Lesbian, gay, bisexual, transgender, queer and/or questioning (LGBTQ) individuals in the United States face unique legal 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. With the exception of the US Supreme Court's same-sex marriage decision in Obergefell v. Hodges, federal law has not significantly changed with respect to providing LGBTQ individuals with rights and protections.
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.
In spite of some improvements, discrimination and disparate treatment remain huge obstacles in nearly all aspects of life for many members of the LGBTQ community. Very few federal laws expressly protect LGBTQ individuals. For example, Title VII, which outlaws employment discrimination in a number of other areas, such as race and sex, does not expressly prohibit discrimination on the basis of sexual orientation or gender identity. Instead, the Equal Employment Opportunity Commission (EEOC) has chosen, through regulatory guidance for the time being, to make sexual orientation and gender identity discrimination sub-categories of gender discrimination.
Similarly, there is no federal law that prohibits housing discrimination. However, 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. Recent political developments have called the future of the ACA into question, but the law remains in effect at the time of this writing.
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.
Although the discriminatory “Don’t Ask, Don’t Tell” policy has been repealed for lesbian, gay, and bisexual military service members, transgender service members are not permitted to be open about their gender identity while on active duty. It is estimated that about 15,500 transgender service members serve without disclosing their gender identity. The status of transgender service members is in flux at the time of this writing under the Trump administration.