Transgender children who receive gender-affirming medical care earlier in their lives are less likely to experience mental health issues like depression and anxiety, according to a new study published in the journal Pediatrics.
“The study highlights that timely access to gender-affirming medical care is really important for youth with gender dysphoria,” said the study’s lead author, Dr. Julia C. Sorbara, a pediatric endocrinologist at the Hospital for Sick Children in Toronto. Gender dysphoriainvolves a conflict between an individual’s sex assigned at birth and their gender identity.
The study found that transgender youths who sought that type of care — which, for minors, most commonly includes puberty blockers, hormones or both — at a later age and further into puberty were more distressed and more likely to suffer from mental health issues.
“A major part of puberty is developing physical changes, and for youth with gender dysphoria, they begin to develop physical changes that are not in keeping with the gender they identify,” Sorbara said. “This can be very distressing for these young people.”
The study included 300 transgender minors aged 10 to 17 who were being treated at the Hospital for Sick Children. The researchers tracked their ages at the time they first sought care at the Toronto clinic and their reported difficulties with mental health.
More than three-quarters of the youths who went to Sorbara’s clinic reported mental health problems, including depression and anxiety, according to the study.
“The most common were depressive and anxiety disorders, as well as having considered suicide at some point — unfortunately not so out of keeping with what’s been reported from other clinics,” Sorbara said.
Researchers found that those issues were more likely the older the children were when they arrived at the clinic. When compared to children ages 10 to 15, children older than 15 were more likely to have reported diagnoses of depression (46 percent vs. 30 percent) and to have self-harmed (40 percent vs. 28 percent), considered suicide (52 percent vs. 40 percent), attempted suicide (17 percent vs. 9 percent) and required psychoactive medications (36 percent vs. 23 percent).
Sorbara’s study follows another study, also published in Pediatrics, that found that transgender individuals who received puberty blockers during adolescence had lower risks of suicidal thoughts as adults than those who wanted the medication but could not get access to it.
Suicide is a significant problem facing transgender children and adults. The 2020 National Survey on LGBTQ Youth Mental Health by The Trevor Project, an LGBTQ youth crisis intervention and suicide prevention organization, found that 40 percent of LGBTQ youths said they have “seriously considered” attempting suicide in the past year.
A 2019 report from the Williams Institute at the UCLA School of Law found a connection between experiences of discrimination, including in medical care, and suicidality for transgender adults, with participants who had experienced discrimination being twice as likely to have attempted suicide compared to those who had not experienced discrimination.
Another recent study found that almost 60 percent of transgender adults were close to someone who has attempted suicide and 25 percent knew someone who had committed suicide and that such exposure has negative impacts on their mental health.
Sorbara also noted that participants in her team’s study were only those “who want to and can access care.” She said many transgender children and adolescents may want or would benefit from such care but are unable to get access to it. She said she hopes her study lends “support to efforts to ensure this care is readily available for the youth that need it.”
The ability of transgender youths to receive gender-affirming medical care has become a political issue, with several states considering measures this legislative session to block access to that type of care. Republican legislators in at least eight states have introduced proposals that would punish doctors and other medical professionals who provide the kind of gender-affirming medical care described in Sorbara’s study. Bills in Missouri and New Hampshire called such care “child abuse.”
In February, over 200 medical professionals signed a letter opposing the bills on the grounds that they “violate the rights and freedoms of transgender young people.”
“Many credible studies of trans youth populations have demonstrated that gender-affirming care is linked to significantly reduced rates of depression, anxiety, substance abuse and suicide attempts,” the letter says. “To put it plainly, gender-affirming care saves lives and allows trans young people to thrive.”
Black LGBTQ Americans are disproportionately affected by the economic downturn fueled by the COVID-19 pandemic, according to a new report.
An online survey of 10,000 people across the U.S., conducted from April to July by LGBTQ advocacy group Human Rights Campaign and PSB Insights, found that Black LGBTQ respondents fared worse than both the Black population and the LGBTQ population along every economic indicator measured.
“The data make clear what we have long known: that those living at the intersections of multiply marginalized identities face harsher consequences of the pandemic.”
ALPHONSO DAVID, HUMAN RIGHTS CAMPAIGN
“We know Black people are dying from COVID-19 at extremely alarming rates. Unfortunately, this new research shows Black people and Black LGBTQ people are suffering disproportionate economic inequities,” HRC President Alphonso David said in a statement. “The data make clear what we have long known: that those living at the intersections of multiply marginalized identities face harsher consequences of the pandemic.”
The most recent report builds on prior studies conducted by HRC and PSB Insights that found LGBTQ people — particularlytransgender people of color — are more likely to have been economically affected as a result of the pandemic.
‘Multiple marginalized identities’
The study found that Black LGBTQ people were more likely to have had their jobs affected by the pandemic.
“Within the LGBTQ community, many at the intersection of multiple marginalized identities are at some of the greatest risk of facing the economic fallout from COVID-19,” the report states.
Specifically, 31 percent of Black LGBTQ respondents to the survey reported a reduction in their work hours, compared to 23 percent of all Black respondents and 28 percent of all LGBTQ respondents.
Black LGBTQ people were also more likely to have lost their jobs: 18 percent of Black LGBTQ respondents became unemployed, compared to 16 percent of both all Black respondents and all LGBTQ respondents.
J. Maurice McCants-Pearsall, the HRC’s director HIV and health equity, told NBC News that Black people are overrepresented in sectors of the economy like food service and retail most likely to be affected by the economic fallout of the pandemic and most likely to be exposed to the virus.
“They are classified as essential workers, but a lot of them went without proper [personal protective equipment] and supplies,” he said. “They couldn’t afford not to show up at work, and they have to make money to earn a living for themselves and their families.”
According to the report, Black LGBTQ people are more likely to have changed the way their households are spending and to be under financial stress as a result of the pandemic.
Over one third (36 percent) of Black LGBTQ respondents reported having changed their household budgets, compared to 27 percent of all Black respondents and 30 percent of LGBTQ respondents. One in five Black LGBTQ respondents has checked to see if their bank account was in overdraft, whereas 14 percent of both all Black respondents and all LGBTQ respondents reported the same.
Black LGBTQ people were more likely to request delays in bills and rent. Twenty-one percent of the Black LGBTQ people surveyed had asked for delays in paying their bills, compared to 17 percent of Black respondents and 14 percent of LGBTQ respondents. Nearly a quarter (23 percent) of Black LGBTQ respondents had requested delays in paying their rent, compared to 12 percent of Black respondents and 11 percent of LGBTQ respondents.
‘Racism is a public health issue’
The HRC study falls in line with existing research that demonstrates that Black Americans are disproportionately affected by the virus.
“Racism is a public health issue” McCants-Pearsall said. “If we don’t address structural and social racism, we can’t expect to have improved outcomes for communities of color, in particular Black communities.”
McCants-Pearsall said the U.S. can apply the lessons learned from the HIV epidemic for communities of color to the response to COVID-19.
“Communities of color, particularly Black gay men, are disproportionately impacted by HIV,” McCants-Pearsall said. “We are seeing the same situation.”
For McCants-Pearsall, better data collection is key to addressing economic and health disparities among LGBTQ people, people of color and those at the intersection of the two groups.
In a letter to Health Secretary Alex Azar, HRC joined racial justice organizations in a campaign demanding that the agency compile accurate data as it relates to LGBTQ people of color in the U.S.
“We can use that data to advocate for candidates, to argue for more resources,” McCants-Pearsall said. “It gives us the ability to show decision makers these are populations that are being disproportionately impacted. This is data that shows that we need to make sure that those resources got to those communities.”
“If we don’t have that data, we are just screaming,” he added.
Michael Ely met his husband, James Taylor, at a Sunset Beach bar in 1971. Taylor, known as “Spider” to his friends, played guitar in a band, and Ely got involved as a singer. The couple lived in California until the emotional toll of the AIDS epidemic became too great. In the early ‘90s, they relocated to Tucson, Arizona, where Taylor worked as a jet mechanic for Bombardier and Ely took care of their home.
In 2007, Ely and Taylor had a commitment ceremony but could not be legally married in Arizona. Then in November of 2014, shortly after the state legalized same-sex marriage — and 43 years after they first met — the two men tied the knot. Six months later, Taylor succumbed to cancer.
“Being able to access survivors benefits can make the difference for whether someone can afford the basic necessities of life, like housing, food and health care.”
PETER RENN, LAMBDA LEGAL
Despite their decadeslong relationship and eventual marriage, the Social Security Administration denied Ely spousal benefits, because the couple had not been married for the requisite nine months.
This week, however, a federal court ruling changed that. The LGBTQ advocacy group Lambda Legal won a class-action lawsuit, Ely v. Saul,on behalf of same-sex couples denied Social Security Administration benefits because of gay marriage bans.
“Because same-sex marriage is a fundamental right, and the underpinnings of the duration-of-marriage requirement has relied on the unconstitutional ban of that right, it cannot be said to be rationally related to a legitimate interest to a surviving spouse such as Mr. Ely,” the U.S. District Court for the District of Arizona’s Wednesday ruling states.
Ely described the decision as a “huge victory” that’s “going to help a lot of people.” One of the Lambda Legal attorneys on the case, Peter Renn, agreed.
“It is impossible to overstate the significance of this victory, not just for the number of people it affects, but for vindication of their constitutional rights,” he said.
The other named plaintiffs in the case include Anthony Gonzalez, whose husband, Mark Johnson, died in 2014, and James Obergefell, whose husband, John Arthur, died in 2013. Obergefell was also the plaintiff in the 2015 landmark Supreme Court case Obergefell v. Hodges, which made same-sex marriage legal across the United States.
Renn said that despite the Obergefell decision five years ago, the widowers involved in Ely v. Saul “have been deprived the protections of marriage, and without the victory would have been deprived the protections” for the rest of their lives.
“This type of government denial is flatly unconstitutional, and the ruling provides this relief on a nationwide basis to everyone who was affected by this,” he said.
Following a request for comment, the Social Security Administration referred NBC News to the Department of Justice, which did not immediately respond.
Ruling’s impact
Because Ely v. Saul is a class-action suit, all couples in a similar position to Ely will be able to access survivors benefits.
In 2020, over 65 million Americans will receive over $1 trillion in benefits from the Social Security Administration, according to the agency. While there are no estimates available for the number of gay surviving spouses who will benefit from this week’s ruling, survivors benefits account for over 12 percent of SSA benefits paid. In a single month in 2019, 6 million survivors received $7 billion in benefits.
“Being able to access survivors benefits can make the difference for whether someone can afford the basic necessities of life, like housing, food and health care,” Renn said.
At 67 years old, Ely currently relies on his husband’s pension from Bombardier, but that will run out in a couple of years.
“I think I’m going to be around another 20 years, and this gives me that security that I won’t end up on the streets,” he said of the Social Security benefits he’s now entitled to.
Renn emphasized that Social Security benefits are “benefits we all pay for.”
“This is tethered to your earning history,” he said. “Michael’s husband paid in like everybody else.”
Ely said his husband was a “hard worker” who spent “over 40 years putting into Social Security.”
“To think that I, his partner, his husband, would be denied that money and the government would just keep it didn’t seem fair,” Ely said.
Ely said he expects the government to appeal the decision, but he isn’t allowing that to take the shine out of his victory.
“I am happy, and I know Spider would be happy,” Ely said. “I think he would be doing cartwheels, and I hope he is, somewhere.”
The Trump administration’s expansion of religious exemptions is undermining civil rights protections and codifying discrimination against marginalized groups — particularly LGBTQ people — according to a report released Monday by three research and advocacy groups.
Using a combination of new rules, legal interventions and newly created divisions, the departments of Health and Human Services, Housing and Urban Development, Justice, Labor and State have all taken steps to advance “religious liberty,” often at the expense of LGBTQ rights, the American Civil Liberties Union, the Center for American Progress and the Movement Advancement Project argue in their report.
“When you connect the dots, you really see the administration pushing for a sea change in our culture and legal norms … at the expense of existing nondiscrimination principles.”
LOUISE MELLING, ACLU DEPUTY LEGAL DIRECTOR
“The many proposals to allow religious discrimination are consistent with the trend of the administration to undercut civil rights broadly,” Louise Melling, deputy legal director of the ACLU, told NBC News. “The administration is taking the position that religious freedoms give you a right to discriminate.”
The White House disagreed. Spokesman Judd Deere accused the organizations of being “a campaign arm of the Democratic Party” that has “refused to credit the President with any action he’s taken to protect LGBTQ Americans.”
“The President believes in human dignity for all and that no one should be discriminated against, including religious organizations and the LGBTQ community,” Deere said in a statement. “These actions build on President Trump’s longstanding commitment to responsibly safeguard the fundamental right to religious freedom by eliminating unfair and unequal treatment by the Federal government.”
Empowering or ‘harmful’?
Following Trump’s May 2018 executive order establishing the White House Faith and Opportunity Initiative, a measure to empower faith-based organizations and “promote religious freedom,” government agencies submitted nine proposals to the Federal Register to revise how they distribute federal funds to religious organizations to reduce poverty.
For example, if a homeless LGBTQ teen sought help from a faith-based provider and the provider was not accepting of the teen’s sexual orientation or gender identity, the provider would no longer have to inform the teen under the new rule about alternative providers that may be more accepting.
“These rules would be harmful to LGBTQ people, women, religious minorities and others during the best of times, but they’re particularly unconscionable during a public health crisis when even more people than usual are relying on social services,” said Rachel Laser, president of Americans United for the Separation of Church and State, which was not involved with Monday’s report.
‘Clashes of rights’
Aside from rule changes or proposed changes stemming from Trump’s executive order, advocates point to several other measures at major federal agencies that they say advance religious freedom at the expense of LGBTQ rights.
In October 2017, the Justice Department issued guidance directing all executive departments and agencies to prioritize “the foundational principle” of religious liberty. A year later, Jeff Sessions, then the attorney general, created the Religious Liberty Task Force to implement the guidance across the federal government.
The Justice Department also made the government’s position on potential clashes between religious liberty and LGBTQ rights clear inlegal briefs, including one to the Supreme Court, where it sided with Jack Phillips, a Christian baker who refused to make a wedding cakefor a same-sex couple.
A Justice Department representative said the agency has invested in defending the rights of LGBTQ people, most recently in a case in Puerto Rico involving the shooting deaths of two transgender women, Layla Peláez and Serena Angelique Velázquez.
Secretary of State Mike Pompeo created the Commission on Inalienable Rights in July. LGBTQ advocates questioned the purpose of the new commission and criticized its chair, Harvard professor Mary Ann Glendon, for public comments she had made opposing same-sex marriage.
A State Department representative defended the commission and its members, saying: “No member would think that because of a person’s sexual orientation they would have fewer or more constrained rights than anyone else.
“Mary Ann Glendon has argued that as a matter of fact there are clashes of rights,” the representative added, but the commission “doesn’t consider it part of its mandate to resolve these controversies.”
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At the Department of Health and Human Services, the director of the Office of Civil Rights, Roger Severino, created the Conscience and Religious Freedom Division in January 2018 and later changed his office’s mission statement from explicitly ensuring equal access to HHS services to emphasizing the protection of religious liberty.
“The president has been a champion for religious liberty from the moment he stepped into the Oval Office, and we have been following his direction to ensure protection of religious liberty,” Severino told NBC News.
Responding to the argument that expansive religious freedom constitutes a right to discriminate, Severino said: “Everyone has a fundamental equality and dignity by nature. In a pluralistic society we are going to have all sorts of views on important issues that affect people, and we have to live together in an environment of mutual respect.”
In May 2019, the HHS proposed a rule to roll back nondiscrimination protections in the Affordable Care Act and to expand the religious exemption by broadening the range of entities that would be exempt from the nondiscrimination provisions. It finalized a health care refusal rule that would broaden the ability of health providers to refuse to provide particular medical services because of religious or moral objections. Then, in November, HHS proposed a rule to allow foster and adoption agencies to turn away same-sex parents. That was after HHS granted a waiver to funded foster care agencies in South Carolina to deny services to same-sex or non-Christian couples.
“We have granted relief to faith-based adoption agencies who merely want to continue to do what they have done for decades, and that is to provide forever homes to children by working with folks using their own language of faith,” Severino said.
In August, the Labor Department proposed a rule to allow religious organizations that contract with the federal government to fire employees who do not follow the tenets of their faith, even if doing so amounts to discrimination on the basis of sexual orientation and gender identity.
The Labor Department said the rule was proposed to provide “the broadest protection of religious exercise” for companies that compete for federal contracts.
The Labor Department did not immediately respond to a request for comment.
‘Pushing for a sea change’
Other changes may be on the horizon: Following Trump’s Presidential Executive Order Promoting Free Speech and Religious Liberty, which asserts the right of religious organizations to practice their faiths, the Office of Management and Budget mandated that all federal agencies detail how they would distribute federal grant money in compliance with the order.
Severino said the measure is designed to ensure that “the dollars we send out are not used to discriminate against people because of religious denomination or faith,” but an HHS representative said the agency had no plans to publish any new policies as of last Friday.
LGBTQ rights advocates, however, fear that the measure could channel government money toward organizations unwelcoming to LGBTQ people, and they are calling for more transparency about how federal agencies plan to administer their grants.
“We don’t know how agency staff are being instructed to evaluate grants and the ways this could shift resources and funding away from recipients who comply with nondiscrimination requirements,” said Sharita Gruberg, director of policy for the Center for American Progress, a liberal think tank.
Gruberg said a coalition of progressive organizations, including hers, plans to file a request under the Freedom of Information Act for any documents related to policy changes as a result of the executive order and OMB’s mandate.
“It’s alarming that something so massively impactful that will affect billions of taxpayer dollars is being handled so secretively,” she said.
For Melling of the ACLU, the number of proposed rules and policies would amount to a sea change.
“Each one of these rules is significant, but when you connect the dots, you really see the administration pushing for a sea change in our culture and legal norms and realities, and it’s a sea change at the expense of existing nondiscrimination principles,” Melling said.
Lesbian, gay, bisexual, transgender and queer Americans are more likely to become unemployed as a result of the coronavirus epidemic than their non-LGBTQ counterparts, according to a poll by the national LGBTQ advocacy group Human Rights Campaign and PSB Research.
“It is unfortunate, but not surprising, to see how COVID-19 is disproportionately impacting vulnerable populations, including the LGBTQ community,” Elizabeth Bibi, the campaign’s senior communications adviser, told NBC News. “Understanding the impact this virus is having on our community is crucial so that we can be best prepared to weather this crisis and work together on how to recover.”
The report, based on 4,000 participants polled from April 16 to May 6, found that 17 percent of LGBTQ people had lost their jobs because of COVID-19, compared to 13 percent of the general population. LGBTQ people of color were disproportionately affected: Twenty-two percent of them reported losing their job because of the pandemic, compared to 14 percent of white LGBTQ people surveyed. The report also found 42 percent of LGBTQ people said their financial situation was “somewhat or much worse off now than one year ago,” compared to 36 percent of non-LGBTQ people.
The Human Rights Campaign released its data on Friday, the same day the federal government released its latest unemployment statistics, which found that the U.S. economy lost 20.5 million jobsin April and the unemployment rate had soared to a staggering 14.7 percent.
The organization’s new data builds upon its previous researchdemonstrating the LGBTQ community’s economic vulnerability.
“Our early analysis showed why LGBTQ people were more likely to be impacted by the virus: We work in industries, like the service industry, that are more likely to be impacted by the pandemic and are less likely to have health insurance or access to medical care when needed,” Bibi said.
A survey found that nearly 1 in 3 LGBTQ respondents had their work hours reduced, compared to about 1 in 5 in the general population. The findings also showed LGBTQ people were cutting back on spending at higher rates: Nearly 60 percent said they were now spending less, compared to just over 50 percent of the general public, and 42 percent of LGBTQ people reported making adjustments to their household budgets, versus 30 percent of the general population. Additionally, 11 percent of LGBTQ respondents reported requesting rent delays, compared to 8 percent of the general population.
While the campaign’s latest surveys did not inquire about paid sick leave, the organization’s 2018 Paid Leave Survey found only 29 percent of LGBTQ respondents reported having access to paid medical leave if they or a family member were to get sick. An estimated 76 percent of all U.S. civilian workers have access to paid leave, according to the Pew Research Center, though this varies significantly by industry.
The survey is among several recent reports that suggest lesbian, gay, bisexual, transgender and queer people are being disproportionately affected by the economic crisis.
“We know LGBTQ people face higher rates of economic instability, higher poverty, lower rates of employment and higher incidence of pre-existing conditions,” Sharita Gruberg, director of policy at the Center for American Progress, a liberal think tank, told NBC News. “You can make a pretty reliable assumption that LGBTQ people are facing serious economic consequences from the pandemic.”
The Center for American Progress released a report last week that suggested LGBTQ people are among those “being hit harder by the economic downturn caused by the COVID-19 pandemic.” Using data from the government’s Current Population Survey, the organization found that from 2014 to 2019, same-sex couples experienced higher rates of unemployment compared to other Americans. This means that even during periods of economic recovery, gay couples are less able to bounce back.
“While we do not yet have data on the impact the current economic crisis caused by COVID-19 is having on same-sex couples, if history is any indication, they will be disproportionately harmed by this crisis and will experience a longer recovery,” the report states.
Existing economic vulnerabilities
The public health crisis is exacerbating existing economic inequalities. Even in good economic times, most LGBTQ people still earn less than their non-LGBTQ counterparts, though this varies by gender identity and sexual orientation.
“The bulk of the evidence is that gay men earn less than heterosexual men whereas lesbians earn more than similarly skilled heterosexual women,” Christopher Carpenter, professor of economics at Vanderbilt University, told NBC News.
“Bisexual people earn less. They always do worse,” he said, adding that researchers are not sure why.
Carpenter’s research on employment also shows that transgender people experience much lower employment rates and incomes than cisgender Americans. “Trans folks are at increased risk of poverty,” he said.
A 2018 report from the Center for American Progress found LGBTQ people are more likely to rely on federal assistance programs, like the Supplemental Nutrition Assistance Program.
“With the economic crisis, I am really concerned about the increasing need for food assistance for LGBTQ people,” Gruberg said. “It’s not a special thing that LGBTQ need; we just know that LGBTQ people tend to be left out.”
Discrimination and LGBTQ workers’ rights
Gruberg and Carpenter agree that part of the economic disparity between LGBTQ individuals and households and everyone else may be the result of employment discrimination. A 2017 Harvard studyfound that more than 1 in 5 lesbian, gay, bisexual and transgender Americans reported experiencing employment-related discrimination.
“This crisis definitely highlights how vulnerable LGBTQ people are and how critical comprehensive nondiscrimination protections are,” Gruberg said. “The idea that LGBTQ people could be more vulnerable simply because of who they are is unacceptable. It was already imperative that we enact these protections, and this crisis has laid bare how critical it is.”
Currently, there is no federal nondiscrimination law protecting LGBTQ workers. While many states have passed state-level protections, 28 states do not have explicit legal protections for all LGBTQ employees, according to the Movement Advancement Project, an independent think tank.
“Queer folks are in precarious employment positions because of the lack of federal protections,” Carpenter said. “In any time of crisis, you worry that the first to be fired are those folks for whom there is no legal recourse to get their jobs back.”
Last May, the House passed the Equality Act, which would modify existing civil rights legislation to ban discrimination against LGBTQ people in employment, housing, public accommodations, jury service, education, federal programs and credit. The bill has stalled in the Senate.
The unemployment data released by the Bureau of Labor Statistics, including Friday’s monthly jobs report, does not include information on sexual orientation or gender identity. This lack of government data hampers researchers’ ability to draw definitive conclusions about the LGBTQ economic picture.
“Without federal, state and municipal data collection efforts, nonprofits and advocacy groups are having to step in and do this data collection on their own and having to cover the costs,” said Ty Cobb, senior director of research and strategic initiatives at the Human Rights Coalition.
He said the campaign’s two latest surveys can provide a “glimpse” into the economic issues facing LGBTQ people but encouraged federal, state and local governments to ask questions about sexual orientation and gender identity in their data collection efforts.
“We don’t know what we don’t know,” Carpenter said, echoing Cobb. “Everything we know about economic outcomes and wages of queer people is cobbled together from other surveys.”
Major demographic surveys, such as the 2020 census, do not include questions about the sexual orientation and gender identity of individuals, leaving large gaps in public knowledge about LGBTQ people. Carpenter said this lack of available data could have a far-reaching impact, and he even cited the upcoming Supreme Court decision on Title VII as an example.
“Nine people will make a very consequential decision, and they are doing so without direct evidence from our federal surveys,” he said. “That should give everyone cause for concern.”
Advocacy groups and academics have long called for LGBTQ people to be included in government data collection. The pandemic has reignited these calls and has also recently led to some lawmakers — including California state Sen. Scott Wiener and New Jersey Assemblywoman Valerie Vainieri Huttle — to call on their states to collect data on LGBTQ patients amid the pandemic.
“We know that COVID-19 is harming the LGBTQ community, but because no data is being collected, we’re hamstrung in making the case to devote attention and resources,” Wiener said in a statementannouncing the introduction of an LGBTQ COVID-19 data collection bill. “The history of the LGBTQ community is a history of fighting against invisibility. Without data, we quickly become an invisible community and risk being erased.”
In the year since the Trump administration banned transgender individuals from serving in the military, a number of advocacy groups have challenged the policy and many active service members say they’ve been forced to choose between continued service and their dignity and basic health care needs.
When the administration implemented the ban on April 12, 2019, it ended an Obama-era policy that allowed trans men and women to serve openly and to receive transition-related medical care while enlisted.
“The Trump-Pence administration has shamefully told thousands of qualified transgender military members that we aren’t good enough and our service doesn’t matter.”
ARMY STAFF SGT. PATRICIA KING
The current policy allows service members who received a diagnosis of gender dysphoria prior to April 2019 to continue to serve in their preferred gender. Any currently serving troops diagnosed after that date must serve according to their sex as assigned at birth and are prohibited from seeking transition-related care. Prospective recruits who have received a gender dysphoria diagnosis are barred from enlisting or enrolling in military academies.
The Defense Department stands by the year-old policy, and while it is widely viewed and referred to as a “ban,” the Pentagon insists it is “not a ban on transgender persons.”
“If you are a transgender individual, you are welcome to serve,” Jessica R. Maxwell, a Defense Department spokesperson, said in an email, adding that the policy “actually prohibits discrimination on the basis of gender identity for accession, retention or separation.”
What the policy does, Maxwell added, is end “presumptive accommodations” for people with gender dysphoria, which she referred to as a “serious health condition.”
Ending these “presumptive accommodations,” means transgender individuals would have to forgo gender-affirming health care and serve in the military according to their sex assigned at birth, not their preferred gender, a situation that is untenable for many, if not most, trans people.
Army Staff Sgt. Patricia King, second from right, together with other transgender military members, from left, Army Capt. Alivia Stehlik, Army Capt. Jennifer Peace and Navy Petty Officer Third Class Akira Wyatt, testify about their military service before a House Armed Services Subcommittee on Military Personnel on Feb. 27, 2019.Manuel Balce Ceneta / AP
A number of LGBTQ advocacy groups are challenging the Pentagon’s policy and its justification for restricting the military service of transgender individuals, and five of these challenges are currently in court.
But as these cases slowly advance in the courts, prospective and active trans service members say they are forced to live with the consequences of the policy.
“The Trump-Pence administration has shamefully told thousands of qualified transgender military members that we aren’t good enough and our service doesn’t matter,” Patricia King, the U.S. Army’s first out transgender infantryman, said in a statement shared with NBC News. “Our nation’s brave service members and their families deserve better.”
History of the ban
On July 26, 2017, President Donald Trump tweeted that the U.S. military would no longer “accept or allow transgender individuals to serve in any capacity.”
“Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail,” he wrote.
At the time, studies estimated that 2,450 to 15,000 transgender people were serving in the U.S. military, and a 2015 survey of over 27,000 transgender individuals from the National Center for Transgender Equality found trans respondents reported twice the rate of military service as the general population.
In a presidential memo in August 2017, Trump directed the Defense Department to “return to the longstanding policy and practice on military service by transgender individuals that was in place prior to June 2016 until such time as a sufficient basis exists upon which to conclude that terminating that policy and practice would not have the negative effects discussed above.”
The memo allowed currently serving trans members to remain, but ordered the cessation of Defense Department or Homeland Security resources to “fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex.”
Trump’s proposal went against the military’s own recommendations regarding transgender service members, which were arrived at as part of a policy review that began in 2015 by the secretary of defense at the time, Ashton Carter. Under Carter, a Pentagon-commissioned study concluded that there were no reasons to exclude trans individuals from military service. The Obama administration thenlifted the ban on transgender people serving in the military in June 2016, permitting those already in the armed forces to be open about their gender identities and setting a date to allow the recruitment of openly transgender individuals.
Democrats came out against the ban, as did some prominent Republicans, including Sen. John McCain of Arizona, a decorated veteran of the Vietnam war and former POW who said in 2017 that any service member who meets appropriate military standards should be permitted to serve.
“When less than 1 percent of Americans are volunteering to join the military, we should welcome all those who are willing and able to serve our country,” McCain said.
In addition to the five lawsuits that are still working their way through the courts, lawmakers have introduced legislation and attempted to amend the 2020 National Defense Authorization Act to rescind the ban over the past year.
Legal challenges
Several LGBTQ advocacy organizations have filed lawsuits challenging the ban, and four federal courts issued orders forbidding the government to enforce it.
“Taking up resources to discharge someone who has incredible things to contribute makes no sense.”
JENNIFER LEVI, GLBTQ LEGAL ADVOCATES AND DEFENDERS
Kara Ingelhart, an attorney at Lambda Legal working on one of the cases, Karnoski v. Trump, called the Supreme Court decision “disappointing” but said the high court has not yet heard the merits of the case. She pointed to U.S. District Judge Marsha Pechman’s December 2019 ruling requiring the government to turn over some 35,000 documents cited in its decision to ban trans service members. The judge said the plaintiffs were entitled to all the documents and information used to justify the administration’s restrictions on trans service members.
“We are currently in the thick of discovery and moving forward as if we were going to trial,” Ingelhart said.
Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates and Defenders, or GLAD, saidshe’s confident the ban will be found unjustifable.
“We anticipate trials where the court will evaluate and see quite clearly the absence of any rational justification or any legitimate justification of the ban,” she told NBC News. “There is no justification for banning a group of people from serving in the military who can meet all the generally applicable standards … It undermines the concerns for the stability and strength of the military.”
Last month, GLAD and the National Center for Lesbian Rights filed anew suit on behalf of a Navy officer who has served two extended tours of duty over nine years and is now facing involuntary discharge because she is transgender. She came out as trans after the ban went into effect in April 2019, and is therefore not protected by the “grandfather clause” that permits those already enlisted to continue to serve. The current policy mandates the discharge of any service member who comes out as transgender and seeks to undergo a gender transition.
“It is just an example of just how irrational the ban is,” Levi said. “Taking up resources to discharge someone who has incredible things to contribute makes no sense.”
Serving under a ‘cloud of otherness’
The transgender military ban affects both active personnel and prospective recruits.
“It’s disheartening that the president of the United States has taken an opinion on my fitness to serve in the military without knowledge about what makes me, and so many other transgender people, just as good candidates to serve in the military,” said Ryan Karnoski, one of the plaintiffs on the suit brought by Lambda Legal.
At 25, Karnoski has an M.A. in social work and is pursuing a Ph.D. in social welfare at the University of California, Berkeley. He hopes to be given the opportunity to apply his skills to a health services career in the military.
“The ban has been frustrating, but I’m refusing to look at it like a setback,” he said.
According to Ingelhart, the ban continues to be a source of concern and frustration for clients like Karnoski.
One of the other plaintiffs in the case with Karnoski is a woman known as Jane Doe, who chose anonymity because she remains in active service. She did not come out as transgender prior to the implementation of the ban last April.
“Because she didn’t do that within the artificially imposed window, she is now prohibited from doing so without the loss of her career,” Ingelhart said. “She is not being able to make that choice for herself without risking her career and the livelihood of her family.”
While there are openly transgender people currently serving in the military, Peter Perkowski, legal director of the Modern Military Association of America, a nonprofit organization advocating for LGBTQ service members and veterans, said, “They are doing it under a cloud of otherness.”
“That’s not healthy for them,” Perkowski said. “Even though they were spared, at least for now, discharge or separation, that doesn’t mean they are not feeling the effects of this ban.”
Perkowsi said these service members are subject to mental health issues as a result, in addition to outright discrimination and even being pressured to leave the military.
Blake Dremann, an active duty lieutenant commander in the Navy and the treasurer of SPART*A, an LGBTQ military group, said those who are grandfathered in are having to deal with a cloud of suspicion as to whether they are fit to serve.
According to the latest Pentagon memo, transgender individuals may seek waivers to be able to enlist or serve in accordance with their gender identity. The waiver process has turned out to be complicated, Dremann said, as one must obtain separate waivers for gender dysphoria, another to serve as one’s preferred gender, and another to receive maintenance hormone therapy. “They take a long time,” Dremann said.
Further, many active service members he has spoken to worry about the consequences of a denial of the waiver.
“What is the course of action then? Does it go back to the member and they could ‘change their mind’ or does that immediately start discharge?” Dremann asked.
The current public health crisis highlights the costs of denying qualified people the ability to serve.
“How many trans people have left the military or chose not to join the military that would have gone into critical health care professions?” said Jennifer Peace, a transgender Army captain who has been serving for over 15 years. “With ‘don’t ask, don’t tell,’ we spent over $300 million from the early ‘90s to its repeal. What money are we spending now? It’s so unfortunate we are making the same mistakes.”
Thousands of military personnel are being called upon to help in the fight against the coronavirus.
“I think about the trans military service members, especially in the medical service corps, that are fighting on the front lines against the coronavirus not just here but overseas as well,” Karnoski said.
“It’s really frustrating that this issue is something they have to be focusing any amount of attention on,” he said of the trans military ban.
Next steps
The policy could be changed through the courts, but the slow nature of litigation and the current composition of the Supreme Court leads some advocates to believe redress is more likely through Congress or the ballot box.
“Our message right now is that the only way this changes is with a change in administration, but that doesn’t stop us from working with our members of Congress,” Dremann said.
Levi said, “The challenge to this military ban has just highlighted how wrong it is to exclude people because of who they are.”
The number of anti-LGBTQ hate groups soared 43 percent last year, rising from 49 groups in 2018 to 70 in 2019, according to a recent report from the Southern Poverty Law Center.
“Groups that vilify the LGBTQ community, in fact, represented the fastest-growing sector among hate groups in 2019,” the report states. The SPLC found the surge in anti-LGBTQ groups occurred amid an overall decrease in hate groups last year, which dropped to 940 from an all-time high of 1,020 in 2018.
The report said the surge was “possibly fueled by continued anti-LGBTQ sentiment and policy emanating from government officials,” largely attributing it to the Trump administration.
“Anti-LGBTQ groups have become intertwined with the Trump administration, and — after years of civil rights progress and growing acceptance among the broader American public — anti-LGBTQ sentiment within the Republican Party is rising,” the report states. “Though Trump promised during his campaign to be a ‘real friend’ to the LGBTQ community, he has fully embraced anti-LGBTQ hate groups and their agenda of dismantling federal protections and resources for LGBTQ people.”
Then Republican presidential nominee Donald Trump holds a rainbow flag given to him by a supporter during a campaign rally at the University of Northern Colorado on Oct. 30, 2016 in Greeley, Colo.Chip Somodevilla / Getty Images file
In a statement sent to NBC News, White House spokesman Judd Deere called SPLC a “far-left smear organization” and said its “comments are disgusting.” He also pointed to the president’s track record on LGBTQ issues, saying Trump has “fought for inclusion and repeatedly condemned hate and violence.”
The Southern Poverty Law Center defines a hate group as “an organization that — based on its official statements or principles, the statements of its leaders, or its activities — has beliefs or practices that attack or malign an entire class of people, typically for their immutable characteristics.”
Most of the growth in new anti-LGBTQ hate groups, SPLC’s report found, comes from grassroots churches.
One example is the expansion in the network of churches run by Steven Anderson. Anderson runs Faithful World Baptist Church, in Tempe, Arizona, which has been listed as a hate group by the SPLC for some time. The church, according to its website, believes “homosexuality is a sin and an abomination which God punishes with the death penalty.”
Faithful World Baptist Church did not respond to NBC News’ request for comment.
Many of the 70 “anti-LGBTQ hate groups” in SPLC’s report are well established.
President Donald Trump shakes hands with Family Research Council president Tony Perkins at the 2017 Value Voters Summit on Oct. 13, 2017 in Washington.Evan Vucci / AP file
One of the best known is the Family Research Council, which was founded in 1983 and hosts the annual Value Voters Summit for conservative politicians and thousands of participants each year. At last year’s summit, President Donald Trump repeated his opposition to the Equality Act, a bill passed by the House that would extend federal nondiscrimination protections to LGBTQ people.
Lecia Brooks, an SPLC spokesperson, told NBC News that the council’s long-time president, Tony Perkins, has been granted “unfettered access” to the Trump administration. Notably, Perkins was appointed to the U.S. Commission on International Religious Freedom by Senate Majority Leader Mitch McConnell, R-Ky.
Following Perkins’ appointment to the independent, bipartisan commission, the national LGBTQ advocacy group GLAAD compiled a list of more than 30 examples of Perkins’ and FRC’s opposition to the rights of LGBTQ people in the U.S. and abroad. Among those examples are a comparison of same-sex marriage to a marriage between “a man and his horse”; calling the “It Gets Better” project, an initiative designed to help LGBTQ young people cope with bullying and marginalization, “disgusting” and a “concerted effort” to recruit kids into the gay “lifestyle”; and claiming that the “blood” of “young Marines” would be on the hands of lawmakers who voted to repeal the military’s “don’t ask, don’t tell” policy.
The Family Research Council did not respond to a request for comment.
Another “anti-LGBTQ hate group” named in the report is the Alliance Defending Freedom, a conservative Christian legal group with attorneys across the country and a long track record of litigating against LGBTQ rights.
In a lawsuit that made national headlines last year, ADF represented Jack Phillips, a Christian baker who refused to make a cake for a gay wedding, in a narrow victory at the Supreme Court. ADF is also involved in another Supreme Court case dealing with LGBTQ workers rights, representing a Detroit funeral home that fired an employee after she informed the home that she was undergoing a gender transition. Among its non-Supreme Court cases, ADF is currently representing three athletes in a suit against the Connecticut Interscholastic Athletic Conference, which adopted a policy allowing transgender girls to compete in interscholastic sports with cisgender high school girls.
Jeremy Tedesco, ADF’s senior counsel and vice president of U.S. advocacy, slammed the Southern Poverty Law Center and the timing of its new report, which was released March 18.
“It is appalling that the Southern Poverty Law Center would choose this time of national emergency to launch their divisive and false ‘hate report,’” Tedesco told NBC News. “We call on SPLC to retract the report, stop sowing division and join the rest of America against our common foe: COVID-19.”
Brooks dismissed criticisms of SPLC releasing its annual report during the coronavirus pandemic.
“Fighting hate is something we have to keep at the forefront of our minds,” she said. “They don’t take a break, and we don’t take a break either.”
Westboro Baptist Church, known for its public protests that consistently feature signs with homophobic messages like “God Hates Fags,” also appears on the SPLC’s list. In 2019, the grouppicketed Morehouse College and Spelman College after the two historically black, single-sex institutions changed their admissions policy to include transgender students.
Jonathan Phelps, a spokesperson for the church, told NBC News that the SPLC is “not being honest” in their characterization of the Westboro Baptist Church as a hate group.
“We don’t discriminate. Whatever your favorite sin is, if you ask us about it we are going to articulate in the plainest language possible what the Lord Jesus Christ has said about it,” he said. Regarding homosexuality, “it is an abomination,” Phelps added.
Brooks said SPLC stands by its “hate group” designations and dismissed criticisms that the organization disproportionately focuses on religious groups.
“We are not against Christian groups,” Brooks said. “For us, it’s more about the way they go out of their way to demonize LGBTQ folks.”
Brooks also lamented the lack of public pushback against many of these groups.
“Sadly, there is not enough public outcry against anti-LGBTQ groups because we have just let it go saying, ‘That’s just their religion,’” she said.
History of ‘anti-LGBTQ hate’
The SPLC has been tracking the number of hate groups in the United States since 1990, but the anti-LGBTQ movement emerged decades before.
“Along the same lines that you see today, they put forward stereotypes and vilify, especially gay men, as predators and predators of children, and use that to justify the tactics of taking rights way from LGBTQ people,” Fetner explained.
Fetner cited as an early example the activism of Anita Bryant in Florida. The singer-turned-anti-gay-activist was behind the “Save Our Children” campaign, which in 1977 helped overturn a newly passed local ordinance in Miami-Dade County that prohibited discrimination based on sexual orientation in employment, housing and public services.
“It caught on with socially conservative evangelical communities, and sort of blossomed and became the lead issue of the Religious Right,” Fetner said.
The late 1970s also saw the emergence of Jerry Falwell’s Moral Majority, a political action group that wielded significant influence in the Republican Party. Fetner said Falwell realized early on that raising issues of sexuality was both “titillating and scandalous” enough to prompt followers to make sizable donations to his organization.
“The Religious Right really inserted itself into the Republican Party in the ‘80s and ‘90s and has had an influence in American politics ever since,” she added. However, Fetner said the movement began to decline in the 1990s.
“Young evangelicals weren’t as interested in anti-gay activism as the older folks,” she said. At the same time, acceptance of homosexuality was on the rise in the U.S., across all segments of the population. “People were actually changing their minds.”
By the early 2000s, the U.S. reached a tipping point for acceptance of homosexuality, according to a Pew study, and by 2016, LGBTQ advocates had solidified many civil rights gains, such as the legalization of same-sex marriage.
Why are we seeing a surge?
So, what changed?
“Trump’s embrace of these groups, their leaders and their policy agenda fuels this growth,” Brooks said of the rise in “anti-LGBTQ hate groups.”
The report points to significant staffing and policy choices by the Trump administration that reflect the position of organizations on the SPLC’s growing anti-LGBTQ list.
Since taking office, the Trump administration has rolled back several protections for LGBTQ people through executive orders, includingnondiscrimination protections for LGBTQ workers employed by federal contractors.
“The administration has consistently claimed that laws and regulations that prohibit discrimination on the basis of sex do not apply to LGBTQ people and has worked to install religious exemptions to civil rights laws,” the report states.
In addition, nearly one third of the administration’s judicial nominees boast anti-LGBTQ track records, according to a report by Lambda Legal.
“Religious conservatives have taken this as an opportunity to push back on any civil rights gains LGBTQ folks have made,” Brooks said. “They couch it in ‘religious freedom,’” she added.
“I think that anti-gay activism is swept up as part of this new social embrace of intolerance and right-wing attitudes of all kinds,” Fetner said.
“People are disgruntled, going online, getting misinformation and getting radicalized,” she added. “Some portion of these people are joining new organizations or new churches.”
Fetner sees the Trump administration is both the outcome of this broader phenomenon, and a catalyst for increased anti-LGBTQ activism.
“Trump’s win was a signal to these larger social forces that this is their moment,” she said.
What’s the impact?
Anti-LGBTQ groups have a significant impact on policy outcomes, social violence and the priorities of LGBTQ advocacy organizations, according to civil rights advocates and scholars.
“Extremist ideas long believed outside of the realm of legitimate politics are penetrating deeply into the mainstream, spawning public policies that target immigrants, LGBTQ people and Muslims,” the report states.
Shannon Minter, legal director for the National Center for Lesbian Rights, said this “pattern of escalating attacks has put the LGBT movement on the defensive” and caused advocacy groups to invest a “tremendous amount of resources to deal with these attacks.”
Fetner said most LGBTQ advocacy groups are funded at “a fraction of the Religious Right groups that were proposing these initiatives.” She said that means they’re “sucked into these battles where their very right to exist is on the table again,” and they’re “putting out fires that have been started by better resourced organizations.”
The SPLC report and LGBTQ advocates also connect the surge in “anti-LGBTQ hate groups” to violence against LGBTQ people.
The FBI’s most recent Hate Crime Statistics report, released in November, found nearly 20 percent of all reported hate crimes in 2018 were motivated by anti-LGBTQ bias. While reported anti-LGBTQ hate crimes grew from 2017 to 2018, the most growth was seen in reports of anti-trans violence, which increased 34 percent year-over-year.
“I don’t think the anti-LGBTQ movement will win, but the damage they can do along the way is substantial,” Fetner said. Despite this, she remains optimistic, saying, “The LGBTQ movement will carry on and will come out of it stronger.”
The Department of Health and Human Services plans to unlawfully stop enforcing nondiscrimination protections for LGBTQ Americans, a lawsuit filed Thursday claims.
The suit centers on a “notice of nonenforcement” and a proposed rule issued by the Trump administration in November that would reverse a 2016 Obama-era rule prohibiting discrimination in HHS-funded grant programs and permit federally funded organizations to turn people away claiming conflicts with religious beliefs. The suit was filed by civil rights group Lambda Legal and nonprofit Democracy Forward on behalf of three LGBTQ advocacy groups — True Colors United, SAGE and Family Equality.
“In conflict with HHS’s established rules and policy, Defendants have engaged in systematic efforts to undermine the civil rights of, and non-discrimination protections for, LGBTQ people in the United States,” the suit states. “HHS’s decision to walk away entirely from enforcing the still-valid 2016 Grants Rule is a glaring example.”
According to the lawsuit, there’s about $500 billion in HHS grant money at stake. This is the amount the department administers to fund organizations across the country who provide a variety of services, including child placement, homeless shelters and elder care.
The HHS Office of Public Affairs told NBC News it would “not comment on pending litigation.” However, in its November statement regarding the notice of nonenforcement, the department said it is “committed to fully enforcing the civil rights laws passed by Congress” and stated that this proposal would “better align” HHS grant regulations with “federal statutes, eliminating regulatory burden, including burden on the free exercise of religion.”
Civil rights advocates say the November measure is another example of the Trump administration prioritizing “religious freedom” at the expense of the rights of lesbian, gay, bisexual, transgender and queer Americans. In fact, a report issued in November by the bipartisan U.S. Commission on Civil Rights claimed the administration is “undoing decades of civil and human rights progress” — especially when it comes to LGBTQ issues.
‘Heightened vulnerability’
Puneet Cheema, a Lambda Legal attorney working on the suit, said this HHS policy reversal will affect the most vulnerable within the LGBTQ community, notably youth and older adults. The current coronavirus pandemic, she added, will only make the impact more devastating.
“Youth who are experiencing homelessness, seniors who have difficulties accessing health care generally,” she said, “they may have heightened need for care and heightened vulnerability in this epidemic.”
LGBTQ youth are overrepresented in the foster care system, and they are 120 percent more likely to experience homelessness, according to a study from Chapin Hall at the University of Chicago. Foster care and shelters are two essential services often funded by HHS grants.
“LGBTQ youth already more vulnerable because of discrimination,” Cheema said. “They have a right to get services that are free of discrimination. They have a right to shelter without being subject to verbal harassment. They have a right to loving and affirming families, all of which is at risk.”
“Defendants have engaged in systematic efforts to undermine the civil rights of, and non-discrimination protections for, LGBTQ people in the United States.”
Dylan Waguespack is the public policy and external affairs director at True Colors United, a national organization assisting LGBTQ homeless youth. Waguespack told NBC News that when HHS announced it would no longer enforce the nondiscrimination rule, the organization decided to take action by joining Thursday’s lawsuit.
“We immediately recognized it could cause a great deal of harm to young people,” he said, noting the department’s proposed rule could make a young person less willing to report discrimination or prompt them to leave a shelter altogether.
Echoing Cheema, he also noted the particularly perilous situation these vulnerable young people are in amid the current public health crisis.
“Making young people less likely to come inside is particularly dangerous right now when we are looking at this pandemic and expecting an increase in young people coming in to use these services because of home situations becoming more and more unstable and schools and campuses shutting down,” he said.
HHS’s decision may also negatively affect older LGBTQ adults, many of whom rely on services funded by the department, such as meal delivery or transportation.
“LGBTQ older adults are already more economically insecure because of the lifetime of discrimination they have experienced,” Cheema explained. “They have a right to age with dignity and HHS is denying them that.”
Cheema said HHS’s November nonenforcement notice and rule proposal is yet “another example of the Trump administration turning its back on LGBTQ people” and “flouting the rule of law.”
“This is really just bringing Virginia into the 21st century,” Ebbin told The Washington Post shortly after the bills’ passage. “Voters showed us they wanted equality on Nov. 5, and the Senate of Virginia has started to deliver on that.”
Supporters gather for a group photo ahead of the floor votes on the Virginia Values Act. The event was held in the Jefferson Room of the State Capitol in Richmond, Va., Thursday, Feb. 6, 2020.Bob Brown / AP
Despite the Supreme Court’s landmark 2015 ruling in Obergefell v. Hodges making same-sex marriage the law of the land, most states still have outdated laws on their books like the ones Virginia just repealed.
Indiana is one of those states, though an attempt to remove its gay marriage ban was unsuccessful last month in the Republican-controlled state Legislature. In fact, GOP opposition to its removal derailed legislation seeking to raise the legal age to marry in the state from 15 to 18. An amendment had been added to the age-limit bill that sought to scrap the state’s 1997 law declaring: “Only a female may marry a male. Only a male may marry a female.”
“I did not think it was unreasonable to remove what is now null-and-void unconstitutional language from the code,” state Rep. Matt Pierce, a Democrat, said in defense of the amendment. “I didn’t think it would be that controversial, because this issue has been settled now. Apparently to the Republican caucus it is controversial.”
“The religious right has not said, ‘We lost same-sex marriage, and we are moving on.’ They are still fighting same-sex marriage, both politically and legally.”
PROFESSOR JASON PIERCESON
In Florida, Democratic legislators have been trying for years to repeal thestate’s ban — which says “marriage” means “only a legal union between one man and one woman as husband and wife” — with no luck.
“This is not just, you know, unconstitutional and not just obsolete, but this is cruel language in our statute. So, it needs to get out of there,” Rep. Adam Hattersley told WUSF Public Media, adding that members of the state’s Republican leadership “don’t have an appetite to fix something” that they “hope would come back into play in the future.”
Five years after the Supreme Court had its say on the issue, same-sex marriage remains a politically contentious issue, and LGBTQ advocates continue to battle in courtrooms and statehouses to ensure gay couples can exercise their right to marry.
History of state-level gay marriage bans
States have two types of bans on same-sex marriage: statutory and constitutional. Statutory bans appear in state family law, while constitutional bans are embedded in states’ constitutions.
“Most of them are still on the books, though they are not enforceable,” Jason Pierceson, a political science professor at the University of Illinois Springfield, told NBC News.
“Democratic control of legislatures has created opportunities to get rid of some bans,” Pierceson said. “That’s the big difference between Indiana and Virginia.”
There were two phases of same-sex marriage bans, according to Pierceson. The first one began in the 1970s, when gay couples would apply for marriage licenses and many state judges at the time ruled that these unions were not prohibited. This prompted lawmakers to explicitly outlaw same-sex marriage. In 1973, Maryland became the first state to do so. Other states quickly followed, with Virginia, Arizona and Oklahoma passing similar laws in 1975, and Florida, California, Wyoming and Utah doing so in 1977.
The second phase followed a 1993 Hawaii Supreme Court decisionthat found denying same-sex couples the right to marry may violate the equal protection clause of the state’s constitution. That ruling prompted state and federal lawmakers to take action.
Utah was first to enact a statutory ban in response to that decision in 1995, and then a year later, Congress passed the federal Defense of Marriage Act, or DOMA, which defined marriage as between one man and one woman. Several states adopted their own “mini-DOMAs” after that, according to Pierceson, and by the year 2000, he said “virtually every state,” with the exception of New Mexico, had a “statutory ban on same-sex marriage.” These “mini-DOMAs,” he noted, banned gay marriage in family codes and state law, not the constitution.
In 1998, Hawaii became the first state to pass a constitutional amendment specifically targeting same-sex marriage. The measure empowered the legislature to enact a ban, which it did that same year through a constitutional referendum. Ultimately, 30 more states adopted constitutional amendments prohibiting gay marriage.
A demonstrator in support of same-sex marriage waves a rainbow colored flag after the same-sex marriage ruling outside the U.S. Supreme Court on June 26, 2015 in Washington.Andrew Harrer / Bloomberg via Getty Images file
While the 2015 Obergefell v. Hodges decision overrides all of those state measures, many of them, particularly the state constitutional amendments, remain on the books for one reason or another. In some cases, there is a lack of political willingness to remove them, while in others, the labor-intensive removal process makes them a low priority.
In Virginia, for example, while the two statutory laws banning same-sex marriage have been repealed, the state’s 2006 constitutional amendment prohibiting gay unions remains for the time being. This is because amendments must pass both the state Senate and House of Delegates and be approved by Virginia voters.
Lawmakers in Nevada will allow voters to decide whether to strike down that state’s constitutional ban at the ballot box in November. Any constitutional amendment in Nevada requires such a statewide vote.
“In Colorado we got a whole host of things to work on from transportation to education to housing to access to heath care, but instead of being able to dedicate all our resources to things like access to HIV-prevention medications, we have to allocate staff time and resource just to be able fight these bills.”
SHEENA KADI, ONE COLORADO
Sheena Kadi, deputy director of the LGBTQ advocacy group One Colorado, told NBC News that her organization has been having internal conversations for years about what to do with the state’s constitutional ban, which has been on the books since 2006 but would, in her estimate, take three to five years to remove it.
“We can take the first step through the Legislature, but then we would need a ballot initiative to remove that from the state Constitution,” she said. Given the organization’s other priorities, Kadi said going after the unenforceable constitutional amendment just seemed like too much work.
Pierceson said that in Colorado and a number of other states, having these amendments removed isn’t necessarily easy, as a number of conservative lawmakers are happy to keep them for both symbolic and political reasons.
“Many Republicans and the religious right hope Obergefell will be overturned, and then their state would go back to banning same-sex marriage, potentially,” he said.
Compliance issues
Even after Obergefell, there have been a number of instances over the past five years where state and local officials have refused to issue marriage licenses to same-sex couples.
Just a few months after the ruling, a Kentucky county clerk, Kim Davis, garnered national attention for refusing to issue marriage licenses to same-sex couples. Davis, who went to jail for her refusal, has since retired after losing re-election in 2018. In 2019, the 6th U.S. Circuit Court of Appeals found that, although Davis was immune from being sued as a county official, she could be sued in her individual capacity for refusing to comply with the law.
In early 2016, Roy Moore, then the chief justice of the Alabama Supreme Court, prohibited probate judges in the state from issuing marriage licenses to gay couples. Moore, who is currently running for a U.S. Senate seat from Alabama, was suspended from his judicial duties in September 2016 over his gay marriage order. And just last year — following the persistent refusal of a number of Alabama probate judges to issue marriage licenses to any couples so they wouldn’t have to issue them go same-sex couples — the state passed a workaround bill that no longer requires a judge’s signature on marriage licenses.
Just last year in Texas, a Waco-based judge was issued a public warning by the state Commission on Judicial Misconduct for her yearslong refusal to perform same-sex weddings. The judge, Dianne Hensley, responded by suing the commission, claiming it violated her rights under the Texas Religious Freedom Restoration Act. Last month, Texas Attorney General Ken Paxton, a Republican, declined to defend the state agency in the lawsuit because its actions conflict with his views of the Constitution.
“We believe judges retain their right to religious liberty when they take the bench,” Paxton’s spokesperson, Marc Rylander, said in a statement at the time.
Hole-y matrimony
Since the legalization of same-sex marriage federally, hundreds of state bills have been introduced that poke holes in gay marriage in various ways.
“The religious right has not said, ‘We lost same-sex marriage, and we are moving on,’” Pierceson said. “They are still fighting same-sex marriage, both politically and legally.”
Equality Federation, an LGBTQ social justice group, is tracking nine marriage bills that affect same-sex marriage across seven states: Iowa, Kansas, Massachusetts, Missouri, North Carolina, South Dakota and Tennessee.
Colorado had been on this list until just last week, when advocates defeated five bills they described as being anti-LGBTQ. One of them, House Bill 1272, had proposed that existing state law — which still stipulates that marriage is between one man and one woman — be enforced as written, and that no judicial rulings, including those from the U.S. Supreme Court, should influence their enforcement.
HB 1272 also sought to restrict adoption to “marriages and civil unions that consist of one man and one woman.” This could have called into question the legal parental status of Colorado Gov. Jared Polis, who in 2018 became the first openly gay man elected governor in the U.S.; he and his same-sex partner are not married and have two children together.
U.S. Representative Jared Polis, right, and his partner, Marlon Reis, with their two children, 5-year-old C.J. and 2-year-old Cora, on stage after Polis addressed supporters on November 8, 2016 at the Westin.John Leyba / Denver Post via Getty Images
North Carolina and Tennessee are considering marriage bills similar to the one Colorado just killed. However, the majority of the bills introduced that target same-sex marriage have fallen within the “religious exemption” category, according to Pierceson.
InMassachusetts, one proposal asserts that the belief that marriage is only between one man and one woman is a protected religious belief and thus prohibits the government from “discriminating” against state employees or businesses that act on this belief.
Bills in Kansas, South Dakota and Tennessee draw on the idea of the separation of church and state in their proposals. These bills define marriage as between one man and one woman and argue that to mandate otherwise is tantamount to state sponsorship of the religion of “secular humanism.”
A bill in Iowa creates a new category of “elevated marriage,” defined as one man and one woman, and it stipulates distinct and additional vows and paperwork. A separate Iowa proposal would require applicants for marriage licenses to disclose their sexual orientation, which could be used in child custody cases.
In Missouri, one lawmaker proposed replacing all marriage licenses with domestic union contracts. The measure, House Bill 2173, has drawn opposition from both LGBTQ advocates and proponents of “traditional marriage.”
“Still seeing attempts to invalidate love and invalidate families and those protections that come along with it is frustrating,” Kadi said. “In Colorado we got a whole host of things to work on from transportation to education to housing to access to heath care, but instead of being able to dedicate all our resources to things like access to HIV-prevention medications, we have to allocate staff time and resource just to be able fight these bills.”
How safe is gay marriage?
More than 10 percent of LGBTQ adults were legally married in June 2017, just two years after the Obergefell ruling, according to Gallup, and the number is likely even higher now. In addition, public opinion has shifted strongly in favor of same-sex marriage, with a2019 Gallup poll finding 63 percent of Americans approve of such unions.
So, is gay marriage safe?
“Absolutely not,” Kadi said, “especially given the current makeup of the Supreme Court.”
Pierceson largely agrees.
“I think in the short term marriage is fairly safe. It’s hard to see the Supreme Court overturn itself in the next couple of years,” he said, though he added that he is less confident about its long-term safety.
“The religious right, conservative movements and the Republican Party are hoping for an overturning of Obergefell with a more conservative judiciary,” Pierceson said.
Kadi noted that President Donald Trump has appointed more than 50 circuit court judges in his first term. And while Trump claimed to be a “real friend” to lesbian, gay, bisexual, transgender and queer people during the 2016 campaign, Kadi said his administration is “no ally to the LGBTQ community.”
“We have seen this impact not only the Supreme Court but the lower courts as well,” she said of Trump-appointed judges, many of whom have come under criticism for their anti-LGBTQ track records.
“It’s only a matter of time before we see another challenge” to same-sex marriage, he said. “That is why we have to stay vigilant.”
One such group, Equality Federation, said it is currently tracking about 226 bills — including more than two dozen introduced in January alone and some still active from previous legislative sessions — that have the potential to negatively affect lesbian, gay, bisexual, transgender and queer people.
“The targeting of kids is really unique this year … It’s really shocking, the depth of attack on trans youth.”
ROSE SAXE, ACLU
David Topping, the organization’s director of advocacy and civic engagement, told NBC News that since the 2015 landmark Supreme Court decision Obergefell v. Hodges, which made same-sex marriage legal across the United States, there’s been a “huge rash of anti-LGBTQ legislation.”
“It feels like every state Legislature, every year, is trying to push some kind of anti-LGBTQ agenda,” Topping said.
Jenny Pizer, law and policy director at the civil rights group Lambda Legal, said this year, while the sheer number of bills can seem eye-popping, she’s worried about more than just the quantity.
“Numbers are only one measure of how intense or threatening one legislative session might be,” Pizer said. She said she and other LGBTQ advocates are also considering other variables, such as the content of the bills, whom they target and how likely they are to succeed.
Trans rights: ‘A social and political wedge’
Pizer said that since 2016 — when more than 250 anti-LGBTQ state bills were introduced in state Legislatures across the country — the trend has been to use transgender people as “a social and political wedge.”
Freedom for All Americans, a bipartisan group focused on securing LGBTQ nondiscrimination protections nationwide, is currently tracking 44 bills it considers anti-LGBTQ that have been introduced since November. Of those bills, the organization said 42 target transgender individuals.
This year, the focus of much of this legislation has been transgender youth, particularly measures that would prohibit minors from receiving transition-related health care and those that would ban trans youth from participating on sex-segregated sports teams that align with their gender identity.
“The targeting of kids is really unique this year,” said Rose Saxe, deputy director of the American Civil Liberties Union’s LGBT and HIV Project. “It’s really shocking, the depth of attack on trans youth.”
In the current legislative session, over a dozen states have introduced bills that would impact transgender minors.
Anti-LGBTQ ‘testing grounds’
Many of the state bills involving transgender youth are strikingly similar, and both Pizer and Saxe said this is due, in part, to the influence of national conservative groups.
Pizer specifically named Project Blitz, a coalition of Christian organizations, which she said uses some conservative states as “testing grounds” to see which bills gain the most traction.
“If they have success in a very conservative environment, sometimes they get picked up elsewhere,” Pizer said.
Saxe said this “harmful” legislation is also “shopped around” by organizations including the Alliance Defending Freedom and the Heritage Foundation. She pointed to the slew of bills this session about transgender students and sports, noting this topic was a big issue that surfaced last year in the Heritage Foundation’s materialsopposing the Equality Act.
“That’s a theme they’ve been working with for a while now,” Saxe said of trans sports bills.
Requests for comment to the Congressional Prayer Caucus Foundation and the National Legal Foundation, which are both part of Project Blitz, and the Alliance Defending Freedom and the Heritage Foundation did not receive responses.
Echoing Pizer, Saxe added “there are a handful of states that are ‘bad innovators’” for anti-LGBTQ legislation. Tennessee is among them, she said.
Last week, Tennessee became the first state this year to pass anti-LGBTQ legislation into law when its Republican governor, Bill Lee,signed a bill that permits adoption agencies that use taxpayer money to refuse to work with families that “violate the agency’s written religious or moral convictions or policies.” This means, for example, that a state-funded agency could refuse to place a child with same-sex parents.
With his signature, Lee made Tennessee the 11th state to permit state-licensed welfare agencies to refuse to place children with LGBTQ families. Similar religious refusal bills are under consideration in Kentucky and Missouri.
Tennessee is also considering HB 1572, a bill that, like others in Alabama, Georgia, Indiana, Iowa, Missouri, New Hampshire and Washington, would prohibit transgender student athletes from competing on teams consistent with their gender identity.
South Dakota is another “testing ground” state, according to Pizer. Three bills advocates have deemed anti-LGBTQ have already been introduced in the state this session, and one passed the lower chamber last week with a wide majority.
Last Wednesday, the South Dakota House passed HB 1057, a bill that would make providing certain forms of gender-affirming medical care to minors — including the prescription of puberty blockers, which a study recently linked to lower suicide risk for trans people — a Class 1 misdemeanor, which in South Dakota carries a penalty of up to one year imprisonment and up to $2,000 in fines.
“Traction is concerning because it makes it more likely other states will go down that route,” Saxe said of HB 1057’s quick success in South Dakota.
Another South Dakota bill, SB 88, would “require parental notification of self-injurious behavior expressed during counseling sessions.” Pizer said this bill could compel counselors, school psychologists and social workers to “out” transgender youth to their parents.
A third bill, HB 1215, seeks to prohibit the state from “endorsing or enforcing certain policies regarding domestic relations,” including issuing marriage licenses to same-sex couples. The bill prohibits 10 other items including the passage of nondiscrimination laws on the basis of sexual orientation, the banning of conversion therapy, “drag queen story time” in public libraries and altering gender markers on birth certificates.
Pizer called HB 1215 “a random grab-bag of anti-LGBT attacks.”
“It reveals a toxic mix of unhinged, unabashed ignorance and cruelty,” she said. “Parts of the bill are obviously unconstitutional. Where the U.S. Constitution has been definitively interpreted as protecting the freedom to marry for straight, gay and bi people alike, states cannot override that fundamental federal constitutional right with a statute.”
Rep. Tony Randolph, HB 1215’s sponsor, could not be reached for comment.
Topping said that the introduction of legislation like HB 1215 is “always a huge fight for the community, but that “partners on the ground have beaten these bills every year for the past five years.”
At least three more states introduced bills this session that would impact transgender young people in other ways. Iowa, Arizona and Kentucky introduced proposals that would restrict sexual education material to exclude information on gender identity, require public school teachers to use the pronoun associated with the sex listed on a child’s birth certificate and limit bathroom access for transgender students, respectively.
Advocates’ next steps
Despite the slew of bills targeting LGBTQ rights in the current legislative session, Saxe does not predict another year like 2016, which is thought to be a record year for the introduction of anti-LGBTQ state legislation. With the change in administration, she said “opponents of LGBTQ equality” are currently “really focused on the federal regulatory gains they could get,” and are less focused on the states as they were four years ago.
Nonetheless, Saxe said, she remains worried. “Even though there is a smaller number of bills, I am more concerned than ever about our ability to stop them,” she said.
Using a mix of lobbying, organizing and public education, Saxe said she and her team are working with national and local advocacy groups across the U.S. to show “the harm of these anti-LGBTQ measures” and the “real-life implications of these bills.”
“We are trying to bring attention to these attacks on LGBTQ people, and to lift up the experiences and stories of trans, gay, lesbian and bisexual people,” she said.
