Highs and Lows of the 2018 Legislative Session for LGBTQ NondiscriminationBy Shane Stahl • June 2, 2018 • 4:44 pm
Editors’ Note: This article was updated on June 8, following New Hampshire Gov. Sununu signing into law full transgender nondiscrimination protections.
The 2018 legislative session is drawing to a close – and despite anti-LGBTQ bills becoming law in Kansas and Oklahoma, there’s also been considerable progress toward nondiscrimination over the last six months.
Historic victories in Alaska and New Hampshire saw transgender rights both defended and embraced, respectively, and dozens of discriminatory bills were defeated in committee or in chambers. Our progress this year played out against the backdrop of the Trump Administration, which continues to undermine the dignity and equality of LGBTQ people at every possible turn. But our growing inroads with conservatives, people of faith, and businesses are ensuring that we’re able to hold-off bad bills and continue making progress in the states.
Here’s a look at the Highs and Lows of the 2018 Legislative Session – and how everything that happened this year builds momentum toward future gains and fuels the LGBTQ movement for the months and years to come.
HIGH: Landmark #TransBillNH Garners Bipartisan Support in New Hampshire
This year our movement scored one of our most significant recent victories in New Hampshire. Lawmakers in the Granite State passed HB 1319 earlier this month, and on Friday, June 8 the state’s Republican governor Chris Sununu signed the bill into law – comprehensive protections for transgender people. This victory is the result of nearly two years of work from advocates, shepherded almost entirely by Freedom New Hampshire, the coalition to pass statewide comprehensive nondiscrimination protections for transgender people in housing, employment, and public accommodations.
Freedom for All Americans was proud to be a founding member of the coalition. The victory gives advocates a roadmap for how to build support for nondiscrimination among critical constituencies, and in states controlled by Republican lawmakers – a roadmap our President of Strategy Kasey Suffredini laid out in an op-ed in The Advocate. When the law takes effect in July, New Hampshire will be the 19th state with a comprehensive and explicit nondiscrimination law, rounding out New England as a region with full LGBTQ protections.
LOW: Child Welfare ‘License to Discriminate’ Bills Become Law in Kansas and Oklahoma
As the 2018 session wound down, some legislators in Kansas and Oklahoma worked to rush through bills that allow adoption agencies receiving taxpayer funding refuse to work with same-sex couples looking to begin families. These bills only serve to harm the thousands of children in both state’s adoption and foster care systems, potentially further delaying placement in loving, secure homes. Although advocates worked to convince governors to veto the respective bills, Mary Fallin of Oklahoma and Jeff Colyer of Kansas both signed the bills into law.
FFAA is proud to be a member of the Every Child Deserves a Family coalition, working with our state and national partners to fight back against piecemeal efforts to codify discrimination against LGBTQ families.
HIGH: Anchorage Voters Affirm Transgender Protections in First-Of-Its-Kind Ballot Victory
In a historic vote, the citizens of Anchorage voted to defend the city’s existing comprehensive protections for transgender people, in effect since 2015, in the city’s first ever vote-by-mail election.
Fair Anchorage, the campaign to defend these protections, mobilized volunteers and coalition partners including safety advocates, law enforcement, and business owners to speak to voters about the necessity of keeping the laws on the books. When final numbers came in, nearly 53 percent of all Anchorage voters cast their ballot in favor of protecting their transgender friends, family, and neighbors. Anchorage thereby became the first municipality in the country to vote to defend comprehensive nondiscrimination protections at the ballot.
Freedom for All Americans is proud to have played a lead role in the Fair Anchorage campaign and is committed to applying the lessons learned on the ground in Alaska to future efforts moving forward.
LOW: Opponents of Transgender Dignity Push Statewide Ballot Fights in Montana and Massachusetts
In the face of our continued victories, opponents in two states have i ramped up their efforts to allow discrimination against transgender people.
In Massachusetts, where comprehensive protections have been in place since Republican Governor Charlie Baker signed them into law in 2016, a small group of anti-LGBTQ advocates gathered the minimum number of signatures required to petition the issue to November’s ballot — not a particularly challenging feat, given the extremely low threshold required to get on the ballot. But the stakes are high: voters will be asked to affirm the state’s existing law protection transgender Bay Staters from discrimination in public spaces. A victory in Massachusetts would be the first time voters at the state-level affirm transgender rights at the ballot.
In Montana, a similar ballot initiative may soon be left to the state’s voters; I-183 would prevent transgender people from using the bathrooms that correspond to their gender identity. Opponents are still gathering signatures, but advocates at Free and Fair Montana are working to speak with voters about the necessity to defend transgender Montanans.
HIGH: More Than 150 Anti-LGBTQ Bills Are Defeated in 26+ States
While many anti-LGBTQ bills were introduced across the country, nearly all of them were defeated in state legislatures, showing that movement for the protection of LGBTQ people continues its groundswell.
Bills that continued the effort to discriminate against transgender people in public accommodations again reared their head, but were blocked from passing in South Dakota, Tennessee, and Washington; bills introducing a “license to discriminate” against LGBTQ people were defeated in many states, including Georgia and Colorado; and efforts to circumvent municipalities from enacting LGBTQ-inclusive nondiscrimination policies failed in Tennessee, Florida, and more.
LOW: Virginia Lawmakers Vote Down LGBTQ Protections, Fueling Energy for 2019
With the 2017 election of Danica Roem, the first-ever openly transgender person to be voted to serve in a state legislature, the Commonwealth seemed primed to advance fairness and equality for LGBTQ people – and it did.
Four separate nondiscrimination bills passed out of the State Senate but when they arrived for consideration in the House of Delegates, the legislation was summarily defeated by anti-LGBTQ lawmakers. Bills introduced during the session included amendments to the Virginia Fair Housing Act to prevent discrimination based on sexual orientation and gender identity and expression, as well as legislation to prevent discriminatory employment practices.
In a bright spot for Virginia, newly elected Governor Ralph Northam signed an executive order upon his inauguration, Executive Order 1, adding gender expression to its protected classes in public employment, as well as extending these protections to state contractors.
The legislation may have been defeated this session, but momentum for LGBTQ equal treatment can’t be slowed in the Commonwealth. Advocates at Equality Virginia and more are already gearing up for 2019.
HIGH: Federal Court Rulings Fuel Momentum for LGBTQ Protections
A string of federal court rulings empowered LGBTQ people to continue to push back against discrimination in court of law.
Most prominently, three federal appellate courts sided with LGBTQ people: The 2nd Circuit, sitting en banc, ruled that Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation; the 6th Circuit reaffirmed that Title VII prohibits employment discrimination based on gender identity and that employers are not entitled to an exemption from Title VII under the federal RFRA; and the 3rd Circuit just last week dismissed anti-transgender extremists’ attempts to overturn a school district’s trans-affirming policy.
Court rulings like these finding that federal law already prohibits anti-LGBTQ discrimination fuel momentum toward full and explicit federal protections. They also speak to the patchwork of laws that haunts the United States when it comes to LGBTQ Americans and illustrates why it’s so important for Congress to act now.
LOW: Anti-LGBTQ Opponents Take to the Courts in Effort to Chip Away at LGBTQ Protections
Emboldended by losses in state legislatures, anti-LGBTQ extremists continued to take to the courts in search of carveouts to existing nondiscrimination laws that protect LGBTQ people – or, in some cases, preemptions to future laws prohibiting anti-LGBTQ discrimination.
Lawsuits like 303 Creative in Colorado and Telescope Media in Minnesota feature business owners who want the right to deny service to LGBTQ people. And a huge flood of lawsuits filed by parents of non-transgender children has tried to attack transgender students and vilify school districts that rightly implement specific trans-affirming guidance, in accordance with Title IX of the Education Amendments. And, of course, the U.S. Supreme Court will soon rule on whether businesses must remain #OpenToAll.
UPDATE: The Supreme Court ruled on June 4 in the Masterpiece case that the Colorado Civil Rights Commission violated the plaintiff’s rights under the Free Expression Clause of the First Amendment. However, the justices stopped short of issuing a broad license to discriminate, limiting their ruling to this specific case, but avoiding the larger question of the right of businesses to discriminate against LGBTQ people.
Most of these lawsuits are filed by the Alliance Defending Freedom, a massive, well-funded organization committed to rolling back LGBTQ protections and making it easier to use religion as a weapon for discrimination. Read more about the Alliance Defending Freedom.
HIGH: Michigan Commission Finds LGBTQ People Are Protected Under Sex Discrimination Law
Progress can take many forms, and in late May the Michigan Civil Rights Commission took decisive action that will benefit LGBTQ people in the state. The commission approved a measure to adopt an interpretation of sex discrimination as inclusive of discrimination based on sexual orientation and gender identity. The move comes after a months-long campaign led by Equality Michigan and supported by dozens of other LGBTQ organizations, including Freedom for All Americans, requesting that the Commission interpret the state’s Elliott-Larsen Civil Rights Act, the state’s nondiscrimination law, as inclusive of LGBTQ protections.
Michigan is still currently one of 32 states that do not have explicit, LGBTQ-inclusive statewide nondiscrimination protections in housing, employment, and public accommodations.
LOW: Trump Administration Digs into Anti-LGBTQ Discrimination
Continuing a disturbing trend begun upon inauguration in 2017, President Donald Trump and his administration took even more actions to chip away at the advancement of LGBTQ rights over the past several years.
The administration doubled down on an attempted ban on open transgender military service. Even though multiple federal courts have issued a stay on the measure, Trump still signed an executive order in March of this year in support of the ban, following a recommendation from Secretary of Defense James Mattis.
Additionally, Trump supported the creation of a new division at the Department of Health and Human Services called the Conscience and Religious Freedom Division. The division is intended to protect healthcare professionals who refuse service to clients and patients by claiming a religious or moral objection, encouraging discrimination in the field. To date, few details have been released about the exact functions of the division.
Furthermore, the administration has thrown its support behind the plaintiff at the center of the Masterpiece Supreme Court case, which concerns a bakery who refused service to a same sex couple based on a religious objection. The Trump Justice Department submitted a brief in support of the plaintiff to the Court, which runs contrary to the majority of small business owners, over 54% of whom believe that businesses are not entitled to religious refusals.
HIGH: LGBTQ Nondiscrimination Bills Advance in Missouri, New York, Ohio, and Others
Several states this session introduced comprehensive nondiscrimination bills that would enact LGBTQ-inclusive statewide protections in housing, employment, and public accommodations, including in states where similar legislation had never previously seen advancement.
Ohio’s HB 160, also known as the Ohio Fairness Act, was introduced for the ninth time this year by Rep. Nickie Antonio. For the first time ever, the bill moved to a second hearing in front of the Government Oversight and Accountability Committee, which heard nearly four hours of supportive testimony on January 31. The bill is currently awaiting a third hearing.
On May 16, the General Laws Committee of the Missouri House passed the Missouri Nondiscrimination Act (MONA), making it the first time in three years that the legislation has advanced out of committee; 2018 marks the 20th year it has been introduced. The bill is currently before the House, as Missouri has a year-round legislative session.
Also in May, the New York General Assembly moved legislation known as GENDA, the Gender Expression Nondiscrimination Act, through its chambers to the state Senate. Several cities in the state, including New York City, Albany, and Buffalo have passed similar transgender-inclusive protections. Unfortunately, the legislation was defeated in a Senate committee by a 3-6 vote. New York Senator Daniel Squadron has introduced the legislation four times since 2012.
HIGH: Legislation Prohibiting Anti-LGBTQ ‘Conversion Therapy’ for Minors Passes in Four States
The good news wasn’t limited to the LGBTQ-inclusive nondiscrimination front: A bipartisan array of state legislators in four states adopted bills that prohibit extreme anti-LGBTQ “conversion therapy” for minors. The Democratic Governors of Washington and Hawaii signed bills into law this spring, as did the Republican Governor of Maryland. The Republican Governor of New Hampshire has a bill banning the discriminatory practice on his desk and is expected to sign.
“Conversion Therapy” is a practice pushed by people who believe non-heterosexual sexual orientation is a choice and involves putting LGBTQ young people through psychological and mental therapy that the leading psychological and mental health organizations have said equates to torture. The practice has been debunked by leading experts nationwide, determined to be fraud by federal courts and juries, and even dismissed as bunk by former proponents of these institutions.
Prohibiting so-called “conversion therapy” moves LGBTQ-inclusive nondiscrimination forward because it affirms the dignity of LGBTQ people and expels the myth that LGBTQ people can change who they are, building momentum toward greater protections, including in employment, housing, and public spaces.