Celebrating Recent LGBT Legislative Advances

By Jon W. Davidson, Legal Director

Published 05/30/07

Over the last several weeks, the nation has seen remarkable legislative advances in support of the rights of lesbian, gay, bisexual and transgender (LGBT) individuals, both with regard to protections for those in same-sex relationships and prohibitions against discrimination based on sexual orientation or gender identity.  While we applaud these advances, we remain mindful that there is much more to accomplish. Same-sex couples still cannot marry in 49 states, and the federal government refuses to honor the marriages that same-sex couples validly enter. The state law rights of marriage remain out-of-reach at present to most same-sex couples in the U.S. While a number of federal courts have now ruled that transgender employees are protected against discrimination under federal law, not all courts have recognized that yet, and many of the existing state antidiscrimination laws do not yet cover discrimination based on gender identity. Likewise, there are still many parts of the country where LGBT employees, tenants and consumers have no established state law protections against discrimination. Still, we press onward, bolstered by these recent substantial legislative gains.

The recent gains have been impressive.  The Washington legislature has passed a domestic partnership law that the state's governor has signed. It takes effect July 23, 2007 and provides those who register with a number of important state law rights: hospital visitation with a partner, medical decision-making for an incapacitated partner, receipt of health information about a partner, administration of a deceased partner's estate, authorization for an autopsy or anatomical gift for a deceased partner, control over disposition of a deceased partner's remains, the right to seek compensation if a partner is killed, inheritance from a partner without a will, burial as a couple and, for state employees, health insurance covering the partner. Oregon's legislature has passed a comprehensive domestic partnership law (similar to California's law, providing the equivalent of civil unions). New Hampshire's legislature has passed a civil union law, which that state's governor has said he plans to sign.

Once these laws go into effect, nationally we will have:

  • One state where same-sex couples can marry (Massachusetts):
  • Six more states where same-sex couples will not be able to marry but will be able to obtain all of the rights and responsibilities that spouses receive when they marry, although as part of a different and inferior legal status with a different name (California, Connecticut, New Hampshire, New Jersey, Oregon and Vermont)
  • Two additional states where government officials have said they will honor the marriages that same-sex couples validly have entered in other jurisdictions (New York and Rhode Island) and
  • Three states (Hawaii, Maine and Washington) and the District of Columbia, where, by registering as domestic partners or becoming reciprocal beneficiaries, same-sex couples may obtain some of the rights and benefits that spouses receive.

The UCLA Law School-affiliated Williams Institute recently analyzed where same-sex couples live in the United States. Based on the data from that analysis, these new legislative developments mean that more than 21 percent of same-sex couples currently live in states where all of the state law rights of marriage are available to them. When New Hampshire and Oregon's laws go into effect, than number will increase to more than 23 percent. If one adds New York and Rhode Island, where out-of-state marriages are being honored, the result is that more than 30 percent of all same-sex couples live in states where the state law rights that married couples receive now or very soon will be available to them (although the obligation to respect out-of-state marriages is still being litigated in New York and not fully settled in Rhode Island).  Finally, nearly 35 percent (34.7%) of same-sex couples live in states where some of the state law rights that spouses receive can be obtained by marrying or entering civil unions, reciprocal beneficiary relationships or domestic partnerships.

What is perhaps most amazing about these figures is that NONE of this existed only seven years ago.

On the antidiscrimination law front, the legislatures in Colorado, Iowa and Oregon recently passed laws, now signed by those states' governors, prohibiting both sexual orientation and gender identity discrimination in employment, housing, and public accommodations.  In addition, Vermont has added gender identity as a prohibited ground of discrimination under its law that previously covered sexual orientation discrimination.

Once these laws go into effect (which varies from state to state, and Oregon's antidiscrimination and domestic partnership bills may be subject to referendum votes prior to becoming effective), we will have 20 states plus the District of Columbia with express sexual orientation antidiscrimination laws, 12 of which also expressly cover gender identity discrimination.

The adoption of such laws has progressed steadily over the years:

  • Twenty years ago, there was only one state with such a law (Wisconsin, which adopted its law in 1982)
  • Fifteen years ago, there were seven (Massachusetts adopted its law in 1989; Connecticut and Hawaii in 1991; and California, New Jersey and Vermont in 1992)
  • Ten years ago, there were ten plus D.C. (Minnesota adopted its law in 1993; Rhode Island and New Hampshire in 1995 and the District of Columbia in 1997)
  •  Five years ago there were 13 states plus D.C. (Nevada adopted its law in 1999; Maryland in 2001 and New York in 2002) and within the last five years, New Mexico adopted its law in 2003; Illinois and Maine in 2005 and Washington State in 2006.

The Williams Institute also has analyzed where lesbian, gay, and bisexual adults live in the U.S. Those figures reveal that 45.9 percent of gay, lesbian and bisexual adults live in states that expressly prohibit sexual orientation discrimination in employment, housing and public accommodations at present and that, when the new laws in Colorado, Iowa and Oregon go into effect, that number will increase to 49.97 percent. When one adds to that the 100 or so cities that have ordinances prohibiting sexual orientation that are in states without express statutory coverage (which include large cities such as Atlanta, Dallas, Houston, Miami and Philadelphia), it is clear that a majority of Americans now live in jurisdictions with laws expressly prohibiting sexual orientation discrimination.

There can be no doubt that the marriage equality litigation that Lambda Legal, the ACLU, Gay & Lesbian Advocates and Defenders and the National Center for Lesbian Rights have been waging since the Hawaii's Supreme Court ruled in 1993 that denying same-sex couples access to marriage was constitutionally suspect contributed significantly to making these legislative advances possible. While we, our co-counsel the Northwest Women's Law Center and the ACLU were not successful in court in our marriage cases in Washington, those cases and the surrounding public education efforts conducted in the state built strong public support for greater protections for same-sex couples and their families. The same can be said for Oregon, where the ACLU's marriage equality case was terminated by a state initiative, but where the push for marriage equality made a comprehensive domestic partnership law seem moderate.

The victory Lambda Legal, the ACLU and the Colorado Legal Initiatives Project secured in Romer v. Evans even more directly made possible the passage of Colorado's new antidiscrimination law. In the Romer case, we convinced the U.S. Supreme Court to strike down an amendment to Colorado's state constitution that had barred any arm of Colorado's government (including its legislature) from providing antidiscrimination protections to lesbians, gay men or bisexuals. Many of the other existing state antidiscrimination laws also owe a debt to the Romer victory, as that decision halted what had been a growing right-wing strategy of attempting to repeal or block new antidiscrimination laws. Likewise, our ongoing relationship work has personalized gay people in new ways for Americans and prompted support for equal treatment. It thus should not be a surprise that Iowa — where Lambda Legal's marriage equality case continues — was the site of one of the recent passages of an antidiscrimination law.

However, even where these laws pass, the work really has just begun. Groups like Lambda Legal are needed to help ensure that antidiscrimination laws are effective. People will turn to us and our colleagues to litigate and file friend-of-the-court briefs in cases that will establish important precedents under these new laws. We also must continue to fight efforts by right-wing groups to craft loopholes, like broad religious defenses, that might undermine the protections these laws promise.

In addition, the new relationship protections that have been secured pose a whole new series of legal questions themselves. We already are busy at work handling cases regarding the scope of these new laws as well as what happens when people with one status (such as marriage, civil union or domestic partnership) move or travel to a state whose residents cannot enter that status there.

What needs to be recognized is the powerful dynamic interplay between litigation, public education and legislation. All three avenues help bring about change, and each affects the other. Our cases often change or establish law, but whether they succeed in court or not, they always provide living examples of people who need the law's protections. Through those cases, we are able to educate the public and legislators. Public education efforts also affect how judges and juries think about the issues presented in court. And when legislation passes, it can change public understanding and provide the basis for protections that in turn will inevitably require enforcement in court. This interplay is the engine of progress for the LGBT rights movement, as it has been in the struggles against sex, national origin and race discrimination.

Lambda Legal and our sister LGBT legal organizations have had an amazing track record in court. But, even when we've not won there, our lawsuits have helped transform public attitudes about how LGBT people and our families deserve to be treated. We salute the important state groups that worked so hard to secure passage of these new laws, our national colleagues at the Human Rights Campaign, the National Gay & Lesbian Task Force and Freedom to Marry and the many individuals who supported the work of these groups financially and who wrote and faxed and emailed and called and visited their legislators to make this all happen. We're also proud of the role Lambda Legal played in helping draft the Washington domestic partnership law, advising legislators regarding a number of these laws and providing education about what these laws provide, as well as how our work in court has contributed to these legislative advances. We now look forward to taking advantage of the opportunities these new laws present for making further progress in the years to come.