From President Trump allowing medical professionals to discriminate against trans people, to the fifth anniversary of marriage equality and the Supreme Court decision protecting LGBTQ people from discrimination in the workplace, this summer has been a rollercoaster of emotions for LGBTQ Americans.
There is still much work to be done to ensure the LGBTQ community can live safe, happy lives and receive equal protection.
As the 2020 election draws nearer, now is the time to pay attention to the precarious position of LGBTQ rights.
Here’s what’s at stake for the LGBTQ community in 2020.
Legislation: The Equality Act
Although the LGBTQ rights movement has made significant gains in recent years, LGBTQ Americans are still not explicitly protected under the law.
The Equality Act, passed in Congress in May 2019, is a sweeping LGBTQ rights bill that would prohibit discrimination on the basis of sexual orientation, sex-based stereotypes and gender identity. If implemented, the Act would protect LGBTQ folks and women in workplaces, schools, public spaces and beyond.
Mirroring the structure of the Civil Rights Act of 1964, which outlawed segregation and other forms of racial discrimination, the Equality Act would prohibit anti-LGBTQ discrimination in its myriad of forms.
Proponents of the Equality Act, such as Speaker of the House Nancy Pelosi and Rep. David Cicilline (D-R.I.), argue the bill would “ensure that all Americans, regardless of sexual orientation or gender identity, are treated equally under the law—not just in the workplace, but in education, housing, credit, jury service and public accommodations as well.”
In May 2019, the Equality Act passed in the House of Representatives with a vote of 236 to 173.
It’s now among the 400 House bills sitting on Mitch McConnell’s desk—so the Senate is unlikely to even hold a vote on it, even though a majority of Americans say there is a need for greater LGBTQ civil rights protections.
Even still, advocates see the bill’s passage in one chamber as a sign of progress.
Judiciary: Balancing Out the Courts
One outcome of presidential elections that often goes overlooked is the ability of a president to nominate judges to district courts, courts of appeals and the Supreme Court.
To date, President Trump has successfully appointed 200 judges, an unusually high amount. In fact, almost 30 percent of all federal judges have been appointed by Trump. Part of the reason for these staggering numbers is Trump’s inheriting 103 vacancies, due to McConnell’s refusal to confirm President Obama’s nominees during his last year in office.
Those federal judges will have an anti-LGBTQ impact beyond Trump’s presidency. Federal judges can serve for life—meaning Trump’s nominees will shape the interpretation of laws for decades to come. They could legalize conversion therapy, ban trans people from accessing public bathrooms or allow anyone with religious objections to discriminate against LGBTQ people in housing, healthcare and education—overturning years of activism by any single case.
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The president elected in November will have the opportunity to even out the courts currently stacked with anti-LGBTQ judges—and those courts could be used as a path to secure the rights of LGBTQ people and create important precedents regarding sexuality and gender identity’s protection under the law.
The next president will also likely have the chance to appoint at least two Supreme Court justices, as several of the current justices may be hoping to retire soon. The courts have historically been a key way for LGBTQ people and allies to fight for rights.
Discrimination in Education
The Supreme Court recently ruled Title VII of the Civil Rights Act of 1964 protects LGBTQ individuals from workplace discrimination. The majority decision argues that discrimination based on sexuality or gender identity is a form of discrimination “because of sex,” which opens up multiple new avenues that LGBTQ activists can use to gain further legal rights.
In particular, one major question is how courts will interpret this “because of sex” argument when it comes to Title IX—which prohibits discrimination based on sex in education.
Discrimination in public schools has been a recurrent issue for LGBTQ youth, especially trans students. There have been many legal fights about trans kids using bathrooms and locker rooms consistent with their gender identity, playing on sports teams and being addressed with the correct name and pronouns.
Now, LGBTQ people are covered under laws that prohibit discrimination based on sex. Using precedent and extending that protection to Title IX would be a huge step forward in protecting LGBTQ youth, one of the most vulnerable groups in the U.S.
It would most likely take another court case to fight for that protection—another reason why appointing federal judges is so essential in our fight for equal rights.
Discrimination Based on Religion— and the Do No Harm Act
There are over 100,000 children in the foster care system eligible for adoption, but some agencies still refuse to place children with qualified same-sex couples.
This issue can be traced back to the Religious Freedom Restoration Act (RFRA)—a 1993 bill that prohibited the government from “substantially burdening a person’s exercise of religion.”
In court, RFRA has been used to allow corporations to refuse to provide birth control coverage for their employees on the grounds that it violates their religious beliefs. This reasoning, Justice Ruth Bader Ginsburg argued in a dissenting opinion, is a problematic interpretation of religious freedom that would give corporations the right to discriminate arbitrarily.
But religious adoption agencies, backed by this precedent, have invoked RFRA principles to refuse to serve LGBTQ couples.
The Do No Harm Act would address this problem—ensuring RFRA will not be further used to justify discrimination against LGBTQ people.
To ensure LGBTQ couples are not discriminated against when trying to adopt, Congressman John Lewis (D-Ga.) and Resident Commissioner Jenniffer Gonzalez-Colon (Puerto Rico’s representative in Congress) proposed the Every Child Deserves a Family Act. This bill would prohibit federally-funded adoption and foster care agencies from discriminating against potential parents and children on the basis of sexual orientation, gender identity, or marital status.
In June 2019, the bill passed in the House of Representatives and was introduced on the Senate floor—but a year has passed with no further Senate action.
If implemented, these acts would allow LGBTQ people to start families and provide safe, nurturing homes to children in need. Without such protections, RFRA will continue to impede true LGBTQ equality in America.
Health care is often a key issue during presidential elections—and now more than ever, we need leaders who understand that healthcare is a human right. Unfortunately, LGBTQ people are frequently denied that right, even though LGBTQ people face specific health concerns and are particularly vulnerable to COVID-19.
Trump has done his best to prevent LGBTQ people from receiving adequate medical care. Recent regulations from the Department of Health and Human Services (HHS) rolled back Obama-era protections against discrimination by medical providers. Now, medical professionals can refuse to provide medical care to trans people, simply because they are trans.
However, thanks to the Supreme Court’s decision that discrimination “because of sex” includes discrimination based on gender identity, the future of this regulation is uncertain. Either way, getting it overturned will be a long, tough battle with no guarantee of a victory—especially after the Supreme Court’s ruling allowing employers with religious objections to refuse to cover birth control for their employees.
The Trump administration has followed an anti-LGBTQ agenda for the last four years.
But many of their most discriminatory policies can be reversed.
The best way to make sure that LGBTQ Americans are protected during the COVID-19 crisis and beyond is to vote in November as if our lives depend on it— because they do.
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