What’s at Stake: LGBTQ Civil Rights

It’s just days until Election Day, and women’s votes are more crucial this year than ever. We must have not only the will, but also a firm grasp of what we need to hold candidates at all levels accountable for policies that work toward social justice and equity for women.

What’s at Stake is a new bi-weekly series of abbreviated excepts from Ms. money editor Martha Burk’s book “Your Voice, Your Vote 2020-2021.” Using an intersectional approach of gender, race and class to issues ranging from health care to Social Security, violence, pay equity, LGBTQ rights, reproductive rights, the ERA and everything in between, Your Voice, Your Vote is a must for arming activists with the facts for meaningful change. A signed copy benefiting Ms. can be ordered here.


LGBTQ Civil Rights
Los Angeles City Hall lit in rainbow colors in celebration of LGBTQ Heritage Month in June 2016. (Eric Garcetti / Flickr)

Seventy percent of Americans say they have a close friend or close relative who is gay or lesbian, and support for gay marriage stands at 62 percent nationwide.

Nearly seven in ten Americans favor laws protecting lesbian women, gay men, bisexual, and transgendered and queer/questioning (LGBTQ) people from discrimination in marriage, jobs, public accommodations and housing. Solid majorities support equal inheritance rights, health insurance and adoption rights.

Support spans both political parties and all religious groups, and is reliably bipartisan—though the level of Republican support has declined since President Trump was elected.

Earlier LGBTQ Victories

After decades of advocacy and legal action, the last few years have brought strides in LGBTQ civil rights. The long battles over amending laws to protect LGBTQ people from violent hate crimes is a perfect example of why public opinion is not enough. Elected majorities matter. 

Though wide majorities of citizens have favored protecting these groups from violence by including them in the legal definition of hate crimes, it took over a decade to get a law in place, because Republicans in Congress and President George W. Bush consistently blocked passage.

Not until the election of 2008—which put Democrats in charge of both houses of Congress and the White House—was the bill signed into law by President Obama.

Other victories followed:

  •  In 2010, President Obama signed a law repealing the unpopular Clinton–era “Don’t Ask, Don’t Tell (DADT)” policy, which had prevented lesbians and gays from serving openly in the military.  This was particularly important for women, because though women comprised only 14-15 percent of military personnel, they were more than 30 of those discharged under DADT.
  • 2013 brought another significant victory, when in United States v. Windsor, the Supreme Court struck down a provision of the 17-year-old Defense of Marriage Act (DOMA) that denied federal benefits to legally married same-sex couples. The ruling impacted around 1,100 federal laws, including Social Security, veterans’ benefits, family medical leave and tax laws. There were about 130,000 married same-sex couples who up to that point had been treated as unmarried in the eyes of federal law.
  • In 2015, the Supreme Court legalized gay marriage nationwide in its Obergefell v. Hodges decision. The majority ruled that the right for same-sex couples to marry is protected under the 14th Amendment, citing clauses that guarantee equal protection and due process. At the time, support for gay marriage had reached an all–time high with the public at 60 percent.

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Recent Setbacks and Threats to LGBTQ Rights

When it comes to LGBTQ rights, President Trump says one thing but does another. 

During the 2016 campaign, he spoke against a North Carolina law forbidding transgender people from using restrooms consistent with their gender identity. 

At the Republican national convention in 2016 he said would protect the rights of LGBTQ people.

But once in office he packed federal courts with anti-gay judges, barred transgender Americans from military service, gave the green light to those who don’t want to do business with gays citing religious beliefs, and in 2019 prohibited the rainbow flag from being flown over American embassies on the 59th anniversary  of the Stonewall uprising.

LGBTQ Civil Rights
On April 12, 2019, the Trump administration’s ban against transgender people serving in the military went into effect. Pictured: A “Fight the Ban” march in D.C. on April 10, 2019.

The National Center for Transgender Equality cites at least 69 anti-transgender and anti-LGBTQ actions since Trump took office.  Below are just a few. (Find a complete accounting here.)

2017: The president announced on Twitter that transgender people would be banned from serving in the military.

2018: The Department of Health and Human Services circulated a memo across departments narrowly defining gender as a biological, immutable condition determined by genitalia at birth.

2019: Instituted policy requiring troops and recruits to use uniforms, pronouns and sleeping and bathroom facilities for their biological sex, even if they identify as transgender.

Published a final rule encouraging hospital officials, staff, and insurance companies to deny care to patients, including transgender patients, based on religious or moral beliefs.

Announced a plan to gut regulations prohibiting discrimination against transgender people in federally funded homeless shelters

Announced President Trump’s opposition to the Equality Act, federal legislation that would confirm and strengthen civil rights protections for LGBTQ Americans.

2020: The Department of Justice filed a court brief declaring anti-LGBTQ discrimination not “a sufficient government interest” to overcome the objections of private businesses who want to deny services to LGBTQ people, and that these businesses must be permitted to opt out of complying with local nondiscrimination laws.

The Department of Health and Human Services finalized the extensive rollback of health care discrimination rules, eliminating protections for transgender people experiencing discrimination in health care settings and/or by insurance companies denying transition-related care.

The Department of Education issued a letter declaring that the federal Title IX rule requires school to ban transgender students from participating in school sports.

In a recent defeat for the Trump administration, the Supreme Court ruled in June 2020 that the Civil Rights Act of 1964, which forbids employment discrimination on the basis of sex, applies to gay and transgender people. The 6-3 decision was signed by Judge Neil Gorsuch, a Trump appointee.

LGBTQ Civil Rights
Celebrating Bostock at the Supreme Court on June 15, 2020, the night the case was decided in favor of LGBTQ employment rights. (Victoria Pickering / Flickr)

But a single positive ruling notwithstanding, much more work is needed. Discrimination based on sexual orientation or gender identity is still legal in access to public spaces, housing, education, jury service and credit.

The Equality Act, providing consistent and explicit anti-discrimination protections for LGBTQ people across these key areas, was first introduced in 2015 and passed the House in 2019.  Though the bill was also introduced in the Senate (with only one Republican cosponsor), it is unlikely to even get a hearing in the until there is a Democratic majority.

Questions for Candidates

  • Do you support or oppose a constitutional amendment to outlaw same–sex marriage?
  • Do you support including LGBTQ citizens in laws that prohibit workplace and housing discrimination? Have you, or would you, co–sponsor the Equality Act to do that?
  •  Do you support President Trump’s rollbacks of transgender rights in the military, health care, and access to homeless shelters?

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About

Martha Burk is Money editor at Ms.