With less than a year left in his presidency, Barack Obama and his administration are taking steps to cement his legacy in key areas. Without question, one of the most consequential has been on LGBT equality. President Obama and his administration have done more in the last seven years to advance LGBT rights than all previous presidents combined.
Having already accomplished so much, what work remains? Simple: The government should treat discrimination against lesbians, gay men, and bisexual people as sex discrimination because it is sex discrimination.
Last week, the Los Angeles Times editorialized for the administration to make it clear that existing protections against sex discrimination also prohibit discrimination based on sexual orientation. According to the editorial board:
Generations ago, it would have seemed obvious that “sex discrimination” referred only to treating male employees or job applicants better than female ones (or vice versa). But discrimination against women and discrimination against gays and lesbians (and transgender people) all are rooted in stereotypes about “proper” expressions of gender and sexuality.
We couldn’t agree more. In a letter to Attorney General Loretta Lynch last June, the ACLU urged the Justice Department to announce that it would take this position in the context of Title VII of the Civil Rights Act, which prohibits sex discrimination in employment. As we made clear in our letter to Attorney General Lynch, this position is fully supported by important legal developments, and it would be one of the most significant actions that the administration could take to advance the equal treatment of LGBT people. It’s also supported by what DOJ previously announced with respect to anti-trans discrimination. Essentially, this position would offer legal backing for LGBT individuals who are discriminated against where statewide laws fail to protect them.
Prior to stepping down as attorney general, Eric Holder made clear — in a memorandum to U.S. attorneys across the country — that the Justice Department would take the position that anti-trans employment discrimination was a violation of Title VII. Attorney General Lynch should now expand this understanding to include discrimination against lesbians, gay men, and bisexual people as well.
In July, the U.S. Equal Employment Opportunity Commission, in a landmark ruling, held that employment discrimination based on sexual orientation is a form of sex discrimination and a violation of the law. This ruling provides an even stronger rationale for the administration to act.
Additionally, the administration is preparing to issue a final rule that will implement the nondiscrimination provision in the Affordable Care Act. One of the key pieces that the ACLU will review closely is whether sexual orientation-based discrimination is defined as a form of sex discrimination within the rule. The ACLU, in comments to the U.S. Department of Health and Human Services last year, urged the government to do exactly this.
None of these important steps eliminate or diminish the importance of or need for clear, explicit nondiscrimination protections. The ACLU strongly supports the Equality Act and will continue to work for its eventual passage in Congress. We will also continue our work to secure statewide nondiscrimination protections in the two-thirds of the country where none currently exist. However, LGBT people who experience discrimination because of who they are can’t wait. It’s critically important to do all that can be done using existing laws to protect people from discrimination.
The Obama administration has a historic opportunity this year to build on a proud legacy by making clear that discrimination against lesbians, gay men, and bisexual people — just as is true for trans people — is a violation of the law.
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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.