5

Law and Legal Systems

Law can enhance or impede people’s economic security, physical safety, and capacity to participate in almost all dimensions of life; for these reasons, it is an important social determinant of health and well-being (Burris et al., 2010). For many years, the legal system functioned largely in ways that undermined the health and well-being of sexual and gender diverse (SGD) populations. Criminal laws were used to harass, imprison, and ruin the lives of those who were considered sexual or gender deviants. Immigration laws forbade them from entering the country. They were subject to being fired from their jobs, evicted from their homes, and less than honorably discharged from military service without legal redress. Their family relationships were not recognized as legitimate, much less protected from interference. SGD people were forced to live in a world of ubiquitous state-enforced hostility.

The legal landscape has now changed dramatically, even if not completely. In an extraordinarily successful example of the American civil rights narrative, LGBT rights advocates have secured protection from most of the past forms of negative treatment.

However, as one can see from the examples of women and people of color, the achievement of broad formal equality under law does not automatically stop the kinds of mistreatment that can diminish a person’s capacity for well-being. For SGD people, legal equality is still new and somewhat precarious. Many U.S. institutions and individuals continue to undermine new norms of fairness. Enforcement of legal protections can be uneven. Multiple chapters in this report document recent and continuing forms of

negative treatment, some of which may now be the product more of custom than of law but which nonetheless can be devastating to the people affected.

In addition, the policies and practices that continue to harm SGD people have a disproportionate effect on those within the community who also face income insecurity, racial bias, and transphobia. A transgender Latinx woman or a Black lesbian couple raising children have to contend with additional marginalization that results from intersecting axes of disadvantage and stigma. As a result, they face radically different life circumstances than cisgender white people.

In the realm of law, the primary site for compounded stigma is criminal law. The punitive aspects of the criminal justice system—such as the criminalization of certain behaviors, the likelihood of arrest and detention, and hostile treatment within institutions such as prisons—produce burdens experienced overwhelmingly by SGD people of color, transgender women, and those who lack regular or sufficient incomes (Goldberg et al., 2019; Meyer et al., 2017).

This chapter summarizes the changes that have occurred in recent years, describes continuing challenges posed by the legal system to the well-being of SGD people, and provides basic legal information related to the particular domains of life that are analyzed in greater detail throughout this book. The chapter concludes with a description of what is likely to be an increasingly important question: the extent to which businesses and individuals can secure an exemption from anti-discrimination laws on the basis of their religious beliefs. Because current legal change in this field has been substantial and rapid, the reader should keep in mind that this summary can offer only a snapshot of the legal status of SGD populations as this report goes to press.

THE NEW BASELINE

In June 2020 the Supreme Court ruled in Bostock v. Clayton County (140 S. Ct. 1731) that workplace discrimination based on either sexual orientation or gender identity constitutes a form of sex discrimination. The decision means that the federal law which prohibits discrimination in the workplace based on sex—Title VII of the 1964 Civil Rights Act—also prohibits job discrimination based on sexual orientation or gender identity. With this decision, the Court put into place the final component of what has become the new baseline for the law’s treatment of SGD people: nationwide protection for LGBT people with respect to employment, marriage, intimate sexual conduct in a domestic setting, and, partially, military service (this is explained in further detail below). Twenty years ago, none of these federal protections existed (Eskridge, Hunter, and Joslin, 2018). The ripple effects from each of these examples of progress illustrate how

important the legal system is to everyday quality of life for members of minority groups.

For example, in 2003 the Supreme Court ruled that states could not criminalize private consensual sexual acts between two people of the same sex in Lawrence v. Texas (539 U.S. 558). One of the most consequential results of this decision was the elimination of secondary aspects of criminalization, meaning the use of such laws to categorize LGB people as presumptive criminals in the context of child custody and visitation rights disputes; eligibility for certain jobs, especially in law enforcement; and for some occupational licenses (Eskridge, Hunter, and Joslin, 2018).

In 2010 Congress ended the “Don’t ask, don’t tell” policy regarding LGB Americans in military service. Since that time, LGB people have served openly in all branches of the armed forces. Aside from the dignity that comes from not being considered unfit for military service, the experience has opened up job training and other professional opportunities for countless people who formerly would have been excluded. However, a ban on enlistment by transgender people remains in place.

In 2015, the Supreme Court ruled in Obergefell v. Hodges (135 S. Ct. 2584) that all states are required to allow same-sex couples to marry. Because marital status is determinative of more than 1,000 rights and obligations under federal law alone, securing access to marriage allowed couples to change their legal status for purposes of Social Security and insurance benefits, taxation, parental relationships, and eligibility for “family” status in a variety of public and private programs and services.

In the most recent example, noted above, the sex discrimination ruling in Bostock v. Clayton County is especially important because it will apply to all federal statutes that prohibit sex discrimination. Such laws cover education (Title IX), housing (Title VIII), credit (the Equal Credit Opportunity Act), and access to health care and health insurance coverage (the Affordable Care Act). In all these arenas, SGD people now have federal protections against discrimination.

These developments represent the achievements of reform efforts on behalf of LGBT rights, and they are remarkable. However, they do not constitute the entire story. The following section describes the legal problems still remaining.

CONTINUING GAPS IN LEGAL PROTECTION

There are many reasons that SGD people continue to experience adverse treatment in the legal system. In some areas of law, there are no or very few anti-discrimination laws as such. Criminal law, family law, policies regarding identity documents, and the rules governing military service are

examples. In areas of law where anti-discrimination laws do apply, federal coverage is limited by the size or type of the entity subject to it. State laws may fill in the missing protections, but only about half the states have explicit coverage for sexual orientation and gender identity, and the scope of sex discrimination under most state laws has not been determined. Even in situations in which there are now protective laws, the degree of enforcement varies.

The following summaries of existing law are intended to give the reader context for the discussions of the different domains of health and well-being in the remainder of this report. They describe the background framework for understanding the research into discrimination that has been published in particular fields. More details are provided in the chapters that address a particular context, such as education (Chapter 9), employment (Chapter 10), and health care (Chapters 11 and 12).

The rest of this section addresses legal topics in two major areas: laws that apply to those situations in which an individual’s physical liberty is at stake, and anti-discrimination laws of various kinds. The following two major sections of this chapter address areas of law in which explicit protections against discrimination usually do not exist and the increasingly important question of whether religious liberty can form the basis for an exception to anti-discrimination law.

The Possible Loss of Physical Liberty

Individuals who are brought within the jurisdiction of the criminal law system, including juvenile detention, and those who are caught up in the immigration system face potential loss of liberty in the literal sense that they may be incarcerated.

Criminalization

The Supreme Court decriminalized most private consensual adult sexual conduct in its 2003 decision in Lawrence v. Texas (539 U.S. 558). However, SGD people continue to be subject to heightened surveillance and engagement with police for a variety of other criminalized behaviors because of intersecting factors, such as gender-nonconforming appearance and the high rate of homelessness among LGBT youth (Goldberg et al., 2019). In addition, the ruling in Lawrence v. Texas did not extend to two types of criminalized conduct that disproportionately affect SGD people: sex involving payment and behavior that may cause exposure to HIV.

Every state continues to criminalize sex for which one party pays another (with the exception of some counties in Nevada). High rates of unemployment and homelessness contribute to a high rate of sex work among

transgender women, especially transgender women of color, and homeless youth (Forge and Ream, 2014; Nadal, 2014; Ream, Barnhart, and Lotz, 2012; Van Leeuwen et al., 2006). One in five respondents to the 2015 U.S. Transgender Survey (USTS) reported working in the underground economy, defined to include sex work (James et al., 2016). A local study in New York found that transgender people of color were twice as likely to be arrested for sex work as white transgender people (Goldberg et al., 2019). Mistreatment during interactions with the police is also a common experience for sex workers (Platt et al., 2018). Thus, although these laws are neutral on their face, in practice they have a disproportionate impact on some of the most vulnerable SGD groups.

In a systematic literature review of studies about the associations between the legal system and the health of people who engage in sex work, researchers found that harsh enforcement policies, such as violent or abusive behavior by police, are associated with increased risk of HIV infection or sexually transmitted disease and the risk of violence by other actors (Platt et al., 2018). The pathways linking police practices and health risks include the disruption of sex workers’ own harm reduction activities, such as negotiating with clients, carrying condoms (which are sometimes used as evidence against them), and avoidance of isolated locations (Platt et al., 2018). Secondary risks of arrest include increased possibility of eviction, loss of other work, and barriers to access to health and other services (Hanssens et al., 2014; Platt et al., 2018).

The second category of criminalized conduct of special interest to SGD people consists of laws that criminalize behavior that may cause exposure to HIV. All but seven states and the District of Columbia have such a law (including laws allowing sentence enhancement for violations of other crimes if the defendant is HIV positive). Some applicable laws are HIV specific; others also cover other transmissible infections. In most states, no proof of actual transmission or intent to transmit is required. People of color are disproportionately arrested and prosecuted for these offenses (Center for HIV Law and Policy, 2019).

Both the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Justice (DOJ) have recommended that states reexamine the basis for these laws and modify their statutes to align punishment with risk (Centers for Disease Control and Prevention, 2014; Lehman et al., 2014). Four states—Iowa, California, Michigan, and North Carolina—have done so (Sears, Goldberg, and Mallory, 2020). Currently, laws in 23 states criminalize behavior that carries no risk or “effectively no risk” of transmitting HIV (as determined by the CDC). In 33 states, the crimes are classified as felonies; in eight states, they are misdemeanors; and in three states, prosecutions may invoke a sentence enhancement law. In some states, the law carries greater penalties for exposure to HIV than for exposure to diseases

for which there is a much greater risk of transmission (Center for HIV Law and Policy, 2019). A study of enforcement in Missouri from 1990 to 2019 found that the state spent at least $10.2 million during that period for costs of incarcerating people convicted of HIV-related crimes, not counting the expenses related to arrest, prosecution, probation, and parole (Sears, Goldberg, and Mallory, 2020). This is the first study that has measured the costs of these laws.

There is a strong association between the criminalization of HIV exposure and the criminalization of sex work. Hundreds, perhaps thousands, of people are arrested each year for HIV exposure-related crimes, a large number of whom are also arrested for sex work (Hasenbush et al., 2017). A study of HIV-related arrests in California found that approximately 95 percent occurred in the context of solicitation for sex (Goldberg et al., 2019). This enforcement pattern disproportionately affects transgender women, gay and bisexual men, and people of color (Baskin, Ahmed, and Forbes, 2016; Sears, Goldberg, and Mallory, 2020). There is widespread agreement among public health professionals that decriminalization of sex work would contribute significantly to the effort to combat the spread of HIV (Das and Horton, 2015).

Treatment in the Criminal Law System

Studies have repeatedly found routine mistreatment of SGD people by police officers and prison staff (Goldberg et al., 2019). While incarcerated, sexual minorities are more likely than heterosexual inmates to encounter sexual assault. (Meyer et al., 2017; Wilson et al., 2017). In the 2015 USTS, 58 percent of respondents who interacted with police officers reported experiencing verbal harassment, physical or sexual assault, or other forms of mistreatment. Meyer and colleagues (2017) found that sexual minority inmates encountered administrative segregation more frequently than others—in part because consensual sexual contact was punished, but also because sexual minority inmates have higher rates of psychological distress than heterosexual inmates.

For women, rates of incarceration are higher than for non-SGD women. In both adult and juvenile facilities, lesbian and bisexual women and girls are overrepresented (Meyer et al., 2017; Wilson et al., 2017). In one study of women in jails, 35.7 percent were sexual minorities, while the comparable rate for sexual minority men in jail was 6.2 percent; similarly, for women in prison, 42.1 percent were sexual minorities, compared with 9.3 percent of men in prison (Meyer et al., 2017).

The federal Prison Rape Elimination Act (PREA) requires DOJ to collect data, develop standards, and disseminate information in an effort to deter sexual violence in prisons. Regulations issued pursuant to PREA

provide national standards applicable to state and federal prisons, including a model screening process for assessing the likelihood of victimization of inmates and an individualized risk assessment that includes provision of safe housing for SGD inmates (28 C.F.R. 115.41–115.43). In a guidance document issued in 2018, the Bureau of Prisons changed the standards, including by directing that the initial facility assignment will be based on the inmate’s “biological sex,” changing the prior policy in which housing was based on the person’s self-identified gender identity. The 2018 rules stated that placement based on “the inmate’s identified gender would be appropriate only in rare cases.”¹

The enforcement status of PREA, including the new regulations, is unclear. The law requires audits of the institutions to which it applies, but it lacks a mechanism for effective independent oversight of prison conditions (Deitch, 2010). Independent external oversight is considered an essential tool for preventing violence in prison, especially for vulnerable populations, such as inmates who are susceptible to sexual assault (Deitch, 2010). In a conference of the Commission on Safety and Abuse in America’s Prisons (2006), more than 100 correctional experts from inside and outside the United States endorsed the need for such oversight.²

Immigration

Prior to 1990, immigration law was used to exclude people classified as “sexual deviants,” which included SGD people (Eskridge, Hunter, and Joslin, 2018). Currently, the most urgent immigration issue for SGD populations is the treatment of detainees. The Associated Press has reported that approximately 300 individuals who identify as transgender entered Immigration and Customs Enforcement (ICE) custody between 2003 and 2019 (Bryan, 2019). Widespread abuse and mistreatment of SGD detainees and poor medical care in ICE facilities has been well documented; in 2018–2019, two transgender women died in ICE custody (Evans, 2020; Gruberg, 2018; Hanssens et al., 2014; Oztaskin, 2019).

Because PREA covers all federal and state prisons, jails, and detention facilities, it also applies to immigration detention facilities run by the U.S. Department of Homeland Security (DHS). DHS has the responsibility to develop and implement procedures to prevent sexual violence in its detention facilities. In January 2020, after continuing reports of abuse and a congres-

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¹Bureau of Prisons Change Order: Transgender Offender Manual. May 11, 2018. Available: https://www.documentcloud.org/documents/4459297-BOP-Change-Order-TransgenderOffender-Manual-5.html.

² See https://www.vera.org/projects/commission-on-safety-and-abuse-in-americas-prisons/learn-more.

sional letter demanding release of transgender people in ICE custody, ICE closed one facility for transgender women and transferred them to other units housing transgender people (Evans, 2020). It is unclear whether ICE places transgender detainees only in facilities that meet health and safety standards for that population (Evans, 2020).

Anti-Discrimination Laws

Federal, state, and local laws prohibit some forms of discrimination based on sexual orientation or gender identity, but coverage can be inconsistent depending on the scope of each law. A typical anti-discrimination statute enumerates the protected characteristics (such as race or sex) and the arenas in which the laws apply (such as employment or housing). Most anti-discrimination laws apply to both public- and private-sector entities; if the alleged discriminator is a public agency, then the provisions of the Constitution also apply.

States’ anti-discrimination laws can differ from federal law in various ways. In general, federal laws provide stronger remedies than state and local laws. With regard to coverage, however, state laws tend to include smaller employers and more types of public accommodations than do federal laws. Approximately 50 percent of the U.S. population lives where there is a state law explicitly protecting SGD people from at least one form of discrimination (Conron and Goldberg, 2019). Several hundred municipalities also have such laws.

Employment

Federal, state, and local laws provide protection against employment discrimination, as do the internal policies of many employers. By far the most important source of protection is the federal statute, Title VII of the Civil Rights Act of 1964, which applies to all workplaces with 15 or more employees. Although federal courts and agencies had begun to apply Title VII to LGBT cases several years prior to the 2020 Supreme Court’s decision in Bostock v. Clayton County (140 S. Ct. 1731), coverage was not certain until the Court definitively interpreted the scope of “discrimination because of sex” to include sexual orientation and gender identity. “Discrimination” includes issues of hiring, firing, promotion, pay, and harassment; however, the Court left undecided the question of how employees’ access to bathrooms or locker rooms will be analyzed under the rubric of sex discrimination. That issue may return to the Supreme Court if there is disagreement about it in future cases in the lower courts.

With the question as to inclusion under Title VII resolved, the primary utility of state laws will be for cases involving employers with fewer than 15

employees, many of which are covered by state anti-discrimination law (the threshold for coverage varies from state to state). In 22 states and the District Columbia, statutes explicitly prohibit discrimination in employment on the basis of sexual orientation or gender identity. One state—Wisconsin—specifies only sexual orientation. The remaining state laws, like Title VII, prohibit sex discrimination in employment. Several states have issued regulatory guidance that interprets the prohibition of sex discrimination in state law to include sexual orientation and gender identity (Movement Advancement Project, 2020b). For the remaining states, it will be up to state courts to decide whether to interpret state anti-discrimination laws such that “sex” encompasses sexual orientation and gender identity. As a result, for SGD people who work at small employers in roughly half of the United States, there is no certainty of legal protection against job discrimination.

Public Accommodations

The phrase “public accommodations” refers to entities that provide goods and services to the public: it can include everything from retail stores to concerts to the YMCA. This is the arena in which there is the greatest difference between federal and state anti-discrimination laws. The federal law, also enacted as part of the 1964 Civil Rights Act, was drafted narrowly to address the most outrageous examples of discrimination suffered by people of color traveling in the United States. It prohibits discrimination based on race and religion, but it does not prohibit discrimination based on sex. Thus, there is no basis under the Bostock decision to incorporate protection for SGD people in public accommodations under the umbrella of sex discrimination. The federal law is also narrow in its definition of “public accommodations”: it primarily covers hotels, restaurants, and theaters.

This gap in federal law makes the issue of public accommodations most important in the context of state-level anti-discrimination protection. Most state public accommodations laws include sex as a protected characteristic, and they also often cover more goods and services than does the federal law, largely because they tend to have been enacted or amended more recently than 1964. In 21 states and the District of Columbia, public accommodations statutes explicitly cover both sexual orientation and gender identity. As with employment, one state law covers only sexual orientation, and two other states have interpreted their own laws against sex discrimination to also include these two characteristics (Movement Advancement Project, 2020b).

The scope of public accommodations coverage is the context for many concerns regarding use of public restrooms, locker rooms, and changing rooms by transgender people (Flores and Herman, 2020; Hart, 2014; Hasenbush, Flores, and Herman, 2019; Taylor et al., 2018). There are no laws that

prohibit transgender people from using the bathroom of the sex with which they identify, but the issue remains active in public debate, so the absence of anti-discrimination protection is significant. Opponents of such coverage argue that including gender identity as a protected characteristic would permit predators claiming to be transgender to access opposite-sex bathrooms (Westbrook and Schilt, 2014), but an empirical assessment of such claims has not identified any changes in victimization rates due to the implementation of inclusive policies (Hasenbush, Flores, and Herman, 2019).

Data from the 2015 USTS suggest that transgender people experience significant anxiety regarding these issues: for example, 59 percent of respondents reported sometimes or always avoiding using a public restroom in the past year out of safety concerns or other problems they may encounter, and 26 percent reported being denied access to, having their presence questioned in, or being harassed or assaulted in public restrooms. The survey also found that 31 percent of transgender people who visited a place of public accommodation in the previous year reported being mistreated if employees knew or believed that they were transgender (James et al., 2016).

Education

In 1972, Congress enacted Title IX of the Education Amendments to the Civil Rights Act, which barred sex-based discrimination in educational programs and activities (at all levels) that receive federal funding.³ Here again, the logic of the Supreme Court’s 2020 ruling in Bostock v. Clayton County is expected to apply, so that discrimination based on sexual orientation or gender identity will be included within the scope of the prohibition of discrimination based on sex. Although, as noted above, the Court in Bostock did not address issues related to bathroom access, two federal appeals courts have ruled that denying students access to bathrooms consistent with their gender identity violates the Title IX prohibition against sex discrimination (Whitaker v. Kenosha Unified School District, 838 F.3d 1034 (7th Cir. 2017); Adams v. School Board of St. Johns County, WL 4561817 (11th Cir. 2020).

Another undecided issue concerns participation in athletics by transgender students. Most sports have traditionally been sex segregated, and Title IX permits sex-segregated athletic teams, which has produced policies that have been implemented through sex testing and verification (Ha et al., 2014). Arguments concerning transgender students’ participation in athletics often bring up fairness concerns driven by the average physiological differences between those whose assigned sex at birth was male and

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³ See https://www.justice.gov/crt/title-ix-education-amendments-1972.

those whose assigned sex was female (Carroll, 2014; Davis, 2017; Jones et al., 2017). It is not yet clear how federal Title IX protections will address gender diverse students in athletics. The National Collegiate Athletic Association implemented gender eligibility requirements in 2011 that focus primarily on the use or administration of hormone treatments (Taylor et al., 2018). Some states, sporting leagues, and school districts have adopted guidelines to address these questions (Flores et al., 2020; Taylor et al., 2018). No consensus as to best practices has emerged, however, and litigation on this issue is likely to continue.

In addition to Title IX, there are also some state laws that address issues affecting SGD students in K–12 educational systems. In 17 states and the District of Columbia, laws explicitly prohibit sexual orientation and gender identity discrimination (Movement Advancement Project, 2020a). In 24 states and the District of Columbia, laws or regulations prohibit bullying motivated by a person’s sexual orientation or gender identity. Remarkably, however, two states (Missouri and South Dakota) prohibit the inclusion of sexual orientation or gender identity in their schools’ antibullying and nondiscrimination policies (Movement Advancement Project, 2020b).

There are also conflicting state laws with respect to curriculum and activity restrictions. Alabama, Louisiana, Mississippi, Oklahoma, South Carolina, and Texas prohibit discussion of same-sex relationships in sex education (Movement Advancement Project, 2020b), although a federal trial court recently ruled that the South Carolina statute is unconstitutional (Gender and Sexuality Alliance v. Spearman, WL 1227345, 2020). In at least three states, by contrast, policies require inclusion of LGBT history in curricular materials.⁴

Access to Health Care and Health Insurance Coverage

Most omnibus anti-discrimination laws, such as the 1964 Civil Rights Act, do not include health care or health insurance as covered fields; those contexts are addressed in a mix of federal and state laws specific to the health sector. The three most important federal laws (or sets of laws) in the health care field are the Affordable Care Act (ACA); the Social Security Act Amendments of 1965, which created Medicare and Medicaid; and the Americans with Disabilities Act of 1990 (ADA).

Section 1557 of the ACA created the first comprehensive antidiscrimination provision applicable to the delivery of health care and access to health insurance throughout the United States. It prohibits health

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⁴ See https://www.usnews.com/news/best-states/articles/2019-08-14/states-that-requireschools-to-teach-lgbt-history.

programs or facilities that receive federal funds from discriminating based on sex and other characteristics. An individual cannot be excluded from participation in, denied the benefits of, or subjected to discrimination on these bases by any health program or activity of which any part receives federal financial assistance. Shortly before the Supreme Court’s June 2020 ruling in Bostock v. Clayton County, the U.S. Department of Health and Human Services (HHS) issued a regulation that excluded gender identity and sex stereotyping from the sex anti-discrimination protections of Section 1557 (HHS, 2016). As this report goes to press, litigation challenging the validity of this regulation is pending. As in the case of anti-discrimination protections in education under Title IX, however, courts are likely to interpret the scope of sex discrimination in Section 1557 to ban discrimination on the basis of sexual orientation and gender identity.

Of note while the question of federal protections continues to evolve, the scope of public accommodations protections in state law has sometimes been interpreted to include medical services. SGD plaintiffs have successfully used a California law to challenge the denial of alternative reproductive technology and of a hysterectomy by health care facilities (North Coast Women’s Care Medical Group v. Superior Court, 189 P.3d 959 (2008); Minton v. Dignity Health, 252 Cal. Rptr. 3d 616 (Ct. App., 1st Dist. 2019)).

The Medicare program provides federal health insurance coverage to all Americans aged 65 and older, as well as to individuals with certain disabling conditions. Medicaid is a joint federal–state health insurance program offered primarily to low-income people. Both Medicare and Medicaid are covered by ACA Section 1557, and HHS has also promulgated a variety of regulations under the ACA and other federal statutes to prohibit discrimination on the basis of sexual orientation and gender identity (see Chapter 12). The 2020 regulations reinterpreting Section 1557 sought to eliminate these provisions as part of what were called “conforming amendments,”⁵ but this action also appears to be in conflict with Bostock.

The ADA prohibits discrimination against people who are qualified to perform a job or participate in an activity but who have a physical or mental impairment that substantially limits a major life activity. Two of its provisions—one positive, one negative—are of particular relevance to SGD people. First, the ADA includes HIV infection as a covered impairment, meaning that individuals with HIV are protected from discrimination. Second, in Section 12211(b) of the law, Congress stated that “‘disability’ shall not include transvestism, transsexualism . . . [or] gender identity disorders not resulting from physical impairments.” Whether the ADA may

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⁵ See https://www.federalregister.gov/documents/2019/06/14/2019-11512/nondiscriminationin-health-and-health-education-programs-or-activities.

nonetheless cover gender dysphoria is a question that has been answered affirmatively by at least two federal judges, but the issue has not yet been considered by a federal court of appeals.

State law also provides some protection against discrimination in access to health insurance: 14 states, Puerto Rico, and the District of Columbia prohibit health insurance discrimination based on sexual orientation and gender identity, and 7 states prohibit gender identity-based discrimination (Movement Advancement Project, 2020a). In 24 states and the District of Columbia, exclusion of gender-affirming care by private health insurance plans is prohibited. Many states also prohibit transgender exclusions in their Medicaid programs, but 10 states still explicitly exclude coverage for gender-affirming care under Medicaid, despite the fact that the anti-discrimination requirements of ACA Section 1557 apply to state Medicaid programs (Movement Advancement Project, 2020b; Taylor et al., 2018). See Chapter 12 for more details about insurance coverage of gender-affirming care for transgender people.

In addition to the general coverage questions that arise under the ACA, Medicare, Medicaid, and the ADA, there are particular treatment issues that affect SGD people. The most controversial use of “treatment” for sexual orientation and gender identity is conversion therapy, in which a medical provider attempts to change a person’s sexual orientation or gender identity (see Chapter 12). Presently, 19 states and the District of Columbia prohibit conversion therapy for minors, and one state bans public funds for conversion therapy services but does not prohibit licensed medical providers from engaging in conversion therapy (Movement Advancement Project, 2020b).

Another controversial example of medical care arises in the context of children born with differences in sex development (intersex traits) (see Chapter 12). Surgery on newborns raises serious questions of informed consent (Tamar-Mattis, 2006). Although no anti-discrimination statutes explicitly include intersex people as a protected class, it is possible that laws that prohibit discrimination based on sex and the ADA could be applied to such surgery.

Housing and Credit

In light of the reasoning of Bostock v. Clayton County, the prohibitions of sex discrimination in the Fair Housing Act and the Equal Credit Opportunity Act can now be interpreted to include sexual orientation and gender identity (Fair Housing and Equal Opportunity, 2019). State-level protections specific to sexual orientation and gender identity also exist for housing (22 states) and credit (15 states) (Movement Advancement Project, 2020b).

AREAS OF LAW THAT LACK PROTECTIONS AGAINST DISCRIMINATION

Military Service

As this report was being completed, the 2019 ban on enlistment for military service by transgender people remained in effect but had been challenged in federal court (Trump v. Karnoski, 139 S. Ct. 950, 2019; Trump v. Stockman, 139 S. Ct. 946, 2019). Social science research has found no medical or force readiness bases for the exclusion (Elders and Steinman, 2014; Schaefer et al., 2016). The authority for the ban is a Department of Defense policy, which could be changed by a new executive branch policy, congressional action, or a judicial finding that it is unconstitutional.

Documentation of Identity

Proper identity documents are necessary for a broad range of life activities: access to important public goods, services, shelters, or other facilities; acquiring benefits; travel; financial transactions; registering to vote; and securing employment. Some identity documents (e.g., birth certificates) are prerequisites to the acquisition of other identity documents (e.g., passports).

Identity documents present urgent issues for SGD people because the sex markers or names recorded on essential documents often differ from their gender identity or expression (Taylor et al., 2018). Only 11 percent of the transgender respondents in the USTS had updated all their identity documents to reflect their current gender identity or expression, and 68 percent had updated none of their identity documents (James et al., 2016). Not having identity documents that align with a person’s gender identity or expression can result in mistreatment by state officials and others (Taylor et al., 2018), and 32 percent of the respondents in the USTS whose documents did not match their gender identity or expression reported having experienced verbal harassment, denial of services or benefits, or assault (James et al., 2016). These patterns are more pronounced for gender diverse people of color (James et al., 2016). The financial costs associated with updating identity documents based on the USTS data can range from nothing to more than $2,000, with more than half of respondents reporting costs of at least $100 (James et al., 2016).

Passports, which are issued by the U.S. Department of State, require a sex designation of either male or female based on a person’s birth certificate, which is required in an application for a passport. Changing the gender marker on a passport requires that a physician certify that the individual has received medically appropriate treatment (Taylor et al., 2018). There is no non-binary gender marker option for passports, but the U.S. Court

of Appeals for the Tenth Circuit has ruled that the State Department must reconsider its policy (Zzyym v. Pompeo, 958 F.3d 1014 (10th Cir. 2020).

Almost all children born in the United States receive a Social Security number at birth through a Social Security Administration (SSA) program that allows parents to request a birth certificate and Social Security number at the same time. Because the SSA requires a record of birth that contains a gender marker of either male or female before issuing a Social Security number, the parents of an intersex infant who do not wish to immediately designate a gender for their child are effectively barred from obtaining a Social Security number. To later secure a change in the gender marker associated with a Social Security number requires submission of a corrected birth certificate, a court order showing the new gender, or a medical certification of the change in a person’s gender (Taylor et al., 2018). The Selective Service System and U.S. Citizenship and Immigration Services require similar documentation to change a gender marker (Taylor et al., 2018).

For birth certificates, the requirements to change gender markers vary significantly by state (Taylor et al., 2018). In 17 states, there are surgical requirements in order to change birth certificates. In 22 states, the District of Columbia, and New York City, gender markers can be updated without surgery or a court order. Two states, Ohio and Tennessee, do not permit birth certificates to be amended. In all but 10 states, birth certificates must contain either male or female as a gender marker; there is no third option for intersex or other gender diverse people (Movement Advancement Project, 2020b).

For updating driver’s licenses, the requirements to change gender markers tend to be less cumbersome than for birth certificates, although the laws also vary from state to state (Taylor et al., 2018). Applicants trying to change their driver’s license gender marker may be required to submit a single form (18 states and the District of Columbia); a form plus certification from among a range of licensed professionals (10 states); a form plus certification from a narrower range of licensed professionals (3 states); or certification specifically from a licensed medical or mental health provider (6 states). Nine states require proof of surgery, a court order, or an amended birth certificate. In several states, the process is unclear. In seven states and the District of Columbia, individuals can also choose a third gender marker, such as an “X” (Movement Advancement Project, 2020b).

Name changes are obtained at the state level, almost always by court order (Movement Advancement Project, 2020b; Taylor et al., 2018). Federal agencies will change a person’s name on receipt of a legal document, such as the court order issued in a proceeding for a name change or from divorce or marriage records (Taylor et al., 2018).

Family Law

Family law issues related to equal treatment are dealt with almost entirely at the state level and are usually addressed in subject-specific statutes or in case law. Several issues raise particular concerns for SGD populations: youth in foster care; the child welfare system; child custody and adoption; and recognition of birth parents.

SGD youth are overrepresented in the foster care system: Fish and colleagues (2019) found that lesbian, gay, bisexual, and same-sex-attracted youth were about 2.5 times more likely than heterosexual youth to be in the foster care system. Several studies have documented disparities in the well-being of SGD youth in the child welfare system compared with cisgender, heterosexual youth (Baams, Wilson, and Russell, 2019; Choi and Wilson, 2018; Fish et al., 2019; Wilson and Kastanis, 2015).

There are a range of protections or lack of protections across the states: 30 states and the District of Columbia have policies or regulations that prohibit sexual orientation and gender identity discrimination against youth in the child welfare system; 7 other states have policies or regulations that prohibit sexual orientation discrimination; and 12 states have explicit guidelines for placing transgender youth who are in the child welfare system in sex-segregated housing assignments based on their gender identity, and they also require that child welfare staff or foster parents receive cultural competency training on SGD youth (Movement Advancement Project, 2020b).

Parental involvement in the child welfare system arises in several ways. Same-sex couples may become parents through adoption (by a parent or parents of a nonbiological child or by a nonbirth parent of the partner’s biological child) or through the use of alternative reproductive technologies. When one partner gives birth and the person’s spouse seeks recognition on a birth certificate as the other parent, the Supreme Court has ruled that the state must permit it (Pavan v. Smith, 137 S. Ct. 2075, 2017). An individual married to a child’s birth parent (including in same-sex couples) can petition for adoption of a child in every state. In 15 states and the District of Columbia, second-parent adoptions can be obtained regardless of marital status. In 24 states and the District of Columbia, adoption agencies cannot discriminate against people seeking to adopt on the basis of sexual orientation and gender identity, and 4 other states cover only sexual orientation. In the remaining states, discriminatory actions may be prohibited by laws banning sex discrimination. Eleven states permit child welfare agencies to decline to serve SGD people and same-sex couples based on religious belief (Movement Advancement Project, 2020a). (See below for more discussion of religious liberty defenses.)

For LGBT birth parents, there may be increased risk that their children will be removed from their custody and placed in foster care. In one study

of low-income Black mothers, the 21 percent who identified as lesbian or bisexual were four times more likely than those who identified as heterosexual to have lost their children to the state in child welfare proceedings. The mothers whose children had been placed in state custody (and were eligible for foster care and, potentially, adoption) were three times more likely to identify as lesbian or bisexual than the mothers who were still raising their children (Harp and Oser, 2016). These findings suggest that more attention is needed to protect SGD birth parents from child removal proceedings, in addition to the equal treatment concerns of SGD people who seek to adopt.

In the event of parental divorce, courts apply a “best interests of the child” standard in deciding issues of custody and visitation. Although it used to be common for courts to assume that SGD parents were unfit or less fit than non-SGD parents to parent their children, that presumption has given way to a rule that there must be evidence that a parent’s sexual orientation or gender identity would negatively affect the child in order for it to be considered (Eskridge, Hunter, and Joslin, 2018). The vagueness of the “best interests” standard renders it susceptible to claims that harm could result from prejudice against the children of SGD parents, but fewer such cases have arisen in recent years than previously. Family courts have increasingly relied on scientific experts in their adjudication of cases in which one or both parents are SGD, which has increased fairness in the adjudication process by providing a broad overview of what social science research suggests about SGD parents (George, 2016).

Protection Against Violence

The federal Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (2009) criminalizes willfully causing or attempting to cause bodily injury with a deadly weapon because of the actual or perceived gender, sexual orientation, or gender identity of the victim if the crime is linked to interstate or foreign commerce (e.g., the victim or defendant was in transit or a weapon was used that had moved in interstate commerce). In addition, 35 states and the District of Columbia have laws that punish hate crimes committed because of sexual orientation or gender identity (Movement Advancement Project, 2020b).

In 2017 there were 1,303 reported sexual orientation victimizations and 131 gender identity victimizations according to the Uniform Crime Reports (UCR). From 2013 to 2017, 17.7 percent of hate crimes in the UCR and 25.7 percent of hate crimes in the National Crime Victimization Survey (NCVS) were related to sexual orientation bias.⁶ Gender identity hate crimes have increased in recent years, with victims more likely to

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⁶ See https://www.bjs.gov/content/pub/pdf/hcs1317pp.pdf.

be transgender people of color than white transgender people (Taylor et al., 2018). The National Coalition of Anti-Violence Programs (NCAVP) documented 1,036 incidents of violence or harassment against LGBTQ people in 2016, 41 percent of which were reported to the police.⁷ Of the 28 homicides documented in the 2016 NCAVP report, 19 of the victims were transgender or gender-nonconforming people, and all the victims except one were people of color.

The CDC found that bisexual women encounter intimate partner violence at higher rates than other SGD populations; 46.1 percent reported being raped in their lifetime, and 74.9 percent reported being victims of sexual violence other than rape (Walters, Chen, and Breiding, 2013). In the 2015 USTS, more than half of respondents reported having experienced intimate partner violence; 47 percent reported lifetime sexual assault; and 10 percent reported having been sexually assaulted in the past year. In many cases, victimization rates were greater for transgender respondents of color than for white transgender people (James et al., 2016).

The inclusion of sexual orientation and gender identity questions in federally sponsored surveys, such as the NCVS, represents progress toward expanding data collection efforts. In addition, the U.S. Office of Management and Budget in 2016 convened the Federal Interagency Working Group on Improving Measurement of Sexual Orientation and Gender Identity in Federal Surveys to review existing federal data collection efforts, identify best practices, and articulate a research agenda for conceptual and methodological topics around collecting sexual orientation and gender identity data on federal surveys (see Chapter 4).

RELIGIOUS LIBERTY EXCEPTIONS TO ANTI-DISCRIMINATION LAWS

An increasingly important question involving civil rights law is whether and under what circumstances individuals, organizations, and businesses can assert religious beliefs as a legitimate basis for noncompliance with anti-discrimination laws or reproductive rights protections. This area of law presents complex questions that the Supreme Court is likely to continue to address in future cases (Eskridge, Hunter, and Joslin, 2018). This section focuses on the two contexts in which SGD people are most likely to encounter religious liberty issues: employment and public accommodations, the latter either as customers in the marketplace or as clients of social service agencies.

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⁷ See http://avp.org/wp-content/uploads/2017/06/NCAVP_2016HateViolence_REPORT.pdf.

Employment

The Supreme Court has interpreted the Constitution to give religious organizations an absolute exemption from all anti-discrimination laws in matters that involve the employment of clergy or other people whose job involves religious instruction or conducting of services or ceremonies (Our Lady of Guadalupe School v. Morrissey-Berru, WL 3808420, 2020). In addition, under the provisions of Title VII, religious organizations are allowed to give preference in hiring to people of the same faith as the organization, including for jobs that do not involve duties related to the faith (Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 1987).

Applying the federal Religious Freedom Restoration Act (RFRA),⁸ the Supreme Court ruled that a for-profit business that is closely held (i.e., owned by a small number of people) could assert the religious beliefs of its owners as a defense against enforcement of the requirement that workplace health insurance plans include coverage for contraceptives (Burwell v. Hobby Lobby, 573 U.S. 682, 2014). The Court found that Hobby Lobby satisfied the two-part RFRA test: that requiring the business to comply with the contraceptive law would substantially burden the owners’ ability to exercise their religion and that, although the government’s interest in providing employees with access to birth control through their workplace health insurance was compelling, mandating all businesses to comply was not the least restrictive way to satisfy that interest.

Under the RFRA standard, courts must assess in each case whether a neutral and generally applicable federal statute, such as Title VII, imposes a substantial burden that is necessary to satisfy a compelling government interest. No case has yet come before the Supreme Court in which a small business has sought to use the religious beliefs of its owners to justify adverse employment decisions against SGD people with respect to issues such as hiring, firing, recognition of a marriage, or coverage of particular medical services, such as transition-related care in a workplace health insurance plan.

It is likely that a state anti-discrimination law would be at issue in an employment case only if Title VII is inapplicable, usually because the business had fewer than 15 employees. For the analysis that would apply in that situation, see the following section on public accommodations laws.

Public Accommodations

As noted above, there is no federal law that bans discrimination in public accommodations based on sex, sexual orientation, or gender identity, so

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⁸ See https://www.congress.gov/bill/103rd-congress/house-bill/1308.

religious liberty defenses regarding access to goods and services arise only when there is an applicable state or local civil rights law. In some states, such laws exist but religiously affiliated providers are exempt from compliance (Mallory and Sears, 2020). For commercial providers or in the absence of such an exemption, in 21 states there is a state religious freedom law that directs courts to apply the same case-by-case test as for federal law. In addition, the defendant in such a case could argue that compelling it to provide the services in question would violate the free exercise clause of the First Amendment. The most common contexts for such lawsuits have been either weddings or child adoptions.

Wedding-related goods and services tend to involve for-profit businesses, such as bakers, photographers, florists, or printers. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (138 S. Ct. 1719, 2014), the Supreme Court stopped short of ruling whether a First Amendment defense could bar an anti-discrimination claim, because the Court found that the evaluation by the Colorado Civil Rights Commission of the business owner’s reasons for declining to make a wedding cake for a same-sex couple was colored by an anti-religious bias. A number of other similar cases are pending in which the Court may reach the merits of a religious liberty defense. State courts that have addressed this question have ruled that commercial businesses must comply with an anti-discrimination law (Mallory and Sears, 2020).

Adoption services are usually provided by state-licensed agencies, often affiliated with a religious faith group. In 11 states, the law includes an explicit exemption for child welfare agencies that permits them to refuse service to LGBT individuals or same-sex couples if doing so would conflict with their religious beliefs (Mallory and Sears, 2020; Movement Advancement Project 2020). In Fulton v. City of Philadelphia (922 F.3d 140 (3d Cir. 2019)), the Supreme Court will decide whether the First Amendment bars the city from terminating its contract with Catholic Social Services (CSS) for foster care placement services because CSS refused to consider applications from same-sex couples to become foster parents. The Court is expected to announce its decision by June 2021. The ruling in Fulton is likely to determine or at least influence similar cases pending in the lower courts.

SUMMARY AND CONCLUSIONS

SGD people come into contact with the law in a wide range of life contexts, including employment; health insurance and health care; housing; public accommodations; interactions with police and other parts of the criminal justice system; and access to and participation in government programs and government-administered systems, such as foster care, adop-

tion, and immigration. In several of these realms, there have been important reforms that have enhanced quality of life for SGD people. But in others, mistreatment and discrimination remain frequent occurrences, especially for marginalized groups within the SGD population. In the face of changing public attitudes as well as evolving law, the effect of the legal system on the well-being of these groups is uneven and, at times, contradictory.

Federal law now protects against discrimination based on sexual orientation and gender identity in employment, a principle that is likely to be extended to education, housing, credit, and access to health care and health insurance. However, in some realms, such as public accommodations, federal law does not offer such protections. In addition, the question of whether denial of access to bathrooms or school athletics programs based on one’s gender identity counts as discrimination has not been definitively resolved.

In situations in which federal law does not provide relief, approximately 50 percent of the U.S. population lives where there is a state law that explicitly protects SGD people from at least one form of discrimination. These laws vary greatly in their scope.

The laws regulating modifications of the gender marker on essential documents also vary widely among federal and state authorities. Identity documents present urgent issues for gender diverse people because the sex markers or names recorded on essential documents often differ from their gender identity or expression, subjecting those individuals to adverse treatment.

Family law issues are almost entirely dependent on state rather than federal or local laws and vary widely, which results in unevenness and lack of uniformity. SGD youth are overrepresented in the foster care system and are especially vulnerable to its shortcomings. The treatment of LGBT birth parents in child removal proceedings and of LGBT people who seek to adopt merits more study and monitoring.

Laws related to religious exemptions from anti-discrimination laws are uneven and likely to change further as the Supreme Court and legislatures continue to consider the issue. In higher education, Title IX is likely to be interpreted to ban sexual orientation and gender identity discrimination, but it is not yet clear how Title IX protections will affect questions related to gender diverse students in athletics.

Mistreatment during interactions with the police is a common experience for SGD people. The criminalization of HIV exposure and criminalization of sex work disproportionately affect homeless youth and transgender women, especially transgender women of color. There is widespread agreement among public health professionals that decriminalization of sex work would contribute significantly to the effort to combat the spread of HIV. Both CDC and DOJ have recommended that states reexamine the basis for laws that criminalize exposure to HIV and modify their statutes to align punishment with risk.

The enforcement status of the national standards for prevention of sexual violence in prison is unclear. Federal law does not provide a mechanism for effective independent oversight of prison conditions. Independent external oversight is considered to be an essential tool for preventing violence in prison, especially for vulnerable populations, including inmates who are susceptible to sexual assault.

Statistics from the Uniform Crime Reports suggest that sexual orientation hate crimes have increased since 2013. While gender identity victimizations comprise a small share of all hate crimes, they tend to be more violent and result in severe bodily injury. SGD populations are at a higher risk of criminal victimizations beyond hate crimes, including intimate partner violence, verbal harassment, and physical or sexual assault.

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