Lesbian and Gay Rights 101

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Anti-Gay Hate Crime Prevention

The Laramie Project
Still photograph from a high school production of "The Laramie Project," a play that addresses one of the most notorious anti-gay hate crimes in U.S. history: the 1998 murder of Wyoming student Matthew Shepard. Photo: Copyright © 2006 Jeff Hitchcock. Licensed under Creative Commons.

An Illustrated Guide to Lesbian and Gay Rights Issues

This is an illustrated guide to civil liberties issues impacting lesbians and gay men, as well as bisexuals living in lesbian or gay relationships. Some of the issues below also impact transgender persons, though I believe that issues affecting transgender persons are distinct enough to warrant an additional page.

Because HIV and AIDS disproportionately affect gay men, and because homophobia has played and still plays a role in widespread government failure to adequately address issues impacting HIV-positive Americans, many gay rights organizations are also involved in HIV-AIDS activism.

If you'd like to get involved in lesbian and gay rights activism, here are some organizations to look into:

According to the most recent hate crime statistics, roughly 15% of bias-motivated crimes are committed on the basis of perceived sexual orientation.

The Big Question

Hate crime laws are enacted based on the principle that bias-motivated crimes are crimes against both the individual and the identifiable community to which the individual belongs--that they are, in other words, acts of terrorism. Because of this, federal law (18 U.S. 245) and the laws of 44 states mandate additional penalties for those who commit illegal acts on the basis of race, color, religion, or perceived national origin. Yet federal law, and the laws of 20 of those 44 states, include no such protections for those targeted on the basis of their sexual orientation, or perceived sexual orientation. Is it time to expand this definition of hate crimes?

Recent Legislation: Hate Crimes Prevention Act of 2005

In January 2005, Rep. Sheila Jackson Lee (D-TX) introduced the Hate Crimes Prevention Act of 2005 (H.R. 259), which would have increased federal prosecutorial authority over violent crimes committed on the basis of sexual orientation, gender, disability status, as well as the established hate crime criteria of race, color, religion, and perceived national origin. The bill died in committee, but will likely be resurrected in 2007 under the new Democratic Congress.

Hate Crimes and "Free Speech"

Opponents of sexual orientation-based hate crime legislation often claim that the laws would criminalize religious condemnation of lesbians and gay men. This concern is entirely baseless. No U.S. law criminalizing anti-gay speech has been proposed, much less passed. Hate crime bills only increase penalties and investigative powers with respect to acts that are already classified as illegal; they do not criminalize any behavior that is currently legal.

The Philadelphia 11

On October 10th, 2004, a group of eleven anti-gay activists attempted to disrupt the OutFest National Coming Out Day Block Party in Philadelphia, Pennsylvania by verbally abusing attendees and blocking a public street. When police officers asked them to move, they refused to do so and were arrested. Other anti-gay activists immediately began to mischaracterize the nature of the eleven protesters' offense, claiming that they had been arrested for merely "[quoting] what the Bible has to say about homosexuality in public." The protesters were ultimately acquitted. Mainstream religious conservatives, to their credit, didn't fall for the hype; even Bill O'Reilly condemned the protesters' behavior as "overly aggressive and anti-Christian."

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Blood, Sperm, and Bone Marrow Donations

Senator Giving Blood
U.S. Senator Thomas Carper (D-DE) donates blood, an opportunity presently denied to men who identify as gay or bisexual. Image courtesy of the U.S. Senate.

Under current FDA guidelines, gay men are not allowed to donate blood unless they have been celibate for at least five years.

The Big Question

In 1985, when AIDS was perceived as a "gay plague," the Food and Drug Administration enacted a requirement that men who had sexual relations with a male partner after 1977 would not be allowed to donate blood or bone marrow. The policy was later revised so that gay and bisexual men who had been celibate for five years would be allowed to donate blood, a policy that is still in place to this day. In 2004, the policy was extended to cover anonymous sperm donors as well, though gay and bisexual men may still make directed sperm donations.

Gay Blood Donors and the AIDS Scare

The original policy was based on a concern that HIV seemed especially prevalent among gay men. Now, in 2006, there are several factors that render this policy suspect:

  1. HIV has spread into the heterosexual population, and is now the leading cause of death for all men aged 25 to 44, and the fourth-leading cause of death for women in that age group. It is also the number one cause of death for African-American women aged 25-44, the fastest-growing HIV demographic. If the testing system is not safe enough to weed out HIV in blood donated by gay men, then it isn't safe enough to weed out HIV in blood donated by heterosexuals, either.
  2. The restriction is based on the honor system; closeted gay men, who are less likely to practice safe sex than openly gay men, can donate to their hearts' content as long as they're willing to keep their love lives secret.
  3. HIV testing procedures have improved dramatically since 1985. The FDA has certified that approved laboratory HIV tests have an 100% chance of detecting HIV infection if performed after an initial three-month incubation period. (Blood can be safely stored for up to ten years.)
  4. The restriction does not ask whether the sexual behavior is high-risk. A heterosexual who has had unprotected intercourse with many different partners may donate without restriction; a monogamous gay man who practices safe sex is ineligible. If any sexual behavior based screening takes place, the more sensible option would be to base screening on high-risk sexual behavior, and not strictly on sexual orientation.
  5. The American Red Cross, the American Association of Blood Banks, and America's Blood Centers have all stated that the anti-gay screening policy is ineffective and should be discontinued.

The FDA is currently reexamining its policies on gay tissue donors, and is expected to render a decision soon.

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Gay Marriage and Civil Unions

Lesbian Couple at Rally
A Guide to Gay Marriage from a Civil Rights Perspective Image from a California rally in favor of marriage equality. Photo: © 2005 Bev Sykes. Licensed under Creative Commons.

Political leaders often savagely condemn alleged lesbian and gay promiscuity during speeches in support of legislation that punishes lesbian and gay monogamy.

Why This is a Civil Liberties Issue

Under the Fourteenth Amendment, the government may not "deny to any person within its jurisdiction the equal protection of the laws." Laws against same-sex marriage blatantly violate the spirit of this amendment. What's more, these laws are most often explicitly written to "protect the sanctity of marriage." If the government is in the business of protecting sanctity with this kind of legislation, then in what way is it not "[making] law respecting an establishment of religion," an activity expressly prohibited under the First Amendment?

Does the Federal Government Recognize Gay Marriage?

No. In 1998, President Bill Clinton signed the Defense of Marriage Act (DOMA), stating that same-sex couples would not be eligible for federal benefits.

The Federal Marriage Amendment

Conservatives have repeatedly attempted to codify the DOMA as an amendment to the U.S. Constitution, but have never been able to achieve the necessary two-thirds majority in Congress to pull it off.

Which States Recognize Gay Marriage?

Massachusetts is the only state where same-sex marriages can currently be performed. Same-sex marriages performed in Massachusetts are also recognized in Rhode Island.

  • Read more: Gay Marriage in Massachusetts

Which States Have Passed Constitutional Amendments Banning Gay Marriage?

The bad news: Twenty-six states have passed constitutional amendments banning gay marriage. The good news: Most of the states that would pass constitutional amendments banning gay marriage have already done so.

  • Read more: Same-Sex Marriage in the United States: Table of Legislation

What Are Civil Unions?

Civil unions are state policies granting most, but not all, state marriage benefits to same-sex couples. Domestic partnerships, often established by city governments (such as in New York City, for example), serve a similar function but are generally weaker. Civil unions and/or same-sex domestic partnerships are recognized in Alaska (for state employees only), California, Connecticut, the District of Columbia, Hawaii, Maine, New Jersey, and Vermont.

  • Read more: The Difference Between Marriage and Civil Unions
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Lesbian and Gay Adoption Rights

Bush Signs Adoption Act
President George W. Bush signs the Adoption Promotion Act of 2003, intended to encourage more opposite-sex couples to adopt children. Same-sex couples, who cannot procreate and are therefore natural adoptive parents, receive no such encouragement. Image courtesy of the U.S. White House.

About 80,000 foster children go unadopted every year. Thousands of childless same-sex couples want to adopt. The solution is obvious, but there's a problem ...

The Big Question

Should lesbian and gay families be excluded from the adoption system?

Which States Allow Lesbian and Gay Couples to Adopt Jointly?

California, the District of Columbia, Massachusetts, New Jersey, New Mexico, New York, Ohio, Rhode Island*, Vermont, Washington, and Wisconsin.

Which States Ban All Gay Adoptions?

Florida is the only state with an across-the-board ban, a strict 1977 law that prohibits all "homosexual persons" from adopting children (even as individuals). New Hampshire once had a similar law, but it was repealed by the state legislature in 1999.

What is the Status of Gay Adoption in Other States?

Ambiguous. Other states allow adoption by single adults (regardless of sexual orientation), and joint adoption by married couples, but do not allow joint adoption by unmarried couples.

Is There Any Legitimate Reason to Deny Adoption Rights to Same-Sex Couples?

Not really. Opponents of gay adoption generally make three arguments, all of them rather spurious:

  1. "A child is better off with one father and one mother." Even if this claim were true (and there's no evidence that it is), it would be irrelevant. States allow adoption by individuals, and not just by married couples, precisely because they recognize that any healthy, stable family environment is a better option than the foster care system.
  2. "Gay men should not be allowed to adopt, because they are statistically more likely to be child molesters." Actually, according to a 1998 study published in the Journal of the American Medical Association, only about 2% of convicted child molesters identify as gay. The confusion here rests in the fact that adult men are more likely to molest male children (after all, they're more likely to have unsupervised access to male children), but there is no established connection between pedophilia and adult male homosexuality.
  3. "Children who grow up in gay households are more likely to turn out to be gay themselves." There is no statistical basis for this belief, but it does stand to reason that adoptees who grow up to become lesbian women and gay men will be less likely to hide or repress their sexual orientation if they were themselves raised by lesbian or gay parents.

* Provided that the couple is married. Rhode Island does not allow joint adoption by unmarried couples, but it does recognize same-sex marriages performed in other states.

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Lesbians and Gay Men in the Military

Headstone of Gay Vietnam Veteran
The headstone of Sgt. Leonard Matlovich (1943-1988), a decorated Vietnam War veteran who was later dishonorably discharged after military investigators learned of his sexual orientation. He is buried in the Congressional Cemetery. Photo: Copyright © 2005 David B. King. Licensed under Creative Commons.

The ban on lesbians, gay men, and bisexuals in the military is cruel and petty, and it needlessly deprives the overworked U.S. Armed Forces of personnel.

The Big Question

Should the ban on lesbians, gay men, and bisexuals in the U.S. Armed Forces be overturned?

What is "Don't Ask, Don't Tell"?

The "don't ask, don't tell" policy, implemented by President Bill Clinton in 1993, is a slight improvement over the old policy (which could be described as "ask, but don't tell"). Under the old policy, closeted lesbian, gay, and bisexual officers were subjected to investigation and, if found "guilty," would be dishonorably discharged immediately, depriving them of pension and other benefits regardless of the duration of their military service. Now, non-heterosexual officers are still subject to dishonorable discharge (and the subsequent loss of pension and other benefits) if officials learn of their sexual orientation, but officials are prohibited from conducting specific investigations into the sexual orientation of personnel. In practical terms, it isn't much of an improvement; under the current policy, closeted lesbian, gay, and bisexual officers have to just cross their fingers and hope investigators don't happen to catch wind of their sexual orientation.

What is the Cost of "Don't Ask, Don't Tell"?

In 2005, the Congressional Accounting Office estimated that the policy had cost the military approximately $200 million over a 12-year period. Over 11,000 military personnel have been discharged under "don't ask, don't tell" and, according to the Servicemembers' Legal Defense Network, approximately 41,000 potential recruits are presently excluded from military service.

Do Other Countries Allow Non-Heterosexuals to Serve in the Military?

Yes. Nearly every major western democracy allows lesbians, gay men, and bisexuals to serve openly in the military, and have suffered no discernible adverse consequences as a result. This list includes Australia, Canada, Germany, Israel, Poland, Thailand, and the United Kingdom, among many others. Examples of countries that ban non-heterosexuals from military service include Cuba, Iran, North Korea, Saudi Arabia, Syria, and Venezuela--and the United States, of course.

How Can This Policy Be Changed?

This is one of the few policies that can be changed by any sitting President without congressional assistance. All the President has to do is issue an executive order, and the ban will be rescinded. President Clinton promised to do this prior to his election in 1992, then later reneged on his promise. President Bush has indicated that he supports "don't ask, don't tell."

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Sodomy Laws

Knight and Squire Executed for Sodomy
A knight and his squire are burned together at the stake on sodomy charges. From an illustration dated 1482. Public domain. Image courtesy of Wikimedia Commons.

Until 2003, just being a non-celibate lesbian or gay man was illegal in many states. These laws were seldom enforced, but the message was unmistakable ...

The Big Question

Does the government have the authority to ban private, consensual, and victimless sexual acts between adults?

  • See also: Sex and Civil Liberties

A Brief History of American Sodomy Laws

The first gay man executed for sodomy in the United States was Guillermo, a French translator who worked for the staunchly (and rather fanatically) religious Spanish conquistadors. It is not known what happened to his paramour, an American Indian man whom history does not name, but Guillermo would not be the first victim of colonial sodomy laws.

By the time of the American Revolution, executions for same-sex intercourse were relatively uncommon but the laws enforcing same were certainly on the books--enough so that Jefferson helpfully offered castration as a more humane penalty in one 1776 letter. Over time, the penalties for sodomy became less severe, the laws bringing those penalties into effect even less frequently enforced (if not repealed altogether), but many state laws still mandated that private decisions regarding use of appendages and orifices ought to be strictly regulated by law. During the 1990s, Governor George W. Bush (R-TX) vowed to veto any attempt to overturn his state's sodomy law, declaring it "a symbolic affirmation of traditional values." (The law essentially banned all gay sex, but did not apply to heterosexual couples.) Some residents might have been a bit surprised to hear that their traditional values were all that explicit, but the law was, if not wholly symbolic, at least unenforced.

Until it wasn't.

Lawrence v. Texas (2003)

On September 17th, 1998, Texas law enforcement officials stormed the apartment (and, more to the point, bedroom) of a gay couple at a most inopportune time. A homophobic neighbor had reported, presumably with his ear to the wall, that there was a man "going crazy with a gun" inside. (The neighbor later admitted that he had made the story up, and spent 15 days in jail for filing a false police report.) The law enforcement officials saw more than they really wanted to see, and arrested the couple on sodomy charges. The case was appealed all the way to the Supreme Court.

In Lawrence v. Texas (2003), a 6-3 majority led by Justice Anthony Kennedy overturned the conviction, and Texas' sodomy law, on the grounds that "[t]he petitioners are entitled to respect for their private lives," and that "[t]he State cannot demean their existence or control their destiny by making their private sexual conduct a crime."

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Workplace Discrimination

Homophobia Hurts
Photo: © 2006 Carolyn Saffanna. Licensed under Creative Commons.

In most states, a homophobic employer can still legally fire an employee on the basis of sexual orientation.

The Big Question

Should civil rights laws protecting employees from discrimination also outlaw discrimination on the basis of sexual orientation?

The Price of Coming Out

In 34 states, it is still perfectly legal for lesbian and gay employees to be fired simply because their employers discover, and disapprove of, their sexual orientation.

States That Have Passed Anti-Discrimination Laws

California, Connecticut, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, and Wisconsin all have laws on the books prohibiting job discrimination on the basis of sexual orientation.

Federal Intervention

85 percent of Americans oppose job discrimination on the basis of sexual orientation, and 61 percent would like to see such job discrimination prohibited at a federal level. The Employment Non-Discrimination Act (ENDA) has been proposed several times since 1996, failing each time under the Republican-controlled Congress despite broad bipartisan support. Its chances in the new Democratic Congress are perhaps better than they have ever been in the past.

Two Approaches to Workplace Discrimination

An increasing number of corporations already have policies prohibiting discrimination on the basis of sexual orientation. Some fiscal libertarians who support lesbian and gay rights, such as former New Republic editor Andrew Sullivan, actually oppose ENDA in part because they believe that changes in corporate policy would represent a more democratic, and therefore more culture-changing, approach to the problem of workplace discrimination--while ENDA would abruptly introduce a new rule that, if unnecessary, could actually put an end to a very productive national movement to make corporate policies more inclusive.

This argument is similar to Justice Ruth Bader Ginsburg's argument that Roe v. Wade (1973) may have done damage to the pro-choice cause, in the long run, by stunting a more gradual but highly successful national abortion legalization movement. "Doctrinal limbs too swiftly shaped," she once argued (in reference to Roe), "may prove unstable." Still, changes in national corporate policy may do little good for lesbian and gay employees who work for local or regional corporations in socially conservative states, and there is no indication that public opinion vis-a-vis workplace discrimination is likely to backlash against the ENDA.