Once last week’s victors are sworn in, the United States will have elected more than 1,000 concurrently serving LGBTQ officials for the first time in history, according to the political action committee LGBTQ Victory Fund.
At least 237 lesbian, gay, bisexual, transgender and queer candidates were on the ballot — an 18.5 percent increase since the last off-year election, in 2019, according to the Victory Fund.
Races were still being called Tuesday afternoon, but in many states, LGBTQ candidates celebrated historic firsts.
Six out LGBTQ candidates won their races for the New York City Council, which means the number of out representatives on the 51-person council increased from four to six. According to the Victory Fund, it’s the largest group of out LGBTQ council members ever elected in a city, with the previous record being five also in New York.
Crystal Hudson.Katrina Hajagos
Democrats Crystal Hudson and Kristin Richardson Jordan — who will represent District 35 in Brooklyn and District 9 in Upper Manhattan, respectively — will be the first two Black out LGBTQ women elected to the council. Tiffany Cabán and Lynn Schulman — both Democrats who won seats representing District 22 and District 29, respectively, in Queens — will be the first out LGBTQ women elected to a public office that represents Queens, according to the Victory Fund.
In the Midwest, Rebecca Maurer, a Democrat, defeated a 16-year incumbent and became the first out LGBTQ woman elected to the Cleveland City Council, and Gabriela Santiago-Romero, also a Democrat, became the first LGBTQ councilwoman in Detroit and the first Latinx out LGBTQ woman elected in the entire state of Michigan.
Christopher Coburn.Leanna Joy Photography
Across the country, in Montana, Democratic candidate Christopher Coburn became the first Black out LGBTQ person ever elected in the state when he won his race for the Bozeman City Commission, according to the Victory Fund.
Trans candidates also won a number of races Tuesday. Dion Manley became the first trans person elected in the state of Ohio after winning his race for the Gahanna-Jefferson school board in Gahanna, just outside of Columbus.
Xander Orenstein.Bex Tasker
Xander Orenstein, who uses gender-neutral pronouns, became the first nonbinary person elected to a judicial position in the United States after winning their race for the Allegheny County Magisterial District Court in Pennsylvania. They ran unopposed in the general election after defeating incumbent Anthony Ceoffe in the primary by 40 votes.
Thu Nguyen, a Democrat, became the first nonbinary person elected in the state of Massachusetts after winning their race for Worcester City Council, according to the Victory Fund. Orenstein and Nguyen will add to the small pool of nonbinary elected officials serving in the United States, which currently stands at 11.
Though most of Tuesday’s LGBTQ victors are registered Democrats, not all are. Don Guardian became the first out LGBTQ Republican state legislator in New Jersey when he won his election to the General Assembly. New Jersey — until Guardian is sworn in — is one of just six states in the entire country without any LGBTQ people currently serving in the Legislature, according to the Victory Fund.
Andrea Jenkins, vice president of the Minneapolis City Council, speaks to community members on June 7, 2020, in Minneapolis.Jerry Holt / Star Tribune via AP
Some LGBTQ incumbents won re-election Tuesday night, including Danica Roem, a member of the Virginia House of Delegates, and Andrea Jenkins, who was re-elected to the Minneapolis City Council. Roem became the first out transgender person to serve in a state legislature after her win in 2017 and is now the longest-serving out trans state legislator in U.S. history, after winning re-election for a second time. Jenkins in 2017 became the first Black trans woman elected to public office.
Annise Parker, Houston’s first openly LGBTQ mayor and the current president and CEO of the LGBTQ Victory Fund, said she has mixed feelings about the outcome of election night. She noted the Victory Fund works with LGBTQ candidates at every level of office, but it focuses more than other national organizations on down-ballot candidates for school board and city council, for example.
“Those candidates had a really good night, just as they did last year, but the closer you get to the top of the ticket where national politics come into play, the more problematic it is,” she said.
Two Victory Fund-endorsed candidates lost their races in the Virginia House of Delegates: Del. Joshua Cole, a Democratic incumbent, lost his race to Republican challenger Tara Durant, and Douglas Ward, a Democratic challenger, lost his race to Republican incumbent Michael Webert.
She said “culture war” issues played a significant role in the races in Virginia, and in many other areas of the country, and that some candidates don’t know how to respond to them.
Danica Roem.Julia Rendleman for The Washington Post via Getty Images file
For example, she said Republican Glenn Youngkin, the projected winner of Virginia’s race for governor, emerged victorious by “hitting Trump themes without including Trump.” LGBTQ issues played a significant role in his campaign: Youngkin faced criticism last month for saying that, though he doesn’t personally supportmarriage equality, he would respect that it is legal in Virginia. He also expressed his opposition to trans girls playing on girls sports teams at school — an issue that has led to 10 states restricting transgender students’ sports participation — and supported Tanner Cross, a Virginia school teacher who was suspended (and later reinstated) after saying he would refuse to use pronouns consistent with transgender students’ gender identities.
“It is easier to convince someone to vote out of fear than out of positive conviction,” Parker said. She said the technique is not new and that LGBTQ candidates and pro-LGBTQ candidates have to know how to redirect the conversation — especially going into the 2022 midterm elections, as these issues are likely to gain traction.
She pointed to Roem, who has run against candidates who have used anti-trans rhetoric three times now, and she’s won every time.
“Danica is focused on the things that matter most to her constituents — bread and butter, basic legislative issues — and does not allow herself to get sidetracked into this culture war red meat stuff,” Parker said.
The United States has issued its first passport with an “X” gender marker, which denotes that someone is neither exclusively male nor female, the State Department said Wednesday.
This marks a milestone for nonbinary and intersex Americans, who make up an estimated 1.2 million and 4 million Americans, respectively, according to the Williams Institute at the UCLA School of Law, and interACT, an intersex advocacy group. An increasing number of intersex, nonbinary and gender-nonconforming people have come out in recent years, but most of them have been unable to obtain IDs that accurately reflect who they are due to a patchwork of state laws across the country.
The State Department said that it expects to be able to offer the “X” designation to more people early next year.
The U.S.’ special diplomatic envoy for LGBTQ rights, Jessica Stern, called the moves historic and celebratory, saying they bring the government documents in line with the “lived reality” that there is a wider spectrum of human sex characteristics than is reflected in the previous two designations.
“When a person obtains identity documents that reflect their true identity, they live with greater dignity and respect,” Stern said.
The department did not announce to whom the passport was issued. A department official declined to say whether it was for Dana Zzyym, an intersex Colorado resident who has been in a legal battle with the department since 2015, saying the department does not usually discuss individual passport applications because of privacy concerns.
Zzyym (pronounced Zimm) was denied a passport for failing to check male or female on an application. According to court documents, Zzyym wrote “intersex” above the boxes marked “M” and “F” and requested an “X” gender marker instead in a separate letter.
Zzyym was born with ambiguous physical sexual characteristics but was raised as a boy, according to court filings. Zzyym later came out as intersex while working and studying at Colorado State University, and uses gender-neutral pronouns. The department’s denial of Zzyym’s passport prevented them from being able to travel to a meeting of Organization Intersex International in Mexico.
The State Department announced in June that it was moving toward adding a third gender marker but said it would take time because it required extensive updates to its computer systems. A department official said the passport application and system update with the “X” designation option still need to be approved by the Office of Management and Budget, which approves all government forms, before they can be issued.
The department now also allows applicants to self-select their gender as male or female, no longer requiring them to provide medical certification if their gender does not match that listed on their other identification documents.
The United States joins a handful of countries, including Australia, Canada, Germany, India, Nepal and New Zealand in allowing its citizens to designate a gender other than male or female on their passports.
Stern said her office planned to talk about the U.S.′ experience with the change in its interactions around the world and she hopes that might help inspire other governments to offer the option.
“We see this as a way of affirming and uplifting the human rights of trans and intersex and gender-nonconforming and nonbinary people everywhere,” she said.
It’s unclear how the policy change will affect state laws that do not recognize “X” gender markers. Twenty states and D.C. allow residents to use an “X” marker on their driver’s licenses, according tothe Movement Advancement Project, a nonprofit think tank.
States also have a mix of laws that regulate how someone can request a gender marker change on an ID. Twenty-two states allow people to decide what gender markers are appropriate for them — which is now the policy that the State Department will use — according to MAP.
That process, known as self-attestation, allows trans and nonbinary people to keep themselves safe, said Arli Christian, a campaign strategist for the American Civil Liberties Union, which has been pressuring the Biden administration to allow “X” gender markers on passports and advocates for laws that allow people to attest to their own gender.
“That is hands down the best policy for ensuring that all people have the most accurate gender marker on their ID,” Christian said.
The remaining states either require medical provider certification in order to update a gender marker, a court order and proof of genital surgery or they have an unclear law.
Texas officials removed two webpages in late August that provided resources for LGBTQ youths — including a link to a suicide prevention hotline — a few hours after criticism from one of Gov. Greg Abbott’s Republican primary challengers.
The candidate, Don Huffines, who owns a real estate development company in the Dallas area, wrote Aug. 31 on Twitter: “It’s offensive to see @GregAbbott_TX use our tax dollars to advocate for transgender ideology. This must end.”https://iframe.nbcnews.com/gi7itgd?app=1
He described a webpage on the Department of Family and Protective Services’ website titled “gender identity and sexual orientation.”
“They’re talking about helping ‘empower and celebrate lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual, allied,’ nonheterosexual behavior, and it goes on and on,” Huffines said in a video. “I mean, really? This is Texas. These are not Texas values. These are not Republican Party values. But these are obviously Greg Abbott’s values.”
In a separate tweet the same afternoon, Huffines linkedto a webpage for Texas Youth Connection, a program run by the Department of Family and Protective Services, which included a link to the Trevor Project, a nonprofit LGBTQ youth suicide prevention and crisis intervention group, and other LGBTQ rights groups. https://iframe.nbcnews.com/C3LZcyj?app=1
“This is the webpage where @GregAbbott_TX’s political appointees are promoting transgender ideology,” Huffines wrote.
A few hours later, both pages had been removed.
“The Texas Youth Connection website has been temporarily disabled for a comprehensive review of its content,” a message on the website says. “This is being done to ensure that its information, resources, and referrals are current.”
Patrick Crimmins, the director of communications for the Department of Family and Protective Services, said in an email Tuesday that the review of the webpages “is still ongoing” and would not provide further comment about why the pages were removed.
Abbott’s office has not returned a request for comment.
The Houston Chronicle reported Tuesday that emails obtained through a public records request show that agency officials discussed removing the gender identity and sexual orientation webpage in response to Huffines’ tweet.
Just 13 minutes after Huffines’ video went up, Marissa Gonzales, the department’s media relations director, emailed a link to Crimmins with the subject line “Don Huffines video accusing Gov/DFPS of pushing liberal transgender agenda,” the Chronicle reported. She wrote in the body of the email: “FYI. This is starting to blow up on Twitter.”
Crimmins emailed Darrell Azar, the department’s web and creative services director. He asked who runs the page and wrote, “Darrell — please note we may need to take that page down, or somehow revise content,” according to the Chronicle.
Azar responded that the webpage came from the department’s Preparation for Adult Living program, which supports older teens placed in foster care by the state. He wrote that the content Huffines criticized is “only a few years old” but that the adult living program has posted “content related to LGBTQ for as long as I can remember,” according to the Chronicle.
Huffines took credit for the pages’ removal in a tweet Tuesday.
“Greg Abbott was using taxpayer dollars to advocate for transgender ideology and the Human Rights Campaign,” he wrote. “Our campaign made him stop.”https://iframe.nbcnews.com/2Dukul1?app=1
Many advocates spoke outagainst the pages’ removal in August, but even more people, including elected officials, condemned the decision in response to the Chronicle’s article.https://iframe.nbcnews.com/Maxrkow?app=1https://iframe.nbcnews.com/BIGR3m4?app=1
Former San Antonio Mayor Julián Castro, who was secretary of housing and urban development in the Obama administration, said the decision to remove the webpages was “disgusting.”
“Greg Abbott is so scared of losing his primary, he’s sabotaging an LGBTQ youth suicide prevention hotline to kowtow his extremist base,” he wrote Tuesday. https://iframe.nbcnews.com/BTMcnyY?app=1
Ricardo Martinez, the CEO of the LGBTQ advocacy group Equality Texas, said in an emailed statement that LGBTQ children are overrepresented in foster care and “face truly staggering discrimination and abuse.”
“The state is responsible for these kids’ lives, yet it actively took away a resource for them when they are in crisis,” he said. “What’s worse, this was done at the start of Suicide Prevention and Awareness Month. LGBTQ youth who have been in foster care report three times greater likelihood of attempting suicide in the past year (according to a Trevor Project research brief). Again and again this year, we are simply asking that these kids’ lives not be politicized.”
Texas has considered more than 50 bills this year that target LGBTQ youths, particularly transgender youths, according to Equality Texas.
While advocates have defeated all of the bills so far, the Legislature recently began a third special legislative session — the fourth legislative session overall this year — and it is considering a number of anti-transgender bills again.
Advocates have said the rhetoric in the bills has a negative effect on the mental health of LGBTQ youths statewide.
From Jan. 1 to Aug. 30, crisis calls from LGBTQ young people in Texas increased by 150 percent compared to the same period last year, according to data shared last week by the Trevor Project.
If you or someone you know is in crisis, call the National Suicide Prevention Lifeline at 800-273-8255 or text HOME to 741741 to reach a trained counselor at the Crisis Text Line. You can also visit SpeakingOfSuicide.com/resources for a list of additional support networks.
An LGBTQ nonprofit on Monday released its annual Worst Listnaming 180 colleges and universities as “the absolute worst, most unsafe campuses for LGBTQ youth.”
Campus Pride, which advocates for LGBTQ inclusivity and safety at U.S. colleges and universities, added 50 universities to the list since last year — the most extensive update since the list started in 2015, according to the organization.
The list includes colleges and universities that have either received or applied for a religious exemption to Title IX, a federal law that protects students from discrimination in federally funded schools, or have a “demonstrated history of anti-LGBTQ policies, programs and practices,” according to a news release.
At 180 schools, the list is the longest it has been in its six-year history.
“These aren’t just bad campuses or the worst campuses — these campuses fundamentally are unsafe for LGBTQ students, and, as a result, they’re fundamentally unsafe for all students to go to,” Shane Windmeyer, founder and executive director of Campus Pride, said. “They promote an environment of hostility, of discrimination, harassment, toward a group of people, and who wants — when you’re trying to be educated — to have that type of negative learning environment?”
Seattle Pacific University made the list of worst colleges for gay students for the first time.Mat Hayward / Getty Images file
Windmeyer said that part of the reason this year’s update to the list was significant is because of changes the Trump administration made to the Title IX religious exemption process. Under President Barack Obama, religious schools had to submit a letter outlining why they needed an exemption to Title IX. The Trump administration changed that rule so that religious schools were automatically exempt from Title IX, which allowed them to continue receiving federal funds while, for example, enforcing a rule that prohibits students from engaging in gay sex or same-sex relationships.
The Trump administration also stopped publishing an online list of schools that have requested an exemption from Title IX. Campus Pride referred to that list while creating its Worst List.
Windmeyer said the Biden administration has republished previous lists of schools that applied for title IX religious exemptions, but it hasn’t clarified or changed the Trump administration policy undoing the application requirement.
Before Biden took office, Campus Pride relied on student reports and news articles, Windmeyer said. This year, the group used the list of schools that requested exemptions to Title IX and court documents.
In 2019, 41 campuses filed an amicus brief in Bostock v. Clayton County in support of employers who argued that the Civil Rights Act of 1964 didn’t protect LGBTQ employees from discrimination. The Supreme Court sided with the employees.
Windmeyer said Campus Pride also included the 29 religious colleges and universities named in a class action lawsuit against the Department of Education alleging that the religious exemption is unconstitutional and that it allows religious schools that receive federal funds to discriminate against LGBTQ students.
“Religious organizations and colleges were emboldened during the Trump administration,” Windmeyer, who noted that all 180 schools on the list this year are religiously affiliated, said. “Biden has still yet to clarify if Title IX exemptions are mandatory or if he has an executive order that is going to make them mandatory, which I feel that if a campus is going to openly discriminate, then it should be mandated that they tell students and that they have a Title IX exemption on file with the federal government.”
The Worst List is in alphabetical order rather than rank, but some schools have appeared on it more often than others.
David Shill, a 22-year-old junior at Brigham Young University in Provo, Utah, said he isn’t surprised that his school is on the list again because “things haven’t changed.”
BYU, which is owned by the Church of Jesus Christ of Latter-day Saints, also known as the Mormon Church, forbids same-sex dating. Though it doesn’t specifically mention transgender students in the student handbook, the church counsels against medical transition for trans people; otherwise they face restricted participation in the church or even excommunication.
Shill, the president of BYU Pride, which is not officially supported by or recognized by the university, said that homophobia is “usually assumed” on campus. He mentioned a video taken in August in which a student defaces pro-LGBTQ chalk art on BYU’s campus anduses an anti-gay slur. In March, when about 40 students lit up the iconic 380-foot-tall “Y” on the mountain east of campus with rainbow lights, Shill said LGBTQ students faced cyberbullying.
“My first week back on campus I really felt like, wow I will never belong here,” Shill said. “And just seeing straight couples being couples on campus and like holding hands or hugging … that coupled with the attitudes of some of my professors and classmates, just the whole day, it was hard to be here.”
A representative for BYU did not immediately respond to a request for comment.
A number of schools are on the list for the first time, including Seattle Pacific University, a private Christian university named in the class action lawsuit against the Department of Education. Affirm, a group of SPU students, alumni, faculty and staff dedicated to ending anti-LGBTQ policies and culture at the university, began organizing in the spring in response to the university’s involvement in two lawsuits — the class action and a suit brought by a teacher in April who says he was denied a full-time job because he is gay.
In a statement emailed to NBC News, Affirm’s members said they are “saddened but not surprised” by SPU’s addition to the 2021 Worst List.
“For an institution that advertises our community as a place promoting diversity, equity, and inclusion in the name of Christ’s love, this sobering call from Campus Pride tells us in no uncertain terms how we have failed,” Affirm’s members said. “We must rebuild our existing campus structures, remove discriminatory university policies, and foster novel spaces where LGBTQ+, BIPOC, and AAPI folk are welcomed and celebrated for the priceless gifts they bring our community.”
A representative for SPU declined to comment.
Malone University, in Canton, Ohio, is also on the list for the first time.
This month, Karyn Collie, an associate biology professor at Malone, announced that she would be leaving the university because she’s marrying a woman next summer. She told The Canton Repository that she was hoping she and the school could find a way for her to stay employed, but that she was instead asked to resign. When she was hired, she signed a set of principles called the Community Responsibilities, which prohibit homosexual activity, according to the Repository.
Collie was a popular professor, and the news led to backlash from students, including a sit-in during a weekly worship service, the Repository reported.
A representative for Malone has not returned a request for comment, but Malone President David King told the Repository that Collie isn’t the first professor to leave due to a conflict with the university’s Community Responsibilities. He also said that only employees are expected to adhere to them, and that students are not.
“All students are welcome here, no matter what their story is, whether they have a faith journey or not,” King said.
But Campus Pride points out on its Worst List that the school’sCommunity Agreement for Sexual Conduct, which all members of the Malone community commit themselves to, states that “Sex should be exclusively reserved for the marriage relationship, understood as a legal, lifelong commitment between a husband and wife.”
Windmeyer said that he hopes the Biden administration will mandate that all campuses have to apply for the Title IX religious exemption. “I think that’s the bare minimum our federal government can do to protect these LGBTQ young people,” Windmeyer said. “The President says, ‘trans people, queer people,LGBTQ people, we’ve got your back.’ Well, you need to start here with our LGBTQ young people.”
Many students, like Shill at BYU, don’t want to leave and think their schools can become better. He said BYU Pride is working with the university to change the Honor Code so that queer students can date, and the group is encouraging the university to develop a discrimination office that students and faculty can go to when they experience discrimination.
The group would also like to be able to have queer activities on campus, or put rainbow lights on the “Y” without approval. “Those kind of things like where BYU no longer is silencing us, and pushing us off campus,” he said. “Let us come on campus and be as gay as we want to be without having to hide it all.”
A Tennessee woman is suing the Department of Health and Human Services after a federally funded foster care agency rejected her application because she is a lesbian.
Kelly Easter, who is from Nashville, wanted to apply to become a foster parent of an unaccompanied refugee children, according to her lawsuit, filed Wednesday in the U.S. District Court for the District of Columbia.
The U.S. Office of Refugee Resettlement directed her to Bethany Christian Services, the only entity participating in the program in her area and a sub-grantee of the United States Conference of Catholic Bishops (USCCB), which receives federal funds to provide foster care services.
Bethany had a longstanding policy of refusing to allow LGBTQ parents to apply to foster or adopt, which prevented Easter from applying last year.
In March, Bethany ended that policy, but when Easter applied, she was rejected again. A representative for Bethany told her its East Nashville office is funded by USCCB, which prohibits LGBTQ couples from applying, according to the lawsuit.
Easter is suing the Department of Health and Human Services, which oversees the Administration for Children and Families and its Office of Refugee Resettlement. She and her legal counsel allege that HHS, “by sanctioning and enabling discrimination and favoring certain religious beliefs,” is violating the First and Fifth Amendments.
“By preventing children under their care and custody from being placed in homes of LGBTQ people based on USCCB’s religious beliefs, the Defendants — through USCCB and its subgrantees — not only discriminate against LGBTQ people, but also effectively disregard the non-Catholic identities and beliefs of many of the unaccompanied refugee children for whom they are responsible,” the lawsuit states. “This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best — all at federal taxpayers’ expense.”
A spokesperson for HHS’ Administration of Children and Families said in an email that it will respond to the lawsuit in time, as with any lawsuit naming the federal government.
“HHS is committed to protecting the rights of LGBTQ+ individuals and ensuring access to our programs and services,” the spokesperson said.
Easter said in a statement that she is “heartbroken.”
“It hurt to be turned away — twice — solely because of my identity,” she said, according to a news release. “I’ve been a Christian since I was a little girl and my personal relationship with God is the most important thing to me. I also know that LGBTQ people can have thriving families and that they are as important and deserving as any other. How can the government tell me that my beliefs are wrong?”
She added that she’s “more concerned about the children.” She said the government is hurting them by denying them a loving home.
“I am qualified and can provide a safe and stable home for a child,” she said. “How is it better for them to stay in a group setting instead of a home with someone who can care for and support them adequately?”
Easter is represented by Lambda Legal, Americans United for the Separation of Church and State and the San Francisco-based law firm Orrick, Herrington & Sutcliffe LLP.
Karen L. Loewy, senior counsel at Lambda Legal, said the government is excluding Easter from applying to provide a home to a child in need while also “funneling millions of dollars of taxpayer money into a child welfare organization that refuses to allow LGBTQ people to apply to be foster parents.”
“This kind of discrimination not only hurts the people turned away — it hurts the children in these programs by reducing the number of available homes, and depriving these children of the opportunity to be considered for placement in loving homes that may best serve their individual needs,” Loewy said, according to a news release.
Federal law currently prohibits federal contractors and federally funded programs from discriminating on the basis of sex, which has recently been interpreted by the Biden administration and by most courts to include sexual orientation and gender identity. But there are exemptions from federal law for contractors and service providers who feel that providing certain services would conflict with their religious beliefs.
Some states have tried to pass stricter laws to protect LGBTQ people who want to foster or adopt children. Tennessee is actually one of 27 states that have a statute, regulation and/or agency policy that prohibits discrimination in foster care based on sexual orientation and gender identity, but it’s also one of 11 states that permits state-licensed child welfare agencies to refuse to provide services to children and families, including LGBTQ people and same-sex couples, if doing so conflicts with their religious beliefs, according to the Movement Advancement Project, a nonprofit think thank.
Five states have regulations or policies that prohibit discrimination in foster care based on sexual orientation only, and 18 states have no explicit protections against discrimination in foster care based on sexual orientation or gender identity, according to MAP.
The Supreme Court ruled on the issue of religious exemptions for federally funded contractors in June, but it avoided addressing whether religious contractors have a right to refuse service, or, as advocates say, have a license to discriminate.
Instead, the court ruled that the city of Philadelphia violated the Free Exercise Clause and discriminated against a religious foster care agency in applying its licensing process, which allows contractors to request exemptions to parts of the contract.
Absent a more clear declaration from the Supreme Court, LGBTQ people like Easter have continued to wage their battles in court. Lambda Legal and Americans United are representing Fatma Marouf and Bryn Esplin, a same-sex couple, in the same district as Easter. The couple alleges that a sub-grantee of USCCB rejected them from applying to foster unaccompanied refugee children because they didn’t “mirror the Holy Family.”
Two Omaha women and their teenage sons have sued Nebraska’s health department for rejecting their request that both women be listed as legal parents on their sons’ birth certificates.
Erin Porterfield and Kristin Williams started their family in 2002 using assisted reproductive technology and each gave birth to one of their sons, who are now 16 and 18, according to the American Civil Liberties Union of Nebraska, which is representing the couple with the Omaha law firm Koenig-Dunne.
Porterfield and Williams were never married and are now no longer together, but they both have a court order that establishes an in loco parentis relationship that grants them some, but not all, parental legal rights.
This summer, the couple requested that both of them be acknowledged on their sons’ birth certificates, but the Nebraska Department of Health and Human Services denied their request last month, writing in a letter that the “only routes to legal parentage under Nebraska law are through marital presumption, adoption, or biological relationship.”
But the women say these options are unavailable to them. Nebraska case law prohibits second-parent adoption by an unmarried non-birth parent, according to the lawsuit.
Porterfield and Williams alleged in the lawsuit filed Monday that Nebraska law is discriminatory because it treats unmarried same-sex couples differently from unmarried different-sex couples, who “can establish parentage of their children through voluntary acknowledgment at any time after a child is born,” according to the lawsuit.
Erin Porterfield, back left, and Kristin Williams, back right, along with their children, Cameron Porter Williams, 16, front left, and Kadin Porter Williams, 18, at the family law firm Koenig | Dunne in Omaha, Neb., on Aug. 4.Rebecca S. Gratz for ACLU of Nebraska
The state health department did not immediately respond to a request for comment.
Being fully legally recognized as parents to both of their children would ensure that Porterfield and Williams can make decisions about their sons’ care, including those related to education or estate planning, according to the ACLU of Nebraska.
“While we spend our parenting time the same as most good parents — showing up for show choir and band competitions, making sure homework is done, teaching values and manners, and gently guiding our boys to be their truest selves regardless of cultural expectations — we haven’t had the luxury of peace of mind that should something happen to one of us our boys would seamlessly be afforded the government benefits other families take for granted,” Williams said, according to a press release.
The lawsuit also argued that the health department is violating the equal protection and due process clauses of the Constitution by refusing to apply state law in the same way for both same-sex and unmarried different-sex parents.
Currently, the health department offers a “voluntary acknowledgement of paternity” form that fathers can use to obtain full legal parenting rights. When Porterfield and Williams submitted their forms over the summer, they amended them to be gender-neutral and changed “paternity” to “parentage,” according to the ACLU of Nebraska.
The department denied these amended requests, and as a result, their lawsuit also seeks a declaration that the department will apply state law related to voluntary acknowledgement in a gender-neutral way.
Angela Dunne, managing partner at the law firm Koenig-Dunne, said the case is an example of how families’ attempts to protect their parenting rights can be “thwarted by gender-specific language that does not support the ever-changing face of families.”
“We have a biological mom and an in loco parentis mom, and we are legally unable to permanently preserve their legal rights to their children and the children’s legal rights to have two parents,” Dunne said in the press release. “We hope this lawsuit will remedy this deficiency and protect our legally vulnerable families.”
Nebraska is one of 35 states with a law that recognizes the nongestational parent — the parent who didn’t carry and give birth to the child — as a legal parent if the couple is married but don’t have a clear statute or established case law for unmarried couples, according to the Movement Advancement Project, a nonprofit think tank. Fifteen states and Washington, D.C., recognize the nongestational parent as a legal parent regardless of marital status.
One law, the Uniform Parentage Act, addresses the differences in parentage laws across the country. It was updated in 2017, and state legislatures can choose to adopt it.
Courtney G. Joslin, a law professor at the University of California, Davis, who was the primary drafter of the 2017 act, told NBC Newslast year that four states — California, Rhode Island, Vermont and Washington — have enacted all or large portions of the latest law. Connecticut and Maine also voluntarily expanded their parentage laws earlier this year. These states offer nonbiological parents paths to parentage regardless of their marital status and don’t require parents to adopt their own children.
Joslin said variations in state laws across the country can put same-sex couples in difficult situations.
“It is incredibly hard for families to have their status potentially change as they move across state lines,” she said.
Multiple North Carolina state representatives are demanding that Lt. Gov. Mark Robinson, a Republican, resign after a video surfaced showing him describing the LGBTQ community as “filth.”
The video, first shared by Right Wing Watch, a project of the progressive advocacy group People For the American Way, shows Robinson speaking at the Asbury Baptist Church in Seagrove during a visit in June, local NBC affiliate WRAL reported.
“I’m saying this now, and I’ve been saying it, and I don’t care who likes it: Those issues have no place in a school. There’s no reason anybody anywhere in America should be telling any child about transgenderism, homosexuality — any of that filth,” he said.
He added: “And yes, I called it filth. And if you don’t like it that I called it filth, come see me and I’ll explain it to you. It’s time for us to stop letting these children be abused in schools, and it’s not going to happen till the people of God stand up and demand different, same ones that established those schools to begin with.”https://iframe.nbcnews.com/EKbaUyq?app=1
One of the words Robinson used — “transgenderism” — was adopted by anti-transgender activists to make being transgender sound like a condition, according to the LGBTQ media advocacy group GLAAD.
John Wesley Waugh, a spokesperson for Robinson, said in an email that the lieutenant governor’s comments “refer to education.”
“Topics surrounding transgenderism and homosexuality should be discussed at home and not in public education,” Waugh said. “We must focus on reading, writing, and mathematics in North Carolina. Our students have struggled with these topics even before the pandemic. Our primary focus needs to be helping our students succeed, not on topics that should be discussed at home.”
When asked whether Robinson has a response to criticism that his comments were anti-LGBTQ regardless of the context, Waugh said Robinson “affirms every individual’s Constitutional right to identify or express themselves in anyway they desire.”
He added, “He is the Lieutenant Governor for all North Carolinians and will fight for and protect the rights of all citizens. His comments were referring to teaching about these topics in the classroom, not about individuals of the LGBTQ community.”
Robinson is second in command in the state and would fill in should Gov. Roy Cooper, a Democrat, leave the state or his position. Robinson narrowly defeated Democrat Yvonne Lewis Holley in 2020, with 51.6 percent of the vote compared to Holley’s 48.4 percent.
In a statement emailed to NBC News Friday, Jordan Monaghan, Cooper’s press secretary, called Robinson’s comments “abhorrent.”
“North Carolina is a welcoming state where we value public education and the diversity of our people. It’s abhorrent to hear anyone, and especially an elected official, use hateful rhetoric that hurts people and our state’s reputation,” the statement reads.
Some state senators have taken a harder line and are demanding that Robinson resign, calling his remarks discriminatory.
Sen. Jeff Jackson, a Democrat representing North Carolina’s 37th District — which includes the state’s most populous city, Charlotte — condemned Robinson’s comments in a series of tweets on Thursday and Friday.
“There’s no debate here. This is open discrimination. It is completely unacceptable,” Jackson wrote, in part. “Mark Robinson should resign.”https://iframe.nbcnews.com/P9wSGmh?app=1
Jackson, who is running for the U.S. Senate in 2022, added that Robinson’s comments are part of a pattern. He said he’s made openly “hateful and discriminatory” comments about LGBTQ people and other minorities in the past, linking to an article from local news outlet the Cardinal & Pine.
The article includes 2016 comments that Robinson made after the shooting at the gay nightclub Pulse, in Orlando, Florida, in which 49 patrons — many of them young LGBTQ people — were killed and dozens more wounded before the shooter died in a shootout with law enforcement.
“First, let me say that I pray for the souls of all those killed, healing for all those wounded, and comfort for the family members of the terrorist shooting in Orlando,” Robinson wrote on his Facebook pageat the time. “However, homosexuality is STILL an abominable sin and I WILL NOT join in ‘celebrating gay pride’ nor will I fly their sacrilegious flag on my page. Sorry if this offends anyone, but I’m not falling for the media/pop culture ‘okey-doke.'”
State Sen. Wiley Nickel, a Democrat representing the state’s 16th District, which includes Raleigh and Durham, also called for Robinson to resign.
“I stand with the LGBTQ Community and hope you will join me in condemning this hate speech from the most senior Republican elected official in our state,” Nickel wrote on Twitter Friday. https://iframe.nbcnews.com/HgiJl5B?app=1
Kendra Johnson, the executive director of Equality NC, an LGBTQ nonprofit, said the group condemns Robinson’s “dangerous rhetoric.”
“At a time when LGBTQ people, especially those with multiple layers of marginalization, need a supportive state, Robinson offered transphobia and homophobia instead,” Johnson said in an email. “No one who thinks like this should be in a position of power, and these discriminatory attitudes underscore the need for comprehensive nondiscrimination protections in North Carolina.”
LGBTQ advocates have said that views like Robinson’s don’t represent the majority of North Carolinians. So far this year, 10 municipalities have passed measures that protect LGBTQ people from discrimination in public accommodations, employment and more.
A 2019 poll from Public Policy Polling found that 67 percent of voters in North Carolina support such legislation, with 19 percent in opposition.
Voters diverge more when broken down by political party. More than three-quarters of Democrats in the state support nondiscrimination legislation, while 12 percent oppose it. Among Republicans in North Carolina, those figures are 50 percent and 32 percent, respectively.
Allison Scott, the director of impact and innovation at the Campaign for Southern Equality, an LGBTQ advocacy group based in North Carolina, said Robinson’s comments remind her of the insults the LGBTQ community regularly endured a decade ago.
“They are shocking in their brazen homophobia and transphobia and are as unacceptable now as they were 10 years ago,” she said. “Our state has been on a journey, and more than a dozen cities and counties have successfully passed protections for LGBTQ people. It’s time for all North Carolinians to come on this journey toward a future where no one faces discrimination or harassment because of who they are.”
Robinson’s comments specifically addressed LGBTQ-inclusive classrooms — a topic that has recently joined other education culture wars, with more school districts banning pride symbols and flags. Though, in recent years, advocates have called on educators to make an effort to be more openly supportive of LGBTQ people — whether that’s by including prominent LGBTQ figures in lessons or by displaying a Pride flag in the classroom — because they say it can benefit LGBTQ youth.
One 2019 survey from The Trevor Project, an LGBTQ youth suicide prevention and crisis intervention organization, found that queer youth with at least one accepting adult in their life have a 40 percent lower risk of attempting suicide.
Texas mom Annaliese Cothron drove an hour and a half from her home in San Antonio to the state Capitol in Austin this year for a rally in support of transgender children, including her own child. It’s a drive she has made so many times that she has lost count.
Trans youths in the state have been the targets this year of more than 50 bills that would restrict their participation in sports or ban them from gaining access to certain health care, among other restrictions.
Cothron was leading the crowd in a chant, but she started to get tired. So she asked the Rev. Remington Johnson, a Presbyterian clergywoman and a fellow activist, to take the bullhorn.
Johnson, a trans woman who has testified almost a half-dozen times against anti-trans bills, had shown up that day riding a longboard, wearing hot pink shorts and carrying a huge trans flag, Cothron recalled. She took the bullhorn, and the first thing she said was: “Trans kids are magical.”
Cothron, who has an 8-year-old child who is nonbinary, said the moment has stuck with her.
“That, to me, was so powerful,” she said. “Nobody talks about my child like that, because they don’t have the same experience that a trans person has to know really how truly unique and magical and powerful transgender children are.”
The Rev. Remington Johnson waves pride flags at a rally in Austin in May.Ricardo Martinez
Johnson, a health care chaplain who previously worked in a hospital supporting people who are sick or dying, said her role in life is to be a caregiver and a “justice bringer.” She returns to the Capitol again and again despite the toll it has taken on her physically and emotionally, not only to advocate for herself as a trans woman, but also to bring some levity to a space that has been traumatizing for trans people and families.
“The caregiving at the bedside, the caregiving at the Capitol — it’s all one and the same,” said Johnson, who is working on her master’s degree in nursing at the University of Texas at Austin. “These are all systems, and there’s suffering swirling, and I feel like my role and my responsibility here is to at least show up.”
Activism as an ‘exercise in self-love’
Johnson, 35, grew up just outside Texas in the rural Oklahoma Panhandle, in a family with Mennonite roots. She said she wasn’t raised with liberal or conservative ideals; she was “kind of raised tabula rasa” — her parents would encourage her to put herself in other people’s shoes.
Johnson said that in junior high school, she had an experience with her family that made her feel as though she couldn’t talk about her identity openly. One evening, while her family was visiting the gay-friendly beach town of Provincetown, Massachusetts, two tall women walked past, she said.
“I remember as a kid just being like, ‘I don’t know what that is, but I love everything about it,’” Johnson said. “I don’t know if they were drag queens or trans women or what, but it was magical. But that was also the same moment where I got to hear from family members about how they were not OK with those folks. So it was this sort of whiplash.”
She said her coming out process was gradual after that. She told a therapist in college how she was feeling about her gender, and the therapist suggested that she might be a trans woman, “and I was like, ‘Thank you very much,’ and I never went back,” Johnson said.
She wrestled with internalized transphobia — a battle that continues to this day and plays a role in her activism, she said.
She moved to Texas in 2008. Nine years later, Texas Republicans introduced a bill that would have required trans people to use the bathrooms that matched the sexes listed on their birth certificates. Although Johnson was out as trans at that point, she said, she didn’t feel ready to participate in activism, because she felt she “was the problem.”
“I just felt like I was the boogeyman that Republicans were talking about, because I was this huge, built, powerful figure that was going to be using the restroom with them,” she said. She didn’t feel ready to advocate then, but when the 2020 legislative session began, she decided she wanted to be there.
“I want to show up for me and because a lot of the things that these legislators and anti-trans folks were saying are things that my loved ones have said to me during my transition and internalized transphobia that I say to myself,” she said. “So some of this is an exercise in self-love and self-compassion and a tangible reminder that there’s nothing wrong with me.”
‘Fixing things is what I do’
Among the families who are fighting anti-trans bills at the Capitol, Johnson’s presence is known as healing. She developed that skill, putting people at ease, during her work as a health care chaplain, when she would help people make difficult decisions, such as whether to go through with high-risk operations or to go home with hospice, or end-of-life, care.
She said she introduced herself to a woman in hospice care as “a fixer.” The woman responded “What are you going to fix?” and Johnson said, “I’m going to fix it.”
“And I did, I fixed it,” Johnson said. “I couldn’t cure her cancer, but I could help her build a relationship with her care team. I can help her build a relationship with her family.
“Fixing things is what I do,” she added.
Even outside of her activism, in her personal life, she fixes. She took up woodworking and built the cabinets and the countertops and redid the flooring and the windows in her last home. During the pandemic, she taught herself how to longboard, and she now builds her boards herself.
Her friend Meghan Jacobson said fixing things and caring for people are at the core of who Johnson is.
“She worked in hospice because she recognizes the specialness and the importance of these moments that a lot of other people run away from,” Jacobson said, adding that Johnson saved her life over the last year by connecting her with a mental health care provider and by simply being there to support her.
Parents who advocate on behalf of their transgender children at Texas’ Capitol tell similar stories.
Linzy Foster, who is from Austin, has been to the Capitol about a dozen times this year to advocate on behalf of her 7-year-old trans daughter. She said that she has been dealing with a lot of anxiety recently and that during a news conference last month, she was breathing heavily. Johnson, who was sitting next to her, noticed.
“She just put her hand on my back and was rubbing my back, and we just had this little moment,” Foster said. A reporter from the Austin American-Statesman captured a photo; Foster said that when she saw it, she “burst into tears.”
“Because it’s just symbolic — she is fighting her own battle, but she keeps showing up for the parents so that we can show up for our kids,” Foster said.
The energy at the Capitol is often heavy and traumatic for parents, Foster said, and Johnson makes everyone laugh.
For example, at one news conference, Johnson described how Republican legislators in Texas and elsewhere tried to pass bathroom bills after the Supreme Court ruled in favor of marriage equality in 2015. “What happens is they try to vilify women like myself who have a little bit of size, and we’re just too charming and beautiful to want to pee next to,” she said, leading to a chorus of laughs.
Johnson said she tries to bring humor and joy to her activism because she wants trans people watching “to feel safe, at least for a tiny moment.”
“I want them to see somebody that gets to stand up in front of them, and I want to feel like I’m a good representative,” she said. “I want to feel like the mothers can look and say, ‘Oh my gosh, my child can grow up and it’s going to be OK.’ I want to offer a tiny moment of levity and power and hope.”
‘This is not trans tragedy. This is trans joy.’
Although someone wouldn’t know it by watching her speak at the Capitol, Johnson said that she has been traumatized by her activism this year and that the trauma is getting worse as she continues to go back.
She compared the experience to a sports injury. Sports have been and still are a huge part of her life — which is partly why she fights so hard for trans kids to have the right to play. She plays on a gay flag football team in Austin.
“Showing up to the Capitol is like playing through an injury,” she said. “There has been a traumatic injury to my soul. And I see it, and I’ve had it checked out by professionals, and they say, ‘You can keep playing on it, but it’s going to hurt you.’”
The Rev. Remington Johnson speaks at a rally on the steps of the Texas Capitol in Austin. Brad Pritchett
But she stressed that activism isn’t only about trauma. She said that after the Supreme Court ruled last year that LGBTQ people are protected from employment discrimination under federal law, she rode 26 miles around Austin on her homemade longboard carrying a huge trans pride flag. “People were honking and stopping for photos,” she said. “It was really special.”
For Cothron, Johnson’s positivity and joy show her that her nonbinary child can grow to thrive.
“This is not trans tragedy. This is trans joy,” Cothron said. “And Remington is there to really embody that. … To me, my child being able to have role models who are adults and fighting — and not just fighting but also thriving — that is just so critically important.”
For Johnson, that’s the trans experience: “to be able to go through discomfort and come out on the other side with this buoyant, joyous presence,” she said. “That’s who we are. That’s who I am.”
Rachel Gonzales has been to the Texas Capitol at least a dozen times since 2017, when she advocated against a bill that would’ve banned her then-6-year-old transgender daughter, Libby, from using the girls’ bathroom.
That bill died in 2017,but the fight hasn’t stopped. Since January, Texas has considered 52bills that target trans people, particularly youth, according to Equality Texas, an LGBTQ advocacy group in the state.
Parents like Gonzales and advocates have defeated all of the bills so far. But last week, during a third special legislative session, the Texas Senate passed a bill that would ban transgender student athletes in public schools from competing on school sports teams that align with their gender identity, as opposed to their sex assigned at birth.
State Sens. Bob Halland Charles Perry, both Republicans, also refiled bills last week that would ban health care providers from providing trans children with gender-affirming health care — including therapy — and that could charge parents and doctors with child abuse if they provide such care for trans children.
Gonzales said she will continue to fight the bills, but she added that she is so burnt out by the last nine months that she doesn’t feel like an effective advocate.
“I joke, but it’s not really a joke, that I have definitely lost years off my life from this battle — the amount of stress, the physical manifestation of that stress and the mental anguish,” she said. “It’s so much of negotiating my own feelings in order to assure my kid that she’s going to be OK. But it’s terrifying that I don’t know if it’s going to be OK, and not just for her, but for other kids across the state, kids who cannot safely be out.”
It’s taken a mental and physical toll on her, she said, and other parents and advocates in the state say the same. They say they won’t stop, because they’re doing it for their kids, but they need more help.
‘It takes me hours to fall asleep’
Supporters of trans athlete bans in Texas say they are trying to protect fairness in women’s sports, though — like most supporters of similar bills — they haven’t been able to provide any examples in their state of trans girls jeopardizing fairness, according to LGBTQ advocates.
Proponents of bans on gender-affirming care such as puberty blockers say the care is “experimental” and that children are too young to receive it. But medical experts who provide gender-affirming care say it is supported by all relevant major medical organizations, such as the American Medical Association, the American Academy of Pediatrics and the American Psychological Association. Some of these groups note that gender-affirming care is backed by decades of research and has been used to treat cisgender kids experiencing precocious puberty, for example.
Libby Gonzales, right, and her sister, Cecilia, inside Texas Rep. Jasmine Crockett’s office at the Capitol in Austin.Courtesy of the Gonzales Family
Parents like Gonzales have been fighting the bills so relentlessly because they say the proposals, whether they pass or not, have a devastating effect on trans youth in the state — especially youth who help advocate against them.
Libby, Gonzales’s 11-year-old daughter who is transgender, said the anti-trans bills reintroduced by Republican state senators make her “feel really scared and like they are trying to harm me in very terrible ways.”
She first became an activist at 6 years old, when conservatives in the state tried to pass a billthat would’ve banned her from using the girls’ restroom. Libby said being an advocate is important to her because if she wasn’t, “I would be really hurt, and people wouldn’t hear me.”
“It is very tiring,” she said. “Sometimes it takes me hours to fall asleep just because I’m so scared about these specific bills.”
Rebekah Bryant, who lives in Houston and has been to the Capitol six times this year to advocate against the bills, said they’ve also affected her 8-year-old trans daughter, Sunny.
Sunny has testified against the sports bills twice,in July and August. The first time she testified, she told the Senate committee she likes baseball, soccer, tennis and gymnastics, and that none of her teammates cared that she is trans.
“I’ve been with the same classmates for three years, and none of them knew I was trans until this year,” she said. “When my mom had to speak at the Capitol, they loved me just the same, because kids my age don’t care about that stuff. Kids care about what’s in your heart.”
“Only old people can’t see that,” she added, with a smile. Committee members, including Republicans, laughed, Bryant said.
The second time she testified, Sunny didn’t step up to the podium — which was taller than her — until 1 a.m. Afterward, when she and her mom got back to their hotel room, Sunny sat down on the bed and started crying.
Sunny Bryant, 8.Courtesy of the Bryant family
“She said, ‘Why do so many people not like me?’” Bryant said. “And that’s the first time she’s expressed any pain toward this. I was exhausted, and I just said to her, ‘Look, there are way more people there that love you. … There are so many more people in the world that are on your side than aren’t. Those people are the outliers.’”
She said Sunny developed anxiety afterward. Though it’s slowly gone away, Bryant hasn’t brought Sunny to the Capitol again.
Advocates say the rhetoric used in the bills has also had a negative effect on the mental health of transgender — as well as lesbian, gay, bisexual and queer — youth statewide.
For example, between Jan. 1 and Aug. 30, crisis calls from LGBTQ young people in Texas increased 150 percent compared to the same period last year, according to data shared last week by The Trevor Project, an LGBTQ youth suicide prevention and crisis intervention organization. About 4,000, or 36 percent of all contacts from Texas, came from transgender or nonbinary youth.
The Trevor Project added that while the volume of crisis contacts “can not be attributed to any one factor (or bill),” a qualitative analysis of the crisis contacts found that “transgender and nonbinary youth in Texas have directly stated that they are feeling stressed, using self-harm, and considering suicide due to anti-LGBTQ laws being debated in their state.”
The Trans Lifeline, the country’s first transgender crisis hotline, also saw a 72 percent increase in calls from Texas in May — when state lawmakers first considered about a dozen anti-trans bills — when compared to May 2020, according to data shared with NBC News. In July, when the legislation was reconsidered, Trans Lifeline saw a 19 percent increase in calls from Texas.
Adri Pèrez, policy and advocacy strategist for LGBTQ equality at the American Civil Liberties Union of Texas, said it’s unclear whether Texas’ trans athlete ban will pass the House and become law and that its passage “shouldn’t be the focal point.”
“The larger issue, I think, is out of the state of Texas there is a lot of misinformation about transgender people and transgender youth, specifically,” Pèrez said. “The work is not necessarily inside of the Texas Legislature; it’s outside of it. And what we’re doing to help humanize trans people and trans youth to those who have never met a transgender person or a transgender kid, that would be the most effective firewall for these bills. It’s not letting that misinformation take hold at all.”
Whether someone knows a transgender person can significantly affect their views on legislation such as trans athlete bans, according a survey released Thursday by the nonprofit Public Religion Research Institute. A slim majority of Americans who know a transgender person (52 percent), compared to one-third of Americans who do not know anyone who is transgender (33 percent), believe that a transgender girl should be allowed to compete in high school sports with cisgender female students.
PRRI also noted that support for trans people participating in sports has declined since 2018. About one-third, or 36 percent, of Americans believe that trans girls should be allowed to participate in sports with their cisgender classmates, compared to 50 percent in 2018.
Physical, mental and financial strain
Parents who are transgender advocates say Texas’ last few legislative sessions have been particularly difficult for them, too.
Bryant said this is the first year she’s become more active, and it has taken an emotional and financial toll on her family. She said she has to take off work to travel to the Capitol, which is about a 3 1/2-hour drive away, and she often has to book a hotel room. All told, she said she’s spent close to $3,000 going back and forth to the Capitol just this year.
Sunny, left, with her sibling, Bodhi, and her dad, Chet, and mom, Rebekah.Courtesy of the Bryant family
“It’s just so draining, because it’s not only just sitting there and waiting, but it’s sitting there and listening to people lie about you and your family — people that have never met a person who’s trans in their life and really haven’t walked the walk that all of us have,” she said.
Recently, many parents and advocates have been hitting “a wall,” said Linzy Foster, who is from Austin and has been to the Capitol about a dozen times this year to advocate on behalf of her 7-year-old trans daughter.
“The general population who usually are all on board and showing up and fighting for these things, they’re getting fatigued, and there’s also so many things to fight now,” she said. “We’re beginning to feel more and more lonely.”
Many of the advocates described being at the Capitol as traumatic. Annaleise Cothron, whose 8-year-old is nonbinary, said one day she went to the Capitol and the supporters of anti-trans bills called her child “a freak” and “disgusting.”
“While I would never tell my child that, just hearing that from somebody else is really emotionally taxing, and my child doesn’t deserve that,” she said. “People need to understand that’s the level of vitriol that we’re facing just going to the Capitol to say, ‘Please leave us alone. Please leave our community alone.’ This isn’t about politics; this is about human beings.”
More than just sports
Though the parents and advocates believe that trans kids have a right to play on the sports teams that match their gender identity, they said their advocacy is about more than just sports.
Annaliese Cothron protests on behalf of her 8-year-old nonbinary child.Courtesy of Dorothy Wallace
“Just the conversation of whether or not my child should exist in public school sports and whether or not other kids should bully them for who they are — that’s the conversation that this legislative body is inviting by entertaining these bills,” Cothron said.
She said the other bills that Republicans have reintroduced or plan to reintroduce that could charge her with child abuse for providing her child with access to gender-affirming care prove that the conversation is about more than fairness in sports.
“This is about the broader conversation of saying whether or not a transgender child should exist in Texas and access public services,” she said.
For now, the parents say they are leaning on each other for support.
“The only reason I’m doing OK, to be honest with you, is because in all of this I have met these amazing people in this community who show up, and we support one another,” Foster said. “We have moments of levity even in the trauma that we’re dealing with when we’re in the Capitol, being able to make each other laugh, knowing that you’re loved, knowing that you’re supported. That is the only thing that’s keeping me going.”
Alejandra Caraballo, 30, spent three years and countless hours after work — which “felt like a second part-time job” at times — putting together hundreds of documents to get her health insurance to cover her facial feminization surgery.
She even planned to sue her nonprofit employer, the New York Legal Assistance Group, or NYLAG, and the insurance company it used, UnitedHealthcare, in the spring of 2019 for denying the coverage.
Alejandra CaraballoAlejandra Caraballo
“My own clients at NYLAG were getting it covered under Medicaid, no issue,” she said. “And I, having private insurance, was having it consistently denied and, not to mention, working at a place that prides itself on inclusion and diversity and being social justice-oriented in terms of providing direct legal services to low-income New Yorkers.”
She said that she had lobbied for policy change but that when she met with NYLAG’s general counsel, she was told that the organization didn’t view the explicit exclusions for certain gender-affirming operations and voice therapy for transgender people as discrimination.
“It felt really invalidating and just like I wasn’t being heard,” she said, adding that she is a lawyer who knows the case law that affects the issue.
She started preparing her lawsuit, but then, in May 2019, her employer told her that it would be switching insurance plans to Cigna, and she had to start all over again.
After the switch, in July 2019, Cigna approved the first part of her surgery, which took place in October 2019, but when she tried to get the second part covered in June 2020, it denied the claim, she said. The New York Department of Financial Services overturned the decision in August and forced Cigna to cover the surgery, which she had in October.
“I did quite an ordeal in terms of getting this covered, and I say this with the tremendous privilege that I’m an attorney who’s connected in the trans rights movement,” said Caraballo, who is now a clinical instructor at Harvard Law’s Cyber Law Clinic.
NYLAG said that Caraballo was “a valued member of our team” and that it advocates alongside its team members “as they may experience and navigate life’s systematic inequalities and inequities.”
“At NYLAG we aim to create an environment that supports all NYLAG employees during their employment, which includes making available the best options for insurance, qualified by the state of New York,” Jay Brandon, NYLAG’s director of external affairs, said in a statement. “We wish all our former employees the best in their personal endeavors and support Alejandra’s continued fight for equitable coverage from her insurance provider.”
A spokesperson for UnitedHealthcare said the company can’t comment on specific cases. The spokesperson said coverage for the treatment of gender dysphoria may include physicians’ office visits, mental health services, prescription drugs and surgical procedures.
“Our mission is to help people live healthier lives regardless of age, race, ethnicity, sexual orientation or gender identity,” the spokesperson said in a statement. “Our customer service advocates are trained to help people navigate the health care system by matching them with experts who guide them when they have questions, and we have a special gender identity team to support members through their transition.”
A spokesperson for Cigna said gender-affirming treatments “are covered in all of our standard commercial health plans when medically necessary.”
“As this field evolves, we’re seeing more of our clients opt to expressly include additional procedures like facial feminization surgery and voice therapy,” the spokesperson said. “We also regularly evaluate and update our gender dysphoria coverage policies, informed by the latest clinical guidance and expert consensus, including leading organizations like” the World Professional Association for Transgender Health, or WPATH, a nonprofit organization devoted to treating and understanding gender dysphoria.
Caraballo’s experience echoes that of many transgender people who have tried to get gender-affirming care, particularly operations, covered by their insurance — whether it’s publicly or privately funded. Trans people describe months and sometimes years of effort to get their insurance companies to cover care recommended by their doctors.
Majority report being denied care
Although many insurance companies and some politicians describe gender-affirming surgery as cosmetic, major medical organizations say it is medically necessary.
Surgical intervention is one of many treatments for gender dysphoria, which refers to the psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity, according to the American Psychiatric Association.
WPATH, which is considered the governing body on the issue, wrote in a “medical necessity statement” in 2016 that “medical procedures attendant to gender affirming/confirming surgeries are not ‘cosmetic’ or ‘elective’ or ‘for the mere convenience of the patient.’”
“These reconstructive procedures are not optional in any meaningful sense, but are understood to be medically necessary for the treatment of the diagnosed condition,” WPATH wrote. “In some cases, such surgery is the only effective treatment for the condition,” and for some people, genital surgery, in particular, is “essential and life-saving.”
Despite the medical necessity of gender-affirming care as stated by physicians, many trans people who have insurance — about one-fifth have reported that they don’t — say they have struggled to get coverage.
A report last year from the Center for American Progress found that 40 percent of transgender respondents — and 56 percent of trans respondents of color — said their health insurance companies denied coverage for gender-affirming care, which includes treatments like hormones and surgery. It also found that 48 percent of trans respondents, including 54 percent of trans respondents of color, said their health insurance companies covered only some gender-affirming care or had no providers in network.
Dallas Ducar, CEO and a co-founder of Transhealth Northampton in Massachusetts, said she was shocked by the “endless barriers that exist for patients seeking to transition.”
“For cisgender individuals, hormonal replacement, puberty blockers are really easily accessible, and they’ve been used in the past to treat precocious puberty,” she said. “Hormone replacement therapy has been beneficial for endocrine, cardiovascular conditions, and trans people are burdened with paperwork, psychiatric assessments, insurance pre-authorizations.”
She said that most of the people in power — clinicians, politicians and people who work for insurance companies — are cisgender, meaning they identify with the genders they were assigned at birth, and that they have created systems that have reduced access to quality gender-affirming care.
“Those barriers that exist and that numerous amount of paperwork or assessments that you have to go through are really, really harmful, and they add to the layers of discrimination that exists within the trans community,” she said.
Yearslong battles and hefty loans
Alex Petrovnia, 24, and his partner, who are both transgender men living in central Pennsylvania, faced barriers similar to Caraballo’s when they tried to get UnitedHealthcare to cover their hysterectomies. Petrovnia said that twice — in February and in April — United called them less than 24 hours before their operations and said their claims had been denied. The first time, Petrovnia said, the company said it was because Petrovnia and his partner hadn’t sent the required paperwork, even though Petrovnia said he had faxed it three separate times months in advance.
Alex PetrovniaAlex Petrovnia
Petrovnia had received two letters — one from a doctor and one from a therapist — confirming that a hysterectomy was necessary for his gender dysphoria, but he said the UnitedHealthcare representative told him that he needed a letter from another therapist.
He said that the second time their operations were denied, UnitedHealthcare called them when they were on their way to the hospital — just hours before their scheduled procedures — and said they were required to have been on hormone replacement therapy for one year before they could get hysterectomies. Petrovnia said the policy he had at the time said the requirement was only six months. He wrote about the experiences on Twitter.https://iframe.nbcnews.com/MgfYrb6?app=1
He and his partner have been on hormone replacement therapy for a year as of last month, so he said they plan to try to reschedule the procedures for December.
“If they’re willing to just make up the rules and contradict their own rules, it’s very difficult to have hope that it’ll work out, especially since it’s been canceled less than 24 hours in advance twice now,” he said.
UnitedHealthcare said it couldn’t comment on Petrovnia’s case.
Some government-funded insurance bans gender-affirming surgery outright in certain circumstances. For example, TRICARE, the military’s self-funded health insurance for service members, “generally doesn’t cover surgery for gender dysphoria,” according to its website. Active-duty service members can request waivers if their providers deem the surgery “medically necessary,” but waivers aren’t available for dependents — spouses and other family members.
That meant that when Jamie Traeger, whose spouse is an officer in the Army, filed a claim to get a double mastectomy in early 2019, TRICARE denied it outright even though three doctors had said the procedure was medically necessary.
Traeger, who uses gender neutral pronouns, said that they considered getting a job at Starbucks so they could have insurance that would cover the procedure but that they and their spouse decided to take out a $10,000 personal loan, instead.
“I just remember thinking this is crazy — that Starbucks has better trans health care than military family members,” they said.
Traeger, 32, said they were able to get a hysterectomy covered in 2016 because they emphasized that it would treat their uterine fibroids and avoided any mention of gender dysphoria.
“I remember the doctor saying, ‘I’m going to write this [claim] up in a very specific way, because if I indicate that this is because of gender dysphoria, TRICARE might give us a problem,’” Traeger said.
Traeger said they were happy when they saw the news in July that the Department of Veterans Affairs was changing its policy to cover all gender-confirmation procedures for trans veterans.
It’s “fabulous and long overdue,” they said. “But I just remember having this sinking feeling of … we’re getting left behind — the spouses and children of active-duty service members are getting left behind. We don’t have access to this care, and I feel like no one really knows that.”
The Military Health System, which oversees TRICARE, hasn’t responded to a request for comment.
A public policy ‘marble cake’
No one policy governs how insurers cover gender-affirming procedures.
Lindsey Dawson, an associate director at KFF (formerly the Kaiser Family Foundation), a nonprofit organization focused on health policy, described state laws as a “patchwork.”
Twenty-four states and Washington, D.C., prohibit transgender exclusions in health insurance coverage, according to the Movement Advancement Project, a nonprofit think tank. Twenty-three states, one territory and Washington, D.C., have Medicaid policies that explicitly cover transition care for transgender people. The remaining states have a mix of policies: Some don’t have any Medicaid policy that explicitly covers transgender care, 10 states have Medicaid policies that explicitly exclude trans health coverage and care, and one state — Arkansas — allows all insurers in the state to refuse to cover gender-affirming care.
“A clear federal protection for gender identity and sexual orientation would eliminate this sort of patchwork issue that we’re facing in the states right now,” Dawson said. “But right now that environment is in flux.”
The Obama administration interpreted Section 1557 of the Affordable Care Act, which prohibits discrimination based on sex in federally funded health care facilities, to include discrimination based on sexual orientation and gender identity, but “the Trump administration essentially erased those protections,” she said.
The Biden administration has yet to issue a new rule regarding its interpretation of Section 1557. In the meantime, the Office of Civil Rights at the Department of Health and Human Services said it would enforce Section 1557 to prohibit discrimination based on LGBTQ status. That, however, requires people to file legal complaints, which Dawson said is “kind of a patchwork approach to equity.”
Some cases regarding state health plans are still ongoing: The 4th U.S. Circuit Court of Appeals ruled this month that trans people who are enrolled in the North Carolina State Health Plan can sue over the state’s 2018 policy that excludes all coverage for gender dysphoria counseling, hormone therapy, surgical care or other treatment.
Blue Cross and Blue Shield of North Carolina also changed its policies in July to include coverage for gender-affirming facial surgery and voice therapy as medically necessary care.
Forcing insurance companies to cover all gender-affirming care, including operations, would be difficult, said Caraballo, the former NYLAG lawyer, because the issue is a “classic public policy marble cake,” meaning it’s governed by state, federal and sometimes local laws.
She said the Department of Health and Human Services’ Office of Civil Rights could address the issue in a few ways. One of the easiest would be for it to use its enforcement authority to crack down on insurance companies that exclude coverage for gender-affirming care, she said.
States could also pass their own legislation. She cited Washington, which passed legislation in May that requires all insurers in the state to cover gender-affirming care, including operations.
She said that, in the end, she got her surgery covered but that her case is an outlier.
“There’s so many people that are going through the same thing,” she said. “I’ve spoken with so many people who, they see those exclusions, they don’t even try.”
