LGBTQ+ Community Equality

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Date: 2021
Publisher: Gale, a Cengage Company
Document Type: Topic overview
Length: 2,187 words
Content Level: (Level 5)
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Since the mid-twentieth century, political activism and legal advocacy have made significant gains in advancing equality for members of the LGBTQ+ community in the United States. This diverse community includes lesbian, gay, bisexual, transgender, and queer people, and others with a broad range of sexual orientations and gender identities. Both public opinion and federal law have evolved considerably. Support for marriage equality for LGBTQ+ people, for example, dramatically increased from the 1980s into the twenty-first century. Several states maintained laws against same-sex marriage until 2015 when the Supreme Court ruled such prohibitions unconstitutional under the Fourteenth Amendment. On June 15, 2020, the Supreme Court ruled that LGBTQ+ employees are protected by federal law under the 1964 Civil Rights Act prohibiting discrimination on the basis of sex.

Despite advances made at the federal level, LGBTQ+ people continue to face discrimination and obstacles to equality in some states. For example, some states allow child welfare agencies to refuse to work with LGBTQ+ families when placing children up for adoption or in foster care. Further, not all federal civil rights protections cover all members of the LGBTQ+ community, and the legal protections established by state legislatures can vary significantly. Some business owners, health care workers, members of government, and other organizations have cited religious objections in their opposition to recognizing the rights of LGBTQ+ people. Such opposition has sparked questions about whether the government should prioritize religious freedoms over civil rights.

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Main Ideas

  • While the campaign for lesbian, gay, bisexual, transgender, and queer (LGBTQ+) equality has seen significant success since the 1970s, LGBTQ+ Americans continue to work toward ending discrimination.
  • The Supreme Court declared state-level prohibitions against same-sex marriage unconstitutional in 2015.
  • In 2020 the Supreme Court found that discrimination against LGBTQ+ employees violated the provisions against sex discrimination in the 1964 Civil Rights Act.
  • In 2021 the US House of Representatives passed the Equality Act, which would provide explicit and comprehensive federal protections based on sexual orientation and gender identity if it became law. The Senate had not acted on it as of August 2021.
  • Some states have enacted laws based on the federal Religious Freedom Restoration Act (RFRA) of 1993 to allow discrimination against or denial of services to LGBTQ+ people based on religious objections.
  • Efforts to pass state RFRAs have prompted backlash from large corporations and industries with significant investments within individual states, prompting some governors to amend or veto the bills.
  • Specific points of contention regarding LGBTQ+ rights focus on religiously affiliated agencies that receive state contracts for social services, the right of private business owners to deny services, and gender-inclusive policies in public schools.
  • The federal government has not maintained a consistent approach to transgender Americans as presidential administrations have pursued different agendas. The administration of Joe Biden has expressed a commitment to furthering transgender protections and opportunities.

LGBTQ+ Marriage Equality

The percentage of Americans who supported marriage equality increased from only 11 percent in 1988 to 35 percent in 2001, 55 percent in 2016, and 70 percent in 2021, according to surveys conducted by the National Opinion Research Center, Pew Research Center, and Gallup. States began to legalize same-sex marriage in the first decade of the twenty-first century, and by 2014 same-sex marriage was recognized in thirty-seven states. However, states where same-sex marriage was not yet legal were not obligated to recognize marriages performed elsewhere.

In 2013 the US Supreme Court struck down Section 3 of the 1996 Defense of Marriage Act, which defined marriage under federal law as existing between one man and one woman. In June 2015 the Supreme Court ruled in Obergefell v. Hodges that state restrictions on same-sex marriage were unconstitutional. This decision effectively legalized same-sex marriage in all fifty states and the District of Columbia. By the end of the year, marriage equality was also extended to US territories.

Some states attempted to circumvent the Supreme Court decision in Obergefell v. Hodges. For example, several counties in Alabama chose to prevent their probate judges from violating either the law or their personal convictions by not issuing any marriage licenses at all. In August 2019 a law went into effect ending the state's use of marriage licenses, replacing them with notarized affidavits. The law allowed couples to marry without a marriage license so that government officials who objected to same-sex marriages would not need to issue the licenses.

Employment Discrimination

LGBTQ+ Americans have long battled employment discrimination and feared being fired because of their sexual orientation or gender identity as courts traditionally interpreted federal and state employment protections as applying only to biological sex and not covering sexual orientation or gender identity. In June 2020 the Supreme Court ruled in Bostock v. Clayton County, Georgia that employers cannot fire employees based on sexual orientation or gender identity. Supervisors terminated Gerald Bostock from his employment with the county when they discovered that he played on a gay softball team. The case consolidated three similar cases: two in which a gay employee was fired by a business and another in which a funeral home terminated an employee after she transitioned from male to female. The decision found that such firings violated the protection against sex discrimination under Title VII of the Civil Rights Act of 1964, stating, "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

While many states had laws that already specifically forbid employment discrimination against LGBTQ+ persons, twenty-nine states did not. The Bostock decision meant that all states had to accept the court's interpretation of Title VII and extend those protections to all employees. Further, President Joe Biden issued an executive order upon taking office in January 2021 calling for the federal laws prohibiting sex discrimination to adopt the definition determined by Bostock. However, federal lawmakers have not passed legislation that would explicitly provide comprehensive protections to the LGBTQ+ community. In February 2021 the US House of Representatives passed the Equality Act, which identified specific areas where discrimination would be unlawful. In addition to employment, the law recognizes education, federal funding, housing, transportation, access to shared facilities (such as restrooms), and others as areas where discrimination must be addressed. Should the bill become law, it would empower the US Department of Justice to intervene on behalf of LGBTQ+ people who experience discrimination in protected areas. The Senate had not taken up the Equality Act as of August 2021.

Religious Objections and Exemptions

State governments and local politicians have challenged federal orders regarding LGBTQ+ equality on several occasions. Some states have sought to enact legislation that allows businesses and individuals to discriminate against or deny services to LGBTQ+ people on the grounds of religious objection. Many of these state laws are based on the federal Religious Freedom Restoration Act (RFRA) of 1993, which forbids the federal government from enacting any policy that would "substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." Though the federal law stemmed from a legal case involving the religious use of peyote by Native Americans, the motivations of most state officials who adopted the language of the law appear to center on religious objections to marriage equality and other issues related to the LGBTQ+ community.

Opponents of religious exemptions contend that these laws enable discrimination against LGBTQ+ people in various aspects of life. In jurisdictions where health care providers can refuse to provide services on religious grounds, LGBTQ+ people have reported difficulty in obtaining treatment, especially in rural areas where health care options are limited. Health care providers in states including Alabama, Arkansas, Illinois, Mississippi, and Tennessee may cite religious beliefs to decline services to LGBTQ+ patients. Religious exemption laws have also created obstacles for LGBTQ+ people seeking to foster or adopt children. As of June 2021, eleven states allow state-licensed child welfare agencies to deny LGBTQ+ families, preventing many families from participating in adoption and foster care. The Supreme Court ruled in Fulton v. City of Philadelphia (2021) that states cannot cancel contracts with child welfare agencies for discrimination based on cited religious beliefs.

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Critical Thinking Questions

  • What similarities and differences do you see between legal arguments that have been used to advance LGBTQ+ rights in the United States and those of other marginalized groups?
  • Why do you think the Equality Act has encountered pushback from some religious groups and Republican lawmakers? Explain your answer.
  • What purpose does it serve to include a gender marker on government documents such as birth certificates and drivers' licenses? Do you feel this is necessary? Why or why not?

Transgender Equality

The campaign for transgender equality has experienced significant success in the twenty-first century, though setbacks have also occurred. On the federal level, the presidential administration of Barack Obama took several positive steps including specific provisions for students, prisoners, military personnel, and federally contracted workers. Obama's successor Donald Trump set out to rescind those protections. However, President Biden began reversing many of Trump's policies upon taking office in early 2021. In March 2021, for example, the Biden administration announced the end of Trump's ban on transgender people serving in the military and resumed the Obama-era policy of providing medical care, including gender affirmation treatment and surgery, to military personnel based on self-identified gender.

Several state legislatures have pursued controversial transgender-specific legislation. In March 2016 North Carolina passed the Public Facilities Privacy and Security Act, or HB2. The law requires that a person must use the public restroom that corresponds with the biological sex listed on his or her birth certificate. Despite the absence of the term transgender in the language of the bill, opponents argued that such restrictions are clearly intended to prohibit transgender women from using women's restrooms and transgender men from using men's restrooms.

Republican governor Pat McCrory and others characterized HB2 as necessary for preventing male predators from using women's bathrooms and locker rooms. Supporters argued that HB2 allowed private businesses the right to determine their own bathroom policies. In response to the suggestion that transgender women pose a threat to other women in bathrooms, opponents of the bill noted the lack of evidence that such assaults have ever occurred. The bathroom bill inspired a range of boycotts including several state and city governments banning nonessential employee travel to North Carolina. In 2019 a federal court settlement prohibited the state from banning transgender persons in state buildings from using bathrooms matching their gender identity. Legislators in other states have considered similar bathroom bills but ultimately opted against them.

Some private businesses, cities, and states have questioned the need to separate bathrooms by gender at all. Many private businesses have created gender-neutral bathrooms that serve all employees and patrons. In 2017 California enacted the Equal Restroom Access Act, requiring certain businesses to designate single-occupancy bathrooms as gender neutral. In subsequent years, Vermont (2018), New Mexico (2019), Illinois (2019), and New York (2020) adopted similar legislation. In Gavin Grimm v. Gloucester County School Board (2017 and 2019), a federal court ruled that refusing to allow a student to use restrooms that align with their self-identified gender amounts to discrimination and a violation of Title IX. In June 2021 supporters of transgender rights celebrated the Supreme Court's decision not to hear the case's appeal, allowing the lower court's ruling to stand.

Conservative policy makers have targeted the rights of the transgender student athletes. In 2019, lawmakers in Idaho became the first to put forth legislation to restrict transgender athletes from competing in student athletics. Similar bills have since been introduced in more than half of all states, with laws passing in Alabama, Mississippi, South Dakota, and several other states. Proponents of these bills contend they are needed to account for physical and biological differences between the sexes. Critics argue that these bills unfairly discriminate and that no medical or empirical evidence justifies their passage.

Transgender Americans can often encounter difficulty amending government documents or acquiring new ones that match their gender identity. Without official documents matching their gender identity, transgender Americans can encounter difficulty in employment, health care, travel, and every other area of life in which such documents must be presented. Some states require applicants to meet certain requirements, such as having undergone sexual reassignment surgery, to change official documents, while other states have adopted less rigorous processes. Many advocates for transgender equality posit that requiring sex on such documents is unnecessary if such documents are only needed to provide a record of the birth of a child and legal identity. They question the need to add a biological designation to such records.

In 2016 an Oregon court allowed a person to change their gender to nonbinary on government-issued identification. On July 1, 2017, it became the first state to provide a nonbinary option for applicants of driver's licenses and identification cards. Several jurisdictions have followed Oregon's example, allowing an X to be used as a gender marker in place of M (male) or F (female). As of June 2021, twenty states and the District of Columbia permit residents to use a nonbinary gender marker on such documents, with some requiring no documentation to make the change and others requiring a statement from a medical provider or mental health professional.

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Gale Document Number: GALE|QSQWGQ847960079