The Rights of Lesbian, Gay, Bisexual and Transgender People

The struggle of LGBT (lesbian, gay, bisexual and transgender) people for equal rights has moved to center stage. LGBT people are battling for their civil rights in Congress, in courtrooms and in the streets. Well-known figures are discussing their sexual orientation in public. Gay and lesbian people are featured in movies and on television – not as novelty characters, but as full participants in society.

Despite these advances into the American mainstream, however, LGBT people continue to face real discrimination in all areas of life. No federal law prevents a person from being fired or refused a job on the basis of sexual orientation. The nation’s largest employer – the U.S. military – openly discriminates against gays and lesbians. Mothers and fathers lose child custody simply because they are gay or lesbian, and gay people are denied the right to marry.

One state even tried to fence lesbians and gay men out of the process used to pass laws. In 1992 Colorado enacted Amendment 2, which repealed existing state laws and barred future laws protecting lesbians, gay men and bisexuals from discrimination. The U. S. Supreme Court struck it down in the landmark 1996 Romer v. Evans decision.

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.
— Justice Anthony Kennedy
Majority Opinion in Romer v. Evans I

The modern gay rights movement began dramatically in June 1969 in New York City’s Greenwich Village. During a typical “raid,” police tried to arrest people for their mere presence at a gay bar, but the patrons of the Stonewall Inn fought back – and the gay rights movement was launched. Using many of the grass-roots and litigation strategies employed by other 20th century activists, gay rights advocates have achieved significant progress:

• Ten states, the District of Columbia, many municipalities and hundreds of businesses and universities now ban employment discrimination.

• “Domestic Partnership” programs exist in dozens of municipalities and hundreds of private institutions, including many of the country’s largest corporations and universities.

• Sodomy laws, typically used to justify discrimination against gay people, once existed nationwide; they are now on the books in only 18 states and Puerto Rico.

But the increased empowerment of LGBT people has brought about even more open and virulent anti-gay hostility:

• Although unrelated to an individual’s ability, sexual orientation can still be the basis for employment decisions in both the public and private sectors in most states and municipalities.

• Violent hate crimes, such as the 1998 murder of Wyoming student Matthew Shepherd, depict a grisly backlash against LGBTs or people perceived to be gay.

• LGBT students and teachers face daily harassment and discrimination in the schools, and LGBT student groups in high schools and colleges still face roadblocks.

In 1986, after more than two decades of support for lesbian and gay struggles, the American Civil Liberties Union established a national Lesbian and Gay Rights Project. Working in close collaboration with the ACLU’s affiliates nationwide, the Project coordinates the most extensive gay rights legal program in the nation. Increasing opposition from a well-organized, well-funded coalition of radical extremists and fundamentalists promises many battles and challenges ahead.

WHAT IS THE CONSTITUTIONAL BASIS FOR LGBT EQUALITY?

The struggle for legal equality for LGBT people rests on several fundamental constitutional principles.

Equal protection of the law is guaranteed by the Fifth and Fourteenth Amendments and reinforced by hundreds of local, state and federal civil rights laws. Although the Fourteenth Amendment, ratified at the end of the Civil War, was designed to ensure legal equality for African Americans, Congress wrote it as a general guarantee of equality, and the courts have interpreted the Equal Protection Clause to prohibit discrimination on the basis of gender, religion and disability. The ACLU believes the Equal Protection Cluase prohibits discrimination based on sexual orientation as well.

The right to privacy, or “the right to be left alone,” is guaranteed by the Fourth, Fifth, Ninth and Fourteenth Amendments. In 1965, Griswold v. Connecticut struck down a state law that prohibited married couples from obtaining contraceptives, citing “zones of privacy.” In 1967, Loving v. Virginia decriminalized interracial marriage. The 1972 Eisenstadt v. Baird decision recognized unmarried persons’ right to contraceptives. And in 1973, Roe v. Wade recognized women’s right to reproductive choice. All of these Supreme Court decisions underscore the principle that decisions about intimate relationships are personal and should be left up to the individual.

Freedom of speech and association are protected under the First Amendment. This Amendment protects the right to organize and urge government to end discrimination, to recognize lesbian and gay relationships, and to adopt laws prohibiting discrimination in the private sector. It also includes the rights to form social and political organizations, to socialize in bars and restaurants, to march or protest peacefully, to produce art with gay themes and to speak out publicly about LGBT issues.

In the Schools

Nothing is more important than making schools safe and welcoming places for gay and lesbian youth, who often face tremendous hostility from their family and community during their formative years. This means protecting students from violence, guaranteeing their right to organize events and clubs like other students, and making sure that gay teachers who might serve as healthy role models are not themselves victimized by discrimination. The ACLU has fought harassment of students in California, Nevada, Ohio and Washington, defended gay teachers in California, Idaho and Utah, and advocated for gay student groups in Alabama, Indiana, Minnesota, Utah and Wisconsin.

Harassment on the job

Mary Jo Davis had high hopes when she accepted a job offer with the Radiology Department of Pullman Memorial Hospital in Whitman County, Washington. All that changed after her supervising doctor discovered she was a lesbian. The doctor started calling her a “dyke” and “faggot,” and wouldn’t work with her or even speak to her. When Mary Jo protested this harassment, she was fired. Represented by the ACLU’s Lesbian and Gay Rights Project, Mary Jo hopes to establish that public employees have a constitutional right to be free from discrimination and harassment in the workplace.

Sodomy and Homophobia

David Weigand could take it no longer. His son was living in the home of his former wife, along with the boy’s stepfather – a convicted felon with a drinking and drug problem who was beating his wife in the presence of the child. Things got so bad that the boy had to call 911 to save his mother’s life, and as a result of all the violence, the family was ultimately evicted from their home.

David asked a Mississippi family court to give him custody of his son. The court refused to do so, in essence saying that living in a home wracked with violence was preferable to living with a father who is gay and “commits sodomy.” In addition to representing David before the Mississippi Supreme Court, the ACLU will continue fighting on behalf of lesbian and gay parents, and to eliminate state sodomy laws.

In the Child’s Best Interest

States are supposed to make rules on adoption and foster care to protect the best interest of children in need of loving homes and families. But somehow it does not work out that way in states like Florida and Arkansas, which ban gays and lesbians from adopting and being foster parents, respectively. By challenging the discriminatory policies of these states, the ACLU is working hard to prevent similar policies from being adopted in other parts of the country.

As a reminder of what is supposed to be the essence of child-welfare policy, the ACLU’s Lesbian and Gay Rights Project in 1998 published a report entitled In the Child’s Best Interest: Defending Fair and Sensible Adoption Policies. To order this, the 1998 videotape Created Equal about employment discrimination against LGBTs, or any other ACLU publication, please contact ACLU Publications at 1-800-775-ACLU.

AREN’T LGBT PEOPLE DEMANDING SPECIAL RIGHTS AND PREFERENTIAL TREATMENT?

As the Supreme Court explained in Romer v. Evans, there is nothing “special” about laws which prevent people from losing jobs and homes because of who they are. Most of us take the right to participate in daily life on an equal footing for granted, the Court said, either because we already have the right under the law, or because we are not subjected to that kind of discrimination. Laws which prohibit discrimination simply give LGBT people that basic right to be equal participants in the communities in which they live.

Most Americans do not realize that many LGBT people who face discrimination – in areas from housing and employment to parenting – have no legal recourse since federal law does not prohibit discrimination against LGBT people. Extending such protection from discrimination to LGBT people is one of the many important battles ahead for the ACLU and other advocacy organizations.

ARE LGBT PEOPLE PROTECTED AGAINST DISCRIMINATION ANYWHERE IN THE COUNTRY?

Yes, twelve states (California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, New Hampshire, Nevada, New Jersey, Rhode Island, Vermont and Wisconsin), the District of Columbia, many municipalities, and hundreds of businesses and universities have enacted laws that protect gay, lesbian and bisexual people from employment discrimination. A smaller number of jurisdictions protect transgender people.

But in most locales in the remaining 38 states discrimination against LGBT people remains perfectly legal. Businesses openly fire LGBT employees, and every year, lesbian and gay Americans are denied jobs and access to housing, hotels and other public accommodations. Many more are forced to hide their lives, deny their families and lie about their loved ones just to get by.

The ACLU believes the best way to redress discrimination is to amend all existing federal, state and local civil rights laws and all existing business and university policies to ban discrimination based on sexual orientation.

WHAT ABOUT DOMESTIC PARTNERSHIPS?

Many cities, including New York, Los Angeles, San Francisco, Atlanta, the District of Columbia and Minneapolis, have created “domestic partnership” registries. They give official status to same-sex couples who register with the city. Scores of government and private companies recognize the domestic partnerships of their employees. The state of Hawaii recognizes domestic partners.

While these laws do not confer most of the rights and responsibilities of marriage, they generally grant partners some of the recognition accorded to married couples – typically, the right to visit a sick or dying partner in a hospital, sometimes sick and bereavement leave and in a few cases, health insurance and other important benefits.

Perhaps as important, these policies give some small acknowledgement to the intimate, committed relationships central to the lives of so many lesbians and gay men, which society otherwise ignores.

WHY SUPPORT SAME SEX MARRIAGE?

Denying lesbian and gay couples the right to wed not only deprives them of the social and spiritual significance of marriage; it has serious, often tragic, practical consequences. Since they can not marry, the partners of lesbians and gay men are not next of kin in times of crisis; they are not consulted on crucial medical decisions; they are not given leave to care for each other; they are not each other’s legal heirs, if, like most Americans, they do not have wills. Marital status is often the basis on which employers extend health insurance, pension and other benefits. The ACLU believes that since we have attached such enormous social consequences to marriage, it violates equal protection of the law to deny lesbian and gay couples the right to wed.

WHAT ARE “SODOMY LAWS” AND WHY BOTHER WORKING TO REPEAL THEM?

Sodomy statutes generally prohibit oral and anal sex, even between consenting adults. Penalties for violating sodomy laws range from a $200 fine to 20 years imprisonment. While most sodomy laws apply to both heterosexuals and lesbians and gay men, they are primarily used against gay people. For example, some courts say sodomy laws justify separating gay parents from their children. Some cities use sodomy laws to arrest gay people for talking with each other about sex, in conversations which parallel those heterosexuals have every day.

In recent years, the legislatures of Pennsylvania, Nevada and Rhode Island joined the 23 other state legislatures which repealed sodomy laws in the 60s and 70s. Courts in Georgia, Kentucky, Maryland, Montana and Tennessee have struck down the statutes. The remaining sodomy laws will be challenged in the legislatures and the courts until they are all eliminated.

“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”

– Justice Anthony Kennedy
Majority Opinion in Romer v. Evans