Jo Yarcaba

Devyn Box, 36, a social worker in Dallas, avoids going places in Texas where IDs have to be shown, because Box’s lists their sex assigned at birth rather than their nonbinary gender.

Nineteen states across the U.S. allow nonbinary residents to use an “X” mark for gender on state IDs, like driver’s licenses, though Texas is not one of them. Box, who uses gender-neutral pronouns, said a federal policy that would allow them and other individuals who identify as neither exclusively male nor female to receive an accurate ID would make a huge difference in their daily quality of life.

“On my mortgage, I had to put the wrong gender, because they wouldn’t let me select my actual gender,” Box told NBC News. “I’ve had situations where people are going on what’s on my ID, and so then I have to basically out myself to them if I want for them to speak to me respectfully, which can be unsafe, and it’s also just uncomfortable and exhausting having to continuously educate and advocate for myself.”

In Joe Biden’s plan to “advance LGBTQ+ equality in America and around the world,” which is on his campaign website, the president-elect said he “believes every transgender or non-binary person should have the option of changing their gender marker to ‘M,’ ‘F,’ or ‘X’ on government identifications, passports, and other documentation.” As a result, he vowed to support state and federal efforts that permit trans people to have IDs that accurately reflect their gender identity.

Box said they hope the Biden administration will push for a federal rule in its first 100 days, because they don’t plan to move out of Texas anytime soon, and they don’t expect the state to pass its own legislation. Until then, Box said they will continue to feel unsafe and experience hostility from people while explaining their identity.

“I don’t want to make it a big deal, like I just want to exist and not have to give this any thought,” Box said. “I just feel like if I had an ID that matched who I am, that I could possibly cut down on the number of times that I have to experience that. But it’s just kind of unavoidable everywhere I go.”

Last March, during the Democratic presidential primary race, Biden released an ambitious plan to advance LGBTQ rights, but at the time it was unclear what he would realistically be able to accomplish if elected with a Republican-controlled Senate. But now that Democrats will narrowly control Congress and the White House for the first time since 2011, many of Biden’s LGBTQ proposals appear much more achievable.

LGBTQ people and advocates are gearing up to hold Biden to his promises in the first 100 days of his presidency. Some, like Box, want to see federal ID legislation, which the American Civil Liberties Union is pushing for Biden to institute via an executive order. Others want him to immediately undo the ban on transgender people serving in the military and a variety of other Trump administration policies that rolled back protections for LGBTQ people. Advocates would also like to see Biden pass federal discrimination protections, among other legislation.

The Equality Act

In May 2019, the Democrat-controlled House passed the Equality Act, a sweeping bill that would grant LGBTQ people federal protections from discrimination in employment, housing, credit, education, public space, public funding and jury service. The legislation, however, was never given a vote in the Republican-led Senate.

“With Mitch McConnell in charge of the Senate, there was no chance we would ever get a vote on any of our stuff,” Mara Keisling, executive director of the National Center for Trans Equality, said of pro-LGBTQ legislation.

With McConnell, R-Ky., in a minority leader role, the bill faces fewer barriers.

“The opportunity that we have to pass the Equality Act is better now than it’s ever been before,” said Alphonso David, president of the Human Rights Campaign, the country’s largest LGBTQ advocacy group. “This should be a part of our civil rights laws.”

Addressing a four-year ‘onslaught of attacks’

Advocates also expect Biden to deliver on his promises of immediately undoing Trump policies that targeted LGBTQ people with executive orders or new guidelines.

Recommended

OUT POLITICS AND POLICYWhite House website allows users to specify pronouns for first time

OUT POLITICS AND POLICYBiden issues executive order expanding LGBTQ nondiscrimination protections

“The past four years has resulted in an onslaught of attacks against the LGBTQ community,” David said, citing as examples the administration’s push to allow women’s homeless shelters to turn away transgender women and health care providers to refuse service to LGBTQ people during a pandemic.

Neither of those policies are currently in effect. The Department of Housing and Urban Development is scheduled to issue the final version of the policy for homeless shelters in April. Last August, a federal judge blocked the Department of Health and Human Services from removing nondiscrimination protections for LGBTQ people in health care. The administration finalized another rule on Jan. 12 that would allow social service providers to discriminate against LGBTQ people, and it’s scheduled to take effect Feb. 11.

In a series of tweets in July 2017, Trump reinstated a ban on transgender people serving openly in the military, which Biden promised to undo on Day One.

“I think we will see a reversal of the illegal and incompetent and dangerous trans military ban,” Keisling said. “I bet you that turns out to be one of the first things we see.”

Just a week before Biden’s inauguration, the Department of Health and Human Services issued a rule allowing taxpayer-funded social services organizations, like adoption agencies, to discriminate based on LGBTQ status.

Nancy Nyman, who is a foster parent with her wife in Los Angeles, said she hopes Biden will act immediately to “recognize the importance of same-sex couples and families in the foster care system.”

“There is definitely always a need for more families in foster care, and to enable organizations to discriminate against same sex couples or LGBTQ couples in the foster care system just seems outrageous to us,” she said. “This kind of discrimination, it cuts deep, because it cuts parents who are very well equipped to help, and to help solve a really big problem in our country.”

Some of the “attacks” on LGBTQ people over the last four years have been more subtle, according to David. For instance, the Trump administration removed references to LGBTQ people from federal agency websites.

“All of these steps that have been taken by the Trump administration were really focused on effectively erasing LGBTQ people, trying to suggest that LGBTQ people don’t exist,” David said.

The administration has also rolled out policies that disproportionately affect LGBTQ people of color, like the travel restriction focused on Muslim-majority countries, among other immigration policies, according to Kamal Fizazi, 47, a lawyer who lives in New York City. Fizazi said immigration and criminal justice are two issues that matter most to them as a queer Muslim.

“There are some people who live in Muslim-majority countries that need to get out of those societies because they’re facing some persecution, and the U.S. used to be a safe harbor,” Fizazi said. “At the same time, the idea that the U.S. is a safe harbor is increasingly open to question. It feels increasingly unsafe here for some people.”

There are currently around 70 countries around the world that criminalize homosexuality and at least nine that have laws criminalizing certain types of gender expression, which are aimed at transgender and gender-nonconforming people, according to Human Rights Watch. Most of them are in Africa, the Middle East and Southeast Asia.

Fizazi also said they would like to see Biden enforce and expand Deferred Action for Childhood Arrivals, a program for undocumented young people who came to the United States as children, and expand access to affordable health care.

“Health care is an LGBTQ issue, given that we have higher rates of mental health illness and addiction,” Fizazi said.

Many of the Trump administration policies that LGBTQ advocates would like to see reversed by the incoming Biden administration could be undone without congressional action in the first 100 days, although rules issued by the Department of Health and Human Services will take longer to address as they have to follow a longer administrative process that includes a public comment period.

Sending a new message

While LGBTQ advocates want Biden to move swiftly to reverse a number of Trump-era policies, they would want his administration to implement proactive, pro-LGBTQ policy. In addition to federal ID legislation, a number of advocates would like to see the Biden team issue guidance to federal agencies regarding implementation of the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, which granted LGBTQ people protections from employment discrimination.

While the Bostock ruling specifically addressed Title VII of the Civil Rights Act of 1964, which deals with workplace discrimination, David advocated for the decision’s central finding — that sex discrimination includes discrimination on the basis of sexual orientation and gender identity — to be applied to other federal discrimination protections.

“We have many federal statutes not only in the area of employment, where LGBTQ people could be protected but have not been because the administration has not implemented the Bostock decision,” David said.

Related

NBC OUT

Biden picks transgender physician as assistant health secretary

Much of what the administration can do immediately, Keisling said, is send LGBTQ people a different message than the one they’ve received over the last four years. She said that after the Trump administration rescinded Obama-era guidance meant to protect trans students in schools, calls to the Trans Lifeline, a crisis hotline run by and for trans people, increased.

“What it does to trans kids to know that the president of the United States is coming after them over and over again, what it does to our service members, who one month they’re told, ‘We welcome you if you’re qualified, you can serve,’ and in the next month, the commander in chief is just whimsically tweeting that they can’t serve anymore — there’s big psychic damage to that,” Keisling said. “People are going to feel better not being attacked.”

Three North Carolina municipalities passed discrimination protections for LGBTQ people this past week, shortly after the expiration of a yearslong moratorium on such measures.

Hillsborough, Carrboro and Chapel Hill passed ordinances protecting lesbian, gay, bisexual, transgender and queer people from discrimination in public accommodations and employment on Monday, Tuesday and Wednesday, respectively.

They’re the first measures of their kind passed since the 2017 repeal of North Carolina’s infamous HB2 “bathroom bill.” That controversial legislation, which passed in 2016 and restricted which public facilities transgender people could use, spawned national outrage and boycotts that were expected to cost the state billions in lost business. The repeal of HB2, however, was part of a “compromise bill” that placed a statewide moratorium on municipalities passing nondiscrimination ordinances. That bill, HB142, expired on Dec. 1, and advocates were ready and waiting.

The three bills that passed so far are similar, though the Carrboro and Hillsborough ordinances carry a $500 penalty for violation and, according to their text, “Each and every day during which such discrimination continues shall be deemed a separate offense.” Officials in Orange County and the city of Durham are expected to vote on nondiscrimination measures Tuesday, and the Greensboro City Council is expected to discuss a similar ordinance in the coming weeks.

Advocates say it’s been a long time coming.

“We’ve been talking with elected officials since well before HB2 and trying to get these kinds of progressive policies passed,” Allison Scott, director of policy and programs at the Campaign for Southern Equality, told NBC News. “So to see these actually coming up to a vote feels amazing.”

People who live in the municipalities that pass these ordinances will not only be protected on the local level from discrimination based on sexual orientation and gender identity — but also based on race, national origin, marital or familial status, pregnancy, veteran status, religious belief, age and disability. That’s because North Carolina is one of five states that only have statewide discrimination protections for people with disabilities, leaving LGBTQ people and other groups open to discrimination in areas where they aren’t currently protected by federal law.

Even in areas where LGBTQ individuals are protected by federal law, there may be loopholes that leave some people out. Scott cited the Supreme Court’s decision in Bostock v. Clayton County, Georgia, as an example: The landmark 2020 decision ruled that LGBTQ people are protected under federal civil rights law from employment discrimination, but this doesn’t include individuals who work at small businesses with fewer than 15 employees. Those individuals, however, will now be protected from discrimination under these new local ordinances.

“It just shows the importance of why these laws are needed and why cities and counties need to step up,” Scott said.

HB2’s lasting impact

In early 2016, the Charlotte City Council passed North Carolina’s first public accommodations law protecting LGBTQ people from discrimination. The ordinance, however, drew criticism due to a clause that said transgender people would be allowed to use the bathroom that aligns with their gender identity rather than their sex assigned at birth.

Shortly after, the North Carolina General Assembly called a special session to debate the ordinance. Lee Storrow, executive director of the North Carolina AIDS Action Network, said the ordeal was disheartening to many LGBTQ people in the state.

“That whole debate was just really hard to be a part of,” said Storrow, who has lived in Chapel Hill since 2007. “Because of the debate in 2016, people are so aware that they’re not protected, and it may not be that they have a specific moment where they’ve directly been discriminated against, but just the threat and knowing that they have no legal protections, that really has an impact on folks.”

In March 2016, just a few weeks after Charlotte passed its nondiscrimination ordinance, then-Gov. Pat McCrory, a Republican, signed into law HB2, or the Public Facilities Privacy and Security Act.

When the General Assembly did finally repeal HB2 the following year, municipalities still weren’t allowed to pass their own nondiscrimination measures. While advocates have waited for the moratorium to expire, LGBTQ North Carolinians have continued to face discrimination, they say.

“Just this month, someone in our network reached out about a person who was denied gender-affirming care who works for the state,” Kendra Johnson, executive director of Equality North Carolina, said.

The statewide LGBTQ advocacy group also received calls during the election about people being “policed around their identity, because their name does not match what the particular poll worker thought they should look like if they had a certain gender marker on their ID,” according to Johnson.

“It’s every single month we hear cases of discrimination,” Johnson added. “I know that these measures are necessary because we don’t have comprehensive nondiscrimination in the state, and we do not have it on the federal level, so we have to start where people live and work, and that’s cities and towns.”

The end of the moratorium means municipalities can start passing their own nondiscrimination ordinances, but there are limits. Scott said there’s a clause in HB142 that gives only the General Assemblythe power to legislate bathrooms and public changing facilities.

“That’s why we still need a full repeal of 142,” she said. “We know fully 67 percent of North Carolinians, a supermajority, believe that LGBTQ people should be protected from discrimination.”

‘A sense of relief’

After Carrboro passed its ordinance Tuesday, Mayor Lydia Lavelle said it reminded her of how she felt when same-sex marriage became legal.

“It’s kind of like, ‘About time,’” she said. “I’m feeling like it was long overdue.”

North Carolina will join 47 other states that either have statewide protections for LGBTQ people or allow cities and counties to create their own protections, according to Lavelle, who is a law professor at North Carolina Central University.

“We were an outlier before,” she said. “We’re joining the strong, strong majority of states that allow communities to do this.”

Tiz Giordano, who works in Carrboro, said they’re “elated” that the town passed discrimination protections for LGBTQ people.

“I’ve been able to build queer community, have chosen family and live in safety as my true self due to living in Carrboro and working in an affirming workplace,” they said. “I just want other queer and trans people to be able to feel this way and feel protected, especially in medical settings.”

Though Carrboro is a relatively progressive community, Giordano said their spouse has faced medical discrimination in the past. Under the new ordinance, hospitals and physicians’ offices will be considered public accommodations and LGBTQ people will be protected.

“Knowing that people will be able to have a case in court if they are being discriminated against definitely gives me a sense of relief,” Giordano said.

Related

NBC OUT

Trump stacked courts with judges ‘hostile’ toward gays, report says

Vanity Reid Deterville, program director of the LGBTQ Center of Durham, said nondiscrimination laws at any level of government are especially important after the Trump administration rolled back certain federal protections for LGBTQ people over the last four years.

“Protections of any sort when it comes to the LGBT community — and, more specifically, queer and trans Black women, people of color — is critical,” she said, pointing to their level of marginalization in society.

Johnson said she’s confident the newly passed ordinances will help better protect LGBTQ people in the state, but she said she’s also happy to see elected officials coming together to do something for their constituents.

“I think we’re in a moment where there’s been a real ‘us versus them’ mentality coming from the White House down,” she said. “It’s nice to see elected officials recognizing that yes, there is discrimination, people should have the right to pursue their livelihood, to have housing, to not be discriminated [against] in health care and to be treated as equal and valuable citizens of towns, and acting to actually start to make that a reality.”

Follow NBC Out on Twitter, Facebook & Instagram 

Falsely accusing someone of being gay is no longer considered defamation per se, a New York appeals court ruled recently.

Defamation is a false statement that damages someone’s reputation. To win a defamation suit in most cases, plaintiffs must be able to show that the statement against them is false and that it caused them to suffer damages or harm, such as losing their job. Defamation per se is a false accusation that is so damaging that plaintiffs don’t have to prove that they suffered damages.

Under New York law, examples of defamation per se include falsely accusing someone of a heinous crime or having a “loathsome disease.” Falsely claiming that someone is homosexual had also been lumped in.

“It meant that it was so shameful and such a disgrace that it was just assumed that obviously your reputation has been injured and you don’t have to prove that element” of damages, Eric Lesh, executive director of the LGBT Bar Association of New York, told NBC News.

“Yes, this is kind of an obvious decision, but the law moves slowly, and society usually pushes it forward.”

ERIC LESH, LGBT BAR ASSOCIATION OF NEW YORK

In late December, however, the Supreme Court of the State of New York’s Second Department — one court below the New York Court of Appeals, the state’s highest court — overturned that decades-old precedent when it ruled that a false claim of homosexuality is no longer defamation per se. Such a false claim can still be considered defamatory, but plaintiffs will have to prove that they’ve been damaged by it.

The case, Laguerre v. Maurice, began in 2017, when Jean Renald Maurice, a pastor at the Gethsemane Seventh Day Adventist Church in Brooklyn, publicly claimed at a church meeting of 300 people that a church elder, Pierre Delor Laguerre, “was a homosexual” and that he “disrespected the church by viewing gay pornography on the church’s computer,” according to the court opinion. The allegation led to Laguerre being relieved of his responsibilities and thrown out as a member of the church.

The Second Department court ultimately dismissed Laguerre’s defamation claim, citing Yonaty v. Mincolla, a 2012 ruling by the Supreme Court’s Third Department that found that previous decisions labeling false claims of homosexuality as defamation per se were “inconsistent with current public policy and should no longer be followed.” That decision also ruled that “it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease.”

The Second Department agreed, writing that the “profound and notable transformation of cultural attitudes and governmental protective laws” for LGBTQ people influenced its decision. The court cited a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which found that laws criminalizing homosexual conduct were unconstitutional, and the court’s 2015 decision in Obergefell v. Hodges establishing the right to same-sex marriage throughout the country.

“Based on the foregoing, we conclude that the false imputation of homosexuality does not constitute defamation per se,” the Second Department wrote in its Dec. 23 decision.

Lesh called the ruling a “no brainer,” but said it is an important way to evaluate how far we’ve come on LGBTQ equality.

“It took a long time for New York law to catch up to where we were public-policy wise,” he said. “Yes, this is kind of an obvious decision, but the law moves slowly, and society usually pushes it forward.”

The Second Department’s decision doesn’t set precedent for the entire state of New York, Lesh noted. The court is based in Brooklyn and its jurisdiction includes Queens, Brooklyn, Long Island and parts of Staten Island and the Hudson Valley, while the Third Department is seated in Albany and includes the Capitol District and part of Central New York. The other departments in New York’s Appellate Division — the First, which covers the Bronx and Manhattan, and the Fourth, which includes the western and part of the central area of the state — will have to rule independently on the issue. When given the opportunity, Lesh said they will likely rule the same way the Second and Third Departments have.

Across the United States, whether false claims of homosexuality are considered defamatory per se is dependent on the state and, often, on the court.

Historically, many states considered false accusations of homosexuality to be defamation per se, because their state law criminalized homosexual conduct. However, after the Lawrence v. Texas ruling, which struck down the country’s remaining sodomy laws, this started to change. Several courts have ruled similarly to New York’s Second Department since that landmark 2003 ruling.

Defamation lawsuits resulting from false accusations of being LGBTQ — like the one brought before New York’s Second Department — are less common than they once were due to increasing acceptance of lesbian, gay, bisexual, transgender and queer people, according to Brad Sears, executive director of the Williams Institute at UCLA School of Law. But when the issue does come up, Sears said the general trend courts have followed is to rule that it is no longer defamation per se.

There are places where being LGBTQ could, for example, cause someone to lose their job due to bias, and when false accusations are made in those cases, someone could still sue for defamation. But unlike a suit for defamation per se, the plaintiff would have to prove financial or other damages.

Sears said last month’s New York decision and others like it make an important statement about how LGBTQ people are viewed and treated in society: “I think what’s important is this kind of bias no longer has the backing of the law.”