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A Brief History of the Path to Securing LGBTQ Rights

Jon W. Davidson

Summary

  • Early litigation focused on government deprivations of LGBTQ rights because the Constitution provided a basis for legal claims.
  • The U.S. Supreme Court decision in Bowers v. Hardwick energized the LGBTQ community to form numerous new organizations to fight for legal reforms.
  • Black, Indigenous, people of color, disabled, noncitizen, and low-income LGBTQ people remain the most vulnerable members of the LGBTQ community.
A Brief History of the Path to Securing LGBTQ Rights
JasonDoiy via Getty Images

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Introduction: Tremendous Progress and Determined Opposition

The modern-day movement for the rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ) Americans often is hailed as beginning in 1969. That’s when LGBTQ patrons of New York’s Stonewall Inn fought back against police harassment. At that time, every state in the nation but one criminalized most forms of same-sex sexual intimacy. No state granted any form of legal recognition of same-sex relationships. No jurisdiction prohibited discrimination based on sexual orientation or gender identity.

How the nation has changed. The U.S. Supreme Court has recognized that consensual adult sexual conduct is constitutionally protected. It also has ruled that same-sex couples have a constitutional right to marry. A majority of Americans now live in jurisdictions that provide express, comprehensive protections against sexual orientation and gender identity discrimination. In 2020, the Supreme Court ruled that Title VII, the federal statute barring sex discrimination in employment, extends to discrimination based on sexual orientation and gender identity as well.

These developments have brought the movement for LGBTQ rights more rapid success than any other civil rights struggle in our nation’s history. It has not been a straight line, however (pun intended). Powerful opposing forces have mounted repeals of nondiscrimination protections, attempted to create significant exceptions to statutory advances, and even amended state constitutions to limit their protections of LGBTQ people. Most recently, that opposition has set its sights on the basic freedoms of transgender people, particularly transgender youth. The battle to secure LGBTQ rights clearly is far from done.

This article traces the evolution of constitutional and statutory protections of LGBTQ rights at the federal, state, and local levels. In doing so, it salutes the brave plaintiffs and criminally charged defendants who came forward to fight for their communities, the tireless work of their advocates and allies, countless legislative heroes, and the jurists who, thus far, have gotten it right more often than wrong.

The Beginnings: Targeting the Government’s Adverse Treatment of LGBTQ People

It was not until 1982 that the first protections of the rights of LGBTQ people at the state or national level would be enacted. Early litigation, therefore, focused on government deprivations of LGBTQ rights because the Constitution provided a basis for legal claims. Beginning in the 1950s, cases invoked the First Amendment to successfully challenge post office seizures of lesbian and gay publications as allegedly obscene, including one victorious case that made it all the way to the Supreme Court in 1958. Successful freedom of speech cases also struck down bans on gay student groups at public colleges and universities, refusals to issue parade permits for gay rights demonstrations, denials of nonprofit status to gay rights organizations, and exclusions of lesbian and gay groups from public fora. These, and judicial limits that began to be placed on government efforts to close gay bars, were essential to making it possible in the years before the internet for LGBTQ people to learn about and meet one another and to organize for political and social change.

Early litigation and legislative efforts also responded to injustices in areas where LGBTQ people got caught up in the legal system, either because they were arrested or became involved in a child custody dispute. One of the earliest victories for transgender rights invalidated an Ohio law prohibiting cross-dressing in 1975 as unconstitutionally vague. In response to law enforcement agency sweeps of gay gathering places and the use of decoy officers, gay and bisexual men arrested for solicitation, loitering, and vagrancy also deployed vagueness arguments to attack the unfettered discretion those laws gave the police to arrest LGBTQ individuals who usually were doing nothing wrong.

While rarely enforced because of lack of complaining witnesses, sodomy laws were the foundation for treatment of LGBTQ people as criminals, unfit to hold certain jobs or be custodial parents. In 1961, Illinois became the first state to remove consensual sodomy from its penal code. By 1986, half the states had eliminated these laws either by legislative action or, in a few states, by lawsuits challenging them as violating state or federal constitutional protections. The Supreme Court held in Bowers v. Hardwick that year, however, that the U.S. Constitution did not prohibit states from criminalizing oral and anal sex between same-sex couples. The Court held that moral condemnation of homosexuality justified such laws.

That Bowers decision was widely derided. It also energized the LGBTQ community to form numerous new organizations to fight for legal reforms. Public interest legal groups turned to state constitutions for relief. Successful state lawsuits thereafter eliminated the sodomy laws of Arkansas, Georgia, Kentucky, Maryland, Montana, and Tennessee. Finally, 17 years after Bowers, the Supreme Court in 2003 decided in Lawrence v. Texas that Bowers was “not correct when it was decided” and overturned that precedent. In what was clearly a turning point for LGBTQ rights, the Court held that gay people were “entitled to respect for their private lives” and that the government “cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

While making fewer headlines, hostile custody and visitation decisions after lesbian and bisexual women left marriages to men or ended same-sex relationships directly affected the lives of many more people. Many states employed the idea that homosexuality and bisexuality were, by themselves, a per se reason to deny formerly married women custody of or visitation with their children. It was not until the 1980s that states began employing a “nexus” test, requiring evidence of a parent’s homosexuality’s adverse impact on their child’s welfare to be considered. Still, many courts imposed restrictions, such as no overnight visitation, on lesbian, bisexual, and gay parents living with same-sex partners. Others barred them from discussing aspects of their lives with their children or taking them to LGBTQ events. Family law reforms were a gradual, state-by-state process, but such overt discrimination against LGBTQ parents based on their sexual orientation has become rare today.

When same-sex couples with children separated, the non-biological parent historically could be cut off from the children they had helped raise, with no recourse. In response, de facto parentage, in loco parentis, and parenthood by equitable estoppel doctrines were invoked to preserve the parental bonds children had formed with those who had acted as a parent to them with their biological parent’s consent. Acceptance of these doctrines took time, however. For example, New York did not grant standing to a non-biological, non-adoptive parent to even seek custody until 2016.

Some states also prohibited same-sex couples and lesbian, gay, and bisexual individuals from adopting or becoming foster parents by statute, regulation, or practice. Such categorical bans are now a remnant of the past, but Florida’s adoption ban was not struck down until 2010. 

Challenging Discrimination by the Government, Employers, Landlords, and Businesses

The earliest cases involving sexual orientation discrimination all were brought by government employees because, in those, claims could be brought under the Constitution for violation of due process, free speech, and equal protection rights. Some dismissals of lesbian, gay, and bisexual employees were overturned on due process grounds as arbitrary and capricious because their off-duty conduct was not shown to impair the organization’s work. In 1984, a federal appellate court invalidated an Oklahoma law barring public school teachers from advocating in favor of private homosexual activity, ruling it fatally overbroad in violation of the First Amendment. The Supreme Court then affirmed that decision by an equally divided court. Eventually, equal protection challenges, reforms to federal civil service laws, and federal and state executive orders barring sexual orientation and subsequently gender identity discrimination against government employees ended most such disputes.

As the nation’s largest employer, the U.S. military’s bans on service by LGBTQ people gave rise to the most litigation. While a few challenges succeeded in allowing military service by lesbian, gay, and bisexual individuals, these led to the adoption of a “Don’t Ask, Don’t Tell” rule. It took congressional action to end that policy. A later executive order barring enlistment by transgender individuals took subsequent presidential action to repeal.

Municipal and county ordinances barring discrimination in employment, housing, and public accommodations began to be passed in the 1970s, but in many parts of the country, they faced heated opposition and a concerted backlash. Repeals of such ordinances at the ballot box occurred in Dade County, Florida, and numerous other local jurisdictions. In 1996, however, a statewide measure to bar such ordinances was struck down by the Supreme Court as violating the Equal Protection Clause in Romer v. Evans. That decision helped spur the passage of anti-discrimination laws at both the local and state levels, to the point that we now have state laws expressly barring sexual orientation discrimination in employment, housing, and public accommodations in 22 states and expressly barring gender identity discrimination in 21, as well as more than 400 local ordinances providing similar protections.

In a majority of states, however, there is still no state law expressly prohibiting discrimination by private employers, landlords, or businesses against LGBTQ people. Longstanding efforts to pass comprehensive national nondiscrimination protections still have not succeeded as of this writing. Nonetheless, in 2020, in a ruling with sweeping implications for other federal nondiscrimination laws, the Supreme Court held in Bostock v. Clayton County that Title VII’s ban on sex discrimination in employment necessarily protects against sexual orientation and gender identity discrimination.

Obtaining Legal Recognition of Same-Sex Relationships

A number of local governments again led the way in providing recognition to same-sex couples as “domestic partners” and providing health-care benefits to the partners of their employees in same-sex relationships. California passed the first statewide domestic partnership law, and state constitutional claims gave rise to civil unions in Vermont and New Jersey. An early victory in Hawaii was overturned by voters amending the state’s constitution. That was followed by amendments of state constitutions in 28 states to preclude reliance on state constitutional protections in challenges to restrictive marriage laws. A victory under the Massachusetts Constitution in Goodridge v. Department of Public Health, however, made it possible for same-sex couples to marry in Massachusetts beginning in 2005, and similar state court litigation victories were won in California (temporarily overturned by an electoral vote), Iowa, and Connecticut.

The Supreme Court ruled in Windsor v. United States in 2013 that the federal government must treat marriages lawfully entered into by same-sex couples equally to those of different-sex couples. That led to a wave of federal victories striking down bans on same-sex couples marrying. Between judicial, legislative, and electoral victories, 24 states were permitting same-sex couples to wed when the Supreme Court ruled that all states must do so in Obergefell v. Hodges in 2015.

Fighting for the Rights of Transgender, Nonbinary, Gender-nonconforming, and Intersex People

Early efforts to secure the rights of transgender people centered on making it possible to obtain identity documents matching their gender identity, including amended birth certificates, driver’s licenses, and passports. Subsequent political efforts allowed nonbinary and gender-nonconforming individuals to obtain an “X” gender marker on some identity documents, and a lawsuit on behalf of an intersex individual prompted the State Department to make such a marker available on passports as well. Other affirmative litigation on behalf of transgender prisoners tackled mistreatment while incarcerated, including denial of necessary medical care. Subsequent litigation relied on Title VII, Title IX, the Fair Housing Act, and the Affordable Care Act, and for government employees, the Equal Protection Clause, to challenge discrimination in employment, education, and housing, as well as coverage of necessary medical care under employer insurance plans and Medicaid.

The last few years have seen a swell of legislative attacks on transgender people, especially transgender minors. Restrictions on the ability of transgender individuals—particularly transgender youth—to access single-sex facilities matching their gender identity, obtain gender-affirming care, and participate in sports consistent with their gender identity have resulted in numerous lawsuits. While most of these suits have led to injunctions against these laws and policies, these issues will continue to be litigated until the Supreme Court weighs in.

Religious Exemptions

As LGBTQ people gained protections against discrimination, some who wished to continue to deny equal treatment to LGBTQ people sought refuge in constitutional and statutory protections of freedom of religion. The Supreme Court largely sidestepped these issues in its rulings in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Fulton v. Philadelphia. Ongoing cases involving the Free Exercise Clause, the Religious Freedom Restoration Act, and the scope of the constitutional ministerial exception and Title VII’s coreligionist exemption will determine whether protections against discrimination provide relief for LGBTQ people or not when dealing with religious institutions and with secular businesses whose owners assert religious objections to employing, housing, or serving LGBTQ people.

Those Too Often Left Behind

While dramatic progress has been achieved for the LGBTQ community in general; Black, Indigenous, and people of color; disabled; noncitizen; and low-income LGBTQ people remain the most vulnerable members of the LGBTQ community. Many have suffered horrific violence, police misconduct, unremedied discrimination, and poverty. Developing strategies to address the ways in which various grounds of discrimination intersect with and compound one another is a crucial part of the work ahead.

Conclusion

There’s a wonderful social media post I’ve seen that says, “People who wonder if the glass is half full miss the point. The glass is refillable.” The work of LGBTQ advocates and their allies has been spectacular, but it remains unfinished, with significant challenges remaining. That requires refilling the glass of legal and political advocacy to one day fulfill America’s promise of liberty and justice for all.