allowing religious organizations to refuse services based on moral, ethical or closely held beliefs. In Colorado and Oklahoma, legislation has been introduced to authorize foster parents to make faith-based decisions concerning the minors in their care, including conversion therapy. Only nine states and Washington, D.C., outlawed this practice for minors.
These bills make it clear LGBT people are still considered second-class citizens.
Prevention of nondiscrimination laws
Three states — Arkansas, Tennessee and North Carolina — have laws that prevent local governments from enacting nondiscrimination protections exceeding state-level laws. The most notorious is HB2 in North Carolina, which was set in motion in reaction to a Charlotte law protecting sexual orientation and gender identity at the local level. It rolled back those protections and prevented new ordinances from being enacted in other North Carolinian municipalities. Florida is set to join the ranks of these three states with proposed legislation in 2018. However, fewer of these bills are being introduced in states across the union. The ACLU, which tracks all bills across the country, has entire sections with no pending legislation listed in them. The section of roadblocks for transgender people to update identification documentation is blank, as is the health-care-access section.
There is good news!
The number of states offering legislation to protect both sexual orientation and gender identity is growing. Fourteen states have legislation in the works, and some of those states have both senate and house bills working toward more protections simultaneously. Eight more states have introduced bills to protect individuals based on sexual orientation, and while those don’t include our transgender community members, it’s definitely a step in the right direction.
The tide is slowing, and public tolerance for wasting taxpayer money on these non-starter bills — many of which die in committee or are never signed into law due to constitutionality issues — is lower than ever. Society is no longer as willing to look away from LGBT discrimination as it once was. What’s left of these bills are the last bastions of homophobia and transphobia, and they appear to be skrinking as courts whittle away the loopholes.
On Feb. 26, the U.S. Court of Appeals for the 2nd Circuit handed down a 10-3 ruling LGBT activists have long been hoping for: the 1964 Civil Rights law bars employers from discriminating based on sexual orientation.
In the ruling, Chief Judge Robert A. Katzmann wrote: “Sexual orientation is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” adding that this condition makes it “impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
The case in question is a lawsuit brought by Donald Zarda, a skydiving instructor who assured a female student, who seemed uncomfortable being so tightly strapped to him, that he was “100-percent gay.” He was subsequently fired after the student’s boyfriend complained. Zarda died in a 2014 BASE-jumping accident but his family and estate has continued the lawsuit in his name.
The 2nd Circuit’s decision overrules lower-court rulings, leaving the only avenue to appeal through the Supreme Court. The ruling is a blow to the Trump administration. The Justice Department previously filed an amicus brief opposing Zarda’s discrimination claim, stating it is the department’s policy that Title VII of the 1964 Civil Rights Act does not cover sexual orientation under the umbrella of sex discrimination.
Ten of the 13 judges — the full panel of the 2nd Circuit — disagreed with the Justice Department, handing the LGBT community a major win.
While we wait for the ruling in the Masterpiece Cakeshop case, it’s heartening to see these awful pieces of legislation are getting fewer, farther between and more difficult to justify.
Contact Our LGBTQIA Rights Attorneys
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