The U.S. Supreme Court’s decision legalizing same-sex marriage in Obergefell v. Hodges was a turning point for the legal rights of LGBTQ (lesbian, gay, bisexual, transgender, and queer) people in the United States. However, LGBTQ individuals still face legal hardships in the areas of criminal justice, employment, health care, housing, immigration, and military service. There have not been significant changes in federal law in these issues, and no high-profile Supreme Court cases like Obergefell have yet forced a reconsideration of existing laws and statutes.
Although all LGBTQ people face various degrees of difficulty in regard to their legal rights, transgender individuals deal with unique legal situations. They are also at higher risk of hate crimes and even at higher risk of harassment by law enforcement. Receiving health care that is appropriate and supportive is often a particular challenge for transgender individuals.
LGBTQ children, teens, and youth also face significant issues. Unsupportive families have sent children to harmful conversion therapy programs or thrown them out of the family home. Homelessness among LGBTQ youth is an ongoing issue and makes these minors vulnerable to all manner of crimes. Schools sometimes present legal challenges for LGBTQ minors as well.
The Effect of Obergefell v. Hodges
The 2015 Supreme Court decision legalizing same-sex marriage nationwide was a civil rights victory for LGBTQ individuals and couples. Some people reported feeling that the decision marked a cultural shift, making them think their orientation was now more socially acceptable; some LGBTQ couples cherished the ability to make their relationship legal and formal. Legally, it extended to same-sex couples the tax, estate planning, and employment benefits available to heterosexual couples.
One area where the rights of same-sex couples are still murky is parenting. Gendered language and a social bias against same-sex parenting remain, and some states have codified these biases into law. Some states are openly hostile to granting same-sex couples the same rights as heterosexual couples, and this taints the requirements of those states in regard to LGBTQ couples and custody issues. LGBTQ couples should always consult a local family lawyer for advice on adoption, divorce, and parenting arrangements to make sure that their relationships and agreements are legally protected to the fullest extent possible.
Discrimination Against LGBTQ Individuals
Few federal laws outlawing discrimination expressly list gender identity or sexual orientation as protected classes. Title VII extends protection against employment discrimination on the basis of race and sex but does not list gender identity or sexual orientation as protected from discrimination in the workplace. The Equal Employment Opportunity Commission (EEOC) is currently providing regulatory guidance placing discrimination based on gender identity and sexual orientation as subsections of discrimination against gender. Although this provides some protection, regulatory guidance is far more easily changed than federal law is and is therefore far more subject to political whims.
Housing is another area where no federal law expressly protects LBGTQ people from discrimination. The U.S. Department of Housing and Urban Development (HUD) currently interprets the prohibition against discrimination on the basis of sex in the Fair Housing Act as offering protection to those facing discrimination because of their gender identity or sexual orientation. All housing programs receiving federal funds are required to follow this anti-discrimination guideline. However, there is no law protecting LGBTQ people in housing situations not involving funding from the federal government.
Legal rights for LGBTQ people serving in the military have been an ongoing issue as well. The discriminatory “Don’t Ask, Don’t Tell” policy, which first took effect in the 1990s, was repealed in 2011. However, the estimated 15,500 transgender service members currently serving in the armed forces are not necessarily safe, as they cannot be open about their gender identity.
LGBTQ Health-Care Challenges
The Affordable Care Act (ACA) addressed many health-care issues faced by LGBTQ individuals. The law mandated that health programs and facilities (including hospitals, doctor’s offices, and veterans’ health centers) receiving federal funds cannot discriminate based on a person’s gender identity or sexual orientation. The law also declared that health insurers can no longer refuse to pay for treatments for preexisting conditions. The ACA also stopped insurers from refusing to issue policies to people with preexisting conditions or charging higher prices for them. Transgender individuals are now able to access health insurance and pursue treatment as they deem appropriate.
However, LGBTQ individuals and the community at large continue to face discrimination surrounding the treatment of HIV and AIDS. HIV-positive individuals, a disproportionate number of whom are LGBTQ individuals, can still encounter barriers to receiving adequate care, and some states have laws criminalizing HIV transmission.
Family Law and Divorce
- Foster and Adoption Laws: The Movement Advancement Project provides a state-by-state breakdown of foster care and adoption laws.
- Same-Sex Parents Still Face Legal Complications: Legalizing same-sex marriage didn’t correct the differing state laws affecting custody issues for children of same-sex couples. This New York Times article tracks the problems faced by some couples.
- What to Know About Same-Sex Adoption Laws in the U.S.: The website Considering Adoption details how the Obergefell decision impacted adoption for same-sex couples and details the remaining challenges.
- Same-Sex Divorce Poses Complications for Some Splitting Couples: Same-sex couples going through a divorce can face added challenges, like the fact that their marriage might have only been legal after Obergefell but the couple was functionally married for years or decades before then.
- Child Custody and Visitation Issues for Lesbian, Gay, Bisexual, and Transgender Parents in Florida: The National Center for Lesbian Rights put together a comprehensive guide for child custody issues faced by LGBTQ parents in Florida.
- 2017 Workplace Equality Fact Sheet: Out and Equal published this summary of employment issues faced by LGBTQ individuals.
- What to Do if You Experience Discrimination: This article features step-by-step instructions on what to do if you face workplace description compiled by Lambda Legal, the oldest national legal organization focusing on the civil rights of LGBTQ people.
- Are Federal LGBT Protections Coming to the Workplace? The Society for Human Resource Management weighs in on the chances that the Supreme Court will affirm the rights of LGBTQ people in the workplace, the growing support for LGBTQ rights among business owners, and the various state-level protections.
- This Map Shows Where it’s Still Legal to Be Fired for Your Sexual Orientation or Gender Identity: Some states have passed laws protecting LGBTQ individuals from workplace discrimination, but other states have not. Money discusses the wide variety of protections that exist (or don’t) here.
- HIPAA and LGBTQ Health-Care Equality: The Human Rights Campaign explains how HIPAA is often incorrectly cited as a reason to exclude same-sex partners from health-care discussions and clarifies how HIPAA works.
- Healthcare Bill of Rights: The Healthcare Bill of Rights is the result of a 2011 National Coalition for LGBT Health meeting. Looking at ways to improve access and outcomes for LGBTQ patients, the organization put together a clear bill of rights.
- Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender (LGBT) Individuals in the U.S.: The Henry J. Kaiser Family Foundation published this issue brief discussing the challenges and barriers faced by the LGBTQ population when attempting to access health care and how recent legal and policy changes offer new protections.
- Discrimination Prevents LGBTQ People From Accessing Health Care: A study shows that 29% of transgender individuals and 8% of lesbian, gay, bisexual, or queer individuals have experienced being denied medical help.
- LGBT Health Care: Answers From Expert Paula Neira: A lawyer, nurse educator, and former naval officer explains why coming out can lead to better health care and offers tips on finding an LGBTQ-friendly health care provider.
- Policies Concerning LGBTQ People in the U.S. Military: The military has inconsistently applied policies regarding LGBTQ individuals serving in the military, and this article examines those policies starting with the Korean War.
- Sexual Orientation and Military Service Briefing Sheet: The American Psychological Association’s Office on Sexual Orientation and Gender Diversity compiled this briefing sheet as an advocacy resource.
- A Brief History of LGBT Military Policy and Improving Acceptance, Integration, and Health Among LGBT Service Members: This timeline created by the Military and Veterans Program at the USC Suzanne Dworak-Peck School of Social Work covers military policy regarding LGBTQ service people from 1982 to the present.
- Identity Documents and Privacy: According to the National Center for Transgender Equality, only 21% of transgender individuals have been able to update their government IDs to reflect their new gender.
- Betsy Devos Says She Knew of Potential Harms Like Anxiety, Depression, and Lower Test Scores When She Rescinded Obama-Era Protections for Transgender Students: Newsweek details Education Secretary Betsy Devos’s testimony in front of the House Education and Labor Committee in April 2019 regarding rolling back the extended Title IX rights that protected transgender students from discrimination at school.
- World Health Organization Removes “Gender Identity Disorder” From List of Mental Illnesses: CBS reports on the United Nations’ health agency reclassifying “gender identity disorder” as “gender incongruence” and removing it from their list of mental disorders.
- Majority of Americans Support Transgender Rights: A study by the Public Religion Research Institute reports that 53% of Americans oppose laws requiring transgender people to use bathrooms according to their biological sex at birth versus the gender they identify as presently. In addition, 21% of Americans report that they have a close friend or family member who is transgender, which up from 11% in 2011.
- Senior Housing Facilities in Chicago: Creating Communities for LGBT Elders: This article by The National Resource Center on LGBT Aging specifically studies Chicago, but the ideas and issues addressed are applicable for LGBT seniors nationwide.
- HRC and SAGE Announce Partnership on First-Ever Assessment of Care Facilities Serving Older LGBTQ People: The Diverse Elders Coalition announces the creation of the Long-Term Care Equality Index (LEI), an assessment of how LGBTQ residents are treated in long-term care facilities across the country, and looks at statistics about LGBTQ people in elder care facilities.
- Aging as LGBT: This infographic compares the different life experiences of two Baby Boomer women, one straight and one not, and illustrates how lifelong differences in how they are treated impact their lives as seniors.
- LGBT: This website discusses issues faced by LGBT youth and offers resources.
- LGBT Youth: The Centers for Disease Control and Prevention offer data on violence and mental health issues experienced by LGBT youth.
- LGBT Youth Experience Discrimination, Harassment, and Bullying in School: The Williams Institute at the UCLA School of Law released a brief in support of the Student Non-Discrimination Act (SDNA) and provided data about the bullying faced by LGBT youth.
- Youth Discrimination: GLAD explains the rights extended to LGBT youth facing discrimination in or out of school and offers additional resources.
- LGBT Youth Rights: The Southern Poverty Law Center offers information and resources for LGBT youth facing discrimination or conversion therapy.
This page was last updated by Brian Joslyn