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Overview of Federal Actions on LGBTQIA+ Rights Practical Law The Journal
The current Trump administration has enacted policies that significantly lower federal protections for LGBTQIA+ individuals, particularly transgender people. The administration has relied heavily on executive orders and agency directives to affect the rights of LGBTQIA+ individuals as they relate to military service, health care, education, and civil rights enforcement (see, for example, Executive Order 14183, titled 'Prioritizing Military Excellence and Readiness,' and Executive Order 14173, titled 'Ending Illegal Discrimination and Restoring Merit-Based Opportunity').
For most of US history, LGBTQIA+ individuals faced negative treatment in various settings. For example, during World War II, the federal government dishonorably discharged gay individuals from the military. Additionally, from the late 1940s through the 1960s, a time known as the Lavender Scare, the US government either fired or forced gay individuals to resign from government service. (See Nat'l Park Serv.: LGB Military History and Libr. of Cong.: LGBTQIA+ Studies: A Resource Guide.)
The modern LGBTQIA+ rights movement is commonly believed to have begun in 1969, when a police raid on the Stonewall Inn in New York City instigated a spontaneous uprising by LGBTQIA+ patrons. The following year, in 1970, the first Pride marches took place in New York, Los Angeles, and Chicago. (Libr. of Cong.: The History of Pride.) Over the course of the movement that continues today, the federal government has taken steps to either expand or contract the rights of LGBTQIA+ individuals. Several times, restrictions imposed by one administration on these rights have been reversed by later administrations, reflecting changing political and social priorities.
Major federal milestones in recent history include:
Lawrence v. Texas. In 2003, the US Supreme Court struck down sodomy laws nationwide and decriminalized same-sex sexual conduct. In so holding, the Court overturned its 1986 holding in Bowers v. Hardwick (478 U.S. 186 (1986)). It held that an adult's consensual sexual intimacy at home is a vital interest in liberty and privacy that is protected by the Due Process Clause of the Fourteenth Amendment. (539 U.S. 558 (2003).)
The repeal of 'Don't Ask, Don't Tell.' In 2010, the Obama administration repealed 'Don't Ask, Don't Tell,' allowing gay, lesbian, and bisexual individuals to serve openly in the US military. The policy had previously been enacted in 1993 and required service members to hide their sexual orientation or face discharge. (US Dep't of Def.: Don't Ask, Don't Tell Resources.)
United States v. Windsor. In 2013, the Supreme Court struck down Section 3 of the Defense of Marriage Act (passed by Congress in 1996) that banned federal recognition of same-sex marriages. The Court found that the law violated the Fifth Amendment's guarantee of equal protection. (570 U.S. 744 (2013).)
Obergefell v. Hodges. In 2015, the Supreme Court ruled that same-sex marriage is a constitutional right nationwide. It held that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment guarantee same-sex couples the right to marry. (576 U.S. 644 (2015).)
Bostock v. Clayton County. In 2020, the Supreme Court held that Title VII of the Civil Rights Act of 1964 shields employees from workplace discrimination based on their sexual orientation or gender identity. The decision extended federal workplace protections for these employees and made it illegal for employers to fire or discriminate against someone for being gay or transgender. (590 U.S. 1731 (2020); for more information, see Sex Discrimination Under Title VII and the EPA and Sexual Orientation and Gender Identity Discrimination Under Title VII on Practical Law.)
303 Creative LLC v. Elenis. In 2023, the Supreme Court ruled that under the First Amendment, the state could not compel a website designer to create work that violated her values. The decision highlighted the tension between free expression and anti-discrimination laws. (600 U.S. 570 (2023).)
The Trump administration has rolled back various LGBTQIA+ protections that were enacted by the preceding Biden administration. Additionally, state and local governments continue to pass legislation impacting LGBTQIA+ rights (for more information, see Sexual Orientation and Gender Identity and Expression Discrimination State and Local Laws Chart: Overview on Practical Law). Counsel should stay informed on evolving policies and court rulings under the current administration to effectively advise on LGBTQIA+ rights in areas such as employment, health care, education, and public accommodations. (For resources for counsel to assist employers in addressing sexual orientation and gender identity in the workplace, see Workplace Diversity and Inclusion Toolkit
