Two Omaha women and their teenage sons have sued Nebraska’s health department for rejecting their request that both women be listed as legal parents on their sons’ birth certificates.
Erin Porterfield and Kristin Williams started their family in 2002 using assisted reproductive technology and each gave birth to one of their sons, who are now 16 and 18, according to the American Civil Liberties Union of Nebraska, which is representing the couple with the Omaha law firm Koenig-Dunne.
Porterfield and Williams were never married and are now no longer together, but they both have a court order that establishes an in loco parentis relationship that grants them some, but not all, parental legal rights.
This summer, the couple requested that both of them be acknowledged on their sons’ birth certificates, but the Nebraska Department of Health and Human Services denied their request last month, writing in a letter that the “only routes to legal parentage under Nebraska law are through marital presumption, adoption, or biological relationship.”
But the women say these options are unavailable to them. Nebraska case law prohibits second-parent adoption by an unmarried non-birth parent, according to the lawsuit.
Porterfield and Williams alleged in the lawsuit filed Monday that Nebraska law is discriminatory because it treats unmarried same-sex couples differently from unmarried different-sex couples, who “can establish parentage of their children through voluntary acknowledgment at any time after a child is born,” according to the lawsuit.
The state health department did not immediately respond to a request for comment.
Being fully legally recognized as parents to both of their children would ensure that Porterfield and Williams can make decisions about their sons’ care, including those related to education or estate planning, according to the ACLU of Nebraska.
“While we spend our parenting time the same as most good parents — showing up for show choir and band competitions, making sure homework is done, teaching values and manners, and gently guiding our boys to be their truest selves regardless of cultural expectations — we haven’t had the luxury of peace of mind that should something happen to one of us our boys would seamlessly be afforded the government benefits other families take for granted,” Williams said, according to a press release.
The lawsuit also argued that the health department is violating the equal protection and due process clauses of the Constitution by refusing to apply state law in the same way for both same-sex and unmarried different-sex parents.
Currently, the health department offers a “voluntary acknowledgement of paternity” form that fathers can use to obtain full legal parenting rights. When Porterfield and Williams submitted their forms over the summer, they amended them to be gender-neutral and changed “paternity” to “parentage,” according to the ACLU of Nebraska.
The department denied these amended requests, and as a result, their lawsuit also seeks a declaration that the department will apply state law related to voluntary acknowledgement in a gender-neutral way.
Angela Dunne, managing partner at the law firm Koenig-Dunne, said the case is an example of how families’ attempts to protect their parenting rights can be “thwarted by gender-specific language that does not support the ever-changing face of families.”
“We have a biological mom and an in loco parentis mom, and we are legally unable to permanently preserve their legal rights to their children and the children’s legal rights to have two parents,” Dunne said in the press release. “We hope this lawsuit will remedy this deficiency and protect our legally vulnerable families.”
Nebraska is one of 35 states with a law that recognizes the nongestational parent — the parent who didn’t carry and give birth to the child — as a legal parent if the couple is married but don’t have a clear statute or established case law for unmarried couples, according to the Movement Advancement Project, a nonprofit think tank. Fifteen states and Washington, D.C., recognize the nongestational parent as a legal parent regardless of marital status.
One law, the Uniform Parentage Act, addresses the differences in parentage laws across the country. It was updated in 2017, and state legislatures can choose to adopt it.
Courtney G. Joslin, a law professor at the University of California, Davis, who was the primary drafter of the 2017 act, told NBC Newslast year that four states — California, Rhode Island, Vermont and Washington — have enacted all or large portions of the latest law. Connecticut and Maine also voluntarily expanded their parentage laws earlier this year. These states offer nonbiological parents paths to parentage regardless of their marital status and don’t require parents to adopt their own children.
Joslin said variations in state laws across the country can put same-sex couples in difficult situations.
“It is incredibly hard for families to have their status potentially change as they move across state lines,” she said.
“I’m saying this now, and I’ve been saying it, and I don’t care who likes it: Those issues have no place in a school. There’s no reason anybody anywhere in America should be telling any child about transgenderism, homosexuality — any of that filth,” he said.
He added: “And yes, I called it filth. And if you don’t like it that I called it filth, come see me and I’ll explain it to you. It’s time for us to stop letting these children be abused in schools, and it’s not going to happen till the people of God stand up and demand different, same ones that established those schools to begin with.”https://iframe.nbcnews.com/EKbaUyq?app=1
One of the words Robinson used — “transgenderism” — was adopted by anti-transgender activists to make being transgender sound like a condition, according to the LGBTQ media advocacy group GLAAD.
John Wesley Waugh, a spokesperson for Robinson, said in an email that the lieutenant governor’s comments “refer to education.”
“Topics surrounding transgenderism and homosexuality should be discussed at home and not in public education,” Waugh said. “We must focus on reading, writing, and mathematics in North Carolina. Our students have struggled with these topics even before the pandemic. Our primary focus needs to be helping our students succeed, not on topics that should be discussed at home.”
When asked whether Robinson has a response to criticism that his comments were anti-LGBTQ regardless of the context, Waugh said Robinson “affirms every individual’s Constitutional right to identify or express themselves in anyway they desire.”
He added, “He is the Lieutenant Governor for all North Carolinians and will fight for and protect the rights of all citizens. His comments were referring to teaching about these topics in the classroom, not about individuals of the LGBTQ community.”
Robinson is second in command in the state and would fill in should Gov. Roy Cooper, a Democrat, leave the state or his position. Robinson narrowly defeated Democrat Yvonne Lewis Holley in 2020, with 51.6 percent of the vote compared to Holley’s 48.4 percent.
In a statement emailed to NBC News Friday, Jordan Monaghan, Cooper’s press secretary, called Robinson’s comments “abhorrent.”
“North Carolina is a welcoming state where we value public education and the diversity of our people. It’s abhorrent to hear anyone, and especially an elected official, use hateful rhetoric that hurts people and our state’s reputation,” the statement reads.
Some state senators have taken a harder line and are demanding that Robinson resign, calling his remarks discriminatory.
Sen. Jeff Jackson, a Democrat representing North Carolina’s 37th District — which includes the state’s most populous city, Charlotte — condemned Robinson’s comments in a series of tweets on Thursday and Friday.
“There’s no debate here. This is open discrimination. It is completely unacceptable,” Jackson wrote, in part. “Mark Robinson should resign.”https://iframe.nbcnews.com/P9wSGmh?app=1
Jackson, who is running for the U.S. Senate in 2022, added that Robinson’s comments are part of a pattern. He said he’s made openly “hateful and discriminatory” comments about LGBTQ people and other minorities in the past, linking to an article from local news outlet the Cardinal & Pine.
The article includes 2016 comments that Robinson made after the shooting at the gay nightclub Pulse, in Orlando, Florida, in which 49 patrons — many of them young LGBTQ people — were killed and dozens more wounded before the shooter died in a shootout with law enforcement.
“First, let me say that I pray for the souls of all those killed, healing for all those wounded, and comfort for the family members of the terrorist shooting in Orlando,” Robinson wrote on his Facebook pageat the time. “However, homosexuality is STILL an abominable sin and I WILL NOT join in ‘celebrating gay pride’ nor will I fly their sacrilegious flag on my page. Sorry if this offends anyone, but I’m not falling for the media/pop culture ‘okey-doke.'”
State Sen. Wiley Nickel, a Democrat representing the state’s 16th District, which includes Raleigh and Durham, also called for Robinson to resign.
“I stand with the LGBTQ Community and hope you will join me in condemning this hate speech from the most senior Republican elected official in our state,” Nickel wrote on Twitter Friday. https://iframe.nbcnews.com/HgiJl5B?app=1
Kendra Johnson, the executive director of Equality NC, an LGBTQ nonprofit, said the group condemns Robinson’s “dangerous rhetoric.”
“At a time when LGBTQ people, especially those with multiple layers of marginalization, need a supportive state, Robinson offered transphobia and homophobia instead,” Johnson said in an email. “No one who thinks like this should be in a position of power, and these discriminatory attitudes underscore the need for comprehensive nondiscrimination protections in North Carolina.”
LGBTQ advocates have said that views like Robinson’s don’t represent the majority of North Carolinians. So far this year, 10 municipalities have passed measures that protect LGBTQ people from discrimination in public accommodations, employment and more.
A 2019 poll from Public Policy Polling found that 67 percent of voters in North Carolina support such legislation, with 19 percent in opposition.
Voters diverge more when broken down by political party. More than three-quarters of Democrats in the state support nondiscrimination legislation, while 12 percent oppose it. Among Republicans in North Carolina, those figures are 50 percent and 32 percent, respectively.
Allison Scott, the director of impact and innovation at the Campaign for Southern Equality, an LGBTQ advocacy group based in North Carolina, said Robinson’s comments remind her of the insults the LGBTQ community regularly endured a decade ago.
“They are shocking in their brazen homophobia and transphobia and are as unacceptable now as they were 10 years ago,” she said. “Our state has been on a journey, and more than a dozen cities and counties have successfully passed protections for LGBTQ people. It’s time for all North Carolinians to come on this journey toward a future where no one faces discrimination or harassment because of who they are.”
Robinson’s comments specifically addressed LGBTQ-inclusive classrooms — a topic that has recently joined other education culture wars, with more school districts banning pride symbols and flags. Though, in recent years, advocates have called on educators to make an effort to be more openly supportive of LGBTQ people — whether that’s by including prominent LGBTQ figures in lessons or by displaying a Pride flag in the classroom — because they say it can benefit LGBTQ youth.
One 2019 survey from The Trevor Project, an LGBTQ youth suicide prevention and crisis intervention organization, found that queer youth with at least one accepting adult in their life have a 40 percent lower risk of attempting suicide.
Texas mom Annaliese Cothron drove an hour and a half from her home in San Antonio to the state Capitol in Austin this year for a rally in support of transgender children, including her own child. It’s a drive she has made so many times that she has lost count.
Trans youths in the state have been the targets this year of more than 50 bills that would restrict their participation in sports or ban them from gaining access to certain health care, among other restrictions.
Cothron was leading the crowd in a chant, but she started to get tired. So she asked the Rev. Remington Johnson, a Presbyterian clergywoman and a fellow activist, to take the bullhorn.
Johnson, a trans woman who has testified almost a half-dozen times against anti-trans bills, had shown up that day riding a longboard, wearing hot pink shorts and carrying a huge trans flag, Cothron recalled. She took the bullhorn, and the first thing she said was: “Trans kids are magical.”
Cothron, who has an 8-year-old child who is nonbinary, said the moment has stuck with her.
“That, to me, was so powerful,” she said. “Nobody talks about my child like that, because they don’t have the same experience that a trans person has to know really how truly unique and magical and powerful transgender children are.”
Johnson, a health care chaplain who previously worked in a hospital supporting people who are sick or dying, said her role in life is to be a caregiver and a “justice bringer.” She returns to the Capitol again and again despite the toll it has taken on her physically and emotionally, not only to advocate for herself as a trans woman, but also to bring some levity to a space that has been traumatizing for trans people and families.
“The caregiving at the bedside, the caregiving at the Capitol — it’s all one and the same,” said Johnson, who is working on her master’s degree in nursing at the University of Texas at Austin. “These are all systems, and there’s suffering swirling, and I feel like my role and my responsibility here is to at least show up.”
Activism as an ‘exercise in self-love’
Johnson, 35, grew up just outside Texas in the rural Oklahoma Panhandle, in a family with Mennonite roots. She said she wasn’t raised with liberal or conservative ideals; she was “kind of raised tabula rasa” — her parents would encourage her to put herself in other people’s shoes.
Johnson said that in junior high school, she had an experience with her family that made her feel as though she couldn’t talk about her identity openly. One evening, while her family was visiting the gay-friendly beach town of Provincetown, Massachusetts, two tall women walked past, she said.
“I remember as a kid just being like, ‘I don’t know what that is, but I love everything about it,’” Johnson said. “I don’t know if they were drag queens or trans women or what, but it was magical. But that was also the same moment where I got to hear from family members about how they were not OK with those folks. So it was this sort of whiplash.”
She said her coming out process was gradual after that. She told a therapist in college how she was feeling about her gender, and the therapist suggested that she might be a trans woman, “and I was like, ‘Thank you very much,’ and I never went back,” Johnson said.
She wrestled with internalized transphobia — a battle that continues to this day and plays a role in her activism, she said.
She moved to Texas in 2008. Nine years later, Texas Republicans introduced a bill that would have required trans people to use the bathrooms that matched the sexes listed on their birth certificates. Although Johnson was out as trans at that point, she said, she didn’t feel ready to participate in activism, because she felt she “was the problem.”
“I just felt like I was the boogeyman that Republicans were talking about, because I was this huge, built, powerful figure that was going to be using the restroom with them,” she said. She didn’t feel ready to advocate then, but when the 2020 legislative session began, she decided she wanted to be there.
“I want to show up for me and because a lot of the things that these legislators and anti-trans folks were saying are things that my loved ones have said to me during my transition and internalized transphobia that I say to myself,” she said. “So some of this is an exercise in self-love and self-compassion and a tangible reminder that there’s nothing wrong with me.”
‘Fixing things is what I do’
Among the families who are fighting anti-trans bills at the Capitol, Johnson’s presence is known as healing. She developed that skill, putting people at ease, during her work as a health care chaplain, when she would help people make difficult decisions, such as whether to go through with high-risk operations or to go home with hospice, or end-of-life, care.
She said she introduced herself to a woman in hospice care as “a fixer.” The woman responded “What are you going to fix?” and Johnson said, “I’m going to fix it.”
“And I did, I fixed it,” Johnson said. “I couldn’t cure her cancer, but I could help her build a relationship with her care team. I can help her build a relationship with her family.
“Fixing things is what I do,” she added.
Even outside of her activism, in her personal life, she fixes. She took up woodworking and built the cabinets and the countertops and redid the flooring and the windows in her last home. During the pandemic, she taught herself how to longboard, and she now builds her boards herself.
Her friend Meghan Jacobson said fixing things and caring for people are at the core of who Johnson is.
“She worked in hospice because she recognizes the specialness and the importance of these moments that a lot of other people run away from,” Jacobson said, adding that Johnson saved her life over the last year by connecting her with a mental health care provider and by simply being there to support her.
Parents who advocate on behalf of their transgender children at Texas’ Capitol tell similar stories.
Linzy Foster, who is from Austin, has been to the Capitol about a dozen times this year to advocate on behalf of her 7-year-old trans daughter. She said that she has been dealing with a lot of anxiety recently and that during a news conference last month, she was breathing heavily. Johnson, who was sitting next to her, noticed.
“She just put her hand on my back and was rubbing my back, and we just had this little moment,” Foster said. A reporter from the Austin American-Statesman captured a photo; Foster said that when she saw it, she “burst into tears.”
“Because it’s just symbolic — she is fighting her own battle, but she keeps showing up for the parents so that we can show up for our kids,” Foster said.
The energy at the Capitol is often heavy and traumatic for parents, Foster said, and Johnson makes everyone laugh.
For example, at one news conference, Johnson described how Republican legislators in Texas and elsewhere tried to pass bathroom bills after the Supreme Court ruled in favor of marriage equality in 2015. “What happens is they try to vilify women like myself who have a little bit of size, and we’re just too charming and beautiful to want to pee next to,” she said, leading to a chorus of laughs.
Johnson said she tries to bring humor and joy to her activism because she wants trans people watching “to feel safe, at least for a tiny moment.”
“I want them to see somebody that gets to stand up in front of them, and I want to feel like I’m a good representative,” she said. “I want to feel like the mothers can look and say, ‘Oh my gosh, my child can grow up and it’s going to be OK.’ I want to offer a tiny moment of levity and power and hope.”
‘This is not trans tragedy. This is trans joy.’
Although someone wouldn’t know it by watching her speak at the Capitol, Johnson said that she has been traumatized by her activism this year and that the trauma is getting worse as she continues to go back.
She compared the experience to a sports injury. Sports have been and still are a huge part of her life — which is partly why she fights so hard for trans kids to have the right to play. She plays on a gay flag football team in Austin.
“Showing up to the Capitol is like playing through an injury,” she said. “There has been a traumatic injury to my soul. And I see it, and I’ve had it checked out by professionals, and they say, ‘You can keep playing on it, but it’s going to hurt you.’”
But she stressed that activism isn’t only about trauma. She said that after the Supreme Court ruled last year that LGBTQ people are protected from employment discrimination under federal law, she rode 26 miles around Austin on her homemade longboard carrying a huge trans pride flag. “People were honking and stopping for photos,” she said. “It was really special.”
For Cothron, Johnson’s positivity and joy show her that her nonbinary child can grow to thrive.
“This is not trans tragedy. This is trans joy,” Cothron said. “And Remington is there to really embody that. … To me, my child being able to have role models who are adults and fighting — and not just fighting but also thriving — that is just so critically important.”
For Johnson, that’s the trans experience: “to be able to go through discomfort and come out on the other side with this buoyant, joyous presence,” she said. “That’s who we are. That’s who I am.”
Rachel Gonzales has been to the Texas Capitol at least a dozen times since 2017, when she advocated against a bill that would’ve banned her then-6-year-old transgender daughter, Libby, from using the girls’ bathroom.
That bill died in 2017,but the fight hasn’t stopped. Since January, Texas has considered 52bills that target trans people, particularly youth, according to Equality Texas, an LGBTQ advocacy group in the state.
Parents like Gonzales and advocates have defeated all of the bills so far. But last week, during a third special legislative session, the Texas Senate passed a bill that would ban transgender student athletes in public schools from competing on school sports teams that align with their gender identity, as opposed to their sex assigned at birth.
State Sens. Bob Halland Charles Perry, both Republicans, also refiled bills last week that would ban health care providers from providing trans children with gender-affirming health care — including therapy — and that could charge parents and doctors with child abuse if they provide such care for trans children.
Gonzales said she will continue to fight the bills, but she added that she is so burnt out by the last nine months that she doesn’t feel like an effective advocate.
“I joke, but it’s not really a joke, that I have definitely lost years off my life from this battle — the amount of stress, the physical manifestation of that stress and the mental anguish,” she said. “It’s so much of negotiating my own feelings in order to assure my kid that she’s going to be OK. But it’s terrifying that I don’t know if it’s going to be OK, and not just for her, but for other kids across the state, kids who cannot safely be out.”
It’s taken a mental and physical toll on her, she said, and other parents and advocates in the state say the same. They say they won’t stop, because they’re doing it for their kids, but they need more help.
‘It takes me hours to fall asleep’
Supporters of trans athlete bans in Texas say they are trying to protect fairness in women’s sports, though — like most supporters of similar bills — they haven’t been able to provide any examples in their state of trans girls jeopardizing fairness, according to LGBTQ advocates.
Parents like Gonzales have been fighting the bills so relentlessly because they say the proposals, whether they pass or not, have a devastating effect on trans youth in the state — especially youth who help advocate against them.
Libby, Gonzales’s 11-year-old daughter who is transgender, said the anti-trans bills reintroduced by Republican state senators make her “feel really scared and like they are trying to harm me in very terrible ways.”
She first became an activist at 6 years old, when conservatives in the state tried to pass a billthat would’ve banned her from using the girls’ restroom. Libby said being an advocate is important to her because if she wasn’t, “I would be really hurt, and people wouldn’t hear me.”
“It is very tiring,” she said. “Sometimes it takes me hours to fall asleep just because I’m so scared about these specific bills.”
Rebekah Bryant, who lives in Houston and has been to the Capitol six times this year to advocate against the bills, said they’ve also affected her 8-year-old trans daughter, Sunny.
Sunny has testified against the sports bills twice,in July and August. The first time she testified, she told the Senate committee she likes baseball, soccer, tennis and gymnastics, and that none of her teammates cared that she is trans.
“I’ve been with the same classmates for three years, and none of them knew I was trans until this year,” she said. “When my mom had to speak at the Capitol, they loved me just the same, because kids my age don’t care about that stuff. Kids care about what’s in your heart.”
“Only old people can’t see that,” she added, with a smile. Committee members, including Republicans, laughed, Bryant said.
The second time she testified, Sunny didn’t step up to the podium — which was taller than her — until 1 a.m. Afterward, when she and her mom got back to their hotel room, Sunny sat down on the bed and started crying.
“She said, ‘Why do so many people not like me?’” Bryant said. “And that’s the first time she’s expressed any pain toward this. I was exhausted, and I just said to her, ‘Look, there are way more people there that love you. … There are so many more people in the world that are on your side than aren’t. Those people are the outliers.’”
She said Sunny developed anxiety afterward. Though it’s slowly gone away, Bryant hasn’t brought Sunny to the Capitol again.
Advocates say the rhetoric used in the bills has also had a negative effect on the mental health of transgender — as well as lesbian, gay, bisexual and queer — youth statewide.
For example, between Jan. 1 and Aug. 30, crisis calls from LGBTQ young people in Texas increased 150 percent compared to the same period last year, according to data shared last week by The Trevor Project, an LGBTQ youth suicide prevention and crisis intervention organization. About 4,000, or 36 percent of all contacts from Texas, came from transgender or nonbinary youth.
The Trevor Project added that while the volume of crisis contacts “can not be attributed to any one factor (or bill),” a qualitative analysis of the crisis contacts found that “transgender and nonbinary youth in Texas have directly stated that they are feeling stressed, using self-harm, and considering suicide due to anti-LGBTQ laws being debated in their state.”
The Trans Lifeline, the country’s first transgender crisis hotline, also saw a 72 percent increase in calls from Texas in May — when state lawmakers first considered about a dozen anti-trans bills — when compared to May 2020, according to data shared with NBC News. In July, when the legislation was reconsidered, Trans Lifeline saw a 19 percent increase in calls from Texas.
Adri Pèrez, policy and advocacy strategist for LGBTQ equality at the American Civil Liberties Union of Texas, said it’s unclear whether Texas’ trans athlete ban will pass the House and become law and that its passage “shouldn’t be the focal point.”
“The larger issue, I think, is out of the state of Texas there is a lot of misinformation about transgender people and transgender youth, specifically,” Pèrez said. “The work is not necessarily inside of the Texas Legislature; it’s outside of it. And what we’re doing to help humanize trans people and trans youth to those who have never met a transgender person or a transgender kid, that would be the most effective firewall for these bills. It’s not letting that misinformation take hold at all.”
Whether someone knows a transgender person can significantly affect their views on legislation such as trans athlete bans, according a survey released Thursday by the nonprofit Public Religion Research Institute. A slim majority of Americans who know a transgender person (52 percent), compared to one-third of Americans who do not know anyone who is transgender (33 percent), believe that a transgender girl should be allowed to compete in high school sports with cisgender female students.
PRRI also noted that support for trans people participating in sports has declined since 2018. About one-third, or 36 percent, of Americans believe that trans girls should be allowed to participate in sports with their cisgender classmates, compared to 50 percent in 2018.
Physical, mental and financial strain
Parents who are transgender advocates say Texas’ last few legislative sessions have been particularly difficult for them, too.
Bryant said this is the first year she’s become more active, and it has taken an emotional and financial toll on her family. She said she has to take off work to travel to the Capitol, which is about a 3 1/2-hour drive away, and she often has to book a hotel room. All told, she said she’s spent close to $3,000 going back and forth to the Capitol just this year.
“It’s just so draining, because it’s not only just sitting there and waiting, but it’s sitting there and listening to people lie about you and your family — people that have never met a person who’s trans in their life and really haven’t walked the walk that all of us have,” she said.
Recently, many parents and advocates have been hitting “a wall,” said Linzy Foster, who is from Austin and has been to the Capitol about a dozen times this year to advocate on behalf of her 7-year-old trans daughter.
“The general population who usually are all on board and showing up and fighting for these things, they’re getting fatigued, and there’s also so many things to fight now,” she said. “We’re beginning to feel more and more lonely.”
Many of the advocates described being at the Capitol as traumatic. Annaleise Cothron, whose 8-year-old is nonbinary, said one day she went to the Capitol and the supporters of anti-trans bills called her child “a freak” and “disgusting.”
“While I would never tell my child that, just hearing that from somebody else is really emotionally taxing, and my child doesn’t deserve that,” she said. “People need to understand that’s the level of vitriol that we’re facing just going to the Capitol to say, ‘Please leave us alone. Please leave our community alone.’ This isn’t about politics; this is about human beings.”
More than just sports
Though the parents and advocates believe that trans kids have a right to play on the sports teams that match their gender identity, they said their advocacy is about more than just sports.
“Just the conversation of whether or not my child should exist in public school sports and whether or not other kids should bully them for who they are — that’s the conversation that this legislative body is inviting by entertaining these bills,” Cothron said.
She said the other bills that Republicans have reintroduced or plan to reintroduce that could charge her with child abuse for providing her child with access to gender-affirming care prove that the conversation is about more than fairness in sports.
“This is about the broader conversation of saying whether or not a transgender child should exist in Texas and access public services,” she said.
For now, the parents say they are leaning on each other for support.
“The only reason I’m doing OK, to be honest with you, is because in all of this I have met these amazing people in this community who show up, and we support one another,” Foster said. “We have moments of levity even in the trauma that we’re dealing with when we’re in the Capitol, being able to make each other laugh, knowing that you’re loved, knowing that you’re supported. That is the only thing that’s keeping me going.”
Alejandra Caraballo, 30, spent three years and countless hours after work — which “felt like a second part-time job” at times — putting together hundreds of documents to get her health insurance to cover her facial feminization surgery.
She even planned to sue her nonprofit employer, the New York Legal Assistance Group, or NYLAG, and the insurance company it used, UnitedHealthcare, in the spring of 2019 for denying the coverage.
“My own clients at NYLAG were getting it covered under Medicaid, no issue,” she said. “And I, having private insurance, was having it consistently denied and, not to mention, working at a place that prides itself on inclusion and diversity and being social justice-oriented in terms of providing direct legal services to low-income New Yorkers.”
She said that she had lobbied for policy change but that when she met with NYLAG’s general counsel, she was told that the organization didn’t view the explicit exclusions for certain gender-affirming operations and voice therapy for transgender people as discrimination.
“It felt really invalidating and just like I wasn’t being heard,” she said, adding that she is a lawyer who knows the case law that affects the issue.
She started preparing her lawsuit, but then, in May 2019, her employer told her that it would be switching insurance plans to Cigna, and she had to start all over again.
After the switch, in July 2019, Cigna approved the first part of her surgery, which took place in October 2019, but when she tried to get the second part covered in June 2020, it denied the claim, she said. The New York Department of Financial Services overturned the decision in August and forced Cigna to cover the surgery, which she had in October.
“I did quite an ordeal in terms of getting this covered, and I say this with the tremendous privilege that I’m an attorney who’s connected in the trans rights movement,” said Caraballo, who is now a clinical instructor at Harvard Law’s Cyber Law Clinic.
NYLAG said that Caraballo was “a valued member of our team” and that it advocates alongside its team members “as they may experience and navigate life’s systematic inequalities and inequities.”
“At NYLAG we aim to create an environment that supports all NYLAG employees during their employment, which includes making available the best options for insurance, qualified by the state of New York,” Jay Brandon, NYLAG’s director of external affairs, said in a statement. “We wish all our former employees the best in their personal endeavors and support Alejandra’s continued fight for equitable coverage from her insurance provider.”
A spokesperson for UnitedHealthcare said the company can’t comment on specific cases. The spokesperson said coverage for the treatment of gender dysphoria may include physicians’ office visits, mental health services, prescription drugs and surgical procedures.
“Our mission is to help people live healthier lives regardless of age, race, ethnicity, sexual orientation or gender identity,” the spokesperson said in a statement. “Our customer service advocates are trained to help people navigate the health care system by matching them with experts who guide them when they have questions, and we have a special gender identity team to support members through their transition.”
A spokesperson for Cigna said gender-affirming treatments “are covered in all of our standard commercial health plans when medically necessary.”
“As this field evolves, we’re seeing more of our clients opt to expressly include additional procedures like facial feminization surgery and voice therapy,” the spokesperson said. “We also regularly evaluate and update our gender dysphoria coverage policies, informed by the latest clinical guidance and expert consensus, including leading organizations like” the World Professional Association for Transgender Health, or WPATH, a nonprofit organization devoted to treating and understanding gender dysphoria.
Caraballo’s experience echoes that of many transgender people who have tried to get gender-affirming care, particularly operations, covered by their insurance — whether it’s publicly or privately funded. Trans people describe months and sometimes years of effort to get their insurance companies to cover care recommended by their doctors.
Majority report being denied care
Although many insurance companies and some politicians describe gender-affirming surgery as cosmetic, major medical organizations say it is medically necessary.
Surgical intervention is one of many treatments for gender dysphoria, which refers to the psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity, according to the American Psychiatric Association.
WPATH, which is considered the governing body on the issue, wrote in a “medical necessity statement” in 2016 that “medical procedures attendant to gender affirming/confirming surgeries are not ‘cosmetic’ or ‘elective’ or ‘for the mere convenience of the patient.’”
“These reconstructive procedures are not optional in any meaningful sense, but are understood to be medically necessary for the treatment of the diagnosed condition,” WPATH wrote. “In some cases, such surgery is the only effective treatment for the condition,” and for some people, genital surgery, in particular, is “essential and life-saving.”
Despite the medical necessity of gender-affirming care as stated by physicians, many trans people who have insurance — about one-fifth have reported that they don’t — say they have struggled to get coverage.
A report last year from the Center for American Progress found that 40 percent of transgender respondents — and 56 percent of trans respondents of color — said their health insurance companies denied coverage for gender-affirming care, which includes treatments like hormones and surgery. It also found that 48 percent of trans respondents, including 54 percent of trans respondents of color, said their health insurance companies covered only some gender-affirming care or had no providers in network.
Dallas Ducar, CEO and a co-founder of Transhealth Northampton in Massachusetts, said she was shocked by the “endless barriers that exist for patients seeking to transition.”
“For cisgender individuals, hormonal replacement, puberty blockers are really easily accessible, and they’ve been used in the past to treat precocious puberty,” she said. “Hormone replacement therapy has been beneficial for endocrine, cardiovascular conditions, and trans people are burdened with paperwork, psychiatric assessments, insurance pre-authorizations.”
She said that most of the people in power — clinicians, politicians and people who work for insurance companies — are cisgender, meaning they identify with the genders they were assigned at birth, and that they have created systems that have reduced access to quality gender-affirming care.
“Those barriers that exist and that numerous amount of paperwork or assessments that you have to go through are really, really harmful, and they add to the layers of discrimination that exists within the trans community,” she said.
Yearslong battles and hefty loans
Alex Petrovnia, 24, and his partner, who are both transgender men living in central Pennsylvania, faced barriers similar to Caraballo’s when they tried to get UnitedHealthcare to cover their hysterectomies. Petrovnia said that twice — in February and in April — United called them less than 24 hours before their operations and said their claims had been denied. The first time, Petrovnia said, the company said it was because Petrovnia and his partner hadn’t sent the required paperwork, even though Petrovnia said he had faxed it three separate times months in advance.
Petrovnia had received two letters — one from a doctor and one from a therapist — confirming that a hysterectomy was necessary for his gender dysphoria, but he said the UnitedHealthcare representative told him that he needed a letter from another therapist.
He said that the second time their operations were denied, UnitedHealthcare called them when they were on their way to the hospital — just hours before their scheduled procedures — and said they were required to have been on hormone replacement therapy for one year before they could get hysterectomies. Petrovnia said the policy he had at the time said the requirement was only six months. He wrote about the experiences on Twitter.https://iframe.nbcnews.com/MgfYrb6?app=1
He and his partner have been on hormone replacement therapy for a year as of last month, so he said they plan to try to reschedule the procedures for December.
“If they’re willing to just make up the rules and contradict their own rules, it’s very difficult to have hope that it’ll work out, especially since it’s been canceled less than 24 hours in advance twice now,” he said.
UnitedHealthcare said it couldn’t comment on Petrovnia’s case.
Some government-funded insurance bans gender-affirming surgery outright in certain circumstances. For example, TRICARE, the military’s self-funded health insurance for service members, “generally doesn’t cover surgery for gender dysphoria,” according to its website. Active-duty service members can request waivers if their providers deem the surgery “medically necessary,” but waivers aren’t available for dependents — spouses and other family members.
That meant that when Jamie Traeger, whose spouse is an officer in the Army, filed a claim to get a double mastectomy in early 2019, TRICARE denied it outright even though three doctors had said the procedure was medically necessary.
Traeger, who uses gender neutral pronouns, said that they considered getting a job at Starbucks so they could have insurance that would cover the procedure but that they and their spouse decided to take out a $10,000 personal loan, instead.
“I just remember thinking this is crazy — that Starbucks has better trans health care than military family members,” they said.
Traeger, 32, said they were able to get a hysterectomy covered in 2016 because they emphasized that it would treat their uterine fibroids and avoided any mention of gender dysphoria.
“I remember the doctor saying, ‘I’m going to write this [claim] up in a very specific way, because if I indicate that this is because of gender dysphoria, TRICARE might give us a problem,’” Traeger said.
Traeger said they were happy when they saw the news in July that the Department of Veterans Affairs was changing its policy to cover all gender-confirmation procedures for trans veterans.
It’s “fabulous and long overdue,” they said. “But I just remember having this sinking feeling of … we’re getting left behind — the spouses and children of active-duty service members are getting left behind. We don’t have access to this care, and I feel like no one really knows that.”
The Military Health System, which oversees TRICARE, hasn’t responded to a request for comment.
A public policy ‘marble cake’
No one policy governs how insurers cover gender-affirming procedures.
Lindsey Dawson, an associate director at KFF (formerly the Kaiser Family Foundation), a nonprofit organization focused on health policy, described state laws as a “patchwork.”
Twenty-four states and Washington, D.C., prohibit transgender exclusions in health insurance coverage, according to the Movement Advancement Project, a nonprofit think tank. Twenty-three states, one territory and Washington, D.C., have Medicaid policies that explicitly cover transition care for transgender people. The remaining states have a mix of policies: Some don’t have any Medicaid policy that explicitly covers transgender care, 10 states have Medicaid policies that explicitly exclude trans health coverage and care, and one state — Arkansas — allows all insurers in the state to refuse to cover gender-affirming care.
“A clear federal protection for gender identity and sexual orientation would eliminate this sort of patchwork issue that we’re facing in the states right now,” Dawson said. “But right now that environment is in flux.”
The Obama administration interpreted Section 1557 of the Affordable Care Act, which prohibits discrimination based on sex in federally funded health care facilities, to include discrimination based on sexual orientation and gender identity, but “the Trump administration essentially erased those protections,” she said.
The Biden administration has yet to issue a new rule regarding its interpretation of Section 1557. In the meantime, the Office of Civil Rights at the Department of Health and Human Services said it would enforce Section 1557 to prohibit discrimination based on LGBTQ status. That, however, requires people to file legal complaints, which Dawson said is “kind of a patchwork approach to equity.”
Some cases regarding state health plans are still ongoing: The 4th U.S. Circuit Court of Appeals ruled this month that trans people who are enrolled in the North Carolina State Health Plan can sue over the state’s 2018 policy that excludes all coverage for gender dysphoria counseling, hormone therapy, surgical care or other treatment.
Blue Cross and Blue Shield of North Carolina also changed its policies in July to include coverage for gender-affirming facial surgery and voice therapy as medically necessary care.
Forcing insurance companies to cover all gender-affirming care, including operations, would be difficult, said Caraballo, the former NYLAG lawyer, because the issue is a “classic public policy marble cake,” meaning it’s governed by state, federal and sometimes local laws.
She said the Department of Health and Human Services’ Office of Civil Rights could address the issue in a few ways. One of the easiest would be for it to use its enforcement authority to crack down on insurance companies that exclude coverage for gender-affirming care, she said.
States could also pass their own legislation. She cited Washington, which passed legislation in May that requires all insurers in the state to cover gender-affirming care, including operations.
She said that, in the end, she got her surgery covered but that her case is an outlier.
“There’s so many people that are going through the same thing,” she said. “I’ve spoken with so many people who, they see those exclusions, they don’t even try.”
President Joe Biden on Monday recognized the 10-year anniversary of the end of “don’t ask, don’t tell,” a policy that forced gay, lesbian and bisexual military service members to hide their sexuality.
Then-President Bill Clinton signed the policy into law in 1993 as a compromise to end the existing ban on gay people serving. In total, over the 17 years the policy was in effect, an estimated 13,000 service members were discharged, according to data the military provided to The Associated Press.
In December 2010, then-President Barack Obama signed a repeal bill, but it didn’t take effect until Sept. 20, 2011.
“Ten years ago today, a great injustice was remedied and a tremendous weight was finally lifted off the shoulders of tens of thousands of dedicated American servicemembers,” Biden said in a statement issued by the White House. “It was the right thing to do. And, it showed once again that America is at its best when we lead not by the example of our power, but by the power of our example.”
Though an estimated 13,000 service members were discharged under “don’t ask, don’t tell,” the total number of service members discharged due to their sexual orientation or gender identity is estimated to be much higher: More than 100,000 are thought to have been forced out between World War II, when the U.S. first explicitly banned gay service members, and 2011, when “don’t ask, don’t tell” officially ended.
“As a U.S. Senator, I supported allowing servicemembers to serve openly, and as Vice President, I was proud to champion the repeal of this policy and to stand beside President Obama as he signed the Don’t Ask, Don’t Tell Repeal Act into law,” the president said in Monday’s statement.
Biden said that many of those veterans received what are known as “other than honorable” discharges, which excluded “them and their families from the vitally important services and benefits they had sacrificed so much to earn.”
In fact, the Department of Veterans Affairs issued a policy clarification on Monday stating that veterans who were given other than honorable discharges based on homosexual conduct, gender identity or HIV status may be eligible for VA benefits, such as home loan guaranty, compensation and pension, health care, homeless program and/or burial benefits, among others. The department said the clarification offers guidance to VA adjudicators and to veterans “who were affected by previous homophobic and transphobic policies” who “have not applied for a discharge upgrade due to the perception that the process could be onerous.”
Biden added that he is honored to be commander in chief of the “most inclusive military in our nation’s history,” which he said welcomes LGBTQ service members. He noted that, during his first week in office, he repealed the Trump administration’s ban on transgender service members enlisting and serving openly in the military.
He also said that under his administration, the military is led by LGBTQ veterans. For example, in July, the Senate confirmed Gina Ortiz Jones as under secretary of the Air Force, making her the first out lesbian to serve as undersecretary of a military branch.
It also confirmed Shawn Skelly as assistant secretary of defense for readiness, making her the first transgender person to hold the post and the highest-ranking out trans defense official in U.S. history.
Biden appointed Pete Buttigieg — who served as a Navy Reserve lieutenant in Afghanistan under “don’t ask, don’t tell” — as transportation secretary, making him the first openly gay Cabinet member confirmed by the Senate.
“On this day and every day, I am thankful for all of the LGBTQ+ servicemembers and veterans who strengthen our military and our nation,” Biden said in the statement.
He added that the country must “honor their sacrifice” and continue to fight for full equality for LGBTQ people, including by passing the Equality Act, which would provide the first federal protections from discrimination for LGBTQ people in employment, housing, education, public accommodations, credit and jury service, among other areas of life. The bill passed the House in April but has since stalled in the Senate.
During a news conference on Monday, Shalanda Baker, a former Air Force officer who was discharged under “don’t ask, don’t tell” 20 years ago, said the policy prevented her from seeking help while she was in an abusive relationship.
“I’ll never forget my time at the academy or the early years thereafter when I struggled to find my footing in a military that did not accept the whole of me,” said Baker, who is now a secretarial adviser on equity and deputy director for energy justice at the Department of Energy. “We cannot forget the lives of so many who walked the path just like mine. Those who risked and lost their lives for this country and who served in silence. I want to thank them for their service, so that it may never be forgotten.”
Like the state at large, an overwhelming majority of California’s LGBTQ voters voted “no” to a Republican-led effort to recall Gov. Gavin Newsom, a Democrat, and remove him from office, according to an NBC News Exit Poll of early and Election Day voters.
The poll found that 7 percent of California recall voters identify as LGBTQ. Of those voters, 83 percent voted “no” to the recall and 17 percent voted “yes.”
With about 70 percent of the projected vote counted, 63.9 percent of all Californians voted against recalling Newsom, and 36.1 percent voted in favor.
Newsom has long been seen as an LGBTQ ally. In February 2004, Newsom, then the mayor of San Francisco, defied federal law — and the Democratic party platform at the time — when he and other city officials issued a marriage license to lesbian activists Phyllis Lyon and Del Martin. Over the next month, the city wed 4,000 LGBTQ couples, The Los Angeles Times reported in 2018.
Had Newsom been removed as governor, 77 percent of LGBTQ recall voters said they would be concerned or scared, compared to 57 percent of all recall voters. Twenty-one percent of LGBTQ voters said they would be excited or optimistic if he were removed, compared to 38 percent of all recall voters, according to NBC News’ Exit Poll.
Voters, had they ousted Newsom, would’ve chosen a replacement on Tuesday. The leading Republican candidate was conservative radio host Larry Elder, who said he would’ve reversed many of Newsom’s efforts to combat the pandemic. Elder argued that receiving the coronavirus vaccine and wearing a mask were personal decisions that shouldn’t be mandated, and he criticized Newsom’s pandemic restrictions on businesses.
Elder also has made anti-transgender statements on Twitter, and he continued to use the wrong name and pronouns for Caitlyn Jenner after she came out as trans in 2015, The Sacramento Bee reported. Jenner was also on the ballot Tuesday as a Republican replacement for Newsom.
Elder did not immediately respond to a request for comment.
In his victory speech Tuesday night in Sacramento, Newsom said California voters rejected those arguments and reaffirmed their support for coronavirus precautions.
“’No’ is not the only thing that was expressed tonight,” he said. “We said yes to science. We said to vaccines. We said yes to ending this pandemic.”
LGBTQ voters, especially, appear to support Newsom’s approach to the pandemic. NBC News’ Exit Poll found that a higher percentage of LGBTQ recall voters think getting the coronavirus vaccine is a public health responsibility, at 82 percent, compared to 65 percent of all recall voters. Of LGBTQ voters, 17 percent believe getting the vaccine is a personal choice, compared to 32 percent of all recall voters.
Nearly half, or 48 percent of LGBTQ voters, think the policies Newsom put in place to deal with the pandemic have been about right, 35 percent don’t think they’ve been strict enough, and 17 percent think they’ve been too strict.
An overwhelming majority, 86 percent, support Newsom’s statewide mandate requiring that students wear masks while in school, while 13 percent oppose it.
When it comes to the state of the pandemic in California, 40 percent of LGBTQ recall voters think the state’s coronavirus situation is staying the same, 31 percent think it’s better and 28 percent think it’s worse.
A majority, 70 percent, said they think Newsom is in touch with the needs and concerns of people like them, and 30 percent said they don’t think he’s in touch.
Summer polls showed that Newsom was in danger of being recalleduntil major Democratic Party leaders, including President Joe Biden, helped rouse Democratic voters.
Of LGBTQ recall voters, 79 percent voted for Biden in the 2020 presidential election, 9 percent voted for Trump, 7 percent did not vote and 5 percent voted for someone else. Sixty-four percent of LGBTQ voters said they approve of the way Biden is handling his job as president, and 29 percent disapprove.
The majority of LGBTQ recall voters are under 50 years old: Seventy-four percent are 18 to 44 years old, and 26 percent are 45 or older.
One of Democrats’ central messages to voters was that a Republican governor would reverse the state’s pandemic precautions, as well as other Democratic policies.
That message may have resonated with LGBTQ recall voters, 34 percent of whom said the coronavirus is the most important issue facing California right now, according to NBC News’ Exit Poll.
But the state’s housing and homelessness crisis — an issue Newsom has received criticism for — is also front of mind for voters: One-quarter of LGBTQ voters said homelessness was the most important issue, followed by wildfires (17 percent), the economy (15 percent) and crime (7 percent).
A higher percentage of LGBTQ voters, 74 percent, think the overall cost of living in their part of California is not manageable, compared to 58 percent of all recall voters who think so.
Nearly all LGBTQ voters, 93 percent, think that climate change is a serious problem, compared to 7 percent who don’t think so. But voters are more split on the state’s economy: Fifty percent said the condition of California’s economy is excellent or good, and 48 percent think it’s not good or is poor.
Hate crimes based on sexual orientation dipped slightly last year, but crimes based on bias against trans and gender-nonconforming people continued to increase, new FBI data suggest.
The Uniform Crime Reporting Program’s Hate Crime Statistics 2020 report found that 7,759 hate crime incidents were reported last year, up by 6 percent from 7,314 incidents in 2019.
Although reports of hate crime incidents based on anti-LGBTQ bias were down overall, from 1,393 in 2019 to 1,287 in 2020, reports of incidents motivated by gender-identity bias jumped by nearly 20 percent for the second year in a row.
Law enforcement agencies reported 1,051 hate crime incidents motivated by sexual orientation last year, down from 1,195 in 2019. Hate crime incidents motivated by gender identity increased from 198 in 2019 to 236 in 2020.
Although hate crime incidents motivated by anti-trans bias appear to be increasing, advocates have said government data often don’t tell the full story.
Anecdotally, trans people have reported facing bias-motivated violence much more often. Advocates have said the discrepancy between FBI data and trans people’s lived experiences is a common theme when it comes to data collection on LGBTQ people.
Of the 27,715 trans adults surveyed by the National Center for Transgender Equality in the summer of 2015, nearly half (46 percent) reported that they were verbally harassed in the previous year, and nearly 1 in 10 (9 percent) said they were physically attacked in the previous year for being transgender.
This year is also on track to be the deadliest on record for transgender people, with at least 35 trans and gender-nonconforming people having been killed so far — most of them Black trans women — according to the Human Rights Campaign. At this time last year, at least 29 trans people had been killed, according to the group. Advocates say the estimates are low, as law enforcement agencies often use trans people’s birth names, also known as their deadnames, and their sexes assigned at birth in reports of their deaths.
The number of hate crime incidents reported by the FBI is also likely to be low for a number of other reasons, advocates say.
“This data is critical, but it doesn’t tell the whole story of anti-transgender violence,” Rodrigo Heng-Lehtinen, executive director of the National Center for Transgender Equality, said in an emailed statement. “Many transgender people do not feel comfortable or safe reporting crime to the police. In fact, according to our U.S. Transgender Survey, more than half (57%) of respondents said they would feel uncomfortable asking the police for help if they needed it.”
Heng-Lehtinen said concern about interacting with police is greater among transgender people of color, with with 67 percent of Black trans people, 59 percent of Latino/a trans people and 59 percent of American Indian and Alaska Native trans people reporting discomfort turning to the police.
A 2013 report from the National Coalition of Anti-Violence Programs also found that less than half (45 percent) of LGBTQ people and people living with HIV who experienced violence reported their incidents to police, in part because of past experiences of police hostility and mistreatment.
A 2018 report from the Human Rights Campaign found that no state has a comprehensive law that requires all government-funded data collection efforts to include sexual orientation and gender identity data with other demographic data, such as race, ethnicity and sex.
Four states — New York, California, Oregon and New Jersey — and Washington, D.C., have narrower laws that require LGBTQ-inclusive data collection in some areas other than hate crimes.
Twenty-one states and Washington, D.C., require law enforcement agencies to collect and report data on hate crimes based on sexual orientation and/or gender identity, the report found.
In addition, the FBI report doesn’t provide details about how LGBTQ people of color are uniquely affected by violence; research shows that they report facing more violence than white LGBTQ people.
The report does indicate that incidents motivated by anti-Black and anti-Asian bias increased significantly. Specifically, it found that the number of incidents motivated by anti-Black bias rose from 1,930 in 2019 to 2,755 last year and that incidents motivated by anti-Asian bias jumped from 158 to 274.
Advocates have recently called for more comprehensive federal data collection related to sexual orientation and gender identity so they can help suggest better policy solutions that account for the rising fatal violence against Black trans women and hate violence against all LGBTQ people.
In June, Rep. Sean Patrick Maloney, D-N.Y., reintroduced a bill to improve collection of data about sexual orientation and gender identity in violent crimes and suicides.
“The epidemic of violence against transgender Americans — particularly transgender women of color — is only getting worse,” Maloney said in a statement at the time. “HRC has been tracking the underreported data since 2013, and Congress still hasn’t acted to enable local law enforcement to do the same.”
Nearly one-fifth (19 percent) of LGBTQ renters report not being caught up on rent, compared to 14 percent of non-LGBTQ renters, according to the report by the Williams Institute, a think tank at the UCLA School of Law.
Lesbian, gay, bisexual, transgender and queer renters who are behind on rent are slightly more likely than non-LGBTQ renters who are behind on payments to fear eviction within the next two months, at 47 percent and 46 percent, respectively.
Researchers used data from the Census Bureau’s Household Pulse Survey, collected from July 21 to Aug. 2, to examine rental housing stability late in the Covid-19 pandemic among LGBTQ people compared to non-LGBTQ people, accounting for differences by race, according to a news release.
The report adds to growing research that shows the Covid-19 pandemic is having a harsher impact on LGBTQ people, particularly LGBTQ people of color and LGBTQ youth.
The end of the eviction moratoriumwill have a similar disproportionate impact, according to the Williams Institute report, in part because LGBTQ people are more likely to rent their homes, at 41 percent, compared to non-LGBTQ adults, at 25 percent.
LGBTQ people of color were most likely to rent, at 47 percent, compared to 37 percent of white LGBTQ people — and they were more likely to report being behind on rent and fearing eviction.
Nearly one-third (30 percent) of LGBTQ people of color reported being behind on rent, compared to 10 percent of white LGBTQ people, 19 percent of non-LGBTQ people of color and 10 percent of white non-LGBTQ people.
Just over half (51 percent) of LGBTQ people of color who are behind on rentfeared eviction in the next two months, compared to 38 percent of white LGBTQ people, 46 percent of non-LGBTQ people of color and 47 percent of white non-LGBTQ people.
“A key component to a person’s housing stability is whether they own or rent,” lead author Bianca D.M. Wilson, senior scholar of public policy at the Williams Institute, said in a statement. “The COVID-19 pandemic has only exacerbated the risk that LGBT people— and LGBT people of color in particular — will lose their housing as federal eviction protections are set to expire in October.”
But the Supreme Court struck down those protections last week in a 6-3 opinion that said the Centers for Disease Control and Prevention exceeded its authority and that Congress would have to authorize the moratorium.
Evictions can now resume unless a state or local jurisdiction has implemented its own moratorium. Six states — California, Minnesota, New Jersey, New Mexico, New York and Washington — and the District of Columbia have their own moratoriums in effect that aren’t affected by the Supreme Court’s decision.
The CDC issued the more limited order earlier this month for parts of the country with “substantial” or “high levels” of community transmission of Covid-19 — which currently includes almost the entire country. The order also said new variants of Covid-19, such as the delta variant, “have evidence of an increase in transmissibility, which may lead to higher incidence.”
However, some LGBTQ people are among the more than 3.5 million renters nationwide who have been unable to pay their full rent and are “likely” or “very likely” to face eviction, according to anotherCensus Bureau Household Pulse Survey taken in early August.
Previous research from the institute found that LGBTQ people of color are nearly twice as likely as non-LGBTQ people to test positive for Covid-19, and they are twice as likely to report being laid off from their jobs during the pandemic.
LGBTQ people are also more likely than the general population to work in industries that have been more affected by Covid-19, such as the service industry, and are more likely to live in poverty and lack access to adequate medical care, paid medical leave and basic necessities, according to the Human Rights Campaign, a national LGBTQ advocacy group.
LGBTQ youth experienced worse mental health, a July 2020 pollfrom Morning Consult and The Trevor Project found. Nearly 70 percent of LGBTQ respondents said they experienced increased loneliness since the pandemic began, with 55 percent reporting symptoms of anxiety and 53 percent reporting symptoms of depression in the two weeks before the poll.
Now, that risk will grow even more with the end of the eviction moratorium, and it could impact LGBTQ youths’ ability to find housing for years to come, said Dylan Waguespack, public policy and external affairs director at True Colors United, a nonprofit group addressing LGBTQ youth homelessness.
“We know that eviction has lifelong consequences for people — specifically evictions done through the court system,” Waguespack said. “We see those evictions basically follow people for the rest of their lives. It makes it so much harder to get that next apartment, and even the one after it and the one after that.”
Eviction can put young LGBTQ people in dangerous situations, according to a True Colors United news release about the end of the eviction moratorium. It can put youth at a higher risk of exploitation by traffickers and jeopardize their ability to stay in school and receive health care, the release added.
Waguespack said many LGBTQ youth don’t have access to safe shelters where they live. He noted the Biden administration’s Department of Housing and Urban Development is making a significant effort to enforce nondiscrimination protections at federally funded shelters, but many shelters aren’t federally funded.
He added that it will take a long time for LGBTQ people, including youth, to feel safe accessing a shelter after potentially having faced discrimination.
“It’s going to take effort to rebuild that trust,” he said.
In the meantime, he said True Colors United believes it is “critical” for Congress to pass an eviction moratorium.
“There’s just no way that we’re going to be able to keep folks housed throughout this crisis if all we’re depending on is sort of continued efforts around various court rulings,” he said. “We need something in place that captures everyone and that keeps folks in their housing until we actually see a significant change in what this pandemic looks like economically.”
He encouraged anyone facing eviction, especially LGBTQ youth, to contact a fair housing organization in their area to find out whether there are local policies in place that could help.
An appellate court deciding Hobby Lobby violated Illinois anti-discrimination law by denying a transgender employee access to the women’s restroom could have nationwide implications, experts say.
Meggan Sommerville, a trans woman who has worked at a Hobby Lobby location in Aurora for more than 20 years, has been denied access to the store’s women’s room since transitioning at work in 2010. As a result, she has had anxiety and recurring nightmares and has been forced to limit her fluid intake, according to filings.
On Friday, the Illinois 2nd District Appellate Court upheld a lower court decision that determined the crafts chain violated the Illinois Human Rights Act both as an employer and as a place of public accommodation.
“Sommerville is female, just like the women who are permitted to use the women’s bathroom,” the three-judge panel said in its decision. “The only reason that Sommerville is barred from using the women’s bathroom is that she is a transgender woman.”
The ruling is one of first impression, meaning it presents a legal issue that has never been decided in the court’s jurisdiction.
“They stuck to the law,” Sommerville, 51, told Forbes. “This is a precedent-setting case in Illinois, because the Human Rights Act has never been tested in this way in Illinois, and actually in the country.”
Jim Bennett, director of the Illinois Department of Human Rights, said the decision underscored that trans people in the state “have strong protection from discrimination.”
“Ms. Sommerville’s experience of discrimination is certainly not unique, as too many of our transgender friends and neighbors continue to face acts of discrimination and hate,” Bennett said in a statement. “With this decision, the IDHR has been given a clear path to enforce the Commission’s orders concerning the rights of trans persons.”
Jacob Meister, who represented Sommerville, went further, telling Bloomberg Law the decision had national implications and will “start the process of courts around the country addressing the issue of bathroom access.”
Camilla Taylor, litigation director for the LGBTQ legal advocacy group Lambda Legal, agrees the ruling could have a broad impact in a variety of areas and jurisdictions.
“I think other states will generally be able cite this ruling, because of how sweeping it is,” Taylor said. “This is not limited to employment. This is the public policy of the state of Illinois. The court went out of its way to knock down every justification for treating trans people differently in public. It made it clear there’s no justification.”
While the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, determined discrimination based on sex includes sexual orientation and gender identity, it didn’t address access to sex-segregated facilities, services or sports teams.
“You can’t argue it’s not sex discrimination to deny someone access to a bathroom or a locker room,” Taylor said.
Not only could the ruling be used by opponents of so-called bathroom bills, she added, it could be relevant to the legal fight against legislation prohibiting transgender girls from playing on female sports teams.
“It will have big ramifications in all kinds of aspects of life — in education, in business, in gyms and sports,” Taylor said. “It’s indicative of applying nondiscrimination principles to sex-segregated areas. It makes clear that gender identity determines sex.”
Hobby Lobby could appeal the ruling to the Illinois Supreme Court and theoretically take it all the way to the U.S. Supreme Court. Attorney Whitman Brisky, who represented the company, did not immediately reply to a request for comment.
The 2021 legislative session has set a record for anti-transgender bills, according the Human Rights Campaign, an LGBTQ advocacy group: Nearly 70 measures were introduced in at least 30 states that would prohibit trans youth from participating in sports consistent with their gender identity, and at least 15 bills were introduced that would bar trans people from accessing the restrooms or locker rooms that align with their gender identity.
The judicial branch, however, has been more supportive: In addition to Bostock, the Supreme Court in June declined to review a 4th U.S. Circuit Court of Appeals decision that ruled transgender student Gavin Grimm had a constitutional right to use the boys’ restroom at his Virginia school.
The lower court ruled that policies barring transgender students from restrooms that match their gender identity violate the equal protection clause of the 14th Amendment and Title IX of the Education Amendments of 1972.