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December 01, 2008

Ending Discrimination Based on Sexual Orientation and Gender Identity

by Kate Kendell

It is incredibly heartening to see that you understand that to improve the lives of lesbian, gay, bisexual, and transgender (LGBT) people, you must use your powerful voice and the authority and resources of the highest office in the land to stand up for the equal dignity and worth of all Americans, including those who are LGBT. Laws that discriminate against LGBT people, or against same-sex couples and our children, should be repealed. Existing federal anti-discrimination measures should be vigorously enforced and interpreted to protect individual rights, including those of LGBT people. And LGBT people should be afforded full legal equality. On these issues, we are truly hopeful that you will lead the country forward throughout your presidency. I want to highlight several issues that require work, several of which you have already indicated will be priorities of your administration.

Publicly funded discrimination against LGBT people should be ended immediately. It is impermissible for federal funds to be used to discriminate on the basis of sexual orientation and gender identity, whether these monies are used to pay federal workers’ salaries, to pay federal contractors, or to provide block grants to private social service providers. Among other actions, the Office of Special Counsel, charged with enforcing prohibitions on discrimination in the federal workforce, should return to its previous longstanding policy of enforcing prohibitions on sexual orientation discrimination in federal employment. It is time to extend these protections to those who face discrimination based on gender identity and expression as well.

As you know, we need your leadership on a long overdue federal law that bans discrimination on the basis of sexual orientation and gender identity by private employers. Equal workplace opportunity is an essential aspect of equal citizenship. Without the ability to support one’s self and one’s family, individuals are deprived of self-esteem and self-sufficiency, a home and a place in the community, and access to health insurance and health care. Unfortunately, many LGBT workers across this country face serious employment discrimination every day. Today, in thirty states it remains legal for an employer to fire someone for being gay, lesbian, or bisexual. In thirty-eight states, a transgender or gender-nonconforming person can be fired simply because of his or her gender identity or expression. For transgender people in particular, the incidence of blatant discrimination is incredibly high, resulting in epidemic levels of unemployment and homelessness. I ask you to lead the legislative effort on this issue and to announce that you would welcome the opportunity to sign into law federal legislation that protects people from job discrimination based on both gender identity and sexual orientation, and to say that you would refuse to sign legislation that does not include both.

We wholeheartedly agree that it is time for the Defense of Marriage Act (DOMA), enacted in a wave of anti-gay senti ment in 1996, to be repealed. This discriminatory measure is anathema to the principles of equal protection and due process. It treats individuals differently based on their sexual orientation and bars an entire class of families from a vast array of federal protections. Because of DOMA, same-sex couples are treated unequally with regard to federal benefits and taxes, families are denied the job protections of the Family and Medical Leave Act when a spouse or domestic partner is critically ill, individuals and their children are denied access to survivor benefits when a spouse or partner dies, federal employees are unable to provide their spouses and domestic partners with health insurance coverage, and individuals are denied the right to sponsor a spouse or partner for immigration purposes. These are not “special rights”; rather, they represent just a few of the 1,138 federal rights, responsibilities, protections, and benefits currently available to all married different-sex couples but denied to every same-sex couple.

We do want you to understand that the fundamental freedom to marry belongs to all Americans regardless of their gender or sexual orientation. Civil unions and domestic partnership laws––whether on the state level or as an avenue to securing federal rights––are a step in the right direction, but they do not represent equality under the law. It is antithetical to the most basic principles of fairness and equality for the government to create a separate family law status for same-sex couples solely in order to reserve the most respected and esteemed family status for heterosexual couples. Relegating an entire class of families to a separate legal status serves only to stigmatize these families as less deserving than others and to invite private and public discrimination against same-sex couples and their children. The children of same-sex couples have the same needs as other children, not only to have their families recognized and protected under the law, but also to be treated with equal dignity and respect. Providing such basic equality is fully consistent with religious freedom and with the diversity of religious views about marriage. No religion can be required to perform marriages for same-sex couples or to recognize marriages between such couples for religious purposes. On this critical issue of equality and freedom with regard to civil marriage, we need our new president to step up and lead as courageous past presidents have done on other vital issues of civil rights.

We agree with you that LGBT people in our military should be able to serve our country honestly and openly. You should work with Congress to repeal the discriminatory “Don’t Ask, Don’t Tell” policy, which cruelly prevents patriotic service members, who have voluntarily stepped forward to risk their lives for their nation, from serving openly and with dignity. Under this unfair and outdated policy, more than 12,500 highly trained service members have been discharged simply because of their sexual orientation. Military policies also call for the discharge of otherwise qualified transgender service members. It is unconscionable that these discriminatory policies remain in place while our nation is at war and all military branches report recruiting problems. LGBT people who are willing to serve should be honored, not required to remain closeted and live in fear of being discovered and drummed out of the service.

Also long overdue is a federal hate crimes act that covers both sexual orientation and gender identity. It has been more than ten years since Matthew Shepard was left to die on a Wyoming fence after a brutal beating motivated by anti-gay animus. When Matt was killed, there was a national outpouring of grief and federal officials held a vigil at the U.S. Capitol to decry hate violence and pledge to take steps to end it. His parents, Judy and Dennis Shepard, have advocated continuously for this bill, returning to Capitol Hill again and again, but it has yet to be enacted. Unfortunately, the problem of hate violence against LGBT people continues, with federal statistics continuously showing that sexual orientation remains the third highest recorded bias crime in the country and with anecdotal evidence that anti-transgender hate violence occurs frequently, and especially against gender-nonconforming people of color. A federal hate crimes bill should be enacted that covers both sexual orientation and gender identity.

As you know, LGBT youth are especially vulnerable to violence and abuse. For example, in February 2008, fifteen-year-old Lawrence King was shot in the head and killed by a classmate at a California public school simply because Lawrence was identified as gay and often wore makeup and feminine clothing. Peer harassment and bullying based on perceived sexual orientation and gender identity and expression continue to be serious problems. One 2007 survey shows that nearly nine out of ten LGBT students had experienced harassment in the past year at school. In addition to enacting strong laws and policies, we must ensure that teachers and administrators are well trained and able to respond to harassment effectively. We must ensure that schools teach all students tolerance and respect. Recognizing that LGBT youth are also at a dramatically increased risk of homelessness, we also need federal appropriations for housing, shelters, and supportive services targeted to these youth. Federal programs and services for older Americans also must stop excluding LGBT elders, and federal research and policies must recognize the existence of this population.

We also ask you to provide leadership to lessen and help end the HIV/AIDS pandemic that takes its highest tolls in the LGBT community, in communities of color, and among poor people. Our nation should be educating people on how to prevent HIV infection using proven methods, not sponsoring ineffective politically motivated programs such as abstinence-only sex education. With HIV, as with so many other issues, our federal government should restore the roles of research and science to their rightful places; politics should not trump the health needs of our people. Prevention, education, treatment, finding a vaccine and a cure––all are needs that should be addressed with common-sense solutions and adequate, reliable funding. Discrimination against people with HIV, including the irrational and unconscionable ban on visitors and immigrants with HIV, should be abolished.

Access to health care and health insurance coverage was a recurring theme throughout the presidential campaign, but the health-care laws and policies of the U.S. government leave some of the most vulnerable behind. Many transgender people who rely on the government for health care––those on Medicaid, those in prisons, or those held in U.S. detention facilities––are denied treatment related to their transgender condition, even when their lives or health depends on it. We need leadership from the executive branch to support federal policies and legislation that will bring an end to this blatant discrimination and neglect.

Mr. President, as you have indicated that you deeply understand, the lesbian, gay, bisexual, and transgender people of this country are working hard, raising our families, and living our lives honestly in the face of the tremendous hurdles caused by the continued prevalence of state-sanctioned discrimination. We look to you for visionary and sustained leadership to ensure that our nation’s laws protect us and treat our families fairly. The early signs from you and your administration are encouraging. We stand ready to work with you.

Kate Kendell

Kate Kendell is the executive director at the National Center for Lesbian Rights in San Francisco, California.