LGBTQ+ Legal Resource Center
Lesbian, gay, bisexual, transgender, queer and/or questioning (LGBTQ+) individuals in the United States have faced unique hardships in numerous areas including employment, military service, immigration and asylum, criminal justice, healthcare access, and housing. Although progress has been made on several legal fronts, significant disparities continue to exist.
Transgender individuals face particular difficulties beyond those encountered by lesbian, gay and bisexual individuals. They are at greater risk for hate crimes and harassment by the police. Their gender identity can also subject them to mistreatment by physicians and other providers, resulting in poor healthcare outcomes. LGBTQ+ youth also face considerable struggles at school, at home (where family response may include an effort at conversion therapy, or estrangement), and on the streets, where many LGBTQ+ young people live after becoming homeless.
Effect of Same Sex Marriage Legalization
The Supreme Court legalized same-sex marriage in Obergefell v. Hodges, and this has had a huge impact, moving civil rights forward for LGBTQ+ individuals and couples. For many individuals, it signaled a social shift that made it more comfortable for them to come out, and the ability to formalize their closest relationships has improved the lives of many people in the LGBTQ+ community.
In particular, same sex spouses now have the same employment benefits and tax advantages as opposite sex couples. Same sex couples can also take advantage of any marriage-related benefits in connection with their estate planning.
Same sex parents should have the same rights with regard to parenting as their opposite sex counterparts. However, social bias toward dual gender parenting and gendered language remains. Additionally, governments in some states may resist the legal changes brought by Obergefell and fail to respect them. To be on the safe side, LGBTQ+ parents should continue to adopt children to whom they are not biologically related or obtain parentage judgments. How family law is applied varies from state to state, and LGBTQ+ parents should consult a family lawyer in connection with divorce and parenting arrangements.
Discrimination
Discrimination and disparate treatment remain obstacles for many members of the LGBTQ+ community, but some laws and policies in key areas recently have changed in their favor. For example, the U.S. Supreme Court has interpreted the ban on sex discrimination in Title VII of the Civil Rights Act to prohibit employment discrimination on the basis of sexual orientation and gender identity, even though the law does not explicitly use these terms. In the area of housing, meanwhile, HUD has interpreted a prohibition on sex discrimination under the Fair Housing Act as also prohibiting sexual orientation and gender identity discrimination. It has issued an anti-discrimination rule and guidance that applies to public housing and programs that receive federal funds.
The Affordable Care Act (ACA) has improved healthcare access for LGBTQ+ patients. Among other things, insurers are no longer able to refuse to cover an individual due to a pre-existing condition. This means that transgender individuals whose gender identities were treated as pre-existing conditions can now access health insurance. Furthermore, no health program or healthcare facilities (including hospitals, doctors’ offices, health clinics, and veterans’ health centers) that receive federal funds may discriminate against LGBTQ+ patients. The ACA has faced various political and legal challenges, but it seems likely to survive for the foreseeable future.
Despite scientific gains in treatment and prevention, HIV status continues to be a basis for discrimination against and mistreatment of many members of the LGBTQ+ community, which has been disproportionately affected by this epidemic. Several states continue to enforce statutes that criminalize HIV transmission. Further, HIV-positive individuals often face discrimination with regard to healthcare access or breaches of personal privacy related to their health status.
The discriminatory “Don’t Ask, Don’t Tell” policy was repealed for lesbian, gay, and bisexual military service members in 2011. As of 2021, transgender service members have the right to serve openly in their self-identified gender. The military also will provide a process for service members to transition gender while serving.
