chevron-down Created with Sketch Beta.
March 24, 2022

Sexual Orientation and Gender Identity

"The Equality Act"

Q: Explain the "The Equality Act," and if passed, what would it mean for LGBTQIA youth?

 A: The Equality Act is a proposed bill in Congress that would amend, if passed, the Civil Rights Act of 1964 to prohibit discrimination on the basis of sex, sexual orientation, and gender identity in employment, housing, public accommodations, education, federal funded programs, credit, and jury service. The amendment of Title VI would mean that LGBTQIA students in federally funded schools would have federal protections against bullying and harassment for being gay, lesbian, bisexual, transgender, queer, etc.; and ensure that transgender/nonbinary students have the right to use sex-segregated facilities and participate in sex-segregated activities that match a student’s gender identity.

Since the Equality Act would be Federal law covering all 50 states, it would guarantee  protections for LGBTQ folks in EVERY state that already exist in some states. More than half the states do not have laws on the books that prevent discrimination against LGBTQ individuals.

Legal Objections to the Equality Act

Q: What are the legal objections to the Equality Act (2021)?

A: The objections have largely come in the religious liberty context, with groups asserting that the Equality Act would result in those individuals who for example do not want to bake a wedding cake for a same-sex couple getting married facing potential legal action. Certain conservative women’s groups have argued that the Equality Act “erases the category of female” and thus undermines legal protections based on sex, such as separating men and women in prisons, grants that go to battered women’s shelters, etc.

The Marriage Equality Act 

Q: If the Supreme Court was to theoretically revoke the Marriage Equality Act, would it affect the rights of the people in states that passed the legislation individually before the Supreme Court voted to make it nationwide? Is it possible for the Supreme Court to even revoke it?

A: The Obergefell decision was the decision finding that there was a Constitutionally-protected right to marry.  If another case challenging marriage equality rights were to reach the Court and the Court reversed, it would create a patchwork of issues at the state level, similar to abortion rights if Roe v. Wade is overturned. Prior to Obergefell, 37 states + US territories had legalized marriage equality- but only 19 had legalized those nuptials through state legislation. In those 19 states, the right to marry a same-gender partner would remain, but same-sex marriage would be prohibited in the majority of the country and vulnerable in states where it was not written into law.

Transgender and the Draft

Q: If you are transgender and have legally changed your gender marker to male, what are your rights surrounding the draft? Are you able to opt out or are you still expected to sign up in order to be eligible for federal funding (like for student loans, etc.)?

A: Obviously this issue has come up with former Pres. Trump’s executive action banning transgender troops, and subsequently Pres. Biden’s restoration of full and open military service for trans individuals. There have been studies regarding making the Selective Service gender-neutral but, as of now, if you are a trans woman (assigned male at birth), you are required to register for the Selective Service within 30 days of your 18th birthday. If you are a trans man (assigned female at birth), you do not have to register for the Selective Service regardless of your transition status or current gender marker. The Selective Service requires a copy of your birth certificate showing your birth-assigned sex or (if birth certificate was changed) any documentation to that effect.

Legal Discrimination 

Q: We know that there are some states in which legal discrimination against transgender people is permissible. Is there any legal recourse against this or ways to circumvent said discriminatory practices?

A: Thankfully at the federal level, the Bostock decision added transgender protections at the federal level for employment discrimination, which has subsequently been applied in other areas, such as Fair Housing, etc. There are still issues with transgender individuals- particularly trans women of color- having medical providers/doctors refusing to treat them, using harsh and abusive language while treating them, intentionally misgendering their trans patient, etc. There are still significant issues with insurance coverage of gender affirming surgeries, with Washington becoming the first state to mandate coverage for those treatments/surgeries.

Ultimately, challenges under Title VII (or the appropriate state law protection) when there is wrongful, discriminatory conduct in the workplace can provide a recourse, after Bostock.

Trans Youth Rights

Q: As an athlete, what rights are afforded to trans athletes? and Q: Can minors get gender-affirming care?

A: Ultimately, challenges under Title VII (or the appropriate state law protection) when there is wrongful, discriminatory conduct in the workplace can provide a recourse, after Bostock. With respect to the anti-trans state laws regarding trans youth playing sports and/or banning minors from getting gender-affirming care, there are significant Constitutional challenges to those in the system, although we largely have yet to see the issue play itself out.                                  

Homeless due to Identity

Q: If an LGBTQ+ student is told they need to leave their home due to their identity, where should they go and what are their rights? Safia from California

A: Thank you for your question Safia. Unfortunately, this is all too common and you are not alone, wondering how to handle this.

First, if you are in this situation, remember, it is not your fault, you haven’t done anything wrong and you deserve a loving, accepting, secure home.

If you have family or a friend to stay with, go there first so you have a safe place to stay while you find help. If this is not an option, there are shelters so use the resources we share with you to find one. Many LGBTQ youth without a home don’t know about available resources or don’t seek them out and live on the street which is unsafe.

Continue going to school. Not only is your education incredibly important, but your school may be able to provide many resources to help you through this crisis. If you feel safe doing so, speak with your school guidance counselor, psychologist or a trusted teacher about your situation.

In most states, your parents are legally obligated to support you financially, providing food and shelter until you are 18 years old. We will provide resources for you to find a free lawyer who will protect your rights and stand up for you. Everything you tell your lawyer is confidential and giving them the most information you can will help them help you.

If you think this is something you might be in danger of happening, please print the resource sheet below and keep it with you. You might also want to speak with a trusted friend, family member or school staff member who can help you plan in advance in the event that you are faced with this problem.


Hate Crimes and Free Speech

Q: In the area of hate crimes, what are some of the issues in balancing free speech rights against the need to control offensive activity? A high school student from Arkansas

A: The challenge is to distinguish between offensive speech, which is generally protected by the First Amendment, and offensive conduct, which may be made criminal and punishable. This is not always an easy line to draw, and there is always debate and controversy about what the law should protect. 

The basic principle as to speech is that government should not be able to decide what to censor or prohibit based on notions of what may be too offensive. The reason was well-expressed in a 1971 Supreme Court decision: “One man’s vulgarity is another’s lyric.” In other words, once you give government the power to ban expression because it is offensive, whose values does it represent and where does it stop.

But the Supreme Court has said that government has more authority and leeway when it is regulating conduct that is separate from the message of expression. As a result, the Court has upheld a Wisconsin law that enhanced the punishment of a defendant who selected his victim based on his race and has upheld a Virginia law that makes cross-burning a crime. Expression was implicated in both cases, but the criminal punishment was for actions not for the content.

The Supreme Court’s own rulings have contributed to current debate over how to treat hate speech. The Court has said there are certain kinds of speech that are not protected by the First Amendment because they do not contribute anything of value to informing democracy. These categories of unprotected speech include incitement to lawless action, fighting words, true threats, obscenity, and child pornography.

In the debate over hate speech, some commentators have asked why it could not be another category of unprotected speech. Other commentators have suggested that hate speech could be encompassed in the definition of fighting words – words that are so insulting and are aimed at an individual that they are likely to provoke a fight or a violent reaction. Neither approach has taken hold in the courts, in large part because of the problem of defining what is hate speech and of who gets to decide.

The line the Supreme Court has drawn between protected speech and unprotected conduct is not a simple one to follow, but it has provided some guidance to U.S. courts about where speech ends, and criminal conduct begins.

Youth Resources

Where to find free (pro bono) lawyers:

Resources by State:

Lambda Legal’s Legal Help Desk

LGBT National Hotline:  888.843.4564

LGBT National Youth Talkline  800.246.7743

LGBTQ+(Trevor Project)  866.488.7386

Transgender, non-binary, and gender-questioning people:
Trans Lifeline 877.565.8860

National Runaway Switchboard (also for youth who are homeless):  1-800-RUNAWAY/1-800-786-2929

National Coalition for the Homeless: