LGBTQ

Anti-LGBTQ laws are typically introduced under the guise of religious freedom with the intent to undermine same-sex marriage, protect private businesses from complying with nondiscrimination laws, and permit civil servants and health-care workers to refuse service to specific groups. More recently, anti-LGBTQ laws have evolved to specifically target transgender people in the form of “bathroom panic bills,” which are designed to limit access to the use of public facilities.

In 1993, President Clinton signed into law the Religious Freedom Restoration Act, which created a statutory model for those with religious objections to laws of general applicability to avoid compliance based on religious objection. In 1997, the U.S. Supreme Court ruled in City of Boerne v. Flores that RFRA is not applicable to the states. Since then, 21 states have passed their own RFRA laws. A handful of state RFRAs differ from the federal RFRA and include language which allows religious freedom to be raised as a defense in lawsuits between private citizens.

(A more detailed discussion of religious freedom legislation can be found here.)

Following the Supreme Court’s 2015 landmark decision in Obergefell v. Hodges which affirmed that states cannot discriminate in benefits on the basis of sexual orientation and knocked down same-sex marriage bans across the country, conservative lawmakers began sponsoring laws targeting transgender people for exclusion from public spaces such as restrooms consistent with their gender identity. (A more detailed discussion of legislation targeting transgender people can be found here.)

Examples of LGBTQ Discrimination Laws (last updated September 18, 2018)

RFRAs

In 2015, Indiana and Arkansas faced criticism after passing their own versions of RFRA. Both laws included language allowing religious freedom to be raised as a defense in a lawsuit between private citizens. Indiana ultimately amended their law to include civil rights protections, while Arkansas scrapped their law and replaced it was a RFRA that tracks the federal version.

“Bathroom Panic Bills”

Since 2013, at least 30 states have attempted to pass legislation that would specifically discriminate against transgender people. Legislation varies from refusing transition-related care in prisons to regulating sports participation in schools. However, the majority of attempted legislation to date has been primarily focused on restricting access to public spaces.

On March 23, 2016, then Gov. Pat McCrory signed the North Carolina Public Facilities Act (HB 2). The law prohibited transgender individuals from using public restrooms based on their own gender identity. The law also established a statewide nondiscrimination ordinance that explicitly supersedes any local nondiscrimination measure. The United States DOJ sued the state, claiming the law was discriminatory under Title VII and Title IX of the Civil Rights Act and that it violated the Violence Against Women Act.

On August 26, 2016, a federal judge issued a narrow, temporary injunction blocking the University of North Carolina from enforcing the public restroom provision of the law. The law was partially repealed on March 30, 2017, with the passage of HB 142. The new law repealed the provision which prohibited transgender individuals from using public restrooms in accordance with their gender identity. However, the law still prohibits local municipalities from passing their own nondiscrimination ordinances related to private employment practices or regulating public accommodations through 2020.

While the language varies from state-to-state, most “bathroom panic bills” mirror model legislation drafted by Alliance Defending Freedom.

Adoption Services

Ten states (Alabama, Kansas, Michigan, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, and Virginia) have laws on the books that allow religiously affiliated child placement agencies to refuse to place children with LGBTQ people based on religious or moral beliefs.

In September, 2015, Michigan became the the third state (after North Dakota and Virginia) to permit adoption agencies to refuse service to same-sex or unmarried couples if that goes against their religious beliefs. The laws (HB 4188, HB 4189, and HB 4190) prohibit the state from taking any adverse action against child-placing agencies involved in foster care and adoption services that decline to provide services due to the agency’s sincerely held religious beliefs.

The following year, Mississippi enacted HB 1523, a sweeping anti-LGBTQ law which created government protections for “sincerely held” religious beliefs or moral convictions. Among other forms of discrimination, the law allows child welfare agencies to refuse foster care and adoption services if doing so conflicts with their religious beliefs.

In 2017, South Dakota, Alabama, and Texas enacted laws allowing child welfare agencies to discriminate against LGBTQ people. South Dakota enacted SB 149, prohibiting the state from requiring a child-placement agency to provide any service that conflicts with any “sincerely held” religious belief or moral conviction of the agency. Alabama enacted the “Alabama Child Placing Agency Inclusion Act,” prohibiting the state from taking any adverse action against a private child-placement agency on the basis that the provider declines to provide a child placement that conflicts with their religious beliefs. Texas enacted HB 3859, allowing child welfare providers the right to discriminate in, or refuse, the services they offer (such as child placement, counseling, and abuse assistance) to LGBTQ families and children.

In 2018, Kansas, Oklahoma, and South Carolina became the latest states to allow discrimination against LGBTQ families. Oklahoma enacted SB 1140, allowing a private child-placing agency to refuse to perform, assist, counsel, recommend, consent to, refer or participate in any placement of a child for foster care or adoption if such placement violates the agency’s written religious or moral convictions. Kansas enacted SB 284, allowing child placement agencies to refuse to participate in any placement of a child for foster care or adoption that conflicts with an agency’s “sincerely held” religious beliefs. Finally, through a provision buried in the state’s budget bill, South Carolina became the tenth state to allow publicly funded adoption agencies to discriminate against same-sex couples and other prospective parents based on the agency’s religious beliefs

Conscience and Refusal Clauses

In April, 2016, Mississippi enacted HB 1523, a law permitting individuals and businesses to discriminate against LGBTQ people based on certain religious beliefs or moral convictions. The far-reaching law not only permits people to refuse performing same-sex marriages, but also allows people to refuse foster care and adoption services; deny psychological, counseling, or fertility services; and ban transgender individuals from using bathrooms in accordance with their gender identity. A district court judge struck down the law as unconstitutional in June, 2017 and blocked the state of Mississippi from enforcing it. The Fifth Circuit Court of Appeals, however, lifted the injunction, ruling that plaintiffs did not have standing to challenge the law. And in January, 2018, the U.S. Supreme Court declined to hear a challenge to the law, thus leaving it in place as one of the most anti-civil rights laws in the country.  

Tennessee enacted its own pair of conscience/refusal laws geared toward LGBTQ people in April of 2016. The state passed HB 1840/SB 1556, which allows therapists to refuse to counsel a client as to “goals, outcomes, or behaviors” that conflict with “sincerely held principles” of the counselor or therapist. Despite objections from several mental health professionals and organizations, including the American Counseling Association (ACA), the legislation was signed into law on April 27, 2016.

Like other laws created to permit discrimination against LGBTQ people, many conscience and refusal clauses have been drafted or lobbied for by Alliance Defending Freedom and similar affiliated organizations. ADF played a key role in drafting Mississippi’s law while also providing lobbying efforts for HB 1840 in Tennessee.

Laws