On its final day for issuing decisions last June, the Supreme Court’s opinion in United States v. Windsor declared the Defense of Marriage Act of 1996 unconstitutional, accelerating what was already a shockingly quick shift across the country on the issue of gay marriage. It’s only been a decade since Massachusetts became the first state to legalize same-sex marriage, and now it’s legal in 19 states and the District of Columbia. According to USA Today, supporters of marriage equality have won 20 consecutive rulings in lower federal and state courts in the last year, as judges repeatedly overturned state same-sex marriage bans, invoking the DOMA decision. It’s definitely progress worth celebrating, but, on the other hand, gays and lesbians still can’t marry in 31 states — plus, they face discrimination in many other areas, from adoption to donating blood. Here’s a look at the recent triumphs in the gay rights movement, and the battles the LGBT community is still fighting.
Gay adoption: For same-sex couples in the United States, adoption laws are a confusing patchwork, and the practical rules can vary even from judge to judge. Only 19 states and the District of Columbia allow same-sex couples to adopt jointly.
In New York, the legalization of gay marriage has actually complicated the issue of same-sex adoptions. This year, Brooklyn Surrogate’s Court Judge Margarita López Torres ruled in the case of a married lesbian couple that the non-gestational mother’s adoption petition was neither “necessary nor available” because there is a “presumption of parenthood” for all married couples. On the one hand, that means same-sex parents can skip the lengthy and expensive second-parent adoption process, but many worry that if they travel outside the state without adoption papers, both parents’ rights won’t be recognized.
Workplace discrimination: While it’s been illegal to discriminate based on race, color, religion, sex, or national origin since 1964, incredibly, there is no federal ban on firing or refusing to hire someone based on sexual orientation or gender identity. Twenty-one states and many counties and towns have passed laws banning LGBT employment discrimination, and at the federal level, there are signs of (very slow) progress.
Many believed the Employment Non-Discrimination Act, which has been introduced in every session of Congress since 1994, would finally pass last year, but it stalled in the House. Now, President Obama is ready to act on his own. He’s preparing an executive order that would ban federal contractors from discriminating in hiring or firing based on sexual orientation or gender identity. Companies that do business with the federal government make up a fifth of the U.S. workforce, but Obama said Congress should still be pressured to pass ENDA. “It doesn’t reach everybody who it needs to reach,” he said of the executive order. “Congress needs to start working again.”
Blood donation: The FDA banned gay men from donating blood in 1983, in the early days of the AIDS epidemic, and it has yet to update that policy, though in the last three decades tests have been developed that can detect HIV within days of infection. In 2006, the Red Cross, the American Association of Blood Banks, and America’s Blood Centers urged the FDA to change its policy, and last summer the American Medical Association made the same recommendation, calling the ban “discriminatory and not based on sound science.” There are several studies on the issue currently underway, and in September the FDA said the ban will be eased, “only if supported by scientific data showing that a change in policy would not present a significant and preventable risk to blood recipients.”
Military service: Gays, lesbians, and bisexuals have been able to serve openly in the military since Don’t Ask, Don’t Tell was repealed in 2011, but consensual gay sex was still banned under the Uniform Code of Military Justice until last December. Article 125 prohibited it, stating, “unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy.” The provision was essentially unenforceable since the U.S. Supreme Court struck down anti-sodomy laws in the 2003 decision Lawrence v. Texas, but an effort to remove it failed in 2011 after complaints from conservative groups. Tony Perkins of the Family Research Council said, “In its haste to make gay sex an official part of military life, the left could be unintentionally repealing the ban on bestiality too.” The ban on sodomy was repealed under the National Defense Authorization Act for Fiscal Year 2014 (and bestiality is still prohibited under other statutes).
Transgender people still can’t serve openly in the armed forces, as Defense Department guidelines describe being transgender as a form of sexual deviance. It’s estimated that there are more than 15,000 transgender people currently serving in the U.S. Army, and in May, Secretary of Defense Chuck Hagel said he’s “open” to reviewing the policy.
Anti-sodomy laws: While the U.S. Supreme Court invalidated anti-sodomy laws nationwide in 2003, more than a decade later, they’re still on the books in a dozen states — and in many cases it isn’t just an oversight. Last year, police in Baton Rouge, Louisiana, arrested at least a dozen gay men for attempted “crimes against nature,” and while the district attorney refused to bring charges, state lawmakers voted to keep the law in place. In a letter sent to every state lawmaker, the influential Christian Louisiana Family Forum said, “Louisiana’s anti-sodomy statute is consistent with the values of Louisiana residents who consider this behavior to be dangerous, unhealthy and immoral.”