National Legal Issues LGBT

1Cathy Hanville, LCSW

To Start

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Because what happens in the world and country affects our clients. When discriminatory laws are passed it affects the well being of the people we work with it is important to be aware of these issues and be able to talk about them with clients in a meaningful way.

Why is it important to know about national legal issues?

Overview

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A recent Gallup poll estimates that 4% of Americans are LGBT which is over 10 million people. The numbers rise in younger Americans where it

is 7.3% of those born between 1980-1998.

http://www.thedailybeast.com/just-how-many-lgbt-americans-are-there

A recent Treasury report found that in 2014 there were 183,280 same-sex marriages in America. This number was based on data from tax

returns.

https://www.nytimes.com/2016/09/13/upshot/the-most-detailed-map-of-gay-marriage-in-america.html

An estimated 9 million children live with a gay parent. And 65,500 of those kids were adopted. LGB parents raise 4% of all adopted kids.

https://www.thespruce.com/how-many-gay-parents-in-us-27175

Marriage Equality

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US Vs Windsor was decided by the Supreme Court in 2013. It overturned the Defense of Marriage Act. At the same time, the Hollingsworth Vs Perry was decided and that allowed gay marriages to resume in CA. Although Windsor overturned DOMA it did not follow allow gay marriages in all of the states.

https://en.m.wikipedia.org/wiki/United_States_v._Windsor

In 2015 Obergefell V Hodges was a 2015 Supreme Court case that recognized same sex marriage in all states.

It was thought Obergefell was the final case on gay marriage but recently in TX, their Supreme Court ruled that same sex couples are not necessarily eligible for government benefits. The case was brought by some Houston TX taxpayers in 203 that objected to Houston paying for same sex health benefits. They argue that Obergefell was not specific enough on this issue. The TX Supreme Court sent it back to a lower court for further rulings. Gay rights advocates have promised to fight it back to the US Supreme Court if necessary.

https://www.reuters.com/article/us-texas-gaymarriage-idUSKBN19L2HP

In January of 2017, the US Supreme Court overturned an Arkansas state ruling that said that it was okay for the state not to name two same sex women’s name on their child’s birth certificate.

https://www.usnews.com/news/us/articles/2017-06-26/us-high-court-overturns-arkansas-ruling-blocking-birth-certificates-for-same-sex-couples

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Family Law

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Foster Care

http://www.lgbtmap.org/equality-maps/foster_and_adoption_laws

3 states prohibit discrimination in foster care against LGBT families (includes CA) 5 states prohibit discrimination against LGB families 7 states have religious exclusion laws which allow state child welfare agencies to not place kids in LGBT homes or provide services if it conflicts with their religious beliefs

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Joint AdoptionAll 50 states allow same sex couples to petition for a joint adoption 7 states prohibit discrimination based on sexual orientation (includes CA) 3 states prohibit discrimination based on gender identity (includes CA)

7 states have religious exclusion laws which allow state child welfare agencies to not place kids in LGBT homes or provide services if it conflicts with their religious beliefs

http://www.lgbtmap.org/equality-maps/foster_and_adoption_laws

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StepParent/Second Parent Adoption

There is step parent adoption which requires the parents to be married and second parent adoption which does not. (1) All states allow step parent adoption. (1) 15 states allow same sex couples to petition for second parent adoption. (1) This means that when a lesbian couple has a biological child the second parent has to adopt the child in order for the parent to be protected under the law.

Arkansas (2011) had a ban on adoption by unmarried couples overturned. (2) Florida (2010) had a ban on adoption by same sex couples overturned. (2)

(1) http://www.lgbtmap.org/equality-maps/foster_and_adoption_laws (2) http://www.socialworkers.org/ce/online/Resources/20111004A_Social%20Workers%20and%20Family%20Law%20Issues%20for%20Same-sex%20Couples%20Presentation.pdf

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LGBT Youth in Foster Care

4 states require LGBT cultural competence for foster parents (includes CA)

http://www.lgbtmap.org/equality-maps/foster_and_adoption_laws

Provider Refusal Laws

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Provider refusal laws allow people to refuse services such as health care services based

on their religious convictions. In the past they were used for abortion and

birth control services now we are seeing them used to deny services to LGBT people.

They are also known as conscience clauses.

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Ingersoll Versus Arlene’s Flowers

In 2013 Curt Freed and Robert Ingersoll decided to get married. They went to Arlene’s florists to get flowers for the wedding. They had used this florist many times before. They were told that due to the owner’s religious beliefs they would not provide the flowers.

Freed and Ingersoll won at both the Superior Court and the WA state court level (2/17). The defendants have stated that they are taking the case to the US Supreme Court.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

David Mullins and Charlie Craig went to Masterpiece Cakeshop in 2012 to buy a wedding cake. The owner refused to sell them the cake based on his religious beliefs.

The men filed a complaint with the Colorado Civil Rights Division since this is against Colorado law. The Division ruled against Masterpiece and this was upheld by the Colorado Office of Administrative Courts.

It was then appealed to Colorado Civil Rights Commission which again decided in the men’s favor in 2014.

It was then appealed to the Colorado Court of Appeals where the men won again in 2015. It was then appealed to the Colorado Supreme Court which declined to take the case. It was then appealed to the US Supreme Court which agreed to take the case. It will be heard in the 2017/2018 term.

https://www.aclu.org/cases/charlie-craig-and-david-mullins-v-masterpiece-cakeshop

Rachel Bowman-Cryer Sweet Cakes

Rachel Bowman-Cryer went to Sweet Cakes to purchase a cake for her wedding. She had previously purchased a cake from them. The owner Joe Klein declined to sell her the cake

The couple filed a complaint with Oregon Bureau of Labor and Industries. A judge ruled in their favor and ordered a fine of $135,000.

Sweet Cakes appealed to the Oregon State Supreme Court in March 2017. That decision is pending. Sweet Cakes is asking for a decision in their favor based on a religious exemption to Oregon law.

http://www.oregonlive.com/portland/index.ssf/2017/03/sweet_cakes_appeal.html

Ward Versus WilbanksIn this 2010 case, a student in counseling program was dismissed from the program for refusing to work with a gay depressed client.

It was appealed to S. District Court for the Eastern District of Michigan who in 2010 granted a summary judgment in favor of the East Michigan University (EMU). Ward appealed to the 6th Circuit Court of Appeals which sent the case back to the district court for a trial. At that time EMU settled with Ward for $75,000 without changing any of their policies. Ward left their program.

Subsequent to this case Michigan has tried to pass laws several times to prohibit counseling schools from enforcing their nondiscrimination rules.

Arizona has passed two laws HB 2565 and SB 1365 which says that schools cannot discipline a student for refusing to serve a client if it is against their beliefs. In addition, a license cannot be removed for those reasons.

https://ct.counseling.org/2013/01/resolution-of-emu-case-confirms-aca-code-of-ethics-counseling-professions-stance-against-client-discrimination/

Mississippi HB 1523This bill was signed into law April 2016. It was appealed to the district court level (5th Circuit) but a ruling that the plaintiffs did not have standing allowed the law to go into effect.

https://www.theatlantic.com/health/archive/2016/04/medical-religious-exemptions-doctors-therapists-mississippi-tennessee/478797

“SECTION 1. This act shall be known and may be cited as the "Protecting Freedom of Conscience from Government Discrimination Act."

SECTION 2. The sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

http://billstatus.ls.state.ms.us/documents/2016/html/HB/1500-1599/HB1523SG.htm

https://www.theatlantic.com/health/archive/2016/04/medical-religious-exemptions-doctors-therapists-mississippi-tennessee/478797/

21 states currently have broad religious exemption laws on the books.

http://www.lgbtmap.org/file/policy-spotlight-report-RFRA.pdf

Employment

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At this time there is no Federal Law protecting LGBT from being fired for being LGBT. The Employment Non-Discrimination Act (ENDA) has been brought up frequently in Congress since 1994 but has never passed.

Under the Obama administration, some rules and Executive Orders were passed/signed to protect federal employees. The subsequent Trump administration is undoing these rules.

20 states plus DC have laws that protect both sexual orientation and gender identity.

9 states have rules prohibiting discrimination in public employment.

3 states protect just based on sexual orientation.

3 states have laws prohibiting them from passing non-discrimination laws.

http://www.lgbtmap.org/equality-maps/non_discrimination_laws

Health Care

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The Affordable Care ActPart of the Affordable Care Act was Rule 1557. That rule removed trans health exclusion from federal plans. This

includes any plan that receives Health and Human Services Funding along with all plans issued by insurers that

participate in the exchanges. It also explicitly protected people from LGB people discrimination based on sex

stereotypes. (2) At the date of this writing in 2017, the HHS is drafting new

regulations to roll back this Rule.(3) Transgender people in states that don’t have additional

protection will be facing an exclusion again. The next slide shows which states have protections for

transgender people.(1) https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html (2) http://healthaffairs.org/blog/2016/06/06/lgbt-protections-in-affordable-care-act-section-1557/

(3)https://medium.com/@TransEquality/trump-health-officials-prepare-to-promote-anti-trans-discrimination-5cc7f8160df

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http://www.transequality.org/issues/resources/map-state-health-insurance-rules