Increasing-Democracy

BY Adam Thompson, Christian Smith-Socaris, & Nathan Newman

Extending Rights to Gays, Lesbians, Bisexuals and Transgender Americans

Even as the "culture wars" supposedly rage, the reality is that gay, lesbian, bisexual and transgender rights are making slow and steady progress across the country.  Gays and lesbians now have protection against workplace discrimination in states covering nearly half the U.S. population, rights for same sex partnerships and adoptions have made gains in at least ten states, and laws making violence or bullying against gays, lesbians, bisexual or transgender (GLBT) people a crime are increasingly being enacted. 

While opposition to equality is still strong in many states, as this Dispatch will outline, GLBT rights are making significant advances, from the workplace to the schoolyard to the home.

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Extending Equal Employment & Economic Rights

While the federal government has failed to pass any laws protecting gay, lesbian, bisexual or transgender Americans against discrimination in the workplace or public accommodations, states have slowly but surely been expanding the map of legal protection. 

As a map produced by the Human Rights Campaign details, states are making steady progress in extending non-discrimination laws protecting individuals based upon sexual orientation and gender identity:

• 12 states plus the District of Columbia ban discrimination against gays and lesbians AND ban discrimination based on gender identity/expression, while another 8 states ban discrimination just against gays and lesbians.  Just last year, Colorado, Iowa and Oregon passed laws banning discrimination based upon sexual orientation gender identity.
• Over 43% of the American population live in states where discrimination against gays and lesbians is banned - and 30% of the population live in states that ban discrimination based on gender identity.
• In addition to these 20 state laws, about 100 municipalities in the remaining 30 states without non-discrimination laws have local non-discrimination laws, further extending the percentage of the population protected against employment and other forms of direct economic discrimination.
• Beyond the 20 states with statewide anti-discrimination statutes, an additional 9 have an executive order or some kind of personnel regulations in place to prohibit discrimination against government employees based on sexual orientation and/or gender identity.
  

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Same-Sex Relationship Protections

The role of families in providing for the welfare of all people cannot be understated, yet same-sex couples and their families have been systematically denied the benefits of marriage laws at the federal level. 

Yet, despite the hot-button "culture war" debate, in the last decades we have seen a gradual erosion of the prejudice that has been the basis for withholding fundamental human rights from same-sex families.  This positive trend will continue due to the fact younger voters are even more committed to equality.  44% of Americans ages 17 to 29 support full marriage rights for same-sex couples.

As a result, more states are taking steps to integrate these families into existing family law so that they too may benefit from the legal protections that other families take for granted: the right to make decisions on behalf of a spouse or child when it is necessary; rights to property jointly owned when a spouse or parent dies; and, rights of parental custody and visitation should a relationship dissolve. 

While Massachusetts has provided marriage equality, and six states now extend all of the state level rights of marriage to same-sex couples (California, Connecticut, New Hampshire, New Jersey, Oregon, and Vermont), the majority of states have gone in the opposite direction.

Setbacks in Some States: Unfortunately, many states have enacted laws that specifically exclude same sex couples from the legal protections that opposite-sex headed families enjoy.  26 states have excluded same-sex couples from marriage laws in their state constitutions, and 19 others have passed laws to the same effect.  Most troubling, in 17 of these states the law or amendment also prohibits conferring some or all of the rights of marriage to same-sex couples no matter the designation used - marriage, civil union, or domestic partnership.   

While repealing these discriminatory laws should be a priority for progressive, for pro-family legislators who believe that the laws should protect all of the families in their state, there are other steps that can be taken and should not be ignored.

Extending Legal Protections to Same-Sex Couples: The protections of marriage and the social importance of the institution cannot be equaled, and where possible advocates are fighting for full equality, but families who lack legal protections still benefit whether these protections are given under a different name or given only in part.

• In the nine states with a marriage ban, but no prohibition on civil unions or domestic partnerships, all or some of the rights of marriage can still be extended to same-sex couples and their families.  This has been the strategy used in California, Connecticut, New Hampshire, and Vermont which all extend the rights of marriage under a different name, as well as Hawaii, Maine, and Washington which have conferred some but not all of these rights.  Bills have been introduced in New Mexico and Arizona that follow this model.  The New Mexico bill, sponsored by Rep. Mimi Stewart, passed the House earlier this year, but died in the Senate.
• Some states have extended health and other benefits to same-sex couples working for their states.  New York and Arizona have recently enacted such policies.
• In addition, establishing domestic partner registries allows some couples to obtain benefits through private employers, regardless of a lack of legal rights under law.  Currently thousands of private employers extend some spousal-like benefits to same-sex couples or domestic partners.
• Creative means can also be used to defeat laws and referenda that seek to prohibit the granting of marriage rights to same-sex couples.  Very recently Arizona Rep. Krysten Sinema scored such a victory by attaching legal protections for domestic partners to such a referenda, effectively killing the bill.

Even in a conservative state like Utah, Salt Lake City has established a domestic partner registry and a state legislative attempt this year to shut it down was largely defeated, aside from forcing a cosmetic name change.

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Protecting the Rights of GLBT Parents

Whether married or not, gays and lesbians face a range of discrimination in becoming parents, from adoption and foster care rules to how laws of parentage based on biological relation fail to adequately protect the parentage rights of same-sex couples.  Where these laws are based upon marriage (as with stepparent adoption) and the state does not recognize same-sex marriage or its equivalent, families are left unprotected. 

Unfortunately, Florida has a statute that prohibits gays and lesbians from adopting (which the Supreme Court declined to review, but which some legislators are determined to overturn).  Nebraska, Michigan, Mississippi and Utah have policies barring same sex couples from adopting, and other state courts have often been reluctant to extend full parental rights to same-sex couples through adoption. 

The tragedy is that the need for adopting children into caring families is so great.  National numbers show that 518,000 children were in the foster care system in 2004.  Over 119,000 foster children waiting to be adopted were not able to be placed with permanent families.  With so many children without any family at all, those advocating the ban on gay adoption are advocating that more children live without the comforts and protections only a loving family can provide.

Taking Action to Expand Adoption Options:  The only state without marriage or its equivalent that has specifically protected homosexuals from being denied the ability to adopt based on that reason alone is New York. 

However, other states do allow certain forms of adoption that are particularly important to same-sex couples such as joint adoption and second parent adoption and some do not allow them.  In order to protect same-sex headed families, states can follow a number of courses. 

• States can explicitly prohibit discrimination in adoption procedures based upon sexual orientation as is done in New Jersey (Admin. Code 10:121C-4.1). 
• States that lack such a procedure can establish second parent adoption where the legal rights of a parent need not be terminated for another person to adopt the child.  Four states (California, Colorado, Connecticut and Vermont) authorize such second parent adoptions by statute and a number of other states have granted such rights through court proceedings.  
• States that lack such a procedure can establish joint adoption for unmarried, co-habitating couples.  
• Even more important, states can make sure that same-sex couples have explicit adoption rights analogous to the rights conferred in many states to stepparents, even though same-sex couples are not able to marry in those states.

States can and are modernizing adoption laws to accommodate all families in order to protect children from being at the mercy of laws that do not contemplate same-sex headed families.

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State Hate Crimes Laws

The FBI reported 7,722 hate crimes in 2006, crimes that were the result of bias toward a particular race, religion, sexual orientation, ethnicity/national origin, or physical or mental disability.  This number, however, dramatically under-represents the extent of hate violence across the US as less than 75% of police agencies participate in the hate crimes reporting program.  Also, the number of victims cannot be truly quantified.  Hate crimes attack communities, as well as individuals.  As the Human Rights Campaign (HRC) points out, violent hate crimes are designed to "cause fear to a whole community...to 'send a message' that an individual and 'their kind' will not be tolerated."

According to the FBI's report, 52% of hate crimes were motivated by racism, 19% were motivated by religious prejudice, 15.5% were motivated by prejudice against people because of their sexual orientation, and almost 13% were caused by an ethnicity/national origin bias.  Of the known offenders, almost 59% were white and over 20% were African-American.  The offender's race was unknown for 13% of crimes and the rest were committed by individuals of various races.

State Action:  According to the HRC, 32 states and D.C., have a law that addresses hate or bias crimes based on sexual orientation, with 11 states also address hate or bias crimes based on gender identity.  In 2007, 17 states introduced laws to add protections against hate crimes motivated by sexual orientation and gender identity.  However, only Oregon made substantive gains in 2007 with Senate Bill 2 by adding gender identity or expression to the state's hate crimes law which already applied to crimes motivated by a victim's sexual orientation.

In 2008, the level of activity continues. As Oklahomans for Equality point out, hate crimes legislation needs to, at least, have strong penalties, include at least sexual orientation and gender identity as categories, and make reporting of hate crimes to the FBI mandatory. 

• Advocates are working hard in Massachusetts to pass HB 1722, sponsored by Rep. Carl Sciortino, which would add gender identity and expression to the state's non-discrimination and hate crimes laws. 
• Lawmakers in Indiana, which is one of only 5 states without a hate crimes law, are moving HB 1076 to require training for law enforcement in identifying and responding to hate crimes, allow for civil actions for victims of hate crimes, and include sexual orientation and gender identity as protected categories.
• Despite five bills introduced this session in Oklahoma, and one meeting most of the above criteria, HB 2913, most the bills have been referred to the Rules Committee, which usually effectively kills a bill.
• In New York, lawmakers are considering three important bills: AB 4526, which would expand eligibility for those who receive awards under crime victims' compensation to include a domestic partner; AB 866, which would provide civil remedies for victims of bias-motivated violence committed because of a person's sexual orientation and gender identity or expression, and; AB 6584, which would, in part, add gender identity or expression to the categories covered by hate crimes.
• In New Jersey, as we wrote earlier this year, lawmakers enacted S2975 to include transgender persons to the state's hate crimes law.

As Indiana Equality points out, the justice system focuses on intent or motive and treats such premeditation very seriously.  For instance, the distinction between murder and manslaughter is whether the aggressor intended to kill.  Hate crimes are a similar act driven by the intent to discriminate and deserve their own place in the criminal code.  While the act of violence in a hate crime may or may not be planned, the hate that fuels the violence is certainly preexisting as a direct reflection of the aggressor's biases and prejudices, thoughts and preconceptions.

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Campus Equality and Safety

K-12 schools and college campuses are also receiving lawmakers' attention.  A 2003 report from the National Gay and Lesbian Task Force indicates that 20% of GLBT students on college campuses fear for their physical safety due to their perceived sexual orientation or gender identity and 51% concealed their sexual orientation or gender identity to avoid intimidation.  To ensure a safe and welcoming environment for all students, lawmakers are introducing legislation to require that campuses develop policies to prohibit hate crimes and bullying.

As the HRC reports, 2007 saw 72 bills introduced to address campus issues.  The results are a mixed bag, however.  Of the three bills enacted to address anti-bullying, only one specifically included sexual orientation and gender identity as categories in anti-bullying legislation.  Another bill in Utah prohibits students from joining GLBT clubs without parental consent.  Recent state news, includes:

• The Michigan House has sent to the Senate HB 4091, which would require school districts and public school academies to adopt policies to prohibit harassment, bullying, or intimidation motivated by, among other things, sexual orientation and gender identity or expression.
• As part of its broad non-discrimination and hate crimes law enacted earlier this year (S2975), New Jersey will require schools to notify teachers and students of anti-bullying policies and creates a commission to study bullying at the state's schools and to make recommendations to future legislatures.
• Conservatives in California tried but failed to gather signatures to launch a ballot initiative to block a new law extending anti-discrimination protections to public school students based on their sexual orientation and gender identity.

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Conclusion

Earlier this decade, it seemed the rightwing found a fail-safe campaign message by scapegoating GLBT Americans.  Americans, however, largely through leadership by state lawmakers and advocates, are rejecting these wedge scapegoating tactics and are extending equality to GLBT individuals and families.  Gains are being made in the workplace, at home, on campuses, and in the justice system.  As pointed out earlier, the future is promising for GLBT equality as younger Americans by decisive margins support non-discrimination in everything from family relations to the workplace.

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