An appellate court deciding Hobby Lobby violated Illinois anti-discrimination law by denying a transgender employee access to the women’s restroom could have nationwide implications, experts say.
Meggan Sommerville, a trans woman who has worked at a Hobby Lobby location in Aurora for more than 20 years, has been denied access to the store’s women’s room since transitioning at work in 2010. As a result, she has had anxiety and recurring nightmares and has been forced to limit her fluid intake, according to filings.
On Friday, the Illinois 2nd District Appellate Court upheld a lower court decision that determined the crafts chain violated the Illinois Human Rights Act both as an employer and as a place of public accommodation.
“Sommerville is female, just like the women who are permitted to use the women’s bathroom,” the three-judge panel said in its decision. “The only reason that Sommerville is barred from using the women’s bathroom is that she is a transgender woman.”
The ruling is one of first impression, meaning it presents a legal issue that has never been decided in the court’s jurisdiction.
“They stuck to the law,” Sommerville, 51, told Forbes. “This is a precedent-setting case in Illinois, because the Human Rights Act has never been tested in this way in Illinois, and actually in the country.”
Jim Bennett, director of the Illinois Department of Human Rights, said the decision underscored that trans people in the state “have strong protection from discrimination.”
“Ms. Sommerville’s experience of discrimination is certainly not unique, as too many of our transgender friends and neighbors continue to face acts of discrimination and hate,” Bennett said in a statement. “With this decision, the IDHR has been given a clear path to enforce the Commission’s orders concerning the rights of trans persons.”
Jacob Meister, who represented Sommerville, went further, telling Bloomberg Law the decision had national implications and will “start the process of courts around the country addressing the issue of bathroom access.”
Camilla Taylor, litigation director for the LGBTQ legal advocacy group Lambda Legal, agrees the ruling could have a broad impact in a variety of areas and jurisdictions.
“I think other states will generally be able cite this ruling, because of how sweeping it is,” Taylor said. “This is not limited to employment. This is the public policy of the state of Illinois. The court went out of its way to knock down every justification for treating trans people differently in public. It made it clear there’s no justification.”
While the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia, determined discrimination based on sex includes sexual orientation and gender identity, it didn’t address access to sex-segregated facilities, services or sports teams.
“You can’t argue it’s not sex discrimination to deny someone access to a bathroom or a locker room,” Taylor said.
Not only could the ruling be used by opponents of so-called bathroom bills, she added, it could be relevant to the legal fight against legislation prohibiting transgender girls from playing on female sports teams.
“It will have big ramifications in all kinds of aspects of life — in education, in business, in gyms and sports,” Taylor said. “It’s indicative of applying nondiscrimination principles to sex-segregated areas. It makes clear that gender identity determines sex.”
Hobby Lobby could appeal the ruling to the Illinois Supreme Court and theoretically take it all the way to the U.S. Supreme Court. Attorney Whitman Brisky, who represented the company, did not immediately reply to a request for comment.
The 2021 legislative session has set a record for anti-transgender bills, according the Human Rights Campaign, an LGBTQ advocacy group: Nearly 70 measures were introduced in at least 30 states that would prohibit trans youth from participating in sports consistent with their gender identity, and at least 15 bills were introduced that would bar trans people from accessing the restrooms or locker rooms that align with their gender identity.
The judicial branch, however, has been more supportive: In addition to Bostock, the Supreme Court in June declined to review a 4th U.S. Circuit Court of Appeals decision that ruled transgender student Gavin Grimm had a constitutional right to use the boys’ restroom at his Virginia school.
The lower court ruled that policies barring transgender students from restrooms that match their gender identity violate the equal protection clause of the 14th Amendment and Title IX of the Education Amendments of 1972.
As the nation battles new variants of the Covid-19 virus, LGBTQ Americans have felt the economic brunt of the pandemic harder than the general public, according to a new report from the U.S. Census Bureau.
It found 19.8 percent of lesbian, gay, bisexual and transgender adults lived in a household where there was a loss of income in the past month, compared to 16.8 percent of non-LGBTQ adults.
Economic disparities between LGBTQ and non-LGBTQ people existed long before the pandemic, says M. V. Lee Badgett, a professor of economics at the University of Massachusetts Amherst, but have grown more pronounced.
A report from the Center for LGBTQ Economic Advancement and Research, for example, indicated that, in 2019, nearly 1 in 5 (19.8 percent) LGBTQ households were unsure they could pay their bills that month, compared to 14 percent of non-LGBTQ households.
But according to the new data, collected from 64,562 households between July 21 and Aug. 2, more than a third (36.6 percent) of LGBTQ people had difficulty paying household bills in the last week, compared to roughly a quarter (26.1 percent) of cisgender heterosexuals.
That growing inequality is evident in other areas, too: Food securityis a reference to the ability to access sufficient, safe and nutritious meals that meet dietary preferences and needs for an active and healthy life.
According to the census survey, LGBTQ households are now nearly twice as likely to experience food insecurity as heterosexual families, 13.1 percent to 7.2 percent.
Williams Institute data from 2014 suggests the difference was much smaller then, with 18 percent of lesbian, gay and bisexual adults reporting that they or someone in their family went without food for an entire day in the past month. That’s compared to 14 percent of all people who were food insecure, according to U.S.Department of Agriculture figures for that year.
“If we’re starting out on unequal footing, it’s just going to get worse with a pandemic. It’s going to reach into economically vulnerable populations and hit them harder,” said Badgett, author of “The Economic Case for LGBT Equality.” “And groups with health disparities, like LGBTQ people, are also going to be hit worse.”
In a statement, Jay Brown, senior vice president for programs, research and training at the Human Rights Campaign, the nation’s largest LGBTQ advocacy group, said the Census Bureau’s findings “highlight what we have long known — LGBTQ+ Americans disproportionately bear the brunt of economic hardships, from food insecurity to unemployment.”
The group’s research shows that, during the current crisis, LGBTQ people, especially queer people of color, are consistently more likely than the general population to have their work hours cut or to face unemployment.
In part, that’s because LGBTQ people are more likely to be employed in the food service industry, hospitals, retail and education: According to a 2020 HRC Foundation brief, 40 percent work in those industries, all significantly impacted by shutdowns and more likely to expose workers to the virus.
There are other factors, including that the LGBTQ population tends to be younger and is less likely to have robust support systems than their cisgender heterosexual counterparts. But Badgett said “we don’t have great data” yet to determine how much of an impact those factors might have.
Badgett underscores the Census Bureau finally incorporating sexual orientation and gender identity on an economic survey is a positive sign.
“Mostly they just appear in health surveys,” she said. “Going forward, this indicates we’ll get richer data on LGBTQ economics.”
The important thing is to ensure assistance programs are available to help everyone, Badgett said, “that LGBTQ people can access [Supplemental Nutrition Assistance Programs] and food banks, and that service providers are fully inclusive and not turning them away, either intentionally or accidentally.”
For three years, Jesse Brace avoided getting care for their seizures after they experienced discrimination at an emergency room near their home in Lawrence, Kansas, in 2017.
They said they told the staff that they are transgender and nonbinary, that their name is different from their legal name and that they use gender-neutral pronouns.
“They refused to even so much as acknowledge this information, and not only did they not use [my pronouns], but they also sent me home without treating me for what I went in for,” said Brace, 25.
When they tried to get care elsewhere after that, they said, they had similar experiences, so they avoided care entirely.
Jesse Brace. Courtesy / Jesse Brace
In 2018, they began having seizures every day, so they started living in their car outside the Amazon facility where they were an assistant operations manager, because they couldn’t drive themself to work anymore.
In November 2018, they lost their job. “I lost my car soon after and ended up on the streets in the winter,” they said. “I was having hundreds [of seizures] a day and wasn’t even leaving where I was laying.”
They were homeless, living out of their car or on the streets, for over three years.
Brace’s experience in the ER — and the impact that health care discrimination had on their life — is something many trans people face and fear when they try to get care, according to a report released Wednesday by the Center for American Progress, or CAP, a liberal think tank.
Discrimination, among other factors, prevents trans people from seeking necessary care, which leads to health disparities that can affect many other areas of their lives, the report found.
The authors outline a road map of solutions, including legislative protections for LGBTQ people and better competency training for medical providers.
“The onus should not be on individuals,” said one of the report’s authors, Sharita Gruberg, vice president of the center’s LGBTQ Research and Communications Project. “It really should be on these institutions to do the right thing, and the resources and guidance is out there.”
Forgoing routine care after trauma
CAP’s report found that nearly half of transgender people — and 68 percent of transgender people of color — reported having experienced mistreatment at the hands of a medical provider, including refusal of care and verbal or physical abuse, in the year before the survey, which took place in June 2020.
Discrimination can then prevent people from seeking future care, the survey found: 28 percent of transgender people, including 22 percent of transgender people of color, reported having postponed or not gotten necessary medical care for fear of discrimination.
Brace got another job in May 2019, but they said they weren’t able to get consistent care again until May of this year. They said doctors in the area repeatedly told them that they were unable to take on new patients. It wasn’t until Brace was referred to a doctor who has a transgender child that they were finally able to obtain a primary care physician.
“I get panic attacks just making appointments,” they said. “I have no support whatsoever. Unfortunately, all health care around here is like this. There is no support for trans people, and so most avoid seeking care.”
Dallas Ducar, a psychiatric nurse practitioner, opened Transhealth Northampton, a trans-led organization that provides health care to trans and gender diverse patients in western Massachusetts, in May. Ducar said that as a health care provider and a trans woman, she knows there’s a dearth of affirming care for trans people across the country.
The Transhealth Northampton team. Courtesy / Dallas Ducar
She said many of Transhealth’s patients have gone without medical care for long periods of time. A patient who came in a couple of months ago had abnormal vital signs and had to be quickly taken to an emergency room because they were so sick, she added.
“It’s unfortunately not uncommon to see people who have experienced such high levels of discrimination and then forgo the routine visits, then perhaps even forgo an urgent care visit, which then turns into an emergency care visit,” she said.
The CAP report said harassment and discrimination “contribute to high rates of stress,” and — along with social determinants of health — make trans people “more likely to experience poor health outcomes.”
People will read about health disparities among trans people “and just think of that as something that, horribly, is associated with just like being trans, but actually a lot of these experiences have to do with being trans in a world that is constantly oppressing you and where you’re experiencing discrimination both interpersonally but also institutionally and in these broader systems,” said one of the report’s authors, Caroline Medina, a policy analyst at CAP.
The report cites the 2019 Behavioral Risk Factor Surveillance System data collected by the Centers for Disease Control and Prevention, which found that trans people were more than twice as likely as cisgender adults to be told they had depressive disorders.
Fifty-four percent also reported poor physical health at least one day in the previous month, compared to 36 percent of cisgender respondents, according to the CDC data. Trans people also have an increased likelihood of having asthma and developing cardiovascular disease, according to the CAP report.
The Covid-19 pandemic has also aggravated the health disparities trans people face: 1 in 3 reported having had suicidal thoughts during the pandemic, and 1 in 2 reported that their access to gender-affirming health care was curtailed significantly during the pandemic.
Ducar said barriers to care, particularly gender-affirming care like hormones, is “really, really harmful, and they add to the layers of discrimination that exists within the trans community.”
“On the mental health side, we are seeing folks with really complex issues — tons and tons of trauma — that’s coming to our doorstep,” she said. “We’re just seeing a lot of not only trauma, but complex PTSD specifically. These are people that have just been consistently burdened with the symptoms of PTSD, trauma just recurring. It’s really been terrible.”
A lack of cultural competency
When trans people do try to seek health care, they can face discrimination or outright refusal of care, as CAP found. But even when they don’t experience discrimination, they are likely to see providers who don’t have the cultural competency to provide them with affirming care.
CAP’s survey last year found that 1 in 3 transgender people reported having had to teach their doctors about transgender people to get appropriate care, and 15 percent reported having been asked “invasive or unnecessary questions about being transgender” not related to their reasons for visiting.
The report cited a 2018 brief from the Kaiser Family Foundation that found that more than half of medical school curriculums lack information about unique health issues the LGBTQ community faces and don’t cover treatment beyond HIV prevention and care, “likely contributing to transgender people’s inability to access affirming care,” CAP wrote.
Alex Petrovnia, 24, a writer and scientific researcher living in central Pennsylvania, said that last fall, he had to report a primary care physician after a negative experience.
He was worried about how testosterone would affect a joint problem he was having, and he asked the doctor, who was still a medical resident, whether there was a form of physical therapy to help the problem. After a tense exchange, he said, the doctor told him, “I don’t know anything about this, because I’ve never had a patient like you.”
“I was trying to keep this interaction peaceable, and I replied with: ‘Yeah, I know. It’s really unfortunate that you’re not taught anything about trans people in medical school, and it’s just not a very well-known issue,’” he said. “And she looked me right in the eyes and she said: ‘I don’t think it’s that important. There aren’t many of you.’”
When he left, he tweeted about the visit so other trans people in the area would know not to see that doctor.
The medical practice reached out to him a few days later and asked what it could do better, Petrovnia said. When he returned to see a new, supportive primary care physician, “they told me that they sent the resident back to trans-inclusivity training and that they had instituted that for all of their residents going forward,” he said. “So that was very positive. … Being the squeaky wheel really actually made an impact and actually improved the situation theoretically for others.”
Petrovnia acknowledged that not everyone is able or willing to spark such teachable moments.
Mel Groves, 25, visited a primary care office in Montgomery, Alabama, in January when he had a cough, fever and lower body pains. When he was taken back for a full-body CT scan, he said, he had a decent conversation with the attendant who was pushing his chair. Groves said that when the procedure was over, however, the attendant’s tone changed. The attendant had apparently seen Groves’ chart and made a comment about his genitals, Groves said.
Mel Groves, a farmer from Jackson, Mississippi.Courtesy / Mel Groves
“I was taken aback,” he said. “It was shocking, to say the least.”
Groves said that he wanted to report it but that he was feeling too ill and overwhelmed, as he was working in the area temporarily. “I knew that that’s what I should have done, but at the time, I had a lot of stuff going on,” he said.
The health care system that oversees the primary care office where Groves was treated could not confirm his story, citing patient confidentiality.
‘The role falls on society’
CAP’s report outlines a number of policy recommendations that the authors said would help address health care discrimination against trans people.
One in particular is among the most pressing, the authors said: They recommend that the federal government create a rule to strengthen Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex and has protected trans people from discrimination in federally funded health care facilities.
“The protections in Section 1557 are so critical but are also a floor that we need to firmly establish and strengthen,” said Gruberg of CAP. She said it was great that the Department of Health and Human Services’ Office of Civil Rights had announced that it would enforceSection 1557 to cover sexual orientation and gender identity, “but we’re also very worried about what that looks like, how strong these protections are going to be and the potential for religious exemptions to undermine them.”
U.S. District Judge Reed O’Connor issued a permanent injunction last week against the nondiscrimination protections in the Affordable Care Act, ruling in favor of religious health care providers who said the rules would force them to perform abortions or provide gender-affirming treatment against their religious beliefs. While Gruberg expects the decision to be overturned, she said “that threat is still there.”
The report’s authors also recommended that Congress and state and local governments increase funding for LGBTQ community health centers, which often fill the health care gaps that trans people face.
Groves was connected with an affirming primary care physician through the Knights and Orchids Society, a grassroots organization in Selma, Alabama, led by Black trans people. He drives about 4½ hours from his home in Jackson, Mississippi, to Auburn, Alabama, when he needs care.
Although groups like the Knights and Orchids Society have provided what Groves described as “life-changing” support, he said it’s ultimately up to the medical system and society to address pervasive issues like discrimination.
“We’ve always been here,” he said. “So I think that now the role falls on society and the medical professionals to educate themselves more. If that means more fellowships, more trainings, more professional development … I feel like that is single-handedly the best thing that we can do to foster better health care for trans people, is helping people to understand how to be inclusive, and then going forward from there.”
Some LGBTQ OnlyFans creators say the changes could jeopardize one of their primary sources of income during the Covid-19 pandemic.
Many sex workers, such as Stacey Monroe, 27, have been using OnlyFans to create sexually explicit video content and photos during the pandemic because they can’t see clients in person safely.
Monroe said she left her career in health care to focus on advocating for transgender rights after she faced discrimination from multiple past employers because she’s a trans woman. “However, being an activist is really a volunteer job, so there was no pay,” she said. In 2018, sex work “helped me and my sister get through our housing crisis and so many other things. It became our form of survival.”
Stacey Monroe said OnlyFans’ policy change could jeopardize 40 to 50 percent of her income.Pedro Morales
Sex work has helped them maintain stability without facing employment discrimination. Now, Monroe said, 40 percent to 50 percent of her income comes from OnlyFans subscriptions.
“If I’m not able to see customers in person, then I do have to try to make OnlyFans content and things like that, so now I’m kind of in limbo trying to figure out what am I going to do on October 1 and trying to see if there’s a loophole or anything to work around the policy,” she said.
OnlyFans’ new policy will allow creators to continue to post nude photos as long as they are consistent with the platform’s acceptable use policy, but it will prohibit “the posting of any content containing sexually-explicit conduct,” a spokesperson said in a statement.
“In order to ensure the long-term sustainability of the platform, and to continue to host an inclusive community of creators and fans, we must evolve our content guidelines,” the statement says. “These changes are to comply with the requests of our banking partners and payout providers. We will be sharing more details in the coming days and we will actively support and guide our creators through this change in content guidelines.” https://iframe.nbcnews.com/U5CK7jN?app=1
The spokesperson declined to comment on when a nude photo could be considered sexually explicit or who would screen content and decide whether it violates the policy.
OnlyFans has provided a legal avenue for people to participate in sex work. Subscribers pay monthly or yearly fees in exchange for pornographic content or one-on-one live video chats with creators, among other content.
Transgender people are more likely than the general population to participate in sex work for a variety of reasons. As a result, many LGBTQ sex workers said the community is disproportionately — and negatively — affected by OnlyFans’ policy change.
A form of survival for trans people
In 2018, Monroe and her sister, who is also trans, were facing homelessness.
“We were sleeping in our car. We had contemplated suicide,” she said. “We just really didn’t have any options. We were going to homeless shelters, and they were telling us that we were not allowed there because we were trans and they didn’t know how to accommodate us.”
With support from their community, they were able to get back on their feet, and sex work has since helped them survive, Monroe said.
Monroe’s experiences of job discrimination and homelessness are common among trans people — including trans people who participate in sex work.
A 2015 survey found that 10.8 percent of trans respondents had participated in some form of sex work, with rates the highest among Black trans respondents (39.9 percent) and Hispanic or Latino respondents (33.2 percent). Transfeminine respondents were twice as likely to participate in the sex trade, at 13.1 percent, compared to transmasculine respondents, at 7.1 percent.
The survey found that more than two-thirds (69.3 percent) of trans sex workers reported having experienced adverse job outcomes in the traditional workforce, such as being denied jobs or promotions or being fired because of their gender identity or expression. In addition, those who lost jobs because of anti-trans bias were about 2 ½ times as likely to engage in the sex trade (19.9 percent vs. 7.7 percent of respondents who didn’t lose jobs because of anti-trans bias).
The OnlyFans log in page on a laptop in New York, on June 17, 2021.Gabby Jones / Bloomberg via Getty Images file
Monroe said sex work is a form of survival for many trans people, because it allows them to earn enough money to get safe housing.
OnlyFans has provided a safer — and legal — outlet for people to engage in sex work, especially trans people, who often face violence. At least 34 trans and gender-nonconforming people have been killed this year. Most of them were Black trans women, according to the Human Rights Campaign, and some of them were also sex workers, according to memorial posts and local reports.
Monroe said some trans people use OnlyFans to pay their bills and get health care, such as hormones, during the pandemic. As a result, the policy change could affect trans creators in many ways if it’s their primary form of income.
“A lot of us have found safety in not having to see customers in person, one, because of Covid-19, and two, because of the violence against trans people and how it’s been increasingly just getting worse and worse over the years,” she said. “It’s horrible. So we are going to be facing more safety issues, more issues with housing, medical, trying to just survive in general.”
Jeopardizing stability, safe space
Z, 27, said OnlyFans has provided them with a stable and safe source of income during the pandemic. They asked to go by their initial because they hope to get a job outside sex work in the future.
They are immunocompromised and disabled and were unable to leave their home at all before a Covid-19 vaccine was available.
They began using OnlyFans in November to sell lewd photos. They incorporated their mobility devices into shoots and described themself as openly queer. In their first month using the platform, they said, they doubled their average monthly income and were able to hire a personal care attendant to help them with their physical therapy exercises and daily activities, such as washing their hair and prepping meals.
They said the OnlyFans policy change will affect them because they don’t have an audience for the type of content that OnlyFans now says is within its terms of service, though they noted that they won’t be as affected as other creators who do more video content.
“I think that when you are specifically advertising sex worker services and then those services are no longer what you’re able to provide, nobody’s going to be there for that,” they said. “I don’t foresee getting a lot of income from people who would just want to see pictures of my smiling face every day.”
OnlyFans no longer makes up the bulk of Z’s income, but they said it does provide them with a few hundred dollars a month, which can cover their physical therapy, medication or groceries.
OnlyFans is used primarily by sex workers who sell pornographic content, but creator GothyKitten, 33, who asked to go by their username on the platform, used it to share time-lapse photos of their surgery site after they had gender-affirming surgery. They uploaded a year’s worth of images in late December.
“A couple folks have said that it really helped them with considering surgery, and everyone who asked for it said they couldn’t find any other resources as detailed,” they said. OnlyFans’ new acceptable use policy will ban “any exhibition of the anus or genitals of any person which is extreme or offensive,” and it doesn’t define “extreme” or “offensive,” leaving GothyKitten uncertain whether their content will be removed.
For now, they’ve created an account on AdmireMe.vip, a site that posted a message of support to sex workers after OnlyFans announced its policy change.https://iframe.nbcnews.com/468GgCb?app=1
For some LGBTQ OnlyFans creators, like Jack Mackenroth, 52, the platform’s new policy is disappointing but not necessarily negative. Mackenroth created an OnlyFans account to share gay pornographic content shortly after the site started in 2016.
He said that the site isn’t user friendly and that there are better platforms that were created by sex workers, like JustFor.fans, which also shared a message about OnlyFans’ policy.https://iframe.nbcnews.com/h8cOaI7?app=1
Sex workers made OnlyFans “what they are,” Mackenroth said, and now it won’t fight for the creators who helped build the site. “They seem to be fair-weather friends, and I don’t need those,” he said.
He encouraged OnlyFans creators to move their content to other platforms and diversify their sources of income.
Jack Mackenroth attends “The Imitation Game” NYC premiere on Nov. 17, 2014. Jim Spellman / WireImage – Getty Images file
LaLa Zannell, the Trans Justice Campaign manager at the American Civil Liberties Union, said being able to change platforms is a privilege not all sex workers have.
“A person who is navigating just surviving, navigating transphobia, xenophobia and homelessness doesn’t have time to create a whole new following on a new platform,” she said.
A number of websites that sex workers used, such as Backpage and Tumblr, were also shut down or changed their policies in ways that negatively affected sex workers, she said, in part because of policy changes by financial institutions that process their payments.
OnlyFans and similar sites have also faced pressure from conservative representatives and advocacy groups. Rep. Paul Gosar, R-Ariz., applauded the policy change, calling it “a remedy to child exploitation” in a tweet last week.
Gosar wrote a letter to the attorney general about a week before the site announced its policy change requesting an investigation into OnlyFans “for promoting, and profiting from, online prostitution.” The bipartisan letter was signed by more than 100 other members of Congress.
Gosar wrote on Twitter that the Justice Department had found that minors were getting through OnlyFans’ vetting process, which requires creators to have bank accounts, government IDs and face scans to ensure that their faces match the provided ID.
The Justice Department did not immediately respond to NBC News’ request for comment.https://iframe.nbcnews.com/48BjpYS?app=1
Zannell said banning pornographic content from platforms isn’t a solution, because it will just move to new platforms. But users’ constantly changing platforms isn’t, either, she said. She added that she’d like to have a sit-down with banking institutions, as well as anti-pornography and anti-sex-trafficking groups — which she said are among those pressuring banking institutions to clamp down on sites like OnlyFans — to “actually have a real conversation and carve out a real goal where all parties online can be on neutral ground, because sex work is real work.”
In 2014, Deondre Moore, who was 19 at the time, decided to get an HIV test while he and his friends were at a nightclub in Houston.
Moore wanted his friends to get tested, “so I knew that the best way to do so was to lead by example and do my test first,” he said. He was tested earlier that year, and had recently been in what he thought was a monogamous relationship with a man he was in love with, so he wasn’t worried about the results.
“They tested me for HIV, I knew it would come back negative,” he said. “Went to the back, ready to hear my results, and he said, ‘Your test came back positive.’”
Moore said he “made up a whole scenario” in his head about why he thought the test result was wrong. But just over a week later, a doctor at the student health clinic at Sam Houston State University, where he was a freshman, confirmed the result.
“The doctor walked in, and very quickly got it out of the way. And he said, ‘Mr. Moore, I’m sorry to tell you, but our test confirmed that you do have HIV,’” he recalled. “What I heard the doctor say was, ‘Yeah, you are going to die.’”
Now 26, Moore takes just one pill a day — an antiretroviral treatment that makes the virus undetectable and untransmittable to others. It’s not a cure, but it means that, unlike a few decades ago, people like Moore can live long, healthy lives.
Treatment for HIV has come a long way since June 1981, when the Centers for Disease Control and Prevention published its first scientific report describing the disease now known as AIDS in its Morbidity and Mortality Weekly Report. But advocates say there’s still more work to be done. Stigma surrounding HIV is persistent, and the virus disproportionately affects gay and bisexual men of color, particularly Black men, due to inequality in a variety of areas.
Advocates want to see better health education in schools, better access to health care and, ultimately, an end to the epidemic.
A lack of education — and more HIV cases among young people
Moore’s mother, Kathleen Wingate, said that she didn’t personally know anyone who was living with HIV prior to her son’s diagnosis, so she didn’t know anything about it. Going to his doctor’s appointments with him helped a lot, she said.
The doctor explained to her that she couldn’t contract HIV from hugging her son, kissing him or sharing food and drinks with him.
“And I always thought, ‘Oh, if he touches me … If somebody touches you, you’re going to get it.’ I’ve heard that,” Wingate said. But the doctor told her that if Moore took one pill every day for the rest of his life, he could live to 90 or 100 years old.
Misinformation and stigma persist in part because of poor sex education across the country, said J. Maurice McCants-Pearsall, director of HIV and health equity at Human Rights Campaign.
He noted that young people ages 13 to 24 are overrepresented in new HIV diagnoses, with the age group making up 21 percent of the category in 2018, according to the CDC. Young gay and bisexual men account for 83 percent of all new diagnoses in the age group, and young Black gay and bisexual men make up 42 percent of new diagnoses among young queer men.
“And then we have to ask the question, well, why is that?” McCants-Pearsall said. “Well, there’s a direct correlation with a lack of sexual health education and HIV in young folks between the ages of 13 and 24. That’s undeniable.”
He said HIV’s impact on Black and brown people is also due to social determinants of health, which he said aren’t being addressed for communities of color. “It’s not just enough to give someone a blue magical pill and say, ‘Oh, this is going to prevent you from contracting HIV,’” he said. “No, we have to have comprehensive health care for folks, then address all their needs from mental health to behavioral health services, to increased access to medical treatment and/or prevention services … equal access to educational, employment opportunities, housing.”
Legislation also plays a role. Thirty-seven states criminalize exposing someone to HIV, according to the CDC. McCants-Pearsall said 11 states have laws that make it a felony to spit or bite someone if you have HIV, “even though we know the science tells us that it is not possible to transmit HIV through saliva.”
Twenty-five states also criminalize one or more behaviors that pose low risks for HIV transmission, he said. The penalties for violating these laws can include prison time: 18 impose sentences of up to 10 years, seven states impose sentences of 11 to 20 years, and five states impose a sentence of 20 years “and this is not based off of behavior motivated by intent to harm,” McCants-Pearsall said.
“This is based off of you not disclosing your status or merely the perceived exposure to HIV, and that’s ridiculous, totally ridiculous,” he said.
Ending the epidemic
Thom Kam, 65, was diagnosed with HIV in 1992. He used all natural and alternative therapies to boost his immune system until 1996, when he was hospitalized and officially had AIDS. At that time, the result of a six-month study showed that a combination of three drugs was effective at containing HIV.
“And I did that regimen eight hours every day around the clock on an empty stomach for three years, which was 4,000 plus doses without missing a single one,” he said. “But I knew how lucky I was. I knew how lucky I was to actually be able to do that … really grateful. And so I did and embraced it for myself and for all the other guys who hadn’t had the opportunity.”
In the ‘80s and the ‘90s, he said, he never thought it would get to this point, when one pill a day can make HIV undetectable. “I didn’t know if we could or not,” Kam said. “It was one big dark tunnel, and there was no light at the end.”
Treatments have improved, but Moore said HIV has been around for 40 years, and there’s no cure or vaccine. He added that about a year and a half into the Covid-19 pandemic, however, multiple vaccines exist.
“I think it just speaks to who’s mostly affected, and who was mostly affected then,” he said. Because the HIV epidemic disproportionately affected queer men, and Black and brown people, “no one cared, no one listened,” he said.
But that is not a view that Dr. Anthony Fauci, the nation’s top infectious diseases expert, shared.
Fauci, director of the National Institute of Allergy and Infectious Diseases, who was a leading researcher during the AIDS epidemic in the 1980s, said the fact that there’s a Covid-19 vaccine and no HIV vaccine is “a scientific issue” and “has nothing to do with effort.”
“We have spent literally billions of dollars on an HIV vaccine. No doubt,” he told NBC News in response to a question in May. What makes a vaccine successful is when the body makes an adequate immune response to a pathogen to clear it and prevent the person from being infected with the same pathogen again.
“That completely is different for HIV, because for reasons we still can’t explain, the body does not make a good immune response against HIV,” he said. “And that’s the reason why we never see clearance of the virus from the body of someone who’s been infected spontaneously.”
As advocates work to end the epidemic or wait for a cure, they continue to fight misconceptions. Among the most common is that HIV is a death sentence, and it is not, McCants-Pearsall said. Another is that if a person is HIV positive, it means “they did something wrong.”
“No one did anything wrong,” he said. “We have free choice. I can love who I want to love, how I want to love them, whenever I want to love them. There’s no shame in that. I did nothing wrong.”
Britton Hamilton said, as a trans man, he wanted to become a police officer to help promote change from the inside.
He applied to the New Orleans Police Department in June 2020, and after several exams and a panel interview, he received a conditional job offer in December.
“It was like a dream job,” Hamilton said. “I want to be able to help the community and help people to view police officers differently than how they are feeling now.”
The offer was conditional on him passing a routine medical and psychological evaluation, during which he said the psychologist asked him questions about his transition.
On Jan. 26, he received an email from the police department rescinding the conditional offer “based on a psychological assessment” of his “emotional and behavioral” characteristics.
“It was super, super disappointing, because I prepared myself physically, emotionally for this job,” Hamilton said. “This is the foundation for me and my family.”
Britton Hamilton.Britton Hamilton
In May, Hamilton filed a federal complaint with the Equal Employment Opportunity Commission alleging hiring discrimination. His attorney, Chelsea Cusimano, said the EEOC has since opened an investigation.
The New Orleans Police Department issued a statement in May.
“The decision not to move forward with the applicant in question did not involve any discrimination against the individual as a member of a protected group,” the statement read in full.
The department declined additional comment.
Hamilton’s experience isn’t unique, said Julie Callahan, a former law enforcement officer in San Jose, California, and the founder of the Transgender Community of Police and Sheriffs, a peer support group for trans law enforcement officers. Trans people face disproportionate employment discrimination generally, and she said law enforcement, which she described as a relatively conservative field, is no exception.
TCOPS is trying to do its part by providing training and policy templates to departments in the hopes that this educational material can help address the biases and misinformation that lead to discrimination. But outside of that, it’s incredibly difficult for trans people to prove they’ve faced hiring discrimination. Even if they can, many can’t afford to take legal action.
Complicating matters is the historically fraught relationship between law enforcement and the LGBTQ community. This has caused some transgender officers — many of whom are trying to address inequities from within — to face pressure from both sides.
“It’s an ongoing issue that we have to address as a society,” Callahan said of the hiring discrimination trans law enforcement officers face. “We’re starting to see agencies that are developing transgender interaction policies with the public, but they’re not developing policies like this for their employees, and we find that ridiculous. You should be doing both, because you’re going to have people from the community working or at least trying to get jobs at your agency.”
‘That’s not equal protection of the law’
Hamilton alleged that the psychologist who did his evaluation asked him questions like, “What were the names of your doctors that performed your surgery? How does your family feel about you being transgender? How does your wife feel about you being transgender?”
“I felt like it was kind of weird because … it doesn’t pertain to the duties of being a police officer at all,” Hamilton said. The psychologist, who is named in Hamilton’s complaint, has not returned a request for comment.
As part of standard procedure, the department asked Hamilton for information about his employment over the last 10 years.
After the psychological evaluation, Hamilton said the department asked for documentation outside of the standard 10-year window related to his honorable discharge from the Army 12 years ago due to medical issues, according to his EEOC complaint. Hamilton provided part of the medical discharge records signed by himself, his commanding officer and a physician stating why he was discharged. The department asked for his complete Army medical record, which Hamilton requested from the National Personnel Records Center for military personnel, according to his complaint. The documents were delayed due to the Covid-19 pandemic, so Hamilton also provided the department with the tracking number for his request.
The department rescinded the conditional offer the day after it requested additional documentation related to his honorable discharge, according to Hamilton’s complaint.
After the department rescinded the offer, Hamilton said he contacted his uncle, who has been a police officer for more than 30 years in Chicago.
“The first thing he said was, ‘That doesn’t even sound right; something definitely is up,’” Hamilton recalled.
After hearing Hamilton’s story, Cusimano said the questions that the psychologist allegedly asked him were red flags.
“I just don’t see, at the end of the day, under any reasonable standard, how you get to ask these questions of protected class members when you’re not asking them of members of the straight community applying for the same positions,” Cusimano said. “That’s not equal protection of the law.”
She also noted that Hamilton applied for the job just a few days after the Supreme Court ruled in June 2020 that LGBTQ people are protected from employment discrimination under federal law. Hamilton’s case, she said, is an evolution of that Supreme Court decision.
“Now that the LGBTQ community is a protected class, what are those protections?” she said. “Acting reasonably, should an employer have understood — and I say, certainly — that those protections extend to the equal hiring process, as well as all processes related to employment?”
‘The phone call never came’
Patrick Callahan, Julie Callahan’s husband, a member of TCOPS and a criminology consultant for the federal government and political groups in Washington, D.C., said he had a similar experience to Hamilton’s.
In 2006, he had a promising interview with an agency outside of Boston. The person he interviewed with “was thrilled” and said he’d call him back that Monday, Patrick Callahan recalled.
“Well, the phone call never came,” he said. “So Tuesday I gave him a call. He wouldn’t take my call. In fact, I was never able to get in contact with him again.”
He said he found out through a friend who knew officers who worked for the department that he wasn’t hired because he’s trans.
“As soon as they got my background check back and saw those female names,” they changed their minds, he said. His friend told him it was “a joke around the department, that some ‘it thing’ wanted to work there.”
Officer Kathryn Winters, the LGBTQ liaison at the San Francisco Police Department, suspects she was the victim of a similar instance of anti-trans employment discrimination, though she was never able to confirm this.
In 2014, she applied to the Denton Police Department in Texas and took its written exam.
“I think I scored in like the top five on the written exam,” she said, noting that the scores are posted publicly. “And then a couple weeks later, [I] received a letter from the Denton Police Department stating that my military discharge form, my DD 214, wasn’t in my background packet. And for that reason, I was being completely disqualified for further consideration.”
She said she and her wife both double- and triple-checked to make sure everything was included in the application packet, including the DD Form 214, prior to its submission. She said “there’s nothing specific to indicate” that she was rejected because she’s trans, but she believes someone may have removed the form from her packet “and that was the reason they gave for not continuing with my consideration.”
A request for comment from the Denton Police Department has not been returned.
There have also been other high-profile cases of alleged anti-trans discrimination by law enforcement agencies. In 2012, Mia Macy, represented by the Transgender Law Center, successfully sued the Bureau of Alcohol, Tobacco, Firearms and Explosives after the agency offered her a job as a ballistics technician and then rescinded the job offer after she told them she was trans.
Clinicians ‘may lack the competency’
As lawsuits slowly accumulate and more people transition on the job, the culture within agencies is slowly changing, Julie Callahan said. Throughout its existence, TCOPS has seen more than 500 officers transition, she added. Trans officers have also made headlines over the last few years for being among the first in their agencies.
But supportive policies for current officers and applicants aren’t growing equally across the country. Agencies in bigger cities are more likely to have better policies, Julie Callahan said, meaning more conservative or rural areas might lack basic information about trans people, which can affect whether they’ll hire them at all.
There also aren’t clear, consistent standards across the country for how clinicians conduct psychological evaluations for law enforcement. Michael Roberts and Ryan Roberts, co-owners of Law Enforcement Psychological Services Inc., have evaluated many LGBTQ law enforcement applicants in San Francisco. They said the guidance, regulations and required continuing education for clinicians who conduct evaluations differs by state. California is among the most well-regulated states, they said.
“Police and public safety psychological assessment is a component of a specialty practice as recognized by the APA,” Michael Roberts said, referring to the American Psychological Association, “so this isn’t something that any clinician should be doing without training specific to this.”
There are laws interwoven into the process of doing psychological assessments for law enforcement candidates, such as the Americans With Disabilities Act, which someone could “run afoul of” while evaluating a trans candidate’s medical records, for example, he said.
“It is the case that people are out there — they’re probably not doing it correctly. They may be doing it without specialized training, which they shouldn’t be doing. They might lack the competency to perform the specialty function,” Ryan Roberts said.
A transgender applicant shouldn’t be disqualified simply for having been diagnosed in the past with gender dysphoria — a diagnosis that is often necessary to receive certain medical treatment, according to Michael Roberts.
“You cannot use just the fact that they had gender dysphoria or they attempted suicide five years ago or something like that. That wouldn’t cut it; they have to dig down deeper,” he said.
Given the allegations in Hamilton’s case, he said, it sounds like that’s what the psychologist did.
Julie Callahan said she knows of trans law enforcement candidates who were disqualified for past suicidal ideation, which 81 percent of trans adults have reported experiencing, according to the 2015 U.S. Transgender Survey.
Many therapists who are evaluating law enforcement candidates “don’t understand that once you’ve dealt with your gender issues, any kind of suicidal ideation has gone away, because you’ve removed the impetus for it,” she said.
‘We’re in an untenable position as transgender cops’
Another barrier to better policy for trans officers and prospective officers is the broader conversation about criminal justice reform, which is happening alongside recent efforts to ban law enforcement at Pride parades, Patrick Callahan said.
Trans people disproportionately face violence and mistreatment from law enforcement, leading advocates to push for reform or, in some cases, for replacing law enforcement agencies with social support services and other community-led, violence-prevention efforts.
According to a 2011 report from the National Center for Transgender Equality, nearly half of trans people reported they are uncomfortable seeking police assistance. More than one-fifth (22 percent) of trans people who had interacted with police reported police harassment, and 6 percent of trans individuals reported they experienced bias-motivated assault by officers. Those rates were higher for Black transgender people: 38 percent reported that they faced biased harassment, and 15 percent reported assault motivated by bias.
Patrick Callahan said most LGBTQ rights groups see trans officers as the “enemy,” and they “don’t speak to us at all,” even though trans officers face the same discrimination and harassment as trans people in other fields.
“They shut us out automatically, because we’ve crossed a line somewhere,” he said. “We are not trans enough anymore. We are not LGBTQ enough anymore … and we get the same from people within the law enforcement community. Right now, we’re in an untenable position as transgender cops. Actually, anybody in the LGBTQ community who is law enforcement, we’re just in a position where we can’t affect change, because we aren’t being allowed to even by the very people that we would most like to help.”
Gay and Lesbian Police Officers march during the Gay Pride Parade in New York, on June 30, 2019.Bill Tompkins / Getty Images file
For Hamilton, things are also moving slowly. Cusimano said it could take up to a year for the Louisiana EEOC to complete its investigation. But Hamilton said the experience hasn’t affected his goals.
“I still want to work in law enforcement,” he said. “At the beginning, I’m not going to lie, I was super, super disappointed, especially disappointed with NOPD. But this is still a dream of mine.”
New Jersey has adopted a policy that requires state prisons to house transgender people according to their gender identity rather than their sex assigned at birth.
The policy change is part of a settlement the American Civil Liberties Union of New Jersey announced Tuesday, and it puts the state among the handful of others with similar policies.
The ACLU of New Jersey and attorney Robyn Gigl of GluckWalrath LLP sued the N.J. Department of Corrections and its officers in August 2019 on behalf of a trans woman who went by the pseudonym Sonia Doe in court documents.
Prior to Doe’s lawsuit, the department’s policy was to house people according to their genitalia, according to Tess Borden, an ACLU of New Jersey staff attorney on the case.
‘Those memories still haunt me’
Doe was housed in four different men’s prisons over 18 months, according to her complaint, which stated that she was incarcerated for “offenses stemming from her addiction” to painkillers. During that time, she alleged, corrections officers misgendered her, denied her female commissary items and didn’t protect her from other inmates who harassed her. She alleged that three officers also physically assaulted her in May 2019 after she corrected them for misgendering her.
The department, in response, charged and found her guilty of assault and forced her to spend 270 days in isolation, among other sanctions, according to the ACLU of New Jersey.
A few weeks after Doe’s lawyers filed the complaint, the department transferred her to the Edna Mahan Correctional Facility for Women.
Chris Carden, a public information officer for the department of corrections, told NBC News in an email that it “views this settlement agreement as significant steps in the right direction.”
“While the Department did have existing processes in place, the policy outlined in this settlement is an update to those processes,” he wrote. “Anyone incarcerated under NJDOC care may at any time provide information regarding their gender identity to the NJDOC. The Department then takes careful measures to ensure they are properly housed in-line with their gender identity and their housing preferences, while ensuring both their safety and the security of the institution. Overall, the steps being taken support the important cultural changes being made throughout the Department.”
As part of the settlement, which the ACLU of New Jersey filed in the Mercer County Superior Court on Tuesday, the department will adopt an agencywide policy meant to protect people in state custody who are transgender, intersex and nonbinary, according to a press release.
In addition to the policy change, the department will pay Doe $125,000 in damages and will pay her attorney fees.
Sonia Doe.ACLU of New Jersey
“When I was forced to live in men’s prisons, I was terrified I wouldn’t make it out alive,” Doe said in a statement. “Those memories still haunt me. Though I still have nightmares about that time, it’s a relief to know that as a result of my experience the NJDOC has adopted substantial policy changes so no person should be subjected to the horrors I survived.”
New Jersey is now one of a handful of states that have passed laws or implemented policies requiring that inmates be housed according to their gender identity. Borden said the state’s policy goes further than most others, though, because it includes provisions that will help the department of corrections implement the policy.
“The purpose section includes the word ‘dignity’ — that it’s the purpose of this policy in the New Jersey Department of Corrections to recognize the dignity of transgender, intersex and nonbinary people in its custody,” she said. The policy also requires officers to use a trans inmate’s proper pronouns, including gender-neutral pronouns such as they/them, and the gender neutral honorific “Mx.” instead of “Mr.” or “Mrs.”
“It is a commitment, on paper, to really affirm trans lives and the lives of nonbinary and intersex folks in DOC custody as well,” she said.
‘A new era in New Jersey prisons’
One of the key components of the new policy created as part of the settlement establishes a presumption that people in state custody will be housed in line with their gender identity, and a “commitment that placement in line with gender identity will never be considered a management or security problem solely due to the person’s gender identity,” according to the ACLU of New Jersey.
California, Massachusetts and Connecticut also have policies in place that establish a presumption that trans inmates will be housed according to their gender identity, though Borden said there are carve-outs in all of those states that allow officials to go against that policy if they have a “security or management” concern.
New Jersey’s policy will also establish intake and identification procedures that include questions about gender identity and pronouns, and it will recognize self-attestations, which means someone doesn’t have to prove their gender identity through invasive searches or other means.
The policy will also prohibit staff harassment and discrimination based on a person’s actual or perceived gender identity, and will guarantee gender-affirming undergarments, clothing and other personal property, among other policy changes.
There’s also language in the policy that states an incarcerated person’s own views of their health and safety will be taken into account. Borden noted that some trans men, for example, may feel safer in a women’s prison, and this part of the policy would allow for that flexibility.
Finally, the settlement will require the department to actually implement the policy by distributing it to all staff, requiring them to sign a form acknowledging that they’ve read it and holding additional training for some high-level staff members.
“Having a policy that now explicitly recognizes the dignity of transgender, intersex, and non-binary people begins a new chapter at the DOC,” Gigl said in a statement. “While we know trans, intersex, and nonbinary people still face extraordinary risk of harm, it is our hope that this policy will shepherd in a new era in New Jersey prisons of protecting and affirming transgender, intersex, and nonbinary people’s lives.”
‘A step in the right direction’
Borden said Doe feels that the victory isn’t just for her, but for many other trans people who have been in similar situations.
A 2015 survey by the National Center for Transgender Equality and the National Gay and Lesbian Task Force found that 21 percent of transgender women confined in men’s facilities reported suffering physical abuse while in prison, and 20 percent reported sexual violence.
More than one-third (37 percent) of survey respondents who were taking hormones before their incarceration said they were prevented from taking their hormones while incarcerated.
The settlement and resulting policy change are part of a larger shift by the department since the Department of Justice found last year that conditions at the Edna Mahan facility violated the Constitution, Borden said.
“My hope is that this policy is a step in the right direction in New Jersey’s commitment to keeping people in this prison safe,” she said.
Rep. Ritchie Torres, a New York Democrat, said he plans to introduce the first resolution to condemn state bills targeting transgender people this week.
This year, state legislatures have considered more than 100 bills targeting trans people, “making 2021 the worst year for legislation that discriminates against the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community since 2015,” the bill states. Eighteen anti-LGBTQ bills have passed, and 10 await governors’ final signatures, it adds.
Most of the bills target transgender youth by seeking to ban them from school sports teams that align with their gender identity or limit their access to gender-affirming medical care. Governors in nine states have signed athlete bans into law, and two have signed restrictions on medical care.
“It is shameful to witness legislatures across the country endorse policies that endanger the safety of trans individuals and block access to critical services,” Torres said in a statement to NBC News. “My resolution makes it clear that Congress denounces the rise in anti-trans legislation and hate crimes, and that as a body we will pursue legislation that protects the well-being and safety of the trans community.”
The legislation specifically mentions an Arkansas law that will ban gender-affirming care, including hormones and puberty blockers.
Arkansas Gov. Asa Hutchinson, a Republican, vetoed the bill in April, calling it a “vast government overreach,” but the Legislature overrode the veto, and the bill will become law next month unless a judge intervenes. The American Civil Liberties Union filed a lawsuitlast month in an effort to block the law.
Nearly 1,500 trans kids will lose access to medical care if takes effect, according to Torres’ bill.
Legislation like Arkansas’ “discriminates against the transgender community, is not based in science and is intended to sow division and instill animosity toward our fellow Americans,” the bill states.
The bill also connects “laws and political rhetoric that deny the humanity of transgender people” to negative mental health outcomes for LGBTQ youth and rising anti-trans violence. By blocking trans people from accessing health care, housing, public spaces and employment, the bills “give license to others to take violent action based on their biases,” the bill says.
Fatal violence disproportionately affects trans women of color, especially Black trans women, who make up half of those killed so far this year.
Torres’ legislation is co-signed by 30 other representatives and endorsed by 13 LGBTQ advocacy organizations.
In a letter to colleagues requesting sponsors for the legislation, Torres urged them not to ignore the “troubling lived realities experienced by members of the transgender and nonbinary community.”
“We must uplift their narratives and take actions that advocate for their well-being.”
LGBTQ civil servants and service members were systematically fired or forced to resign due to their sexual orientation or gender identity over the past seven decades, and a proposed bill is seeking to have the federal government issue an official apology acknowledging its past discriminatory policies.
The bill, introduced Thursday by Sen. Tim Kaine, D-Va., says the federal government “discriminated against and terminated hundreds of thousands” of LGBTQ people who served in the armed forces, the foreign Ssrvice and the federal civil service for decades, “causing untold harm to those individuals professionally, financially, socially, and medically, among other harms.”
Kaine and Sen. Tammy Baldwin, D-Wis., the country’s first openly gay U.S. senator, led the introduction of the resolution.
“Throughout our history, far too many people serving our nation have lived in fear of retribution or persecution because of their sexual orientation,” Kaine said in a statement. “It’s time to acknowledge the harm caused to these Americans, their families, and our country by depriving them of the right to serve as federal civil servants, diplomats, or in the Armed Services. I’m proud to introduce this Senate resolution during Pride Month to reaffirm our nation’s commitment to treat everyone, including LGBT Americans, with equal respect and fairness. I will continue working toward advancing equality for all LGBT people in Virginia and across our nation.”
Thousands of federal employees were fired or forced to resign from the late 1940s to the 1960s during what has been called the Lavender Scare — when the federal government sought to investigate and purge employees thought to be gay.https://iframe.nbcnews.com/OfO2m5N?app=1
The American Psychiatric Association declared homosexuality a mental illness in 1952, and in 1953, President Dwight D. Eisenhower issued an executive order that said “sexual perversion” was a fireable offense. It wasn’t until 1973 that the association changed its position and declared that “homosexuality does not meet the criteria for being a psychiatric disorder.”
Historians have estimated that at least 100,000 service members were forced out of the armed forces between World War II and 2011 for being LGBTQ, according to Kaine’s resolution. More than 1,000 State Department employees were also dismissed due to their alleged sexual orientation, and others were prevented from joining due to discriminatory hiring practices, the resolution states.
Many others had to hide their identities or risk losing their jobs.
In addition to the Department of State, the National Security Agency and the CIA “continued to harass and seek to exclude lesbian, gay, and bisexual individuals from their ranks until 1995,” the resolution continues. At that time, then-President Bill Clinton issued an executive order that prohibited the government from denying security clearance based solely on sexual orientation. https://iframe.nbcnews.com/esC6QyB?app=1
According to the bill, transgender service members and civilian employees were also “harassed and excluded” from federal civil service until 2014, when then-President Barack Obama issued an executive order prohibiting the federal government and contractors from discriminating on the basis of sexual orientation and gender identity.
LGBTQ people continued to serve “honorably,” the bill says, “upholding the values, and advancing the interests, of the United States even as the country discriminated against them.”
Baldwin said the resolution shows respect for LGBTQ Americans who have served the country.
“As we celebrate Pride Month, I take great pride in being a part of this effort to move our county forward as we join together with a shared commitment to the idea that with each passing day, and each passing year, America should become more equal, not less,” she said in a statement.
Democratic lawmakers have attempted to pass similar measures in the past. Sen. Ben Cardin of Maryland in 2017 and Sen. Bob Menendez of New Jersey in 2019 introduced the LOVE Act, which would have expunged the records of State Department employees who were fired during the so-called Lavender Scare.
The LOVE Act also sought to set up a permanent museum about the Lavender Scare in the U.S. Diplomacy Center and a board to review difficulties facing LGBTQ diplomats and their families, among other actions, though the bill never passed.
Legal experts and advocates are split on what a decision Thursday by the Supreme Court on the rights of religious groups means for LGBTQ rights in the near term.
The court ruled unanimously in favor of Catholic Social Services, a religious adoption agency that wanted an exemption from Philadelphia’s nondiscrimination law, which would have required the agency to allow LGBTQ couples to adopt.
Experts say the ruling was much narrower in scope than it could have been. The court could have ruled that religious social services providers contracted by governments are broadly exempt from nondiscrimination laws, which would have allowed them to refuse to serve LGBTQ people, among other groups.
Rather, the court ruled that Philadelphia violated the Free Exercise Clause and discriminated against the agency in applying its licensing process, which allows contractors to request exemptions to parts of the contract.
Though advocates are split on the decision’s impact, they agree on one thing: Thursday’s ruling demonstrates a pattern of the high court taking the side of faith-based organizations and businesses without answering the larger question of whether they have a right to discriminate against lesbian, gay, bisexual, transgender and queer people.
Some advocates worry about how the decision could affect future cases, and the message it sends to LGBTQ adoptive parents and LGBTQ kids in the foster care system.
Not a broad ‘license to discriminate’
The court’s ruling in Fulton v. City of Philadelphia is similar to Masterpiece Cakeshop v. Colorado Civil Rights Commission in 2018, when the justices ruled in favor of a baker who refused to make a wedding cake for a same-sex couple. Like in Fulton, the court didn’t answer the broader question of whether the baker had a religious right to refuse to serve the couple, but instead ruled that the Colorado Civil Rights Commission was “hostile” toward the baker’s religious beliefs in its application of the state’s public accommodations law protecting LGBTQ people from discrimination.
Fulton, like Masterpiece, was “a very process-based decision,” Anthony Michael Kreis, assistant professor of law at Georgia State University, said.
“You have this kind of very specific decision that hones in on the city of Philadelphia’s policy and how it was implemented, rather than a recrafting of rules across the board,” Kreis said. “As a consequence, this really doesn’t imperil all LGBTQ rights or civil rights, generally across the board, whether it be public accommodations or housing or employment.”
The ruling isn’t a victory for LGBTQ advocates, but it’s important that the court “is consistently refusing to grant that type of broad license to discriminate,” said Jennifer Pizer, law and policy director for Lambda Legal, an LGBTQ legal advocacy organization.
“And that means nondiscrimination laws can and should continue to be enforced, regardless of people’s reasons for wanting to discriminate against other people,” she said.
Though the court has consistently declined to issue a more broad victory for faith-based organizations and businesses, Pizer said it’s also “going out of its way” to find reasons to rule in favor of the religious claimant on very narrow grounds.
“In this case, the city of Philadelphia, in our view, should have easily won if you look at the details of how its system really works,” Pizer said. “It has good reasons for how it enforces its nondiscrimination law, because it’s prioritizing the interests of children, not the interests of the agencies who want city contracts.”
Each year, approximately 20,000 youth age out of the foster care system. Queer couples are seven times more likely to adopt or foster children than different-sex couples, according to the Williams Institute at UCLA. They are also more likely to adopt older children, children with disabilities and minority children, research shows.
The court noted in its opinion that Catholic Social Services didn’t actually turn away any LGBTQ couples. It also said excluding Catholic Social Services as a contractor would narrow the pool of adoptive parents, though Pizer argues that allowing social services providers to turn some prospective parents away would actually narrow the pool.
Kreis said the ruling could affect LGBTQ parents in Philadelphia “for a while.” He suspects the agency will have their contract renewed, and then the city might rework its policy to eliminate the exemption process for contractors — which the Supreme Court said was applied unequally in the case of the Catholic agency.
Pizer said the city — and any government agencies that contract with private organizations to provide social services — should establish clear standards for exemptions from nondiscrimination laws, and should ensure that enforcement procedures are always applied equally.
Elizabeth Sepper, a law professor at the University of Texas, Austin, said the decision in Fulton could prompt other social services providers to come forward and demand a similar exemption — not just when it comes to working with LGBTQ families. She notes that religious agencies have also rejected families with different religions, and she suspects they could also reject divorced families or single parents for religious reasons.
“They’re going to look closely at their contractual requirements and see if there is language that suggests the possibility of individualized exemptions, and they’re going to really lean on Fulton in advancing requests for an exemption,” she said.
An invitation for future challenges
The Fulton decision is not only part of a larger pattern of the court siding with religious claimants, but it also indicates that the justices may be willing to take a broader look at case law related to religious objectors, Kreis said.
“Six of the justices suggested they were open to re-evaluating some older case law and maybe giving religious objectors more constitutional rights than they have currently under constitutional doctrine,” he said. “That could spell trouble for LGBTQ rights, that could spell trouble for women’s rights and for health care access and abortion and all sorts of regulations that religious groups might object to.”
The court is also sending a discouraging message to LGBTQ young people in the foster system and to LGBTQ adoptive parents, said Ron Richter, a gay adoptive parent and CEO and executive director of JCCA, a foster care program in New York.
“The Supreme Court is saying it’s OK for a government to contract with agencies that as a policy will not license [or] certify couples that have affirmed same-sex relationships,” Richter said. “For teenagers that are struggling with their own sexual identity and their gender identity, they’re being told by the Supreme Court, you may need to go into a home that the government is contracted with that, based upon religion, doesn’t believe that your future relationship is appropriate. That is it. And that could happen based upon where we’re headed and what this decision says.”
Though the decision is limited in scope, Richter said it’s an “invitation” for broader challenges from faith-based foster agencies, which, down the road, could have a significant negative impact.
“This ruling is narrow,” said Stacey Stevenson, CEO of Family Equality, an advocacy organization for LGBTQ families, but the need for foster and adoptive parents, “is large, absolutely.”
“It shrinks the available pool of parents when agencies are allowed to discriminate,” she said.
Stevenson said the Fulton decision highlights the need to pass legislation like the John Lewis Every Child Deserves a Family Act, which would prohibit federally funded adoption agencies from discriminating based on religion, sex, sexual orientation, gender identity and marital status. She said the Senate also needs to pass the Equality Act, legislation that would provide federal nondiscrimination protections to LGBTQ people in many areas of life. It passed the House in February but has stalled in the Senate since a hearing in March.
She also stressed that the ruling does not affect foster care programs generally. “It does not create a general right for taxpayer-funded foster care agencies to discriminate, which is good news for the 400,000 children who are in foster care across our country.”
