Most Americans believe LGBTQ people are legally protected from discrimination. They're not.
The catch, according to GLAAD's 2020 edition of its annual Accelerating Acceptance survey: An overwhelming number of Americans, regardless of sexuality or gender identity, believe LGBTQ people have federal protections against discrimination that are, in reality, not available to them. That includes discrimination in housing, public spaces, employment benefits and the military.
Part of this dissonance, GLAAD CEO Sarah Kate Ellis tells USA TODAY, is that LGBTQ rights are largely being "left out" of the conversation.
"It wasn't in any of the debates and it isn't being covered," she said, pointing out that the only time it was mentioned among the two presidential candidates was during a town hall by Democratic presidential candidate Joe Biden.
"There is also this false narrative that marriage equality was the finish line – that marriage gave us all the (same rights as) everybody else," she said. "There's a whole host of other rights that were overshadowed by marriage equality."
Among GLAAD’s findings:
- 89% of non-LGBTQ respondents and 78% of LGBTQ respondents believe it is illegal to evict someone from housing because they are LGBTQ; 91% of non-LGBTQ respondents believe it should be illegal.
- 80% of non-LGBTQ respondents and 65% of LGBTQ respondents believe it is illegal to turn people away from a restaurant or other place of business because they are LGBTQ; 90% of non-LGBTQ respondents believe it should be illegal.
- 78% of non-LGBTQ respondents and 70% of LGBTQ respondents believe it is illegal to deny employment benefits – pension or health insurance – to an employee’s same-sex partner; 86% of non-LGBTQ respondents believe it should be illegal.
- 59% of non-LGBTQ respondents and 50% of LGBTQ respondents believe it is illegal to deny transgender people the right to use the restroom that aligns with their gender identity; 61% of non-LGBTQ respondents believe it should be illegal.
The study, which surveyed a nationally representative sample of 2,506 American adults, was conducted before the groundbreaking Supreme Court decision in June to prohibit discrimination in the workplace for LGBTQ people.
Still, in many spheres of life, LGBTQ people are not afforded the same privileges as their counterparts. Ellis and many other LGBTQ advocates also fear that the appointment of Amy Coney Barrett to the Supreme Court may further impede queer and trans people from obtaining necessary legal protections.
What federal protections aren't available to LGBTQ people?
A vast majority of federal protections, contrary to public belief, are unavailable to LGBTQ people. That includes prohibiting transgender people to serve in the military, trans students accessing the bathroom that corresponds to their gender identity, married same-sex couples accessing partner health care benefits, and equal access to housing.
And crucially, the Department of Justice, The 19th reported earlier this year, has yet to enforce the June workplace discrimination ruling within federal agencies.
But even as lower courts use the ruling to extend some of these benefits to the LGBTQ community – trans students in five states, for example, are now able to use the bathroom that aligns with their gender identity after a federal court applied the Supreme Court ruling to the case – a patchwork of policies can never quite measure up to comprehensive protections on a national level.
“Our rights have only been secured through Supreme Court decisions, so our rights are decided by nine judges, whether or not we exist as second-class citizens,” Ellis said.
How will Amy Coney Barrett’s Supreme Court confirmation shape LGBTQ rights?
A plethora of LGBTQ rights organizations, including GLAAD, the Human Rights Campaign and Lambda Legal, have vehemently opposed Barrett’s rushed confirmation to the Supreme Court.
“Amy Coney Barrett deeply alarmed us during her confirmation hearings when she refused to say whether she believed cases that are the backbone of the legal rights of LGBTQ people,” said Lambda Legal CEO Kevin Jennings in a statement soon after Barrett was confirmed by the Senate. "We fear that all the progress we have made in recent years is now at risk."
On the first day of the Supreme Court reconvening, Justices Clarence Thomas and Samuel Alito issued a stark condemnation of the 5-year-old ruling that granted marriage equality, saying it would have "ruinous consequences for religious liberty."
A day after the election, Fulton v. the City of Philadelphia will be one of the first cases heard by the full court as Barrett fills the seat that Justice Ruth Bader Ginsburg vacated upon her death. The case, which focuses on LGBTQ couples fostering and adopting children from a Catholic agency, will be a key case in determining whether organizations can object to working with LGBTQ people on moral or religious grounds.
The Equality Act could change this
LGBTQ advocates have repeatedly emphasized the importance of the Equality Act, a comprehensive bill that would explicitly deny legal discrimination on the basis of sexuality and gender identity by updating the Civil Rights Act.
A 2018 poll, according to the Human Rights Campaign, found broad support for the bill, with seven out of 10 Americans advocating for LGBTQ equal rights
But it hasn’t made any movement in the Republican-led Senate after being approved by members of both political parties in the Democrat-led House of Representatives last year.
"Right now, as a community, we do not have comprehensive rights – and we do have an Equality Act that is sitting on (Majority Leader) Mitch McConnell’s desk," Ellis said.
A key caveat: Even if the Equality Act ever makes it out of the House and onto the desk of the White House, there are forms of discrimination that go beyond the legal sphere.
And in particular, all types of discrimination, including harassment and violence, target the most vulnerable members of the LGBTQ community – particularly trans women, queer and trans people of color, and Black and brown trans women.
But for now, even legal forms of discrimination can be still be enacted toward the LGBTQ community. And until that changes, whether by law or by court action, little will change materially.
"Until he have comprehensive rights," Ellis said, "we remain at the whim and whimsy of the Supreme Court."
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