Queer Cafe

Massachusetts Will Soon Have a New Law Protecting LGBTQ Families

Two years later, Stuart and I went to the Supreme Court to be married by Justice O’Connor. History hung in the air that day. She would affirm our basic right to marry. Our decades old relationship would no longer be ambiguous, existing outside of the law.

I thought back to when she told me of her reverence for Chief Justice John Marshall, a William & Mary alumnus, whose portrait, seemingly radiated through the marble walls of the court. His gift of judicial review forged the court and its ability to protect the constitution. Without Marshall’s embrace of judicial review and the Lawrence v. Texas decision, Stuart and I and millions of other same-sex couples could have been prosecuted as felons in a number of states.

The 83-year-old former Republican Arizona legislator, now using a cane, appointed by President Reagan 32 years earlier, was making history again, one of many times she had done so in her long career.

After saying hello, Justice O’Connor needled me “You know you’re a few minutes late.” Then, looking down, at the black sneaker I wore on my left foot, slow to heal from a break of the fifth metatarsal, she asked me, “Is that a proper shoe for getting married?” As I looked at the black sneaker on my left foot and the polished black wingtip on my right, I explained the broken foot.

She used her standard wedding vows, which had been slightly altered to accommodate the marriage of two men. She pronounced us married and beamed, her blue eyes reflecting the excitement of the moment. She signed the marriage license, and we were lawfully married.

In the following days, the media focused on a Republican-appointed Justice performing a same-sex wedding in the Supreme Court. Most of the coverage was straightforward but some of it was not. “Sandra Day O’Connor Bringing God’s Judgment by Officiating Wedding for Gay Couple” was the headline in one conservative publication. Even if she bothered to read the critical pieces, which she probably avoided, she would have been unfazed. After all, for many years she had shunned controversy with the same fearlessness, directness, and common-sense that made her one of the nation’s most respected jurists. She touched many lives and we were privileged to count ourselves among them.

[Source: Jeff Trammell, Advocate Magazine, Dec 2023]

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Meet Roberta Kaplan: Lesbian Lawyer Who Won a Verdict Against Donald Trump
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Roberta Kaplan: Lesbian Lawyer Who Won a Verdict Against Donald Trump

Kaplan is most famous as the lawyer who brought down the Defense of Marriage Act

Roberta Kaplan, the lawyer who represented E. Jean Carroll in her lawsuit against Donald Trump, is a lesbian who’s a longtime champion of LGBTQ and women’s rights, most notably as the attorney who brought down the main part of the Defense of Marriage Act.

A jury in federal court in New York City reached a verdict in May 2023 in Carroll’s suit, which stemmed from an incident in the mid-1990s. Carroll, a journalist, said that Trump raped her in the Bergdorf Goodman department store in Manhattan and that he defamed her by saying she was lying about it. The jury found that Carroll did not prove he raped her, but she did prove he sexually abused and defamed her. Jurors ordered Trump to pay her $5 million. Trump has denied the allegations and vowed to appeal. He could not be criminally prosecuted because the statute of limitations for such charges has passed, but Carroll could bring a civil suit.

Carroll did not speak to reporters as she left the courthouse, but Kaplan said, “We are very happy.” Carroll later issued a statement saying, “I filed this lawsuit against Donald Trump to clear my name and to get my life back. Today, the world finally knows the truth. This victory is not just for me but for every woman who has suffered because she was not believed.” Kaplan, also issued a statement. “No one is above the law, not even a former President of the United States,” she said, adding, “For far too long, survivors of sexual assault faced a wall of doubt and intimidation. We hope and believe today’s verdict will be an important step in tearing that wall down.”

GLAAD President and CEO Sarah Kate Ellis released a statement praising Carroll and Kaplan: “E. Jean Carroll’s courage, and her legal team’s expertise led by LGBTQ icon Robbie Kaplan, must become a turning point in history for all survivors of sexual abuse and torment. Voters have already held Donald Trump accountable for his atrocious, discriminatory presidency and treatment of women and all marginalized communities. Jurors and the world at large got to see his disgusting rhetoric on full display, unapologetically bragging about rape and abuse. Media reporting on his ongoing, inexplicable political career must follow Kaplan’s lead and challenge the former president’s lies and abusive behavior. Voters and the media can follow the jury’s lead to continue holding Trump accountable for his revolting words and actions.”

Kaplan is most famous for representing Edie Windsor, a lesbian widow who challenged the Defense of Marriage Act. Windsor had married her longtime partner, Thea Spyer, in Canada in 2007, after same-sex marriage became legal there. But section 3 of DOMA prevented the US government from recognizing their marriage, so when Spyer died in 2009, Windsor owed $363,000 in estate taxes, which she would not have owed if she had been married to a man.

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Kaplan took Windsor’s case at a time when many major LGBTQ rights organizations were somewhat reluctant to fight for marriage rights. The case, Windsor v. US, went all the way to the Supreme Court, which ruled in 2013 that DOMA’s section 3 was unconstitutional. It “violates basic due process and equal protection principles applicable to the Federal Government,” Justice Anthony Kennedy wrote for the court’s majority.

The ruling did not establish marriage equality nationwide, but it meant that any federal law referring to “marriage” or a “spouse” had to apply to legally married same-sex couples as well as opposite-sex ones. So married same-sex couples could file joint federal tax returns and receive numerous other federal benefits and protections. It also, along with the overturning of California’s Proposition 8, resulted in unstoppable momentum for marriage equality, culminating in the high court’s Obergefell v. Hodges decision in 2015, striking down all remaining bans on same-sex marriage.

Throughout the Windsor case, Kaplan made sure the spotlight was on her client. “I knew the focus should be on Edie; she would be the spokesperson for our case, and before long, she would become the spokesperson for our cause,” Kaplan wrote in Then Comes Marriage, a book about the case. When Windsor died in 2017, Kaplan said, “Representing Edie Windsor was and will always be the greatest honor of my life. She will go down in the history books as a true American hero. With Edie’s passing, I lost not only a treasured client, but a member of my family.”

Kaplan continued fighting for marriage equality and LGBTQ rights in general, challenging homophobic laws around the nation. In 2014, when she was arguing a case against Mississippi’s ban on same-sex marriage, one court observer wrote, “Watching the brilliant Roberta Kaplan and the State's attorney argue this case is like watching Aretha Franklin versus a drunk, bumbling fraternity guy in a singing contest.”

Kaplan’s reputation was somewhat sullied by the revelation that she had advised New York Gov. Andrew Cuomo's staff on responding to sexual harassment accusations, and she resigned as co-chair of the board of anti-harassment group Time’s Up in 2021. The New York attorney general found the accusations credible, and Cuomo stepped down as governor. When the news came out about Kaplan, she was already representing Carroll, who tweeted that Kaplan “is the best lawyer in America” and would remain her counsel.

After 25 years with the firm of Paul, Weiss, Rifkind, Wharton & Garrison, Kaplan and Julie Fink founded Kaplan Hecker & Fink in 2017. One of its first cases was against the leaders of the violent white supremacist demonstration in Charlottesville, Va., that year, and Kaplan and her team won a $26 million verdict. Kaplan has also represented Donald Trump’s niece Mary Trump in legal action against her uncle and brought legal challenges to Florida’s “don’t say gay” law.

With marriage equality under threat after conservative Supreme Court justices expressed a desire to overturn Obergefell if they have the opportunity, Kaplan lobbied for writing equal marriage rights into federal law, therefore protecting the right from Supreme Court action. Along with many other LGBTQ activists and allies, she supported the Respect for Marriage Act, which Congress passed and President Joe Biden signed into law last year. The act did codify marriage equality and — finally — repealed DOMA, which remained on the books although unenforceable.

[Source: Trudy Ring, Advocate, May 2023]

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Chuck Williams, Founder of The Williams Institute at UCLA Law School, Is Dead
Williams Institute of Gay & Lesbian Strategic Studies

Chuck Williams, Founder of The Williams Institute at UCLA Law School, Dies at 88

The LGBTQ community has lost one of its most ardent and impactful members and supporters.

The founder and namesake of The Williams Project, which became the LGBTQ think tank the Williams Institute at the University of California Los Angeles’ School of Law, died in April 2023. He was 88 years old.

Brad Sears, the Institute’s founding executive director, announced Charles “Chuck” R. Williams’s death at a private gala rewards reception to honor champions in LGBTQ advocacy, including Speaker Emerita Nancy Pelosi, at the conclusion of the 2023 Williams Institute Annual Update Conference.

“All of us are here at the Williams Institute event because 23 years ago, Chuck Williams had the vision and the generosity and the drive and cornered many of you over lunch or dinner to create the Williams Institute, which has had such an incredible impact on all of us in our world,” Sears said as he welcomed guests to UCLA’s Faculty Club. “I’m really sorry to have to start tonight by telling you that Chuck has passed away,” Sears added as a groan washed over the crowd.

“Chuck loved the Institute. You know that. You’ve seen him at every single event that we’ve ever had except this one. This is the first one that he and his husband Stu Walter will miss,” Sears said. “Chuck was so delighted that Nancy Pelosi would be coming this year. It gave him so much joy. He would be so thrilled.”

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“Chuck and Stu met in 1967 when they skied into each other arms on Lake Nacimiento,” Sears wrote. “Few today have had relationships that last 56 years. Even fewer relationships have been tested as theirs has been. 1967 was two years before Stonewall, every state except Illinois had sodomy laws, and gay men were regularly entrapped by the LAPD and sent for conversion therapy in state hospitals.”

Sears continued, “Chuck and Stu risked being arrested, fired, and confined if they were out. But they maintained their relationship through those years, the AIDS epidemic, and through the challenges that eventually come with being survivors and living a long full life. I am particularly honored to have witnessed Stu’s incredible strength during the past several months. He remained Chuck’s principal caregiver until the end, rarely left his side, and kept him comfortable at home.”

In 2001, Williams, Bill Rubenstein, Sears, and UCLA law scholars founded The Williams Project. Williams donated $2.5 million to UCLA Law School to establish the organization. A college or university had never received a larger gift to support a gay or lesbian academic program. The Institute conducts rigorous, independent research on sexual orientation and gender identity law and policy. Their mission was to counter the pervasive bias of law, policy, and culture against LGBTQ people.

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In 2006, the Williams Project merged with the Institute of Gay & Lesbian Strategic Studies to become the Williams Institute. Williams gave more than $20 million over time to support the institute. His vision was to create an organization to level the playing field for LGBTQ people under the law.

Interdisciplinary research has been a critical component of the group's mission from the outset and continues to be a key component of its work today. For example, studies evaluated the impact of marriage equality, filed amicus briefs in seminal cases like Lawrence v. Texas, and examined the demographic characteristics of same-sex couples. In 2011, the Williams Institute published one of the first data-backed estimates of LGBTQ people in the US. This report shed light on how policy and law may the queer community.

Over the past two decades, the Williams Institute has provided expertise to policymakers, legislators, advocates, and the courts. Government agencies have benefited from the advice of Williams Institute scholars in improving LGBTQ data collection. Many have testified before Congress in hearings about the Don’t Ask, Don’t Tell, and Employment Nondiscrimination Act.

In addition, the Williams Institute’s reports on the number of same-sex couples raising children were emphasized by Justice Anthony Kennedy during the landmark court case Obergefell v. Hodges, in which marriage equality was granted in the US.

[Source: Christopher Wiggins, Advocate. April 2023]

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Karl Racine Leads Attorneys General Challenge of Florida's ‘Don’t Say Gay’ Law
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The attorneys general say that the Florida law is unconstitutional.

Washington DC Attorney General Karl Racine announced a coalition of 18 attorneys general that are opposing Florida’s Parental Rights in Education Act — also known as the “don’t say gay” law. Racine’s office said in a press release late last week that the law posed a threat to LGBTQ students, emphasizing that they are at particular risk and harm to discrimination.

“My office has a strong track record of fighting for LGBTQ rights in the District and across the country to make sure that everyone can simply be who they are and love who they love,” Racine said. “Florida’s law offers no benefit to anyone and in fact puts children and families in harm’s way. We will continue to use all of our authority to help strike down this law and any other hateful, discriminatory policies that threaten people’s fundamental freedoms.”

In an amicus brief submitted in support of a lawsuit brought by several Florida families, the attorneys general state that the law, “are far outside the bounds of ordinary educational decision-making,” adding that its “outlier” status further indicates it is “constitutionally suspect.”

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The law, which has been called vague by critics, bans “classroom discussion about sexual orientation or gender identity in certain grade levels or in a specified manner. “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards,” it also states.

The families’ lawsuit, which was filed only days after the bill was signed into law by Republican Gov. Ron DeSantis in March, argues that the legislation violates Due Process and Equal Protection, as well as First Amendment free speech rights. The suit also raises questions about how the law will change in-classroom discussions and school functions. Already, many teachers and school district officials have voiced uncertainty about what goes against the law and what doesn’t.

“To appreciate how this dynamic will unfold in practice, just consider how students, teachers, parents, guests, and school personnel might navigate these common questions: Can a student of two gay parents talk about their family during a class debate about civics? Can that student paint a family portrait in art class? Can a lesbian student refer to their own coming out experience while responding to a work of literature? Can a transgender student talk about their gender identity while studying civil rights in history class? What if that occurs in homeroom, or during an extracurricular activity with a faculty supervisor, or in an op-ed in the faculty supervised school newspaper? Are teachers allowed to respond if students discuss these aspects of their identities or family life in class? If so, what can they say?” the suit reads.

The brief points out that the states that submitted it “have curricula in place that allow for age-appropriate discussion of LGBTQ issues while respecting parental views on the topic,” according to the release.

“The law is causing significant harms to students, parents, teachers, and other states. Non-inclusive educational environments have severe negative health impacts on LGBTQ students, resulting in increased rates of mental health disorders and suicide attempts,” the release said. “These harms extend to youth not just in Florida, but throughout the country.”

Racine is joined by the attorneys general of New Jersey, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New York, Oregon, Rhode Island, and Washington.

[Source: Alex Cooper, Advocate, December 2022]

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Jo-Na A. Williams: Queer Black Lawyer

Jo-Ná A. Williams, Esq. is an award-winning attorney, business advisor, and Instructor who founded J.A. Williams Law P.C. in 2011 to provide artists, entrepreneurs, and thought leaders with ways to successfully navigate their careers, secure their companies, and provide assistance with business, entertainment, and intellectual property matters.

Jo-Ná is dedicated to issues regarding the rights of creators and the security of their businesses because she believes they are a population highly vulnerable to exploitation without proper knowledge. She founded her coaching company in 2013 to advise small business owners on entrepreneurship.

Jo-Ná is a board member of the LGBTQ Community Center in New York and UPI Loan Fund based in Arizona. She’s also an instructor for LinkedIn Learning and licensed to practice law in New York. She's a certified Yoga Instructor and formally trained in herbalism, energy work, and divination.

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Supreme Court’s Reputation Shattered Thanks to Conservative Justices

Based on the oral arguments in the case of a Christian web designer seeking to gut nondiscrimination protections, 2023 isn’t looking like a good year for LGBTQ rights on the Supreme Court. But it’s not looking like a great year for the Court itself either. The Court is heading into the new year at a level of disarray and public distrust not seen in modern times. Moreover, there’s little sign that the justices intend to do anything to address the issue, except to possibly make it even worse.

The past year has seen a series of explosive revelations about the Court, starting with the leak of the Dobbs decision overturning abortion rights. The Court has long prided itself on being a closed system, so the idea that an entire draft decision on a major topic could appear in the press a month prior to its release was shocking. Just as shocking, the draft was pretty much the final version, so whoever leaked it did so knowing full well the impact it would have.

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As it turns out, there’s speculation that the author of the draft, Samuel Alito, may have been the leaker. The reason is that the former leader of a right-wing group now says that Alito gave major donors of the group a heads-up on another major decision a few years back (Alito denied the report). The leaks are just one sign of a dysfunctional Court. Alito has given full vent to the sneering side of his personality, publicly mocking foreign leaders who objected to the abortion ruling. Under normal circumstances, this would be a terrible breach of etiquette, but now it’s what passes for normal “own-the-libs” rhetoric from the Court’s conservatives.

Then there’s the conflict of interest problem rife among the justices on the right. On top of the list is Clarence Thomas, whose wife, Ginni, is a would-be seditionist. Despite her deep involvment in Donald Trump’s efforts to overturn the 2020 election results, Justice Thomas has yet to recuse himself from cases involving the January 6 insurrection.

That’s not the only shady example. A representative from an arm of the anti-LGBTQ group Liberty Counsel boasted that the group regularly prays with justices in their chambers, despite having cases before the Court (Liberty Counsel said that was a past practice, as if that made it okay).

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In a more festive and equally disturbing example, Justice Brett Kavanaugh attended a Christmas holiday party hosted by the head of the Conservative Political Action Coalition (CPAC). Among those in attendance were a who’s who of the right, including Stephen Miller, the loathsome architect of Donald Trump’s anti-immigrant policies. More recently, Miller has been heading a group, American First Legal, which took a lead role in anti-trans ads in the midterms and - oh, by the way – has filed briefs before the Supreme Court. Just to show you where their loyalties lie, Alito, Kavanaugh, Amy Coney Barrett and Neil Gorsuch showed up at a gala dinner in November held by the Federalist Society, the right-wing legal group that vetted Trump’s judicial appointees, where they received a long ovation for their ruling overturning abortion rights.

Such disregard for the appearance of neutrality is possible because the Supreme Court doesn’t have any ethical guidelines – literally. Unlike any other judicial body in the US, the Court relies upon the integrity of the justices to police itself.

Look at where that’s gotten us. No wonder the public’s trust in the Supreme Court is at historic lows. The conservative wing’s insistence on imposing its own view of society, even if that means overturning precedents, has made the Court seem like just another political player and not a group of legal giants. The attitude of Alito and company seems to be, “Who cares?” As long as they have the power, society can get lost. As for the Court, it will take years to rebuild the reputation that the right’s disregard for basic ethics has destroyed. Meanwhile, you can count on the partying and praying to keep happening, despite the conflicts they may represent.

[Source: John Gallagher, LGBTQ Nation, December 2022]

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LGBTQ Judges

Every day, federal judges make decisions that affect our lives in important ways. They determine the breadth of our fundamental rights, ensure fairness in criminal proceedings and occasionally make decisions that change the course of history.

While the federal courts strive to be above the fray, their decisions are often viewed through the lens of partisan politics. But even when judicial decisions may be unpopular, they have more credibility when they are made by a judiciary that reflects the nation’s full diversity.

Though someone must lose in nearly every court case, what is critical is that everyone feels that they had their day in court, that their arguments were heard and fairly considered. But it’s hard for people to have that faith when the bench lacks the perspective of a marginalized community that has frequently been denied equal rights under the law.

Many LGBTQ people who interact with the judicial system do not feel they have equal access to justice. Studies in a number of states have consistently shown that LGBTQ litigants, witnesses and jurors report negative interactions with the court system, including prejudicial comments and actions toward LGBTQ people. How they are treated and the negative things they hear in courtrooms, as well as who they see (or don’t) on the bench change courtroom culture and the perception of justice.

Beyond the issue of public trust in the legal system, diversity also improves decision-making. Research from the business world documents that having diverse teams in general can lead to more factual, careful and creative decisions. LGBTQ-supportive policies and workplace environments lead to better job commitment and satisfaction, workplace relationships, health outcomes and productivity among LGBTQ employees, all victories for organizations.

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And research has specifically shown that diversity in the judicial decision-making process affects the development of the law. One study of outcomes in civil rights cases found that plaintiffs were twice as likely to prevail if a female judge was on the appellate panel hearing the case, indicating that even if the panel was majority male, male judges were likely to view a case differently if one female judge participated in the deliberations.

Indeed, despite the common portrayal of lone judges proclaiming from the bench, the law is actually shaped over time by many judges in conversation with one another. Whether considering precedent written by other judges, reviewing the decisions of lower courts in the appellate courts or collaborating on panels, judges do not work in isolation.

Just as Justice Ruth Bader Ginsburg referenced her experience as a 13-year-old girl to evaluate the harm caused by a strip search of a female student while at school, and Justice Sonia Sotomayor’s approach to police stops has been informed by hearing her brother get “the talk” that Black and brown parents routinely give their sons, LGBTQ judges will also bring their life experiences to the collaborative process that decides cases and develops the law.

[Source: Brad Sears, Williams Institute at the UCLA School of Law, LA Times, Oct 2021]

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Advocate: SCOTUS Decision on Trans Youth Gavin Grimm is Major LGBTQ Victory
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In June 2021, the United States Supreme Court declined to hear Gloucester County School Board v. Grimm, the case of a former Virginia high school student, Gavin Grimm, who was denied the right to use the facilities that matched his gender identity. The ruling by the US Court of Appeals for the Fourth Circuit, which upheld a district court ruling in favor of Gavin affirming the right of transgender students to use the facilities that match who they are, stands.

Lambda Legal Counsel and Students’ Rights Strategist, Paul D. Castillo, has issued the following statement:

“This is an incredible victory for Gavin Grimm and transgender students’ right to be themselves at school. There should be no doubt that federal law requires schools to protect all students. Courts all over the country, as well as the federal government have made crystal clear that LGBTQ students are protected by federal law and have a right to an equal education, to be protected against harassment and discrimination, and to a school environment where they can be their authentic selves.

“Congratulations to Gavin Grimm and the ACLU, who fought for six years so that Gavin and all transgender students would be treated with the dignity and respect that they deserve. This year, state legislatures across the country introduced a record-breaking number of bills aimed at hurting transgender young people and their ability to play on teams and access gender affirming health care. Gavin’s persistent fight for the rights of transgender young people stands as a reminder that the fight is far from over; he is a beacon of hope. Thank you, Gavin.”

[Source: Paul D. Castillo, Lambda Legal, June 2021]

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29 States to Ban Transgender Youth in Sports

"There's no room for transphobia on the court, on the track, on the field, anywhere.

Every kid deserves the opportunity to play sports."
-Lambda Legal

North Carolina Republican lawmakers introduced a bill in March 2021 that would bar transgender students in middle and high schools and colleges from competing on sports teams that match their gender identity. The bill, which legislators introduced in the North Carolina House of Representatives, makes the state the 29th to consider such a measure in 2021, according to the American Civil Liberties Union.

One of the bill’s sponsors, Republican Rep. Mark Brody, said that he introduced the bill to prevent cisgender female athletes from being “pushed out of female sports, and all of their records are broken, scholarships lost and benefits of excelling are diminishing before this is addressed,” though he acknowledged that he knew of no such incidents in North Carolina.

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There have been 84 bills filed this legislative session that target transgender people, according to the ACLU. Most bills have focused on school extracurricular sports teams and preventing doctors from providing gender-affirming medical care to people under the age of 18.

North Carolina’s bill comes five years after the state passed HB2, also known as the “bathroom bill,” in 2016. That bill required North Carolinians to use restrooms that matched their sex assigned at birth, rather than their gender identity.

Quickly, business groups spoke out against HB2, which had a negative economic impact for the state. The NCAA, which regulates college sports, withdrew championship games from the state, and the NBA stripped Charlotte of hosting its All-Star Game until the law was repealed. Eventually, the legislature repealed the aspects of the law pertaining to use of bathrooms in 2017.

“This anti-transgender bill is an outlier in North Carolina, and it doesn’t reflect where we are as a state,” Allison Scott, director of impact and innovation at the Campaign for Southern Equality, said. “We have come so far since the days of HB2, and we’re better off for it: LGBTQ people feel safer, business leaders are becoming more comfortable investing here and our communities are more inclusive and respectful. It pains me to see some lawmakers, egged on by extreme anti-transgender activists running a coordinated national attack on trans youth, trying to drag us back into an era of discrimination.”

Arkansas Teachers Fear for Their Trans Students

Record Number of Anti-Trans Bills Introduced in States This Year

29 States File Bills to Ban Trans Athletes in Sports

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The North Carolina High School Athletic Association currently has a policy that allows for transgender students to compete on teams that match their gender identity. Students must submit a Gender Identity Request Form that allows them to be cleared to compete by the NCHSAA. “The NCHSAA studied the issue for over a year, looking at policies in other states, talking with families, listening to medical professionals and coordinating with the athletics programs of colleges and universities,” Craig White, supportive schools coordinator at the Campaign for Southern Equality, said about the policy.

North Carolina’s proposal is similar to the Fairness and Women’s Sports Act, which was passed in Idaho in 2020. Republican state Rep. Barbara Ehardt, the author of Idaho’s bill, confirmed that the Alliance Defending Freedom helped co-write it. Since the bill’s passage, a flood of similar bills have emerged, and the ADF has been linked to a group pushing model legislation as part of the Promise to America’s Children initiative, which is backed by a coalition of right-wing groups.

So far, Mississippi Gov. Tate Reeves is the only governor to have signed a trans athlete ban into law in 2021. On March 4, Reeves said the law would “protect young girls from being forced to compete with biological males for athletic opportunities.” The sponsor of Mississippi’s bill, state Sen. Angela Hill, told the Associated Press that she had been approached by “numerous coaches” who felt there was a need for a policy “because they are beginning to have some concerns of having to deal with this.” Neither Hill nor other supporters of the bill presented evidence of transgender athletes competing in Mississippi schools or universities. Reeves and Hill are Republicans.

In March 2021, South Dakota Gov. Kristi Noem returned a similar bill to the state legislature asking for changes before she could sign it into law. The changes centered around the bill including collegiate athletes, which could trigger a potential challenge by the NCAA. Noem said during a press conference that South Dakota was unlikely to win any challenge from the NCAA, given that it is a private organization. She then introduced an initiative called Defend Title IX Now, which aims to bring together multiple states to challenge the NCAA’s policy.

[Source: Sydney Bauer, NBC News, March 2021]

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NBC News: Arkansas Lawmakers Enact Trans Youth Treatment Ban

Arkansas Lawmakers Ban Treatment for Transgender Youth

In April 2021, The Arkansas legislature overrode Gov. Asa Hutchinson’s veto of a bill denying gender-affirming health care to minors, making Arkansas the first state with such a law. And American Civil Liberties Union officials said they were preparing a lawsuit.

Hutchinson had vetoed House Bill 1570, saying it was overly broad. It bans not only gender-confirmation surgeries (which doctors do not recommend for minors anyway) but also hormone treatments and puberty blockers. “If this was just to ban gender reassignment then I would support it, but those who are taking treatment are not grandfathered in, this is not the right path to put them on,” the Republican governor said. “While the population of minors dealing with this is an extreme minority, this could lead to significant harms from suicide to drug use to isolation,” he added.

Advocate: Arkansas Bans Gender-Affirming Care for Trans Minors

LGBTQ Nation: Arkansas Lawmakers Ban Gender-Affirming Care for Trans Youth

Arkansas Teachers Fear for Their Trans Students

But the Arkansas House of Representatives voted 71-24 to override Hutchinson’s veto, and the Arkansas Senate voted 25-8 to do so. Civil rights groups immediately condemned the legislature’s action. “Today Arkansas legislators disregarded widespread, overwhelming, and bipartisan opposition to this bill and continued their discriminatory crusade against trans youth,” said a statement from Holly Dickson, executive director of the ACLU of Arkansas. “As Governor Hutchinson noted in his veto message, denying care to trans youth can lead to harmful and life-threatening consequences. This is a sad day for Arkansas, but this fight is not over — and we’re in it for the long haul. Attempting to block trans youth from the care they need simply because of who they are is not only wrong, it’s also illegal, and we will be filing a lawsuit to challenge this law in court. We are hearing from concerned families all over the state who are afraid about the impact of this bill and others like it. We are committed to doing all we can to support these families and ensure they know how to continue to fight for their rights and get the care and resources they need.

“No matter what these politicians do or say, one thing has not changed: trans youth are loved, they are seen, and we will never stop fighting to defend their dignity, their rights and their lives. To everyone who spoke out against this bill: now is the time to stay loud, not only for trans lives, but for all the fundamental rights that politicians are hellbent on attacking.”

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“The Arkansas Legislature has ignored dozens of local doctors and national medical experts, as well as trans youth and their parents,” added Chase Stangio, deputy director for transgender justice with the ACLU’s LGBTQ & HIV Project. “This bill will drive families, doctors and businesses out of the state and send a terrible and heartbreaking message to the transgender young people who are watching in fear. Gender-affirming care is life-saving care and banning that care will have devastating and in some cases deadly consequences. Trans youth in Arkansas: We will continue to fight for you. The ACLU is preparing litigation as we speak. ACLU supporters from around the country spoke out against this bill. We will always have your back and will be relentless in our defense of your rights.”

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Meanwhile: In North Carolina

Sam Brinton, vice president of advocacy and government affairs for the Trevor Project, issued this statement: “To the transgender and nonbinary youth of Arkansas, please know that you deserve love and support and to be affirmed in your gender identity. We will not stop fighting until this cruel and illegal ban is overturned. “Governor Hutchinson listened to trans youth and their doctors, the state legislature clearly did not. We knew this override could happen, but it is nonetheless devastating because we also know it could have deadly consequences. It is not extreme or sensational to say that this group of young people, who already experience disproportionate rates of violence and suicide attempts, would be put at significantly increased risk of self-harm because of legislation like HB 1570 pushing them farther to the margins of society.”

Similar bills are pending in several other states.

[Source: Trudy Ring, Advocate Magazine, April 2021]

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Widespread Discrimination Continues for LGBTQ Community

Washington Post: State Efforts to Limit LGBTQ Rights

Info: LGBTQ Discrimination

US Supreme Court Protects LGBTQ Workers Rights

No God-Given Right to Discriminate Against LGBTQ People

Senate Republicans are standing in the way of Congress acting according to the will of the majority of Americans. Protecting people from discrimination should not be a partisan issue.

The good news is that, for the American public, it’s not. A recent PRRI poll found that 83 percent of Americans (which includes strong majorities of Republicans, Democrats, and independents) support nondiscrimination laws that protect gay, lesbian, bisexual, and transgender people from discrimination. Still, there is an obstacle standing in the way of Congress acting according to the will of the majority of Americans and passing a federal law that does just that: the claim by some Republicans and religious groups that LGBTQ rights stand in conflict with religious rights.

US Senator Mitt Romney of Utah is among the Republicans voicing opposition to the House-passed Equality Act, which would extend the current federal law barring discrimination on the basis of race, religion, and other protected categories to also cover sexual orientation and gender identity. Romney cited the lack of “strong religious liberty protections” in the bill’s language as reason for his opposition.

Religious-based groups such as the Southern Baptist Convention raise more hyperbolic alarms, calling the legislation “the most significant threat to religious liberty ever considered in the United States Congress.” The truth is that few rights in America have more robust protections under the Constitution, as well as federal, state, and local laws, than the right to believe, worship, and express religious views as one wishes. Protecting sincerely held religious beliefs is a pillar of American law, as it should be. Nothing about a law shielding people from bigoted policies and practices stands in the way of that.

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In fact, the Equality Act would leave in place an exemption for religious entities that would allow them to, for example, give preference to people of their faith in employment and housing decisions. But it won’t allow religion to be used as a sword to infringe on the protected rights of others — especially when such claims, like the false assertion that the Bible’s story of the curse of Ham justified slavery and racial bigotry, are unfounded.

And that is why the Equality Act’s provision barring the Religious Freedom Restoration Act from being used as a defense for discriminatory conduct (the very provision drawing the ire of Republicans) is so crucial. That statute, passed by Congress and signed into law in 1993 by President Bill Clinton, was meant to protect religious liberties (particularly the rights of religious minorities) and enjoyed broad support at the time of its passage.

But in the nearly two decades since, the law has been stretched far beyond its intended purpose, serving as a basis for actions such as private companies denying spousal benefits to same-sex couples or adoption agencies refusing to consider gay or transgender people as potential parents. With the Equality Act, Congress can make clear it never intended to allow organizations or individuals to claim a God-given right to discriminate. “The government has a compelling interest in enforcing nondiscrimination law, and it’s not over-broad to say you can’t discriminate if discrimination is the problem the law is addressing,” said Jennifer C. Pizer, senior counsel and director of law and policy at the nonprofit advocacy organization Lambda Legal.

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Even Justice Neil Gorsuch (one of the Supreme Court’s most conservative jurists) noted that there is ample room for LGBTQ protections and religious rights to coexist, in a 6-3 decision last year extending federal employment discrimination protections to including sexual orientation and gender identity. “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society,” Gorsuch wrote for the majority. “But worries about how Title VII may intersect with religious liberties are nothing new.” Gorsuch underscored that the existing federal law religious rights exclusion and the First Amendment already provide religious protections.

Laws protecting LGBTQ people from discrimination are already in place in 23 states and the District of Columbia. But that still leaves an estimated nearly 4 million people in America legally unprotected from biased treatment because of their sexual orientation or gender identity. Pizer said a Lambda Legal report released this week detailing more than 4,000 claims of discriminatory conduct based on sexual orientation or gender identity received last year by the organization’s help line makes clear that the need for protections is real. “It reflects the real problems people are having,” Pizer said, from discrimination in the workplace and difficulty obtaining identification documents to being targets of harassment and violence.

But Americans are already on board with granting them protections that they need. As a person of faith, I can only pray that members of the Senate vote to do right by them.

[Source: Kimberly Atkins, Boston Globe, March 2021]

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Supreme Court Rules in Favor of LGBTQ Employment Rights

On June 15, 2020, the US Supreme Court issued a landmark decision, penned by Neil Gorsuch, a conservative justice appointed by President Trump, deciding that “An employer who fires an individual merely for being gay or transgender violates Title VII of the 1964 Civil Rights Act.” And Justice Neil Gorsuch went on to say, “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Everyone from Barack Obama and Pete Buttigieg to Black Lives Matter and the NCAA celebrated the momentous Supreme Court decision on LGBTQ workplace discrimination. And Americans across the nation celebrated this historic ruling. Kamala Harris said, "This is a major victory for LGBTQ rights. No one should be discriminated against because of who they are or who they love." Jared Polis said, "No matter who you are or who you love your work is valued in the United States. Thank you to the Supreme Court for making the right decision for equality, inclusivity." Janet Mock said, "A victory hard won in the courts and on the streets. Grateful to the lawyers, organizers and activists but most grateful to those who had to live stealth or closeted, who lost jobs for living their truth, who left parts of themselves at their employers' door." And Gerald Bostock said, "Today, we can go to work without the fear of being fired for who we are and who we love."

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“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and indistinguishable role in the decision, exactly what Title VII forbids,” the decision reads. “An employer who fires an individual merely for being gay or transgender violates Title VII.”

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.”

“But the limits of the drafters’ imagination supply no reason to ignore the law’s demands,” Gorsuch continued. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” The ruling was decided by a 6-4 vote. Gorsuch was joined by Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer, and Chief Justice John Roberts.

Southern Poverty Law Center

Lavender Law
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Some who responded reminded us that this was just another step in the long road to full equality. Pete Buttigieg said, "As of sunup this morning, many parts of America did not fully protect queer Americans from workplace discrimination, despite the Civil Rights Act. This is a major step. Make no mistake—a federal Equality Act is still urgently needed. The struggle for equality did not end with marriage, nor did it end today. Conversion therapy persists. Black trans women are at grave risk daily. The administration is rolling back protections at every turn." And Senator Tammy Baldwin said, "The SCOTUS 6-3 decision is a huge step forward for LGBTQ equality in America. But we must keep marching for full equality for every LGBTQ American across our country and work to pass the Equality Act in the Senate."

[Source: LGBTQ Nation, June 2020]

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Legal Challenges for LGBTQ People

For many lesbian, gay, bisexual, transgender, and queer people, the massacre of 49 people at a gay nightclub in Orlando were a painful reminder that, despite successes like the Pentagon’s lifting the ban on military service by transgender people and the Supreme Court’s legalization of same-sex marriage, obstacles to acceptance and equality remain.

We asked LGBTQ leaders to reflect on the challenges the community still faces. Here is what they said:

Discrimination

“One of the main things we are doing is fighting against the post-marriage backlash,” said Mara Keisling, the executive director of the National Center for Transgender Equality.

That has happened mainly at the state level, where more than 200 anti-LGBTQ bills have been introduced so far this year, said Russell Roybal, the deputy executive director of the National LGBTQ Task Force. Many state officials have used a religious freedom argument to support denying services to LGBTQ people.

The legalization of same-sex marriage heightened the daily risk of discrimination faced by many people, Mr. Roybal said. “In a lot of places, you can go to your county clerk and get a marriage license and get married and then get fired the next week because now you are openly gay,” he added.

Twenty nine states lack anti-discrimination laws that include sexual orientation or gender identity, and there is no federal law protecting access to employment, housing and public accommodation, like hotels or restaurants, for LGBTQ people, he said. In fact, some of the new state bills explicitly restrict public accommodation, particularly those who are transgender.

A North Carolina law passed in March made it illegal for transgender people to use public restrooms that match their gender identity. The law drew condemnation from many artists, who boycotted the state, and from some companies, which canceled plans to do business there.

Mississippi also drew swift criticism for a law allowing business owners to refuse service to gay men, lesbians and others based on the owners’ religious beliefs.

Rainbow Law
Immigration Equality

National Center for Lesbian Rights

Human Rights Watch: LGBTQ Rights

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American Civil Liberties Union: LGBTQ Rights

Violence

“Violence in our community is a big problem,” said Beverly Tillery, the executive director of the New York City Anti-Violence Project, which studies anti-LGBTQ violence and aids survivors. “Ultimately there is still the feeling for some people that LGBTQ people are less than and don’t matter, and that it is OK to commit acts of violence against them.”

There were 24 reported bias-motivated killings of LGBTQ people in 2015, a 20 percent rise from the year before, she said. Most of the victims were transgender and gender nonconforming minorities.

That figure is likely to jump this year because of the killings at Pulse nightclub in Orlando. The shootings put gun control on the agenda of many LGBTQ advocacy groups, Mr. Roybal said. “Every LGBTQ person knows that our safety is not guaranteed,” he said. “Although we don’t live in fear and continue to be out and proud, it is still something that kicks around at the back of our head when we touch our partner’s hand in public, when we lean in for a kiss, when we are out at a club being ourselves.”

Transgender Rights

Visibility has increased in recent years, but so have attacks against transgender people, making for a “traumatic” time, Ms. Keisling said. “The murder rate is way up, and in general, the rate of violence against trans people is way up,” she said.

Transgender people are more likely to experience poverty, discrimination and violence than gay men, lesbians or bisexuals, who themselves face higher poverty rates than the general population, activists said.

Transgender people have been explicitly targeted by 54 state bills similar to North Carolina’s bathroom law. Two of the state legislations were signed into law.

Dozens of religiously affiliated colleges and universities in the past 12 months have obtained waivers from federal civil rights laws that protect transgender people.

Southern Poverty Law Center

Lavender Law
Human Rights Campaign
National LGBT Bar Association

Health Care

A trip to the doctor can be perilous for transgender people, who often face hostility or a general lack of understanding from health care providers, Ms. Keisling said. A study by her group found that 64 people (or 1 percent of respondents) had experienced physical violence in a doctor’s office or hospital, she said.

More generally, LGBTQ people are “significantly more likely” to be uninsured than the population at large, said Kellan Baker, who studies LGBTQ health issues at the Center for American Progress. Advocacy groups have encouraged enrollment in insurance offered under the Affordable Care Act, which was the first federal law to prohibit anti-LGBTQ discrimination in the health care system, said Mr. Baker.

They have also encouraged people to go on pre-exposure prophylaxis, or PrEP, a prescription drug that provides high levels of immunity from HIV, Mr. Roybal said

The Centers for Disease Control and Prevention said 57 percent of all Americans living with HIV at the end of 2011 were gay or bisexual men. They accounted for 65 percent of all new infections in 2013. African-Americans made up 40 percent of those new diagnoses, while whites accounted for 32 percent, and Latinos for 23 percent.

Mr. Baker said that transgender women also have an “extremely high prevalence” of HIV infection. Worldwide, they are 49 times more likely than non-transgender women to be HIV positive, he said.

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Immigration and Criminal Justice Reform

Undocumented LGBTQ immigrants face an increased risk of violence and harassment in immigration detention centers and have sometimes not been provided with appropriate medical care, such as hormone treatments or HIV medications, especially when they are transgender.

A 2013 study by the University of California at Los Angeles’s School of Law estimated there were 900,000 LGBTQ immigrants in the United States, with about 267,000 of them undocumented.

Ms. Keisling said that Immigration and Customs Enforcement “has never figured out how to safely house transgender people, especially trans women.” “For the longest time what they did was just put everybody in solitary confinement” out of fear that transgender detainees would either be the victims or perpetrators of violence, she said.

That practice has decreased but not ended. Immigration authorities have started using designated LGBTQ units, but they are often far from a detainee’s family or lawyer, Ms. Keisling said

Mr. Roybal said LGBTQ prison inmates face many of the same challenges as LGBTQ people held in immigration detention centers: an elevated risk of violence, harassment and solitary confinement. “It isn’t really protecting them, it is isolating them,” he said of solitary confinement. “It’s basically the system not wanting to do anything to change its policies.”

[Source: Liam Stack, New York Times, June 2016]

The Gay/Trans Panic Defense

The LGBTQ "panic" defense (gay panic defense, gay/trans panic defense, homosexual panic defense) is a legal strategy in which a defendant claims they acted in a state of violent, temporary insanity, committing assault or murder, because of unwanted same-sex sexual advances. A defendant may allege to have found the same-sex sexual advances so offensive or frightening that they were provoked into reacting, were acting in self-defense, were of diminished capacity, or were temporarily insane, and that this circumstance is exculpatory or mitigating.

The LGBTQ “panic” defense has also been explained as a legal tactic that asks a jury to find that a victim’s sexual orientation or gender identity/expression is to blame for a defendant’s violent reaction, including murder. It is not a free-standing defense to criminal liability, but rather a legal tactic used to bolster other defenses. When a perpetrator uses an LGBTQ “panic” defense, they are claiming that a victim’s sexual orientation or gender identity not only explains (but excuses) a loss of self-control and the subsequent assault. By fully or partially acquitting the perpetrators of crimes against LGBTQ victims, this defense implies that LGBTQ lives are worth less than others.

One of the most recognized cases that employed the LGBTQ “panic” defense was that of Matthew Shepard. In 1998, Matthew Shepard, a 21-year-old college student, was beaten to death by two men. The men attempted to use the LGBTQ “panic” defense to excuse their actions. Despite widespread public protest, the defense is still being used today.

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American Bar Association: The Gay/Trans Panic Defense

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Traditionally, the LGBTQ “panic” defense has been used in three ways to mitigate a case of murder to manslaughter or justified homicide.

Defense of insanity or diminished capacity

The defendant alleges that a sexual proposition by the victim – due to their sexual orientation or gender identity – triggered a nervous breakdown in the defendant, causing an LGBTQ “panic.” This defense is based on an outdated psychological term, “gay panic disorder”, which was debunked by the American Psychiatric Association and removed from the DSM in 1973. Sadly, while the medical field has evolved with our increasingly just society, the legal field has yet to catch up.

Defense of provocation

The defense of provocation allows a defendant to argue that the victim’s proposition, sometimes termed a “non-violent sexual advance,” was sufficiently “provocative” to induce the defendant to kill the victim. Defendants claiming a “provocative” advance stigmatize behavior which, on its own, is not illegal or harmful, but is only considered “provocative” when it comes from an LGBTQ individual.

Defense of self-defense

Defendants claim they believed that the victim, because of their sexual orientation or gender identity/expression, was about to cause the defendant serious bodily harm. This defense is offensive and harmful because it argues that a person’s gender or sexual identity makes them more of a threat to safety. In addition, LGBTQ “panic” is often employed to justify violence when the victim’s behavior falls short of the serious bodily harm standard, or the defendant used a greater amount of force than reasonably necessary to avoid danger, such as using weapons when their attacker was unarmed.

Explanation: Gay/Trans Panic Defense

American Bar Association: The Gay/Trans Panic Defense

Florida Dems File Bill Ending Gay and Trans Panic Defense

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Some courts and legislatures have begun to curb the use of the LGBTQ “panic” defense, but many states are lagging behind. In order to ensure that the LGBTQ “panic” defense is not seen as a valid excuse, courts should instruct juries to make decisions without bias or prejudice. Jury instructions, however, are often not enough to ensure that people are not swayed by discriminatory appeals. Legislatures should specify that neither non-violent sexual advances nor the discovery of a person’s gender identity can be used as an adequate provocation for murder. Finally, local governments need to educate courts, prosecutors, defense counsel, and the public about the devastating individual and legal consequences of the LGBTQ “panic” defense.

Following the ABA’s resolution in 2013, The LGBTQ Bar is continuing to work with concerned lawmakers at the state level to help ban the use of this tactic in courtrooms across the country.

The LGBTQ “panic” defense has been banned in...

California, 2014
Illinois, 2017
Rhode Island, 2018
Nevada, 2019
Connecticut, 2019
Maine, 2019

Hawaii, 2019

New York, 2019
New Jersey, 2020
Washington, 2020
Colorado, 2020
District of Columbia, 2020

Michigan 2024

Legislation against the LGBTQ “panic” defense has been introduced, but not yet passed, in...

Minnesota, 2018
Pennsylvania, 2019 and 2020
Texas, 2019
Massachusetts, 2019
Wisconsin, 2019
Iowa, 2020

Virginia, 2021
Maryland, 2021
Nebraska, 2021
Florida, 2021
Oregon, 2021
New Mexico, 2021

[Source: LGBTQ Bar]

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