“Today, in France, we still cannot live and love freely just as we are,” said Joël Deumier, president of the association SOS Homophobie. In its annual report published May 10, 2017, the organization stated it received 1,575 testimonies of anti-LGBT acts in 2016, an increase of nearly 20% compared with the previous year. It’s possible that the increase in reported incidents reflects a greater willingness of victims to speak out. Still, SOS Homophobie believes that many victims of anti-LGBT acts do not dare come forward.

Demonstration in support of same-sex marriage in Paris, 16 December 2012.

© 2012 Olivier Hoffschir

In 2016, SOS Homophobie received 26 reports from people who said they had a homophobic, biphobic, or transphobic encounter with justice or law enforcement officials. By this is meant that an officer refused to characterize an assault as homophobic in a complaint or to even file a complaint, or that a law enforcement officer himself discriminated against LGBT people.

While these incidents remain thankfully limited, they are no less unacceptable. France should take measures to determine how widespread these attitudes are among public officials, and to prevent subversion of their duties because of this attitude.

SOS Homophobie’s report also shows a correlation between debates over equal rights and the increase of anti-LGBT acts. The organization recorded a spike in reported incidents in 2013, the year France legalized same-sex marriage. In 2016, France adopted a law waiving the requirement for transgender people to provide proof of medical treatment to amend their legal gender. That same year saw a 76% spike in reported transphobic incidents.

While a majority of the French population is in favor of allowing same-sex couples to get married and adopt children, opponents of LGBT rights are a “vocal minority,” and are especially active on social media, where prosecution for homophobic statements remains difficult to carry out.

Several candidates for the 2017 presidential election expressed their intention to “rewrite the Taubira law” on same-sex marriage and adoption. One candidate even received the support of Sens commun, an organization openly opposed to the rights of LGBT people. When political figures take stands that are hostile to equal rights, they may “rekindle hate.”

It is high time to end discrimination against LGBT people and the French authorities have a key responsibility and role to turn this into reality.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

This week Poland’s parliament has the chance to improve the lives of transgender people by passing a law that simplifies the legal gender recognition procedure.

Recognition before the law in your preferred gender is a vital aspect of ensuring respect for the human rights of transgender people. For example, it allows transgender people to access services on an equal footing with their peers.

Transgender activists march in the 2015 Warsaw Pride holding a banner that reads "YES to Gender Accordance Act.”

© 2015 Trans-Fuzja

Momentum on this matter is building. Earlier this year, the Parliamentary Assembly of the Council of Europe issued a resolution noting “the emergence of a right to gender identity”, while raising concerns that “transgender people face widespread discrimination in Europe.”

Members of Poland’s parliament will consider the country’s Act on Gender Recognition this Friday. Parliament already passed the draft legislation over the summer, although the president vetoed it last week.

The act proposes some important advances.

First, it defines gender identity as a “settled and intense experience of one’s own gender,” which may or may not correspond with one's sex assigned at birth.

Second, it eliminates the requirement for physical interventions before gender can be legally recognized, and instead makes the process a court procedure.

Third, it spells out the various documents on which applicants are legally entitled to change their gender – including education certificates, work qualifications, and health records – and allows the possibility for young transgender people, once they reach age 16, to change their name.

Access to documents in your preferred gender and name is a key element in ensuring respect for an individual’s right to personal and private life, and also allows transgender people better access to healthcare, education, and employment.

In a recent survey, 78 percent of Polish transgender people said quicker and easier legal gender recognition procedures would allow them to live more comfortably.

There’s no doubt President Andrzej Duda’s recent veto of the act was a setback. But if parliament does vote in majority support of the legislation, Poland will take a huge step forward and transform the lives of many.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Graeme Reid, director of the Lesbian, Gay, Bisexual and Transgender Rights Program, is an expert on LGBT rights. He has conducted research, taught and published extensively on gender, sexuality, LGBT issues, and HIV/AIDS.

Before joining Human Rights Watch in 2011, Reid was the founding director of the Gay and Lesbian Archives of South Africa, a researcher at the Wits Institute for Social and Economic Research and a lecturer in Lesbian, Gay, Bisexual, and Transgender Studies at Yale University. An anthropologist by training, Reid received an master’s from the University of the Witwatersrand, Johannesburg, and a PhD from the University of Amsterdam.

Posted: January 1, 1970, 12:00 am

Participants hold placards during a protest demanding an end to what they say is discrimination and violence against the transgender community, in Bengaluru, India October 21, 2016.

© 2016 Reuters
The Indian government will introduce a revised Transgender Persons Bill in the session of parliament beginning March 5. The legislation promises to enshrine the hard-fought battle for legal recognition and access to social services for India’s transgender community – rights long denied.

An earlier draft of the bill, introduced in 2016, mandated an “expert evaluation” for transgender people who wanted to be legally recognized according to their gender identity and offered an inaccurate and stigmatizing definition of “transgender.” Indian transgender communities, as well as Human Rights Watch, flagged concerns over the draft law.

A parliamentary committee report released in July 2017 criticized these provisions, and called for improvements. “While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight, there is most certainly shame and dishonor in being a homophobe, a transphobe and a bigot,” said Ramesh Bais, a member of parliament from India’s ruling Bharatiya Janata Party, who chaired the committee.

Reports indicate that the new version allows for legal gender recognition – or that the gender appearing on a transgender person’s official documents and registers will be based on self-identification only. This removes a significant barrier toward realizing basic human rights. The absence of legal recognition erodes protection from violence and discrimination and can facilitate frequent abuse from law enforcement officers and other authorities.

The Transgender Persons Bill resulted from the 2014 Supreme Court judgment in NALSA v. India, which ruled that transgender people should be legally recognized according to their gender identity, enjoy all fundamental rights, and receive special benefits in education and employment.

Parliament now has a second chance to get this overdue piece of legislation right, and respect the fundamental rights of a long-neglected and marginalized minority. Any new law should be in line with the provisions laid down in the NALSA judgment, India’s constitutional guarantees, and international standards.

Author: Human Rights Watch, Human Rights Watch
Posted: January 1, 1970, 12:00 am

Muslim protesters hold an anti-LGBT rally outside a mosque in the provincial capital Banda Aceh, Aceh province, Indonesia on February 2, 2018.

© 2018 Antara Foto / Irwansyah Putra

Indonesia’s growing moral and political panic about sexuality has now produced draft laws that could criminalize sex outside marriage, and same-sex conduct.

Things may get even worse: One legislator has called for the death penalty for gays and lesbians. Others have cynically attempted to portray criminalization as a means of protecting lesbian, gay, bisexual and transgender (LGBT) people from vigilante violence.

None of this bodes well for a country that proclaims a message of “unity in diversity” on the international stage, seeks to attract foreign investors and draws millions of tourists by promoting itself as a relaxed beach holiday destination.

 It is also profoundly concerning for the LGBT people who before 2016 lived peacefully, even piously, among pluralist neighbors.

The roots of Indonesia’s rising intolerance lie in the failure of successive governments to effectively respond to harassment, threats and violence by militant Islamists against religious, ethnic and sexual minorities – a trend that should concern all of Asia.

Parliamentarians in the Association of Southeast Asian Nations expressed their concerns in a joint statement on Feb. 7. Teddy Baguilat, a Philippine lawmaker, calling the proposed laws “a blatant violation of all Indonesians’ right to privacy and their fundamental liberties.”

One strain of the current agitation began in January 2016 when Indonesia’s Higher Education Minister Mohammed Nasir tweeted that he wanted to ban all LGBT student groups from university campuses. Within two months, dozens of public officials had contributed to a cascade of anti-LGBT vitriol.

At a maternal-health seminar, a mayor warned young mothers off instant noodles – their attention, he said, should be given to nutritious cooking, which would prevent their kids from becoming gay. Defense Minister Ryamizard Ryacudu labeled LGBT rights activism a proxy war on the nation led by outsiders, and more dangerous than a nuclear war.

Powerful institutions supported the invective. The Indonesian Child Protection Commission issued a decree against “gay propaganda.” The Indonesian Psychiatric Association proclaimed homosexuality and transgender identities to be “mental illnesses.” And the Nahdlatul Ulama, Indonesia’s largest Muslim organization with about 80 million members, called for criminalization of LGBT activism and for “rehabilitation” of gay people.

Sexual and gender minorities in Indonesia have historically lived with intermittent bouts of animosity, but tolerant social attitudes provided a shield that typically prevented violence. The government has never criminalized homosexual conduct, although the lack of legal protections for LGBT people left them vulnerable.

Discriminatory clauses in existing laws were long ignored by authorities – but the spike in anti-LGBT rhetoric has given social sanction to their enforcement. For example, Indonesia’s 2008 Pornography Law calls same-sex conduct a “deviant behavior.” It was only a matter of time before authorities used it as a tool for repression.

More than 300 Indonesians were arrested in 2017 for alleged LGBT-associated behavior – the majority under the Pornography Law –and countless others have been terrorized in police raids.

In March 2017 unidentified vigilantes forcibly entered an apartment in Aceh province and took two men in their twenties to the Sharia (Islamic law) police for alleged same-sex relations. The men were publicly flogged in the first such whipping in Indonesia’s history.

In May, police raided the Atlantis gym and sauna in Jakarta, a well-known gay hangout. In September, police in West Java province entered the private home of 12 women they suspected to be lesbians, and forcibly evicted them from the village. There have been many similar raids.

As the repressive acts continued, conservative activists sought to explicitly outlaw all sex outside marriage and same-sex conduct by petitioning the Constitutional Court. The petition posed more than a hypothetical threat.

Some estimates suggest that as many as half of Indonesian couples do not get legally married because of difficulties registering, especially in remote districts, along with discrimination against unrecognized religions. Criminalizing their sex lives could overwhelm the police and prison systems.

In mid-December, Indonesia’s Constitutional Court dismissed the petition on technical grounds. However, within 24 hours of the judgment, the North Jakarta district court sentenced eight men arrested at the Atlantis to two or three years in prison.

This year Parliament has entered the fray through a committee charged with revising the criminal code. In January, Parliamentary Speaker Zulkifli Hasan falsely claimed that parliamentarians were discussing legalization of same-sex marriage.

Hasan’s statement effectively cornered most politicians into publicly affirming some degree of opposition to LGBT rights. From this chaos emerged a so-called moderate view, proffered by members of President Joko “Jokowi” Widodo’s party. They suggested a law that allows the prosecution of sex outside marriage and same-sex conduct “only if one of the sexual partners or their family members report the crime to police.”

The proposal is  being spun as “a firewall,” without which, legislators insist, “the public can try to take the law into their own hands” and attack LGBT people.

At a time when countries around the world are progressing towards recognizing basic rights regardless of sexual orientation, gender identity or marital status, Indonesia is backsliding even compared to its Asian neighbors.

The economy could be hit. The Financial Times has reported that the government’s failure to check Islamist attacks on LGBT people might damage tourism and real estate development. A 2017 study by the Williams Institute at the UCLA School of Law noted: “Discrimination against LGBT Indonesians in workplaces, schools, and social opportunities is pervasive and will limit their ability to fully contribute to the Indonesian economy.”

Some Indonesian officials tentatively indicated they will defend the rights of LGBT people. National Police Chief Tito Karnavian ordered an investigation into raids on transgender-owned hair salons. Widodo has declared  that “there should be no discrimination against anyone,” including LGBT people. But these moves are too little and too late to halt rising intolerance.

The committee revising the criminal code has deferred its deliberations until March, giving a temporary reprieve. But Indonesia is at a crossroads and the privacy rights of all Indonesians are at stake. Is it a country of diversity, pluralism, tolerance, and connectivity with its neighbors and the international community? Or does it prefer the politics of scapegoating, at the expense of millions of citizens and its global reputation?

With local and national elections on the horizon, exploiting the moral panic over sexuality may be tempting. But whatever protection it promises LGBT people will be ephemeral, and ultimately lives will be ruined. President Jokowi has in the past pledged tepid support for the privacy and security of the LGBT community, but the abuses of the past two years remain uninvestigated. His leadership as the public alarm over LGBT grows will be crucial. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Demonstrators protest during oral arguments in the Masterpiece Cakeshop vs. Colorodo Civil Rights Commission case at the Supreme Court in Washington, U.S., December 5, 2017. 

©2017 Reuters/Aaron P. Bernstein

Across the United States, state laws are being passed or debated that would allow businesses, adoption and foster care agencies, and even healthcare providers to discriminate against LGBT people. The laws claim – disingenuously – to be nothing more than an effort to protect business owners’ or providers’ religious freedom. Philippa Stewart speaks to researcher Ryan Thoreson about the real impact of these laws.

Aren’t these laws just designed to protect religious freedom in the US?

Religious freedom is an important value, but these laws don’t respond to any real-world threat to religious freedom and are more about legitimizing discrimination. The debates around these laws are a direct response to same-sex marriage being recognized across the US, and a concern that people who want to discriminate against LGBT people won’t be able to do that if LGBT people are protected.

After 2015, when the right for same-sex couples to marry in the US was established, we saw this big wave of bills at the state level that sought to carve out exemptions for people who didn’t want to work with same-sex couples. These bills allowed, for example, wedding service providers, adoption and foster care agencies, and in some cases even counselors and mental and physical healthcare providers to refuse to serve LGBT people.

Resistance to LGBT equality is the primary motivation for these laws, not a concern for religious freedom. Just look at some of the laws. In Mississippi, the law protects the belief that marriage is between a man and woman, that sex outside that marriage in any form is unacceptable, and that gender identity is immutable and fixed at birth. That’s not a protection of religious freedom, that’s a protection of one particular type of religious viewpoint.

What do the laws say?

Tennessee has a law that allows mental health counsellors to decline to see LGBT clients based on the counselors’ religious beliefs. Seven states – Mississippi, Michigan, Virginia, North Dakota, South Dakota, Alabama, and Texas – have laws that specifically allow child welfare agencies to discriminate against same-sex couples in adoption and foster care placements.

Often these are described as religious exemption laws, but in reality these aren’t true exemptions. None of these states have non-discrimination laws in place to protect LGBT people, so really these just function as a license to discriminate.

Is this just a case of private businesses being given the option of turning away customers, or does it go further?

Most of these laws extend a kind of blanket exemption to agencies that receive state funding, so adoption and foster care agencies that have contracts with the state and have kids in state custody in their care are allowed to deny placements to same-sex couples because they don’t agree with same-sex relationships.

You’re being treated with disrespect, as a second-class citizen – not even a citizen, an outsider.

An interviewee from Mississippi

Taxpayer money and resources go to these agencies that are allowed to discriminate, and these laws explicitly bar the state from withholding any of that support from an organization that discriminates.

Can you talk a bit more about the adoption and foster care system, and the impact these laws have?

One of the stories that really stands out to me is of a Tennessee couple I spoke with who are finalizing an adoption. They had been living in Texas and wanted to start a family, so they went to an adoption agency and were rejected right off the bat because the agency didn’t deal with same-sex couples. They then went to a second agency, which did a home visit, but because one of the men had a gender-neutral name the agency didn’t realize it was a same sex couple. When the agency representative showed up, they said, “We didn’t realize you were a same sex couple” and left after about five minutes.

They couple then moved to Tennessee for work. The first agency they spoke to there wouldn’t place a male child with them because they didn’t think the couple provided enough masculinity for a male child. It wasn’t until the fourth agency that they were able to take on foster placements. The placement has been extremely successful and now they are in the process of adopting two boys they fostered.

What really stuck with me from our interview is that they said that if this fourth agency hadn’t worked out, they were at the point of calling it quits. You can only be rejected so many times before it becomes a really discouraging experience and you give up your dream of being parents.

How else are these laws affecting people’s lives?

First, you see people who are actually turned away from mental health services under these exemptions. That’s an immediate kind of refusal that is likely to happen even more often as a result of these laws.

One thing that comes up is that a lot of LGBT people just don’t seek mental health services because they don’t know where to find providers who won’t discriminate against them. We spoke with a number of therapists in Tennessee who said clients would come to them in crisis mode. They should have seen a therapist a long time ago, but had had such bad experiences with healthcare providers, or expected to face discrimination because of the law, and just hadn’t sought out the services that they needed. We spoke to therapists who were welcoming and affirming, and who had people driving for one or two hours just for weekly therapy sessions.

The third thing that has come out of the interviews is the harm to people’s dignity. As one lesbian woman in Mississippi told me, “You’re being treated with disrespect, as a second-class citizen – not even a citizen, an outsider.”

There are some big stories about this that have made headlines, but is there more happening?

One of the things I’ve learned from interviewing LGBT people is just how often they are discriminated against by healthcare providers or businesses in the US. It really illustrates that these laws fall on very fertile ground for further discrimination – they’re essentially telling providers they’ve got a green light from the state to discriminate against people.

Can you give me some specific examples?

Someone who in the report we called Kevin R., who is in his mid 50s and had been putting off the colonoscopy he was supposed to get.

He finally went, and he mentioned that his spouse was a man, and the doctor from then on used female pronouns for him even though he’s a cisgender man. The doctor used female pronouns for him all the way through and mocked him throughout the process. It confirmed his worst suspicions about how he’d be treated at the hands of a healthcare provider. That’s the kind of discrimination that deters people from seeking services in the first place and that these laws can tacitly encourage.

One transgender woman had been seeing a therapist for bipolar disorder and depression. The therapist was going to be away for the weekend and told her,  "If you have a moment of crisis, go to the emergency room.” She did have a moment of crisis, went to the emergency room, and was essentially told by the therapist on staff that her distress was because she was a man living as a woman and going against God.

You wonder how many of those kinds of instances happen all the time and how often religious bias is already used to deter people from services, and then what it means to pass laws like this that really put LGBT people at risk.

What can people do?

One thing people can do is really push for robust non-discrimination policies in their states. Those policies are supported by a majority of the public in every state.

One of the things I was reminded of from the interviews is that LGBT people have often faced intense discrimination from the faith communities and churches they grew up in. Historically some faith communities have been active in anti-LGBT efforts or have struggled with including LGBT people within their own denominations.

People I spoke with mentioned that if you go to a doctor’s office that identifies itself as a Christian provider, or has overtly religious imagery on the walls, LGBT people will worry the provider is not LGBT-friendly. Something providers can voluntarily do is be welcoming. For example, a doctor who is religious, but also committed to doing no harm and to serving everyone, can make their office an LGBT-affirming space. It can be really important to place signals that they are open for all clients. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

In response to the state’s “license to discriminate” bill, Steve Long displays a sticker welcoming LGBT customers to his restaurant in Jackson, MS, on October 2, 2017. 

© 2017 Rogelio V. Solis / AP Photo

(New York, February 19, 2018) – The rash of new “religious exemption” laws passed by state legislatures around the United States represent a thinly-veiled assault against the rights of lesbian, gay, bisexual, and transgender (LGBT) people, Human Rights Watch said in a report released today. In the absence of robust nondiscrimination protections, these laws function as a license to discriminate rather than a good faith attempt to protect religious liberty and should be repealed.

The 41-page report, “‘All We Want is Equality’: Religious Exemptions and Discrimination against LGBT People in the United States,” documents how recent laws carve out space to discriminate against LGBT people in adoption and foster care, health care, and access to some goods and services. These laws fail to balance moral and religious objections to LGBT relationships and identities with the rights of LGBT people themselves, Human Rights Watch found. The findings illustrate that these exemptions encourage discriminatory refusals, discourage LGBT people from seeking out services, and harm people’s dignity.


 

“Describing these laws as ‘exemptions’ is misleading,” said Ryan Thoreson, a researcher in the LGBT rights program at Human Rights Watch. “Given the dearth of laws that protect LGBT people from discrimination in the first place, legislators are getting it exactly backwards and creating exceptions before they’ve ever established the rule.”

Human Rights Watch interviewed 112 LGBT people, service providers, and advocates in states where religious exemptions recently have been enacted into law.

The majority of the interviews took place in three states. In Mississippi, state law permits a wide array of individuals, businesses, and service providers to discriminate based on their religious or moral objections to same-sex marriage, extramarital sex, and the recognition of transgender identity. In Tennessee, a recent state law permits mental health counselors to turn away clients based on their religious beliefs. And in Michigan, adoption and foster care agencies that receive support from the state are explicitly empowered to refuse to place children with LGBT parents on account of the agencies’ own moral or religious objections. Alabama, North Dakota, South Dakota, Texas, and Virginia also have adoption and foster care exemptions in place.

Currently, only 19 states and the District of Columbia explicitly prohibit discrimination based on sexual orientation and gender identity in employment, housing, and public accommodations. Another three states offer partial protections; New Hampshire and Wisconsin prohibit discrimination based on sexual orientation but not gender identity, and Utah prohibits discrimination in employment and housing but not public accommodations. The other 28 states lack statutory provisions that explicitly prohibit discrimination against LGBT people.

In states where LGBT people lack explicit nondiscrimination protections, broad exemptions serve to powerfully reinforce the idea that adoption and foster care agencies, healthcare providers, business owners, and service providers can refuse to serve LGBT people. Erin Busk-Sutton, a lesbian woman who was turned away from a religious foster care agency in Michigan, described it as “the worst experience of my life, being told by a stranger that I wouldn’t be a good mother, essentially.”

Even if people are not directly refused services, religious exemptions cause LGBT people to fear discrimination and deter them from seeking services. The laws addressed by Human Rights Watch help entrench and exacerbate a climate in which LGBT people already face mistreatment and barriers to their full and equal participation in the public sphere.

“I know of people who don’t even try [to seek services] for fear of being rejected,” said Lisa Scheps, a transgender advocate in Texas. “And that’s true of any of the rural counties in Texas.”

While these laws are framed as protecting religious liberty, they are first and foremost a response to the advancement of LGBT equality – particularly the right to marry for same-sex couples. Representative Jeff Irwin, who opposed Michigan’s exemptions in adoption and foster care, observed that “[t]he whole goal of this package is to allow agencies to discriminate against same-sex couples.” In several instances, lawmakers rejected amendments that would have ensured the laws could not be used to discriminate against LGBT people.

The message is not lost on LGBT people living in states with license to discriminate laws. “You’re being treated with disrespect, as a second-class citizen – not even a citizen, an outsider,” said Brandiilyne Mangum-Dear, a lesbian woman in Mississippi.

In 2018, additional exemption bills already have been filed in Florida, Georgia, Illinois, Oklahoma, and Washington. Nondiscrimination bills are pending in Alaska, Arizona, Florida, Idaho, Indiana, Kentucky, Missouri, Nebraska, New Hampshire, New York, Ohio, Pennsylvania, Utah, Virginia, and West Virginia.

Lawmakers should enact nondiscrimination laws that prohibit discrimination based on sexual orientation and gender identity in employment, education, housing, health care, and access to services, Human Rights Watch said. States with sweeping exemptions should repeal them, and legislators who are considering these bills should reject them in favor of more balanced protections that do not jeopardize the rights and well-being of LGBT people.

Posted: January 1, 1970, 12:00 am

Summary

All anybody is trying to do is live their lives and be given the service, be treated with respect as anyone else is treated. All we want is equality.

–Petra E., Biloxi, MS, October 4, 2017

Over the past decade, lesbian, gay, bisexual, and transgender (LGBT) people have made significant legal and political gains in the United States, including the freedom to marry. Despite this progress, federal law does not expressly prohibit discrimination based on sexual orientation and gender identity in fields like employment, housing, and access to services, and fewer than half of the states offer explicit protections for LGBT people at the state level. Without these protections, LGBT people across the United States lack clear recourse and redress when they are fired, evicted, or refused service because of their sexual orientation or gender identity.

Against this backdrop of legal vulnerability, lawmakers who oppose marriage for same-sex couples and recent moves to advance transgender equality have led an anti-LGBT charge, pushing for, and often succeeding in getting, new laws that carve out religious exemptions for individuals who claim that compliance with particular laws interferes with their religious or moral beliefs. While LGBT equality is not the only area where exemptions have been debated—particularly as lawmakers have sought to substantially broaden exemptions related to sexual and reproductive healthcare—this report specifically examines a worrying wave of exemptions being introduced to blunt the recognition of LGBT rights across the United States.

The freedom of religion, as well as nondiscrimination, is a significant rights issue, and it is important that governments do not unnecessarily burden the exercise of religious conscience. This is especially important to minority religious groups, whose practices are all too easily trampled on by laws and policies enacted by majorities. But when exemptions to laws to accommodate religious beliefs or practices impinge on the rights of others or core societal values like nondiscrimination, lawmakers should proceed with caution.

Proponents of these laws argue that they properly balance religious freedom with the rights of LGBT individuals. In fact, with few exceptions, the laws as drafted create blanket exemptions for religious believers to discriminate with no consideration of or even mechanism for consideration of the harms and burdens on others. Because of their narrow focus on the objector, the laws provide little protection for the rights, well-being, or dignity of those who are turned away.

Statements made by legislative supporters of the laws, and in some cases the content of the laws themselves, moreover, make clear that they aim to push back against recent gains toward LGBT equality and to dilute the rights of LGBT people to secure protection from invidious discrimination.

They send a signal that the state governments enacting them accept and even embrace the dangerous and harmful notion that discrimination against LGBT people is a legitimate demand of both conscience and religion. Particularly in states that lack any underlying laws prohibiting discrimination against LGBT people, many of the laws are not “exemptions” so much as a license to discriminate.  

In recent years and mostly since 2015, when the US Supreme Court ruled in favor of marriage equality, numerous states have considered and at least eight US states have enacted new laws that permit people to infringe on the rights of LGBT individuals and their families to the extent they believe that discriminating against them is necessary to uphold their own religious or moral beliefs. In 2018, lawmakers in at least six other states will consider similar legislation.

These laws and bills vary in scope. As has been widely publicized, some would permit people to refuse to participate in same-sex wedding ceremonies or to provide goods and services related to such weddings. Others, less widely publicized, would permit child welfare agencies, physical and mental health providers, businesses that serve the public, and other actors to refuse service to LGBT people and other groups. Such legislation immediately endangers LGBT rights. By allowing people to elevate their prejudices above fairness and equality, it also threatens the broader principle that people should not be refused goods and services solely because of who they are.

Together, the failure of most states to enact nondiscrimination protections and the growing number of religious exemption laws leave many LGBT people with little recourse when they encounter discrimination. While these exemptions are almost always couched in the language of religious freedom or religious liberty, they directly and indirectly harm LGBT people in a variety of ways.

Some laws enable and embolden businesses and service providers to refuse to serve LGBT people, compelling LGBT people to invest additional time, money, and energy to find willing providers; others simply give up on obtaining the goods or services they need. More insidiously, they give LGBT people reason to expect discrimination before it even occurs, and to take extra precautions or avoid scenarios where they might face hostility out of self-preservation.

Such laws also threaten the basic dignity of LGBT people, sending a clear message that their rights and well-being are not valued and are contingent on the goodwill of others. Our interviewees explained that, by enacting religious exemptions to blunt the advancement of LGBT equality, lawmakers sent a powerful signal that they were unequal or unvalued in their community.

Brandiilyne Mangum-Dear, a lesbian pastor in Mississippi, described that harm in these words: “We’re not being melodramatic. You’re being treated with disrespect, as a second-class citizen—not even a citizen, an outsider. And after a while, that begins to tear a person down, to hurt them emotionally and spiritually. Rejection is hard for everyone, and we get it over and over.”

This report documents how religiously motivated discrimination against LGBT people can inflict real harm and why state endorsement of this discrimination is dangerous. From August 2017 to January 2018, researchers interviewed 112 LGBT people, service providers, and advocates, primarily in states that have enacted religious exemptions in recent years, about the discrimination that LGBT people have faced because of an absence of comprehensive nondiscrimination legislation and the passage of legislation that provides for exemptions based on religious or moral beliefs.   

The results of this research indicate that the laws already enacted in eight states and the bills still under consideration in many more do not strike a proper balance between the freedom of religion and the equal rights of LGBT people under the law. And in fact, few if any of these laws even represent a serious attempt to do that. Lawmakers at the federal, state, and local level should work to ensure that LGBT people are protected from discrimination in employment, education, housing, healthcare, adoption and foster care, and public accommodations, and should repeal religious exemption laws that give government support to those who would discriminate based on their religious or moral beliefs.

 

Methodology

Human Rights Watch conducted the research for this report between August 2017 and January 2018. To identify interviewees, researchers conducted outreach through national and state LGBT groups, legal advocates, and service providers who circulated information about the project to their networks. The outreach focused on eight states where statewide exemptions affecting LGBT people had been legislatively enacted at the time the research began: Alabama, Michigan, Mississippi, North Dakota, South Dakota, Tennessee, Texas, and Virginia. Researchers conducted a total of 112 interviews, including 30 individuals who were affected by discrimination and 82 advocates and providers working with affected individuals.

Interviews were primarily conducted by telephone due to the geographic dispersion of the interviewees for the project. Interviews were conducted in person in Mississippi in November 2017, Tennessee in December 2017, and Michigan, Mississippi, and Tennessee in January 2018. No compensation was paid to interviewees. Researchers obtained oral informed consent from interviewees, and notified interviewees why Human Rights Watch was conducting the research and how it would use their accounts, that they did not need to answer any questions, and that they could stop the interview at any time. Interviewees were given the option of using pseudonyms in published materials for the project; where pseudonyms are used in this report, that is reflected in the footnote citation.

 

I. Background: Progress and Backlash

On June 26, 2015, the US Supreme Court issued its decision in Obergefell v. Hodges, which invalidated bans on marriage for same-sex couples across the United States.[1] As marriage equality became a reality, first in individual states and then nationally, lawmakers proposed allowing those with religious or moral objections to refuse or decline to provide a range of goods and services to same-sex couples.

Some of these proposed bills have pertained specifically to wedding-related services, for example, bakers, caterers, florists, calligraphers, photographers, videographers, and venues. Other bills have been far broader, prohibiting the government from denying funds or contracts to organizations that discriminate based on religious (and in some cases “moral”) beliefs in the provision of adoption and foster care services, healthcare, and housing. While many of the bills stalled in state legislatures, at time of writing, at least eight states have enacted them into law and two similar pieces of legislation—the First Amendment Defense Act and the Child Welfare Provider Inclusion Act—have been proposed in Congress. In the first weeks of the 2018 legislative session, lawmakers were considering similar bills in at least six other states.[2]

The recent drive for religious exemptions is not born of a neutral concern with religious liberty, but is largely the product of resistance to recent gains in LGBT equality across the United States. The public and legislative debate around these bills has focused on LGBT people exercising their rights, and objections to same-sex marriage, same-sex parenting, same-sex relationships, and recognizing the gender identity of transgender individuals. Proponents of these exemptions have not incorporated protections that would ensure they are not used to discriminate against LGBT people at risk of discrimination. While some of these laws specify that they do not permit discrimination based on race, ethnicity, or national origin, none protect individuals from discrimination based on religion, sex, disability, sexual orientation, gender identity, and other characteristics.[3]

When they are carefully designed, religious exemptions can play a valuable role in safeguarding the freedom of religious exercise and belief. The laws that states have introduced in response to recent advances towards LGBT equality, however, tend to tip the scales much too far in one direction, often with complete disregard for the very real harm they are likely to inflict. As this report describes, they are born of hostility to a marginalized group, and display little regard for the rights of those who are turned away. These laws undermine the central principle of nondiscrimination protections, deliberately embracing rather than pushing back against the denial of goods and services to individuals simply because of their identity or the services they need. In short, they give license to discriminate.

Addressing Discrimination on the Basis of Sexual Orientation and Gender Identity

Despite gains in LGBT equality in recent years, discrimination against LGBT people remains commonplace in the United States. A survey conducted by the Center for American Progress in January 2017 found that one in four LGBT respondents had experienced discrimination based on sexual orientation or gender identity in 2016.[4] In an amicus brief filed in late 2017, LGBT organization Lambda Legal noted it had received nearly a thousand reports of discrimination against LGBT people in public accommodations, including in reproductive services, child care, medical services, retail and service establishments, hotels, restaurants, recreational facilities, homeless shelters, transportation services, and funeral services, from 2008 to 2017.[5]  

A growing number of US states have sought to address these problems by prohibiting discrimination based on sexual orientation and gender identity in various fields. Evidence suggests that these protections make a difference by deterring discrimination and enabling LGBT people to seek redress when they are discriminated against. Studies suggest that awareness of laws affecting lesbian and gay people is higher and discrimination against lesbian and gay people is lower in municipalities that have inclusive protections in place.[6] LGBT people take advantage of these protections; available data from states with inclusive protections show that LGBT people file complaints and seek redress for discrimination in employment, housing, and public accommodations at comparable rates to victims of race and sex discrimination.[7]

Nonetheless, people in most US states lack these protections, as neither Congress nor most state legislatures have expressly prohibited discrimination against LGBT people.[8] At the beginning of 2018, only 19 states and the District of Columbia had explicitly prohibited discrimination based on sexual orientation and gender identity in employment, housing, and public accommodations.[9] In three other states, narrower protections exist. New Hampshire and Wisconsin prohibit discrimination in employment, housing, and publications based on sexual orientation, but do not prohibit discrimination based on gender identity.[10] Utah prohibits discrimination on the basis of sexual orientation and gender identity in employment and housing, but not public accommodations.[11]

With these laws, states have recognized that there is an urgent need to combat discrimination that denies people access to goods and services because of their sexual orientation or gender identity. The enactment of religious exemption laws bucks this trend, signaling a broad acceptance and even an encouragement of service providers who would discriminate against LGBT individuals.

Advances and Struggles in LGBT Equality

As public attitudes across the United States have become more favorable toward LGBT equality in recent years, LGBT people have won significant gains. The Supreme Court’s decision in Obergefell, which recognized that same-sex couples have a constitutional right to marry, gave those who choose to marry and their families access to a range of economic and legal protections.[12] The Obama Administration took steps to address discrimination against LGBT people, and particularly transgender people, in regulations around healthcare, housing, and education.

In 2014, the Department of Justice adopted the position that employment discrimination based on gender identity is a violation of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex.[13] In 2016, the Department of Justice and Department of Education’s Office of Civil Rights jointly issued guidance that clarified that discrimination against transgender youth constituted sex discrimination and was impermissible under federal law.[14] After a lengthy policy review process, the Department of Defense in 2016 also began allowing transgender people to serve openly in the US military.[15]

While the US Congress has been slower to enact protections for LGBT people, there have been notable advances, including new protections for LGBT survivors of domestic violence in the reauthorization of the Violence Against Women Act (VAWA) in 2013.[16]

Yet gains made in recent years have triggered aggressive backlash from opponents of LGBT equality, halting or reversing some recent advances. In February 2017, the Trump Administration withdrew the guidance prohibiting discrimination against transgender youth in US schools, arguing that the issue should be left to the states to resolve.[17] In July 2017, President Trump announced on Twitter that transgender people would no longer be able to serve in the US military; while a court order has allowed transgender recruits to enlist in 2018, the ban on military service remains under review by the courts.[18] Under Attorney General Jeff Sessions, the Department of Justice has also reversed course on its interpretation of Title VII. In July 2017, it filed a brief adopting the stance that Title VII does not cover discrimination based on sexual orientation, and in October 2017, it issued a memorandum concluding that it also does not cover discrimination based on gender identity.[19]

As LGBT rights come under renewed assault at the federal level, they have also come under attack in state legislatures. Hundreds of anti-LGBT bills were filed in the 2016 and 2017 state legislative sessions.[20] While many of these bills sought to restrict recognition of transgender rights or bar transgender people from accessing bathrooms, locker rooms, and other facilities consistent with their gender identity, many others sought to exempt individuals who asserted religious or moral beliefs from complying with the rights and recognition that LGBT people had achieved under the law.

Religious Exemptions as a Backlash against LGBT Equality in the United States

In recent years—and particularly as marriage equality gained ground in state and federal courts—proponents of exemptions have drafted bills and filed lawsuits that would exempt people who say that their religious or moral convictions are irreconcilably at odds with what generally applicable anti-discrimination laws require of them in some circumstances. In many instances, lawmakers have proposed laws to prevent the government from denying funding, licenses, contracts, and other forms of support to service providers who discriminate based on religious or moral beliefs.

In 2015, lawmakers introduced federal legislation that would be far more expansive than existing safeguards for religious liberty. If passed, the First Amendment Defense Act (FADA) would prohibit the federal government from altering the tax status, contracts, and other benefits awarded to a person “on the basis that such person believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”[21] President Trump has expressed support for FADA and indicated that he would sign the legislation, but as of January 2018, it had not been reintroduced and passed by Congress.[22]

In 2017, lawmakers introduced another religious exemption bill at the federal level that specifically pertains to child welfare providers. If passed, the Child Welfare Provider Inclusion Act would prohibit the federal government and state governments that receive federal funding from declining to work with child welfare agencies that discriminate based on religious beliefs or moral convictions.[23] At time of writing, the bill had not been passed by Congress.

Religious Exemption Laws

At the state level, lawmakers in 2016 and 2017 introduced dozens of bills that would create sweeping exemptions for religious believers in various areas.[24] As same-sex couples marry and state and local governments prohibit discrimination in public accommodations, vendors whose products are used in weddings have sought exemptions that would permit them to decline service to LGBT people. As bans that prevented LGBT people from adopting children have been lifted in every state, some adoption and foster care providers who disapprove of same-sex relationships have sought exemptions that would permit them to decline service to same-sex couples. And as federal agencies and professional organizations have sought to ensure that LGBT people are able to access medical care without discrimination, some mental and physical healthcare providers have sought exemptions that would permit them to turn away LGBT clients or decline to provide services they consider objectionable. As noted above, Human Rights Watch is aware of at least eight states that had enacted such exemptions into law prior to the 2018 legislative session.[25]

These laws are often couched in the rhetoric of religious liberty. Yet they are a stark departure from the approach that has typically been used to balance the rights of religious adherents with the generally applicable laws that protect the rights, safety, health, and welfare of others. Typically, religious exemptions offer a narrow, defined exception to a generally applicable law. When lawmakers have afforded more general protection to religious exercise, they have done so by balancing that protection with the rights and needs of others—for example, allowing the government to enforce generally applicable laws when it has a compelling reason to do so and only burdens religious exercise to the narrowest extent possible.[26]

Recent license-to-discriminate laws break from that tradition. They do not create a nondiscrimination rule; instead, they only create the exemption allowing discrimination to flourish. And rather than strike any kind of careful balance between assertions of religious liberty and LGBT equality or other rights and values that could be at stake, many grant a nearly unfettered license to discriminate while brushing aside the rights and freedoms of others. On both fronts, most of these laws bear no resemblance to religious exemptions that are motivated by a concern for human rights and are narrowly drawn to respect the rights of all involved.

A License to Discriminate Under State Law

The religious exemptions that have been considered or enacted by state legislatures take different forms. Some are comprehensive, providing blanket protection for entities that do not wish to provide various services to LGBT people because of their religious or moral beliefs. Others are more narrowly circumscribed, focusing particularly on adoption and foster care services and physical and mental healthcare services.

While these laws are typically characterized as exemptions, the term “exemption” is misleading. Few of the states that have enacted these laws have protections in place that prohibit discrimination based on sexual orientation and gender identity. In most cases, states are enacting “exceptions” allowing providers to discriminate based on religion without first prohibiting anti-LGBT discrimination more generally. In this context, these laws function first and foremost as a license to discriminate, signaling that discrimination against LGBT people is acceptable in the state.  

Comprehensive Exemption Laws

  • The most sweeping exemption law enacted to date is Mississippi’s HB 1523, enacted in the first legislative session after the Supreme Court’s ruling in Obergefell v. Hodges. The law specifies three protected “religious beliefs or moral convictions”: “(a) [m]arriage is or should be recognized as the union of one man and one woman; (b) [s]exual relations are properly reserved to such a marriage; and (c) [m]ale (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”[27] It prevents the government from taking “any discriminatory action” against religious organizations or persons that discriminate in a variety of ways against LGBT individuals (and in some cases against unmarried heterosexual individuals) “consistent with a sincerely held religious belief or moral conviction.” The bill explicitly protects an extraordinary range of discriminatory conduct, in spheres that range from the conduct of wedding ceremonies and the provision of wedding-related services to the hiring and firing of employees, the rental or sale of housing, child placement services, psychological counseling, fertility or transition-related healthcare, and the restriction of access to shared facilities. “Discriminatory action” is defined very broadly so as to preclude most of the avenues the government might use to sanction or withhold government support for such an organization or individual.[28] The sponsor of the bill expressly cited the Supreme Court’s decision in Obergefell and the desire to protect those who believe marriage is between one man and one woman as the motivation for the law.[29]

Adoption and Foster Care Services

  • In 2003, North Dakota enacted a law stating that “[a] child-placing agency is not required to perform, assist, counsel, recommend, facilitate, refer, or participate in a placement that violates the agency’s written religious or moral convictions or policies.”[30] Under the law, the state’s department of human services may not deny a child-placing agency a license, grant, or contract based on such an objection.[31]
  • In 2012, Virginia enacted a law establishing that “no private child-placing agency shall be required to perform, assist, counsel, recommend, consent to, refer, or participate in any placement of a child for foster care or adoption when the proposed placement would violate the agency’s written religious or moral convictions or policies.”[32] The law prevents the state from sanctioning or withholding licensing or support—including contractual relationships—from agencies that refuse to participate in a “placement that violates the agency’s written religious or moral convictions or policies.”[33] At the time of its passage, Senator Adam Ebbin—who opposed the law—told press that his colleagues intended the bill to shield agencies from placing children with same-sex couples. On the day a Senate subcommittee approved the religious exemption, it rejected Ebbin’s bill that would have prohibited discrimination on the basis of sexual orientation and gender identity in adoption and foster care placement.[34]
  • In 2015, Michigan enacted a law stating that “a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs contained in a written policy, statement of faith, or other document adhered to by the child placing agency.”[35] The law prohibits the state or local governments from taking “adverse action” against a child placing agency because of its refusal to provide services on the basis of those religious beliefs.[36] In addition to requiring that the child placing agency set out its beliefs in writing, the law requires agencies that decline to provide services to refer the applicant to another agency or a list of agencies maintained by the state.[37] As the bill was under consideration, Representative Jeff Irwin, who opposed the bill, stated that “[t]he whole goal of this package is to allow agencies to discriminate against same-sex couples.”[38] Representatives of the Michigan Catholic Conference and Michigan Family Forum, who supported the bill, justified it as a preemptive move to prevent adoption and foster-care agencies from having to comply with nondiscrimination laws requiring them to serve same-sex couples.[39]
  • In 2017, South Dakota enacted a law barring the state from discriminating or taking adverse action against a child placement agency because it declines “to provide any service that conflicts with, or provide any service under circumstances that conflict with a sincerely-held religious belief or moral conviction of the child-placement agency.”[40] The committee debate on the bill focused primarily on religious objections to placing children with same-sex couples.[41] Senator Alan Solano, who co-sponsored the bill, cited the Obergefell decision and the decision by Catholic Charities to withdraw from adoption and foster care services in Massachusetts, Illinois, California, and Washington, D.C. rather than comply with nondiscrimination laws that protect same-sex couples as the motivation for the law.[42] Solano co-wrote the bill with Catholic Social Services, an agency which only places children with heterosexual couples.[43] Governor Dennis Daugaard signed the bill into law, voicing a hope that it would prevent individuals in a protected class from suing child welfare agencies if they were denied placement.[44]
  • In 2017, Alabama enacted a law that bars the state from discriminating or taking adverse action against a child placing agency “on the basis that the child placing agency declines to make, provide, facilitate, or refer for a placement in a manner that conflicts with, or under circumstances that conflict with, the sincerely held religious beliefs of the child placing agency.”[45] As the bill was debated, Representative Rich Wingo, who sponsored the bill, told press it was necessary to ensure that child welfare agencies are not compelled to place children with same-sex parents.[46] Representative Patricia Todd, who opposed the bill, remarked that “[t]his bill obviously came about because same-sex marriage is approved.”[47]
  • In 2017, Texas enacted a law that broadly protects religious objections in child welfare services, defined to include not only child placement services but also services for abused or neglected children, counseling for children or parents, and family preservation and support services.[48] It prevents the state from discriminating or taking adverse action against providers who decline to “provide, facilitate, or refer a person for child welfare services that conflict with, or under circumstances that conflict with, the provider’s sincerely held religious beliefs” or provides the children in their care with a religious education.[49] If a provider declines to provide a service because of religious objections, the government is supposed to ensure that an alternative provider is available in that area or a nearby area.[50] The provider is supposed to refer the applicant to another service or the list of providers on the state’s website.[51] The law specifies that child welfare agencies may not deny placements based on race, ethnicity, or national origin; Representative Joe Moody introduced an amendment to include sex, religion, sexual orientation, gender identity, and disability as protected grounds, but the legislature rejected it.[52]

Mental and Physical Health Care

  • In 2016, Tennessee enacted a law that states that “[n]o counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist.”[53] The law states that providers who refuse services should coordinate a referral to another provider who will see the client.[54] According to the bill’s sponsor, Senator Jack Johnson, the impetus for the bill was a change in the American Counseling Association’s Code of Ethics which states that counselors should “refrain from referring prospective and current clients based solely on the counselor’s personally held values, attitudes, beliefs, and behaviors.”[55] In committee, Senator Jeff Yarbro noted that the public debate on the bill “has been very much focused on issues of same-sex marriage,”[56] and Senator Rusty Crowe noted that although same-sex couples can now marry, the bill could exempt religious objectors from having to counsel them.[57] Members of the Tennessee Association of Marriage and Family Therapists testified against the bill, stating that it was unnecessary in light of established referral mechanisms within the profession and would open the door to discrimination.[58]

The framing and scope of these exemption laws differ in many respects, but are alike in several fundamental ways. First, they are motivated to a large degree by hostility to recent advances in LGBT equality; on their face they invoke only a concern for religious liberty but the public debate around and legislative history of many of these laws show quite clearly the animus and the discriminatory intent that underpin them. Second, they permit blatantly discriminatory practices without clear limitations or meaningful safeguards. They do not strike a careful balance—or even suggest that any serious attempt was made to do so—between religious exercise and the purposes of the underlying law from which the exemption is carved out, a feature of rights-respecting approaches to religious exemptions. Third, they often show no regard whatsoever for the harms that the discrimination they legitimize might inflict on those who are turned away from a range of important services and for the nondiscrimination principle itself.

These laws are directly harmful, and they take on added importance because of the larger message they send. By enacting these laws, states send a clear signal that discrimination against LGBT people is permissible—and that message has serious consequences at a time when discrimination against LGBT people remains all too common in the United States.

 

II. The Human Impact of Legalized Discrimination

Proponents of exemptions that allow for anti-LGBT discrimination have framed them in terms of religious liberty, foregrounding how these laws might exempt businesses and service providers from laws and regulations that they find objectionable. The assumption seems to be that the resulting harms to LGBT individuals, or to the core value of equality, are insubstantial. As detailed below, however, the exemptions come at a high price.

To understand the harm, it is important to look at the larger context in which such laws are being considered, including pre-existing anti-LGBT discrimination and how exemption laws can encourage such discrimination, particularly in states without nondiscrimination protections. Anti-LGBT religious exemption laws are likely to exacerbate mistreatment because, both on their face and in the political discourse that surrounds them, they tend to legitimize and signal official acceptance of discrimination against LGBT people. And by restricting the state’s ability to prohibit, sanction, or even discourage discrimination, the laws undermine the core principle of nondiscrimination law: that people should not face adverse treatment simply because of who they are.

Denying Goods and Services

Already, LGBT people often face discrimination by service providers who deny them goods and services. Where discrimination against LGBT people is permitted, because nondiscrimination laws do not exist, these problems tend to be worse. The following pages describe the tangible, human impact of such discrimination—which will likely worsen as a result of religious exemption laws—on the people who bear the brunt of it.  

Incidents of Refusals

In states without nondiscrimination protections, individuals told Human Rights Watch that they had been denied access to goods and services because of a provider’s religious beliefs. Leiana C., a 39-year-old lesbian woman in Mississippi, recalled an incident that occurred around 2012 when she and her wife were seeking a fertility doctor:

There were none in our area, so I called a doctor in Mobile to make an appointment. The receptionist answered, and as we were setting up an appointment, she asked if my husband would be coming. And I said, well, no, my wife will be coming. And she said, “oh, well he’s not going to see you, he only treats married couples.” And I hung up the phone, I was kind of in shock. And then I thought, well, wait a minute, and I called back. A different lady answered the phone, and so I asked, am I understanding correctly that you won’t serve my wife and I, and she said, “It’s his religious belief that he only treats straight married couples. He doesn’t treat single women either.” And I said, look, I’m in the same position as a straight married woman, and she laughed and said, “Well, I don’t know what goes on back there, but I don’t know how two women can make a baby.” She just laughed at me. I asked her if we could get a referral, and she said “I really don’t know who else would want to treat you.”[59]

After the incident, Leiana and her wife gave up on the process for more than a year, fearing similar treatment from other providers. It was not until a lesbian friend recommended a doctor whose services she had used that they decided to try again. The couple are now the parents of a three-year-old, and Leiana is pregnant with their second child. Recalling the incident with the first provider, she said, “I felt angry but I also felt desperate. My passion to have a family was so strong, and to realize that one person’s beliefs could just overrule that—you just feel desperate.”[60]

Tanya P., a 33-year-old woman in Tennessee, recalled the difficulties she faced obtaining affirming care for her transgender daughter in 2016. To obtain identity documents for her daughter that reflected her gender identity, Tanya needed to submit a note from her daughter’s doctor affirming that she was undergoing appropriate clinical treatment. At the time, her daughter was already obtaining that treatment, had socially transitioned, and was seeing a therapist. Nonetheless, her pediatrician refused to provide a letter stating that information, citing his religious beliefs:

He didn’t feel it was the right thing to do, to have ID documents saying female. [But] that’s not his call to make. And he made a long speech about his religion, which is quite uncomfortable… He professed his faith, he said he’s a man of God… It’s not him giving permission, or condoning it, it’s literally just saying, yes, I referred her to an endocrinologist, yes, she’s seeing a therapist. But there was something about it he felt he couldn’t support, like it would bother his own conscience or something.[61]

After repeated attempts to obtain the letter, Tanya ended up taking her daughter to see a different provider in Nashville—three hours away—who provided the letter and enabled the family to update her daughter’s identity documents.[62]

Tanya’s experience is not unique. One pediatrician in Alabama recounted various difficulties that patients had encountered with providers who refuse care on religious grounds. In one incident, the mother of a gay teenage boy called a pediatric practice about his upcoming checkup “and she said, ‘we’ve seen you our whole life and our son is gay and we just wanted to make sure it wouldn’t be an issue.’ And the pediatrician said, ‘you need to understand this is a Christian-based office and we may not be a good fit for your family any longer.’ And this happens all the time.”[63] In another case in Michigan, lesbian couple Krista and Jami Contreras brought their newborn infant to the pediatrician for her first check-up, and were told that the pediatrician had decided she could not see the infant—who was six days old—because of her religious objections.[64]

LGBT individuals have also experienced religious refusals in child welfare services. Recently, the American Civil Liberties Union of Michigan filed suit challenging the state’s practice of granting contracts and funding to child welfare agencies that discriminate against same-sex couples. The suit was filed after two sets of prospective parents—Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton—contacted religiously affiliated agencies in the state about adopting children from foster care and were informed the agencies did not work with same-sex couples.[65] The Dumonts wanted to provide a foster home to an older child; they contacted the two agencies in their county that have older children eligible for foster placement and were told the agencies would not work with them as a same-sex couple.[66] The Busk-Suttons were interested in adopting a child with special needs and were initially told by one agency that they would receive an information packet in the mail; when the packet did not arrive, they called to inquire and were told the agency does not specialize in same-sex couples.[67] While the religiously affiliated agencies offered names of providers in neighboring counties, both couples expressed concern about traveling for the trainings and visits associated with becoming foster parents and potentially taking an older foster child or a child with special needs out of a county where they have family or are currently receiving services.[68]

While many religious exemptions focus on healthcare or child welfare services, religious objections have motivated discriminatory refusals in a wide range of contexts. In a lawsuit filed in 2017, for example, Jack Zawadski sued a Mississippi funeral home for breach of contract and emotional distress, alleging that the home had agreed to transport and cremate the body of his late husband, Robert Huskey, only to renege on the verbal contract when it found out they were a same-sex couple.[69] Zawadski and his family had to hurriedly identify another crematorium that could accept the body, and ultimately had to cancel Huskey’s memorial service and transport his body to a crematorium 90 miles away.[70]

As Zawadski’s case illustrates, refusals can occur in circumstances where LGBT people urgently need services and cannot readily access alternatives in the event that they are turned away.

Impacts of Refusals

When LGBT people are refused service, this discrimination has material and psychological consequences. Some individuals will obtain the good or service they sought, but will face additional costs: finding an alternative provider can require time, energy, and money, which can prove discouraging or even prohibitive.

In an interview with Human Rights Watch, one same-sex couple noted that they had been turned away from three different foster care agencies because of their sexual orientation. In 2015, the couple had applied to an agency in Texas, which responded in an email that they would not work with them and that the couple was not a good fit for the agency. In 2016, the couple applied to another agency in Texas, which approved their paperwork and scheduled a home visit. Upon meeting the couple in person and realizing that they were a same-sex couple, the caseworker terminated the home visit after five minutes and notified them the agency did not work with same-sex couples. In the hopes of starting a family elsewhere, one of the men accepted a job in Tennessee. Upon arriving in the state, they applied to a third agency that would work with them but would not place boys in their care, saying that the couple could not provide a sufficiently masculine influence. In their fourth attempt, the couple found an agency that worked with same-sex couples, and is in the process of adopting two siblings who have thrived under their care as foster children. As one of the men, CJ, said: “We’ve always wanted to have kids, I work with kids with autism. We’re married, we have excellent income, our jobs are stable. The only reason we couldn’t adopt was because we’re a same-sex couple.”[71]

Refusals create barriers to accessing mental and physical healthcare as well. Persephone Webb, an activist in Tennessee, noted:

In the trans community, we already face this fatigue in finding a mental health provider. It’s so difficult around here. You make phone call after phone call. We’re not taking new patients. We’re not taking your insurance. You basically have to interview them every time you call. Are you familiar with transgender issues? And just from asking that question, it’s hard to tell if you’re not accepting new patients because of that. And there’s no way to know. And after a while, you can imagine, some people just give up. It took me a year to find someone I’ve been seeing.[72]

KT Hiestand, a psychologist in Memphis who largely works with LGBT individuals, echoed this assessment. “What I hear from my clients over and over and over again is how difficult it was to find a therapist. Some, particularly the trans folks, were simply refused—were told, oh, I don’t treat that. And the therapists didn’t help them to find someone who could.”[73]

The lack of access can be particularly acute in rural areas. In rural East Tennessee, one transgender woman described trying for years to find access to therapy and hormones, eventually ordering hormones online rather than obtaining them from a medical provider. When she was ultimately able to obtain access to care, it was by traveling to a clinic in Asheville, NC, more than an hour away from her home.[74] In her practice, Hiestand noted that she worked with clients who traveled more than two hours to obtain LGBT-affirming counseling.[75]

Rhonda L., the mother of a transgender teenager in Tennessee, recalled how even available alternatives in the urban area could be prohibitively difficult:

The general pediatrician—we wanted to go to their office for hormone injections, and they said they weren’t comfortable doing that. So we have to go to Children’s Hospital, to the endocrinologist’s office, which means he misses more school and we miss more work. It’s two hours total time, every three weeks. To use the pediatrician that [my son] has used for the past three years, it’d take 30 minutes total. So we’re going to learn to do the injections ourselves.[76]

Other individuals simply will not obtain the service at all, forgoing whatever they needed because of the rejection. One lesbian woman in Mississippi recalled that, after their first son was born, she and her partner returned to the OB-GYN they had worked with to discuss having a second child. To their surprise, the OB-GYN burst into tears, and informed them that the practice had instituted a policy after the previous insemination stating they would no longer be inseminating couples who were not married. At the time, same-sex couples could not marry in Mississippi, and the couple did not know of other providers who would assist with the procedure. Ultimately, the couple only had their first child and did not try for a second.[77]

Finally, even where LGBT people are ultimately able to obtain needed services elsewhere, incidents of discrimination can be psychologically traumatic and degrading. Rhonda L. said her transgender son had experienced hostility or overt religiosity from multiple healthcare professionals, including a pediatrician, dentist, gastrointestinal specialist, and pulmonologist. She described how these incidents affected him, making him unwilling to seek medical care even when it was urgently needed:

There are a lot of tears, there’s almost like not breathing, like hysterical. Very physically upsetting, stomach upset, nausea, vomiting, not eating. We went to the emergency room for a migraine because he got so stressed at school, because of the bathroom. He didn’t even want to go to the emergency room because he was so panicked about going—the anxiety alone made it so he doesn’t want to go. And he has serious migraines—he loses feeling in his hands and can’t see. Like, he needs to be seen.[78]

Added Harms of Religious Exemptions

As the incidents described above help illustrate, the absence of laws prohibiting discrimination based on sexual orientation and gender identity leaves LGBT people vulnerable to mistreatment, including mistreatment motivated by moral or religious convictions. Many of the incidents above occurred prior to the introduction of religious exemption laws, but were legally permissible because the state lacked any law providing protection from discriminatory treatment.

Many interviewees pointed out that religious exemption laws exacerbate their legal vulnerability in multiple ways. First, exemptions expressly licensed religious refusals in particular domains. As Kathy Garner, a 57-year-old lesbian woman in Mississippi, noted, “It’s not like they couldn’t have done this stuff before… but laws like HB 1523 have emboldened people, and they have a list of what they can do now.”[79] By specifying areas where personal beliefs can be imposed on others without consequence, the laws signal that discrimination is acceptable to those who may otherwise hesitate to refuse service.

Second, as statutory provisions, religious exemption laws can override other protections that may exist for LGBT people. In Mississippi, for example, the cities of Jackson and Magnolia have nondiscrimination laws that protect sexual orientation and gender identity; the statewide imposition of HB 1523 allows religious objectors in those cities to cite the state law excusing them from compliance. As statutory provisions, these exemptions can also override administrative policies and practices that departments of health or child welfare have adopted to combat discrimination.

Finally, interviewees emphasized that the scope of religious exemptions is poorly understood, and many people perceive these exemptions as blanket permission to discriminate based on religious beliefs. Chris Sanders, the Executive Director of the Tennessee Equality Project, suggested:

Truly, I do believe that because of the bills, there are people in the state who don’t believe same-sex marriage is legal. It confuses people when negative bills are introduced in Tennessee. A few years ago, we had the “don’t say gay” bill, and there are people who think that because it was introduced that it passed. I suspect there are straight people who think we can’t get married in Tennessee, so they turn legitimate married couples away. The negative bills matter even when they don’t pass.[80]

David Dinelli, an attorney with the Southern Poverty Law Center, echoed this assessment. “My observation from being in the Deep South is that it almost doesn’t matter what the law says. This narrative has taken hold, and now people are doing things that in no way would be authorized by the law itself.[81]

Discouraging Access to Services

As noted above, most states in the US do not specifically prohibit discrimination on the basis of sexual orientation and gender identity, and discrimination against LGBT people remains widespread. Religious exemptions not only license the kinds of refusals discussed above, but encourage people to expect and fear discrimination and adapt accordingly.

In addition to discrimination they had experienced, interviewees told Human Rights Watch about the discrimination they feared because of their lack of legal protections. As one gay man and adoptive father in Texas explained, “there’s the actual discrimination, and then there’s the feeling that you’re going to be discriminated against.”[82] Harvey F., a gay man in Jackson, MS, described that as “the number one fear—it’s that little thumb on you… I’m going to hold you down just a little. I’m going to make sure you’re not exactly equal. I’m not going to tell you where or when that’s going to matter, but I’m going to make sure you know it can happen.”[83] Lisa Henderson, a counselor in Tennessee, described how this occurred in practice:

I had two clients who are LGBT ask me after the bill passed—and they knew I’d been fighting against it—they still asked, now that you don’t have to care for me, do you still want to? And that’s a heartbreaking thing to be asked by someone you’d been seeing for a long time. One I’d been seeing about 6 months and one I’d been seeing off and on for about 5 years. And they still felt insecure because of the bill.[84]

In part, concerns about discrimination were motivated by past mistreatment that LGBT people had faced at the hands of service providers. In the context of these incidents, religious exemptions gave a tacit stamp of approval to the mistreatment that LGBT interviewees had come to fear or expect. Kevin R., a 55-year-old cisgender gay man living near Gulfport, MS, recounted an incident that occurred when he went for a colonoscopy in the summer of 2017. When the doctor discovered he was gay, the doctor began using female pronouns for him, even after Kevin’s husband corrected him. The doctor proceeded to make crude comments about hemorrhoids and making assumptions about the couple’s sexual practices. Kevin filed a complaint with the state board, but had not received a response three months later.[85] Petra E., a transgender woman in Biloxi, MS, recalled calling medical providers and explaining that she is transgender, “and asked if they’ll take care of a trans person who has the cold or flu, and they say no. I won’t ask them about hormone therapy or anything, just common symptoms. They say, oh, we don’t deal with that stuff here.”[86]

Many interviewees indicated they altered their behavior because of these concerns. Bill S., a gay man in his fifties in Jackson, MS, said that he and his fiancé were getting married two weeks later, but were not notifying his family and were having the wedding in North Carolina. When asked why they were doing the ceremony out of state, he said, “People here continue to push this idea that it’s against religion to be gay…. I want to do it out of here. There’s no place here for it.”[87]

Advocates and service providers told Human Rights Watch that, in response to religious exemption laws, they had seen a spike in LGBT people taking preemptive steps to avoid experiencing discriminatory refusals and contacting them for referrals to providers who were known to be friendly. Lisa Scheps, a transgender advocate in Texas, noted that “I know of people who don’t even try for fear of being rejected. Now that there are laws out there that say, yeah, it’s okay to discriminate, a lot of people just say, yeah, I don’t go shopping in Williamson County. And that’s true of any of the rural counties in Texas. Once you leave the confines of the urban environment, you get scared as you imagine.”[88] Karla B., a lesbian woman in Mississippi, bluntly explained, “I don’t put myself in a position to be discriminated against.”[89]

Research from the Center for American Progress indicates that LGBT people who face discrimination are more likely to fear or expect discrimination in the future. Krista Contreras, whose newborn daughter had been refused service by a pediatrician who had religious objections to same-sex couples, described how that experience lingered nearly three years after the refusal: “I just interviewed a new pediatrician, and you have to ask—we’re a two-mom family, are you okay with that? And they’re like, you don’t have to ask that. People think it’s crazy that I’m asking that, but no, we do have to ask… Every new team she’s on, every new school we go to, I feel that nervousness, because it’s there, lurking around the corner, and you just don’t know. The pediatrician was the place I least expected it.”[90]

In response to religious exemptions, LGBT organizations and supportive providers have done their best to fill the gaps created by discriminatory refusals. In response to the religious exemption for counselors in Tennessee, for example, the Tennessee Equality Project created a “Counseling Unconditionally” directory listing affirming healthcare providers.[91] Other interviewees noted that they shared information informally, so LGBT people in their area came to know which doctors would see them as patients or which judges would deal with LGBT family law issues fairly.

It is important to note that, while these initiatives can alleviate gaps in service, they are not a sufficient substitute for full equality under the law. Many LGBT organizations do not have the resources to compile and maintain lists of affirming providers. Where they are developed, such lists tend to be ad hoc and non-exhaustive, as they rely on providers who are known to advocates to be reliably LGBT inclusive. A provider with competency with one population—for example, adult gay men—may not be similarly equipped to serve the needs of another—for example, transgender youth. The approach is particularly limited insofar as known providers are often concentrated in urban areas, with the result that LGBT people who live in rural areas may have to travel hundreds of miles to reach a provider who they know will serve them. And because these lists typically list only a fraction of the providers in a given state, the roster of providers can be quickly overwhelmed by demand.

In Tennessee, where state law allows counselors to decline to see LGBT patients based on their religious beliefs, researchers at the University of Tennessee have studied how these refusal laws impact self-concealment and psychological distress. One researcher on the project noted:

Some people had been turned away. Some said, the session stopped. “After today’s session, I’m going to have to refer you to someone else, I’m not comfortable providing services to you.” One person kept pushing, and finally the therapist said, “You’re a homosexual, and I’m a Christian, and providing services would be a tacit endorsement of your homosexuality.” And then the session ended. And she wasn’t seeking therapy for that—she had depression and was dealing with some work stuff, and happened to mention her partner, and was turned away.[92]

The research additionally found that, when those who strongly identified with the LGBT community were aware of the law, they were more likely to conceal their sexual orientation or gender identity, and were more likely to experience psychological distress, even without personally experiencing an incident of discrimination. Patrick Grzanka, a professor of psychology at the University of Tennessee, noted that “They’re saying, I don’t know if this is going to affect me personally, but it makes me feel worse about my state, and it makes me feel less safe.”[93]

The inability or reluctance to seek out and obtain services can have serious consequences for LGBT people, who often are both less able to access services and in greater need of the services that religious exemptions deny them. Research suggests that LGBT individuals are at higher risk for physical and mental health issues than non-LGBT individuals, due in part to the chronic stress and stigma they encounter.[94] Exemptions not only jeopardize LGBT people’s access to physical and mental health services, but may exacerbate stress and stigma as individuals encounter or come to anticipate discrimination in the public sphere.[95] Exemptions in the realm of adoption and foster care also jeopardize access to services that LGBT people need; according to data collected by the US Census Bureau in 2013, same-sex couples are almost three times more likely than heterosexual couples to adopt or foster children.[96]

Healthcare providers expressed concern about how fears of discrimination were affecting the mental and physical health of LGBT populations in their states. One pediatrician in Alabama observed:

For LGBTQ identified folks in this area of the country, their overall quality of health will not be the level they’re entitled to. We often see kids who haven’t seen a pediatrician in 5, 6, 7 years, because of fear of being judged, on the part of either their immediate family or them. They may live in households where family members don’t accept their identity or orientation… And that stress is absolutely an adverse childhood event, that shame and marginalization within your own family.[97]

Kelley Blair, who runs the Diversity Center in Oklahoma City, OK, noted a similar phenomenon for adults at her practice, which specifically caters to the LGBT community:

A lot of people have never been to therapy. And they may be 30 or 40 years old. They’ve waited a very long time to come in for services. They delay transitioning until they’re 40 or 50 years old. Some haven’t gone to a primary care health provider for basic things, basic healthcare issues. Our trans males haven’t gone in for pap smears until they’re 30 or 40 years old, some haven’t had basic HIV/AIDS screenings. And that’s because of the discomfort they feel with a general practitioner.[98]

Harms to Dignity

The harms of religious exemptions are not limited to outright refusals or deterring LGBT people from seeking goods and services. Interviewees in states with LGBT-targeted religious exemption laws in place also emphasized the harms to dignity and stigma that the laws impose on LGBT individuals and families.

Interviewees explained that, by enacting religious exemptions to blunt the advancement of LGBT equality, lawmakers sent a powerful signal that they were unequal or unvalued in their community. Brandiilyne Mangum-Dear described that harm in these words: “We’re not being melodramatic. You’re being treated with disrespect, as a second-class citizen—not even a citizen, an outsider. And after a while, that begins to tear a person down, to hurt them emotionally and spiritually. Rejection is hard for everyone, and we get it over and over. Even in small things—disapproving looks, hateful stares. It adds up, and it’s damaging.”[99]

Leticia Flores, a professor of psychology at the University of Tennessee, noted that this is particularly dangerous for LGBT youth, observing that “especially for people who are developing a sense of agency, I think being erased is incredibly harmful. In a way, it’s saying adults don’t care about them and are not going to take care of them.”[100]

While this message could be received from those who discriminated based on their faith generally, some interviewees indicated it was particularly injurious when it was endorsed by the state:

It sends the message that the state is supportive of your homophobia. And you are allowed to act on your urges rather than educate yourself about what you’re afraid of, and learn. You’re okay as you are, homophobic, and they’re not okay. We’ve picked a side. And we’ve picked a side based on your base religious beliefs, which is such a big thing here in Mississippi…. The state has given you that permission, to say, yes, your religious beliefs are not only good, but they’re right. And someone who says something otherwise is not correct.[101]

 

III. Legal Obligations

Proponents of sweeping religious exemptions have typically couched their claims in the language of religious freedom or religious liberty. International human rights law recognizes the importance of those rights, but also elaborates their limits, particularly where their exercise threatens to negatively impact the fundamental rights of others. Not only does the United States carry obligations under international law to respect these limits and safeguards, but more broadly the jurisprudence developed under international human rights law offers sound guidance to legislators seeking to strike a careful balance between rights that seem to stand in tension with one another.

Harmonizing Equality and the Freedom of Thought, Conscience and Religion

The United States is party to the International Covenant on Civil and Political Rights (ICCPR), which guarantees equal protection under the law as well as the freedom of thought, conscience, and religion.

Article 26 of the ICCPR states: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”[102] The UN Human Rights Committee, which provides authoritative guidance on the ICCPR, has determined that this provision also prohibits discrimination on the basis of sexual orientation and gender identity.[103]

Article 18(1) of the ICCPR recognizes the right to freedom of thought, conscience and religion, which includes both the “freedom to have or to adopt a religion or belief of [a person’s] choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”[104]

The Human Rights Committee has emphasized that Article 18 “does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice,” but—recognizing that religious exercise may affect others—does permit limited restrictions on the freedom to manifest one's religion or beliefs.[105] Under Article 18(3), states may regulate the manifestation of religion or belief if, and only if, such regulations “are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”[106]

The UN Human Rights Committee has clarified that the freedom of thought, conscience, and religion does not protect religiously motivated discrimination against women, or racial and religious minorities.[107] It has urged states considering restrictions on the manifestation of religion or belief to “proceed from the need to protect all rights guaranteed under the Covenant, including the right to equality and non-discrimination.”[108]

Other Rights at Risk from Religious Exemptions

The religious exemptions being introduced to license discrimination in child welfare services, physical and mental healthcare, and public accommodations not only impinge upon the rights of LGBT individuals to equal treatment, they also jeopardize the enjoyment of several other rights as well.

Nondiscrimination More Broadly

While the religious exemption laws examined in this report were introduced as a result of gains that LGBT people have made in attaining nondiscrimination protections and the ability to adopt, marry, and form families under state and federal law, many of the exemptions being introduced at the state level are not limited to religious objections related to sexual orientation and gender identity. As critics have pointed out, many bills would broadly preclude states from taking action against religious objectors who operate according to their religious principles to the detriment of other groups as well, and potentially authorize forms of discrimination based on race, ethnicity, sex, religion, nationality, disability, veteran status, HIV status, and other classifications. States that enact these laws relinquish their ability to ensure that state funding and contracts support services available to all qualified recipients, and give a free pass to potentially sweeping discrimination under the color of state authority.  

Right to Health

Exemptions that deny or deter people from seeking healthcare services jeopardize the right to health. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”[109] The ICESCR obligates governments to ensure the right to health is enjoyed without discrimination based on race, sex, religion, or “other status,” which the Committee on Economic, Social and Cultural Rights interprets to include sexual orientation and gender identity.[110] The United States has signed but not ratified the ICESCR.[111] When states enact laws allowing healthcare providers to deny service based on their personal objections to an individual’s sexual orientation or gender identity, they undermine the right to health. Individuals may be denied services outright; have difficulty finding services of comparable quality, accessibility, or affordability; or avoid seeking services for fear of being turned away.

The Committee on Economic, Social and Cultural Rights has noted that the right to health is threatened both by direct discrimination and by indirect discrimination, in which laws appear neutral on their face but disproportionately harm a minority group in practice.[112] To promote the right to health, the Committee has thus urged states to “adopt measures, which should include legislation, to ensure that individuals and entities in the private sphere do not discriminate on prohibited grounds.”[113] As a state that has signed but not ratified the ICESCR, the United States is legally obligated only to refrain from actions that undermine the object and purpose of the treaty. However, the ICESCR and the jurisprudence of the Committee remain a useful and authoritative guide to the kind of state action necessary to advance and protect the right to health.

Children’s Rights

States that permit child welfare agencies to educate or place children according to the agency’s religious beliefs can jeopardize the rights of children in their care. The United States is the only UN member state that has not ratified the Convention on the Rights of the Child (CRC), which provides an authoritative understanding of children’s rights globally and the measures needed to ensure they are respected and protected.[114] The CRC specifies that the best interests of the child should be a primary consideration in all actions concerning children, whether taken by public or private social welfare institutions, and should be the paramount consideration where adoption is concerned.[115] When states enact blanket religious or moral exemptions, they permit providers to elevate their convictions over the best interests of children in their care. Permitting child welfare agencies to turn away qualified parents because of their sexual orientation or gender identity, for example, limits the options available to children in need of placement and may delay or deny foster or adoptive placements for those youth. Moreover, exemptions may pose a particular threat for LGBT youth who are in the care of agencies that harbor religious objections to LGBT people.

As the CRC explains, states should ensure children do not face discrimination of any kind, and should protect children from discrimination based on the opinions or beliefs of the child’s legal guardians.[116] Furthermore, adoption and foster placement should be attentive to continuity in the child’s upbringing and to the child’s identity and background.[117]  

Recommendations

To the US Congress

  • Enact the Equality Act or other legislation which would prohibit discrimination based on sexual orientation and gender identity in employment, education, healthcare, housing, and public accommodations.
  • Enact the Do No Harm Act, which would not allow the Religious Freedom Restoration Act to be used to carve out exemptions from federal laws and protections regarding nondiscrimination, labor, children’s rights, and healthcare.
  • Enact the Every Child Deserves a Family Act, which would prohibit child welfare agencies that receive federal financial assistance from discriminating against foster parents based on sexual orientation, gender identity, and marital status.
  • Reject the First Amendment Defense Act, the Child Welfare Provider Inclusion Act, and other legislation that permits discrimination against LGBT people based on a provider’s asserted religious beliefs.

To the US Department of Justice

  • Ensure that existing conscience protections are not misused to excuse or justify discrimination on the basis of race, sex, religion, sexual orientation, gender identity, and other classifications.

To State Legislatures

  • Enact legislation prohibiting discrimination based on sexual orientation and gender identity in employment, education, healthcare, housing, adoption and foster care, and public accommodations.
  • Repeal religious exemptions that require the state to continue licensing, funding, or otherwise supporting providers who discriminate against others according to their beliefs.

To State Human Rights Commissions

  • Affirm that discrimination based on sexual orientation and gender identity is unacceptable and investigate incidents of discrimination based on those grounds.
  • Ensure that existing conscience protections are not misused to excuse or justify discrimination on the basis of race, sex, religion, sexual orientation, gender identity, and other classifications.

 

Acknowledgments

Ryan Thoreson, a researcher in the LGBT Rights Program, wrote this report based on research that he undertook from August 2017 to January 2018.

The report was reviewed by Graeme Reid, director of the LGBT Rights Program; Grace Meng, senior researcher in the US Program; Amanda Klasing, senior researcher in the Women’s Rights Division; Megan McLemore, senior researcher in the Health and Human Rights Division, Chris Albin-Lackey, senior legal advisor; and Joseph Saunders, deputy program director. Production assistance was provided by MJ Movahedi, LGBT Rights Program associate, Rebecca Rom-Frank, Photo & Publications coordinator; Fitzroy Hepkins, administrative manager; and Jose Martinez, senior coordinator.

Human Rights Watch would like to thank the experts and organizations that provided information for the report, especially the American Civil Liberties Union, the Movement Advancement Project, the ACLU of Michigan, Equality Michigan, the Tennessee Equality Project, the Tennessee Transgender Political Coalition, Voices for Trans Youth, the ACLU of Mississippi, and Lighthouse Community Church.

 

[1] Obergefell v. Hodges, 576 U.S. ___ (2015).

[2] For a list of religious exemptions under consideration in 2018, see Freedom for All Americans, “Legislative Tracker: Religious Refusal Bills,” https://www.freedomforallamericans.org/2018-legislative-tracker/legislat... (accessed February 6, 2018).

[3] See, e.g., South Dakota Senate Bill 149, 2017, http://www.sdlegislature.gov/docs/legsession/2017/bills/sb149p.htm (accessed November 22, 2017) (providing that “[n]o provision of this Act may be construed to allow a child-placement agency to decline to provide a service on the basis of a person’s race, ethnicity, or national origin”); Texas House Bill 3859, 2017, sec. 1, https://legiscan.com/TX/text/HB3859/id/1622312/Texas-2017-HB3859-Enrolle... (accessed November 22, 2017) (providing that “[t]his chapter may not be construed to allow a child welfare services provider to decline to provide, facilitate, or refer a person for child welfare services on the basis of that person’s race, ethnicity, or national origin”).

[4] Sejal Singh & Laura E. Durso, “Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Significant Ways,” Center for American Progress, May 2, 2017, https://www.americanprogress.org/issues/lgbt/news/2017/05/02/429529/wide... (accessed December 31, 2017).

[5] Brief of Lambda Legal Defense and Education Fund, Inc. & Family Equality Council, et al. as Amici Curiae Supporting Respondents, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 (U.S. 2017).

[6] Laura G. Barron & Michelle Hebl, “The Force of Law: The Effects of Sexual Orientation Antidiscrimination Legislation on Interpersonal Discrimination in Employment,” Psychology, Public Policy, and Law, Vol. 19(2), May 2013, pp. 191-205.

[7] William B. Rubenstein, “Do Gay Rights Laws Matter? An Empirical Assessment,” Southern California Law Review, Vol. 75 (2000), p. 65-120; Christy Mallory & Brad Sears, “Evidence of Employment Discrimination Based on Sexual Orientation and Gender Identity: An Analysis of Complaints Filed with State Enforcement Agencies, 2008-2014,” Williams Institute, UCLA School of Law, October 2015, https://williamsinstitute.law.ucla.edu/wp-content/uploads/Employment-Dis... (accessed January 16, 2018); Christy Mallory & Brad Sears, “Evidence of Housing Discrimination Based on Sexual Orientation and Gender Identity: An Analysis of Complaints Filed with State Enforcement Agencies, 2008-2014,” Williams Institute, UCLA School of Law February 2016, https://williamsinstitute.law.ucla.edu/research/discrimination/evidence-... (accessed January 16, 2018); Christy Mallory & Brad Sears, “Evidence Discrimination in Public Accommodations Based on Sexual Orientation and Gender Identity: An Analysis of Complaints Filed with State Enforcement Agencies, 2008-2014,” Williams Institute, UCLA School of Law February 2016, https://williamsinstitute.law.ucla.edu/research/discrimination/evidence-... (accessed January 16, 2018).

[8] The Equal Employment Opportunity Commission (EEOC) has found that Title VII’s prohibition on discrimination “because of … sex” includes discrimination because of a person’s sexual orientation or gender identity. Macy v. Holder, No. 0120120821 (EEOC Apr. 20, 2012); Baldwin v. Foxx, No. 0120133080 (EEOC July 15, 2015). Some federal courts have agreed, holding that employment discrimination based on sexual orientation and/or gender identity are not permitted under federal law. See, e.g., Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir., Apr. 4, 2017); EEOC, “Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII,” https://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm (accessed January 2, 2018). In 2017, the Department of Justice announced that it disagreed with the EEOC and that Title VII does not cover discrimination based on sexual orientation or gender identity. Ryan Thoreson, “US Justice Department Looks to Curtail LGBT Protections,” September 13, 2017, https://www.hrw.org/news/2017/09/13/us-justice-department-looks-curtail-... (accessed November 29, 2017). At time of writing, the scope of Title VII is being actively litigated in multiple federal courts, with the Supreme Court declining to hear a case that would resolve the issue. Adam Liptak, “Supreme Court Won’t Hear Case on Bias Against Gay Workers,” New York Times, December 11, 2017, https://www.nytimes.com/2017/12/11/us/politics/supreme-court-gay-workers... (accessed December 31, 2017).

[9] Movement Advancement Project, “Non-Discrimination Laws,” http://www.lgbtmap.org/equality-maps/non_discrimination_laws (accessed November 29, 2017).

[10] Ibid.

[11] Ibid.

[12] Obergefell v. Hodges, 576 U.S. ___ (2015).

[13] Department of Justice, “Attorney General Holder Directs Departments to Include Gender Identity Under Sex Discrimination Employment Claims,” December 18, 2014, https://www.justice.gov/opa/pr/attorney-general-holder-directs-departmen... (accessed January 29, 2018).

[14] US Department of Justice & US Department of Education, “Dear Colleague Letter on Transgender Students,” May 13, 2016, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title... (accessed September 1, 2016).

[15] Matthew Rosenberg, “Transgender People Will Be Allowed to Serve Openly in Military,” New York Times, June 30, 2016, https://www.nytimes.com/2016/07/01/us/transgender-military.html (accessed January 29, 2018).

[16] Department of Justice, “VAWA 2013 Nondiscrimination Provision: Making Programs Accessible to All Victims of Domestic Violence, Sexual Assault, Dating Violence, and Stalking,” April 9, 2014, https://www.justice.gov/archives/ovw/blog/vawa-2013-nondiscrimination-pr... (accessed January 29, 2018).

[17] Ryan Thoreson, “Trump Administration Withdraws Transgender Student Protections,” Human Rights Watch, February 23, 2017, https://www.hrw.org/news/2017/02/23/trump-administration-withdraws-trans... (accessed January 29, 2018).

[18] Helene Cooper, “Transgender People Will Be Allowed to Enlist in the Military as a Court Case Advances,” New York Times, December 11, 2017, https://www.nytimes.com/2017/12/11/us/politics/transgender-military-pent... (accessed January 29, 2018).

[19] Ryan Thoreson, “US Justice Department Reverses Position on Transgender Discrimination,” Human Rights Watch, October 5, 2017, https://www.hrw.org/news/2017/10/05/us-justice-department-reverses-posit... (accessed January 29, 2018).

[20] American Civil Liberties Union, “Legislation Affecting LGBT Rights Across the Country,” https://www.aclu.org/other/legislation-affecting-lgbt-rights-across-country (accessed January 29, 2018).

[21] H.R. 2802 – First Amendment Defense Act, 114th Congress (2015-2016), https://www.congress.gov/bill/114th-congress/house-bill/2802 (accessed January 29, 2018).

[22] Nico Lang, “2017 is Shaping Up to be a Banner Year for Anti-LGBT Discrimination,” Los Angeles Times, January 6, 2017, http://www.latimes.com/opinion/opinion-la/la-ol-first-amendment-defense-... (accessed November 29, 2017).

[23] H.R. 1881 – Child Welfare Provider Inclusion Act of 2017, 115th Congress (2017-2018), https://www.congress.gov/bill/115th-congress/house-bill/1881 (accessed January 29, 2018). The sponsors of the bill, like the sponsors of similar legislation at the state level, cite Massachusetts and Illinois as examples of states where faith-based organizations are required to provide services inconsistent with their religious beliefs or lose their funding. Office of Senator James M. Inhofe, “Inhofe, Lankford Cosponsor Bill to Protect Rights of Child Welfare Charities,” April 5, 2017, https://www.inhofe.senate.gov/newsroom/press-releases/inhofe-lankford-co... (accessed January 30, 2018). The reference is an allusion to Catholic Charities’ decision to terminate its adoption and foster care services in Massachusetts, Illinois, California, and Washington, D.C. rather than comply with state laws prohibiting discrimination on the basis of sexual orientation. David Crary, “For Advocates of Gay Adoption, Progress But Also Obstacles,” US News & World Report, June 17, 2017, https://www.usnews.com/news/best-states/illinois/articles/2017-06-17/for... (accessed January 30, 2018).

[24] American Civil Liberties Union, “Legislation Affecting LGBT Rights Across the Country,” https://www.aclu.org/other/legislation-affecting-lgbt-rights-across-country (accessed January 29, 2018).

[25] This report examines laws that provide a blanket exemption to some religious objectors in response to actual or anticipated gains in LGBT equality. Other states have exemption laws in place that may also compromise access to healthcare for LGBT people. In 1977, Illinois enacted the Health Care Right of Conscience Act, for example, which prohibits a person, institution, or official for taking action against a person for a “conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience.” 745 Ill. Comp. Stat. Ann. 70/5, http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2082&ChapterID=58 (accessed February 6, 2018). The law requires facilities to develop written protocols that outline how objections will be addressed, and to have a non-objecting provider at the facility provide the service, refer the patient, or notify the patient about other providers. Ibid. Recent amendments requiring objectors to inform patients of their options are being challenged by religious providers in federal court. Steve Schmadeke, “Federal Court Judge Halts Enforcement of Illinois Abortion Notification Law,” Chicago Tribune, August 4, 2017, http://www.chicagotribune.com/news/local/breaking/ct-crisis-pregnancy-ab... (accessed February 6, 2017). In 2017, Alabama enacted a law providing that a health care provider “has the right not to participate, and no health care provider shall be required to participate, in a health care service that violates his or her conscience when the health care provider has objected in writing prior to being asked to provide such health care services.” Alabama House Bill 95, 2017, sec. 4, https://legiscan.com/AL/text/HB95/id/1498841/Alabama-2017-HB95-Introduce... (accessed November 22, 2017). The health care services covered by the bill are limited to “abortion, human cloning, human embryonic stem cell research, and sterilization.” Ibid.

[26] In 1993, for example, Congress passed the Religious Freedom Restoration Act (RFRA), which extended protections for religious exercise beyond those required by the US Constitution. Under RFRA, the federal government may not “substantially burden a person’s exercise of religion” unless the burden furthers a compelling governmental interest and is the least restrictive means of doing so. 42 U.S.C. § 2000b et seq. Because RFRA only applies to the federal government, many states have adopted their own RFRAs that mirror these provisions at the state level. This report focuses on laws that depart from this balancing analysis to provide blanket exemptions to religious objectors; it is worth noting, however, that objectors are increasingly seeking to expand state RFRAs and invoke the federal RFRA in ways that may jeopardize access to sexual and reproductive healthcare. See, e.g., Catherine E. Shoichet & Halimah Abdullah, "Arizona Gov. Jan Brewer Vetoes Controversial Anti-Gay Bill, SB 1062," CNN, February 26, 2014, http://www.cnn.com/2014/02/26/politics/arizona-brewer-bill/index.html (accessed December 31, 2017); Sunnivie Brydum, "Arkansas Gov. Signs Revised 'Religious Freedom' Act," Advocate, April 2, 2015, https://www.advocate.com/politics/2015/04/02/arkansas-gov-signs-revised-... (accessed December 31, 2017); Tony Cook & Brian Eason, "Gov. Mike Pence Signs RFRA Fix," Indy Star, April 1, 2015, https://www.indystar.com/story/news/politics/2015/04/01/indiana-rfra-dea... (accessed December 31, 2017); Burwell v. Hobby Lobby Stores, 573 U.S. ___ (2014); Zubik v. Burwell, 136 S. Ct. 1557 (2016); Reva Siegel & Doug NeJaime, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal, Vol. 124, 2015, pp. 2516-2591.

[27] Mississippi House Bill 1523, 2016, sec. 2, http://billstatus.ls.state.ms.us/documents/2016/html/HB/1500-1599/HB1523... (accessed November 22, 2017).

[28] Ibid., sec. 3. HB 1523 defines “religious organization” broadly to encompass not only houses of worship but also a “religious group, corporation, association, school or educational institution, ministry, order, society or similar entity, regardless of whether it is integrated or affiliated with a church or other house of worship” as well an “officer, owner, employee, manager, religious leader, clergy, or minister” of these entities. Ibid., sec. 9(4). It defines “person” expansively as well, to include individuals but also a religious organization or “sole proprietorship, or closely held company, partnership, association, organization, firm, corporation, cooperative, trust, society, or other closely held entity.” Ibid., sec. 9(3).

[29] On the floor of the House of Representatives, the sponsor of the bill explained: “What this bill does in essence is add an additional layer of protection that currently does not exist in the post Obergefell decision that came from the Supreme Court in June of 2015, which legalized same-sex marriage throughout the United States, including in a majority of states that had adopted the traditional definition and only recognized marriage as between one man and one woman. What this bill does is provide a layer of protection against state discrimination for simply believing these important principles and acting in accordance therewith.” Remarks of Rep. Philip Gunn, HB 1523, February 19, 2016, at 6:24-7:08, http://law.mc.edu/legislature/bill_details.php?id=4621&session=2016 (accessed January 30, 2018).

[30] North Dakota Code sec. 50-12-07.1.

[31] Ibid., sec. 50-12-03, 50-12-07.1.

[32] Virginia Code sec. 63.2-1709.3(A).

[33] Ibid., sec. 63.2-1709.3(B)-(D).

[34] Lou Chibbaro Jr., “Va. Senate Panel Approves Anti-Gay Adoption Bill,” Washington Blade, February 3, 2012, http://www.washingtonblade.com/2012/02/03/va-senate-panel-approves-anti-... (accessed January 31, 2018).

[35] Michigan House Bill No. 4188, 2015, sec. 2, http://www.legislature.mi.gov/documents/2015-2016/publicact/htm/2015-PA-... (accessed November 22, 2017); see also Michigan House Bill No. 4189, 2015, http://www.legislature.mi.gov/documents/2015-2016/publicact/htm/2015-PA-... (accessed November 22, 2017); Michigan House Bill No. 4190, 2015, http://www.legislature.mi.gov/documents/2015-2016/publicact/htm/2015-PA-... (accessed November 22, 2017).

[36] Michigan House Bill No. 4188, 2015, sec. 3, http://www.legislature.mi.gov/documents/2015-2016/publicact/htm/2015-PA-... (accessed November 22, 2017).

[37] Ibid., sec. 4.

[38] Chad Livengood & Gary Heinlein, “Plan Would Let Adoption Agencies Deny Gay Couples,” The Detroit News, March 17, 2015, http://www.detroitnews.com/story/news/politics/2015/03/17/religious-beli... (accessed January 31, 2018).

[39] Ibid.; Matt Kaufman, “Preserving the Adoption Option,” Focus on the Family, March 2016, https://www.focusonthefamily.com/socialissues/citizen-magazine/preservin... (accessed January 31, 2018).

[40] South Dakota Senate Bill 149, 2017, sec. 4, http://www.sdlegislature.gov/docs/legsession/2017/bills/sb149p.htm (accessed November 22, 2017).

[41] Dana Ferguson, “Panel Oks Protections for Adoption Agencies that Turn Away Gay Couples,” Argus Leader, February 15, 2017, http://www.argusleader.com/story/news/politics/2017/02/15/panel-oks-prot... (accessed January 31, 2018).

[42] Nico Lang, “South Dakota Passes ‘Religious Liberty’ Law Allowing Adoption Agencies to Discriminate Against Same-Sex Couples,” Salon, March 22, 2017, https://www.salon.com/2017/03/22/south-dakota-passes-religious-liberty-l... (accessed January 31, 2018).

[43] Hannah Weikel, “South Dakota Governor Mum on Religious Adoption Protections,” Rapid City Journal, March 8, 2017, http://rapidcityjournal.com/news/latest/south-dakota-governor-mum-on-rel... (accessed January 31, 2018).

[44] Hannah Weikel, “South Dakota Governor Signs Religious Adoption Protections,” US News & World Report, March 10, 2017, https://www.usnews.com/news/best-states/south-dakota/articles/2017-03-10... (accessed January 31, 2018).

[45] Alabama House Bill 24, 2017, sec. 5, https://legiscan.com/AL/text/HB24/id/1436343/Alabama-2017-HB24-Introduce... (accessed November 22, 2017).

[46] Anna Claire Vollers, “Religious Freedom or Taxpayer-Funded Discrimination? Child Welfare Bill Prompts Debate,” AL.com, February 8, 2017, http://www.al.com/news/index.ssf/2017/02/religious_freedom_taxpayer-fun.... (accessed January 31, 2018).

[47] Trudy Ring, “Alabama Passes ‘License to Discriminate’ Bill on Adoption Agency Licensing,” The Advocate, April 26, 2017, https://www.advocate.com/politics/2017/4/26/alabama-passes-license-discr... (accessed January 31, 2018).

[48] Texas House Bill 3859, 2017, sec. 1, https://legiscan.com/TX/text/HB3859/id/1622312/Texas-2017-HB3859-Enrolle... (accessed November 22, 2017).

[49] Ibid.

[50] Ibid.

[51] Ibid.

[52] Chuck Lindell, “Texas House Sends Religious-Refusal Foster Care Bill to Senate,” American-Statesman, May 10, 2017, http://www.statesman.com/news/update-texas-house-sends-religious-refusal... (accessed January 31, 2018).

[53] Tennessee Senate Bill 1556, 2016, sec. 1(a), https://legiscan.com/TN/text/SB1556/id/1319613/Tennessee-2015-SB1556-Dra... (accessed November 22, 2017).

[54] Ibid.

[55] Remarks of Sen. Jack Johnson, SB 1556, January 27, 2016, at 2:35-7:35 http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=11417 (accessed January 31, 2018); American Counseling Association, 2014 ACA Code of Ethics, 2014, sec. A.11.b, https://www.counseling.org/resources/aca-code-of-ethics.pdf (accessed January 31, 2018).

[56] Remarks of Sen. Jeff Yarbro, SB 1556, February 10, 2016, at 54:49-54:54 http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=11609 (accessed January 31, 2018).

[57] Remarks of Sen. Rusty Crowe, SB 1556, January 27, 2016, at 2:35-7:35 http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=11417 (accessed January 31, 2018).

[58] Remarks of Tennessee Association of Marriage and Family Therapists, SB 1556, February 10, 2016, at 53:52-54:03 http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=11609 (accessed January 31, 2018).

[59] Human Rights Watch interview with Leiana C., Biloxi, MS, November 26, 2017.

[60] Ibid.

[61] Human Rights Watch phone interview with Tanya P. (pseudonym), Knoxville, TN, October 20, 2017.

[62] Ibid.

[63] Human Rights Watch phone interview with Karen D. (pseudonym), Birmingham, AL, September 7, 2017.

[64] Abby Phillip, “Pediatrician Refuses to Treat Baby with Lesbian Parents and There’s Nothing Illegal About It,” Washington Post, February 19, 2015, https://www.washingtonpost.com/news/morning-mix/wp/2015/02/19/pediatrici... (accessed November 29, 2017).

[65] Complaint in Dumont v. Lyon, No. 2:17-cv-13080 (W.D. Mich. September 20, 2017).

[66] Human Rights Watch phone interview with Kristy and Dana Dumont, Dimondale, MI, January 29, 2018.

[67] Human Rights Watch interview with Erin Busk-Sutton, Detroit, MI, January 18, 2018.

[68] Ibid.; Human Rights Watch phone interview with Kristy and Dana Dumont, Dimondale, MI, January 29, 2018.

[69] Emanuella Grinberg, “Funeral Home Refused to Cremate Gay Man, Lawsuit Alleges,” CNN, May 2, 2017, http://www.cnn.com/2017/05/02/health/mississippi-funeral-home-gay-couple... (accessed November 29, 2017).

[70] Ibid.

[71] Human Rights Watch interview with Chris and CJ P., Nashville, TN, January 8, 2018.

[72] Human Rights Watch interview with Persephone Webb, Knoxville, TN, December 8, 2017.

[73] Human Rights Watch interview with KT Hiestand, Memphis, TN, January 12, 2018.

[74] Human Rights Watch interview with Kate R. (pseudonym), East Tennessee, December 10, 2017.

[75] Human Rights Watch interview with KT Hiestand, Memphis, TN, January 12, 2018.

[76] Human Rights Watch interview with Rhonda L. (pseudonym), Knoxville, TN, December 9, 2017.

[77] Human Rights Watch interview with Paula M. (pseudonym), Hattiesburg, MS, November 27, 2017.

[78] Human Rights Watch interview with Rhonda L. (pseudonym), Knoxville, TN, December 9, 2017.

[79] Human Rights Watch interview with Kathy Garner, Hattiesburg, MS, November 27, 2017.

[80] Human Rights Watch phone interview with Chris Sanders, Nashville, TN, August 28, 2017.

[81] Human Rights Watch phone interview with David Dinelli, Montgomery, AL, August 9, 2017.

[82] Human Rights Watch phone interview with Thomas L. (pseudonym), Fort Worth, TX, August 31, 2017.

[83] Human Rights Watch interview with Harvey F., Jackson, MS, November 27, 2017.

[84] Human Rights Watch phone interview with Lisa Henderson, Nashville, TN, December 13, 2017.

[85] Human Rights Watch phone interview with Kevin R. (pseudonym), Pass Christian, MS, November 11, 2017.

[86] Human Rights Watch phone interview with Petra E., Biloxi, MS, October 4, 2017.

[87] Human Rights Watch interview with Bill S. (pseudonym), Jackson, MS, November 27, 2017.

[88] Human Rights Watch phone interview with Lisa Scheps, Austin, TX, October 4, 2017.

[89] Human Rights Watch interview with Karla B. (pseudonym), Biloxi, MS, November 26, 2017.

[90] Human Rights Watch interview with Krista and Jami Contreras, Oak Park, MI, January 18, 2018.

[91] Human Rights Watch phone interview with Leticia Flores, Knoxville, TN, October 17, 2017.

[92] Human Rights Watch interview with Elliott Devore, Knoxville, TN, December 8, 2017.

[93] Human Rights Watch phone interview with Patrick Grzanka, Knoxville, TN, September 11, 2017.

[94] Brief of Ilan H. Meyer, PhD., and Other Social Scientists and Legal Scholars Who Study the LGB Population as Amici Curiae Supporting Respondents, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 (U.S. 2017), p. 21-22.

[95] Ibid., p. 26.

[96] Gary J. Gates, “Demographics of Married and Unmarried Same-Sex Couples: Analyses of the 2013 American Community Survey,” Williams Institute, March 2015, http://williamsinstitute.law.ucla.edu/wp-content/uploads/Demographics-Sa... (accessed January 2, 2017).

[97] Human Rights Watch phone interview with Karen D. (pseudonym), Birmingham, AL, September 7, 2017.

[98] Human Rights Watch phone interview with Kelley Blair, Oklahoma City, OK, November 17, 2017.

[99] Human Rights Watch phone interview with Brandiilyne Mangum-Dear, Hattiesburg, MS, October 10, 2017.

[100] Human Rights Watch phone interview with Leticia Flores, Knoxville, TN, October 17, 2017.

[101] Human Rights Watch interview with Harvey F., Jackson, MS, November 27, 2017.

[102] ICCPR, art. 26.

[103] UN Human Rights Committee, Toonen v Australia, CCPR/C/50/D/488/1992 (March 31, 1994), http://hrlibrary.umn.edu/undocs/html/vws488.htm (accessed October 20, 2016).

[104] ICCPR art. 18(1).

[105] Human Rights Committee, General Comment 22, "Article 18: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," 1994, UN Doc. HRI/GEN/1/Rev.1, paras. 3-4.

[106] ICCPR art. 18(3); see also art. 5(1) ("Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.").

[107] See Human Rights Committee, General Comment 28, "Article 3 (The Equality of Rights Between Men and Women)," March 29, 2000, UN Doc. CCPR/C/21/Rev.1/Add.10, para. 21 ("Article 18 may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience, and religion."); Human Rights Committee, General Comment 22, "Article 18: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," 1994, UN Doc. HRI/GEN/1/Rev.1, para. 2 ("The committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community."); ibid. at 7 (noting that "no manifestation of religion or belief may amount to … advocacy of national, racial, or religious hatred that constitutes incitement to discrimination" and that "States parties are under the obligation to enact laws to prohibit such acts.").

[108] Human Rights Committee, General Comment 22, "Article 18: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies," 1994, UN Doc. HRI/GEN/1/Rev.1, para. 8.

[109] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A

(XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 12.

[110] UN Committee on Economic, Social and Cultural Rights, General Comment No. 20: “Non-Discrimination in Economic, Social and Cultural Rights”, U.N. Doc. E/C.12/GC/20, July 2, 2009, para. 32.

[111] Vienna Convention on the Law of Treaties (1980), 1155 U.N.T.S. 331, art. 18.

[112] UN Committee on Economic, Social and Cultural Rights, General Comment No. 20: “Non-Discrimination in Economic, Social and Cultural Rights”, U.N. Doc. E/C.12/GC/20, July 2, 2009, para. 10.

[113] Ibid., para. 11.

[114] Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp.

(No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990. The United States has signed but not

ratified the CRC.

[115] CRC, arts. 3(1), 21.

[116] Ibid., art. 2.

[117] Ibid., art. 20.

Posted: January 1, 1970, 12:00 am

Motorcyclists ride past a banner calling for LGBT people to leave the Cigondewah Kaler area in Bandung, Indonesia, January 27, 2016.

© 2016 Reuters

It may seem preposterous, but some Indonesian politicians are attempting to portray the criminalization of adult consensual same-sex conduct as somehow protecting against vigilantism. Make same-sex behavior a crime, they say, and conservative elements will be placated, avoiding violent outbursts. If there is an official route to report and prosecute lesbian, gay, bisexual and transgender (LGBT) people, the logic goes, members of the public won’t resort to attacks.

The argument has a certain appeal amid Indonesia’s intensifying moral panic about sexuality, but the substance makes no sense whatsoever –especially considering Indonesia’s unrelenting government-driven campaign of vitriolic rhetoric against LGBT activism and people . But while politicians spin their current decision-making as horse trading and political compromise, their policy proposals echo the deeply problematic historical relationship between Indonesia’s laws and vigilante attacks on minorities – and portend a violent future.

In late January, Zulkifli Hasan, speaker of Indonesia’s parliament, who had been one of the first public figures to launch an anti-LGBT diatribe in 2016, told reporters that there were parliamentarians discussing same-sex marriage – a triggering issue in Indonesian political discourse.  In 2017 social media erupted with calls to boycott Starbucks, for example, because the coffee company’s CEO had four years earlier declared his support for marriage equality. Hasan’s statement that legislators were discussing same-sex marriage was not true, but in Jakarta’s political chess match, it effectively cornered all players into publicly affirming their support for some degree of opposition to gay equality.

Basic human rights aren’t a matter of political horse-trading, and protection is never achieved through criminal sanctions against minorities’ fundamental rights.

One member of parliament, a representative from Aceh province, suggested the death penalty. Aceh’s position is extreme; it is the only province in Indonesia allowed to implement Sharia (Islamic law) and the 2014 local criminal code includes punishments for adult consensual same-sex conduct, as well as clauses that encourage community enforcement and “snooping,” which has led to widespread vigilante actions and, in 2017, Indonesia’s first public flogging for homosexuality.

Other lawmakers proposed complete criminalization of sex outside of marriage, with extra penalties if it is between two people of the same gender – an anti-adultery law, with an anti-gay provision. A group called the Family Love Alliance brought a similar proposal to the Constitutional Court in July 2016, where justices rejected it 5-4.

Some other legislators involved in the criminal code revisions proposed what they see as a compromise. As Ichsan Soelistio, a parliamentarian from Indonesia’s largest political party, Indonesian Democratic Party for Struggle (PDIP), and one of the members working to update the country’s criminal code told the Washington Post last week: “[We] have agreed to accept a law which allows prosecution of sex outside marriage and homosexual sex, but only if one of the sexual partners or their family members report the crime to police.”

Soelistio, who is a member of President Joko Widodo’s party, calls this version of the law “a firewall.” Without it, he insists, “the public can try to take the law into their own hands” and attack LGBT people.

The proposal is eerily similar to how Indonesian politicians have attempted to spin the country’s notorious blasphemy law as a stabilizing force and a preventative measure against vigilante violence. In 2008, the government also issued an anti-Ahmadiyah regulation, reasoning that it would prevent vigilantes attacking the Muslim minority community, often accused of committing blasphemy against Islam.

The blasphemy law, article 156a of the Indonesian criminal code, was passed in 1965 and punishes deviations from the central tenets of Indonesia’s six officially recognized religions with up to five years in prison.

In 2009, when Muslim intellectuals challenged the blasphemy law in the Constitutional Court, government witnesses defended the law, saying Muslim mobs would probably attack religious minorities if the blasphemy law were overturned because ordinary Indonesian Muslims believed it was their duty to defend Islam. Ultimately, in 2010 the court ruled 8 to 1 that the blasphemy law lawfully restricted minority religious expression because it allows for the maintenance of “public order.” The court agreed that without it, religious minorities could become targets of violence by intolerant members of the public.

In fact, the exact opposite has happened – repeatedly.

Militant Islamist groups and community vigilantes have violently targeted Ahmadiyah, Gafatar, Christian, Buddhist, Confucian and other religious minorities. For more than a decade, police, military, and other authorities have failed repeatedly to defend these religious communities, investigate the attacks, and bring perpetrators to justice. Meanwhile, dozens have been prosecuted under the law for expressing minority religious views. The law has been an abject failure in theory and practice, and a source of violence, not protection.

In rejecting last year’s petition to criminalize homosexuality, Indonesia’s Constitutional Court said it was for parliament to decide whether to criminalize private sexual behavior, but warned against over-criminalization. “If one builds an argument that to maintain societal order is to force members of the society who acts in a manner considered deviant to change their behaviors through threats of criminal punishment,” the justices warned, “he or she basically believes that societal order can be created under repressive measures only.”

So, when legislators such as Soelistio suggest that “we are not banning gay people. We are trying to give them freedom within certain limits,” it rings not only hollow, but mendacious. The anti-LGBT campaign that began in 2016 has metastasized into outright violence – including police raids on night clubs that were HIV education and testing hubs, as well as private homes. At least 300 LGBT people were arrested last year.

Basic human rights aren’t a matter of political horse-trading, and protection is never achieved through criminal sanctions against minorities’ fundamental rights. It’s not freedom of expression versus security, or privacy versus dignity. Indonesia’s experience with the blasphemy law should be evidence enough to tip the balance back towards protecting human rights. Indonesia has never in its history criminalized adult consensual same-sex conduct: 2018 is not the year to do it.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Gay Couples Who Could Finally Marry In Bermuda Feel Like Second-class Citizens Again. Boris Dittrich. 

Bermuda has just taken away same-sex couples' right to marry.

In a new law signed this week by Bermuda's Governor, John Rankin, the right for same-sex couples to marry has been replaced with the option of a domestic partnership, a status that will be open to both same- and different-sex couples.

Bermuda, a British overseas territory with about 65,000 inhabitants, is the first country in the world to reverse its laws on same-sex marriage, doing so with remarkable speed.

It was only May last year that Bermuda's Supreme Court ruled to allow same-sex couples to marry, and many gays, lesbians and their allies celebrated the court's decision. Cruise liner operators, who sail under the Bermuda flag on which marriage ceremonies are performed under Bermuda law, also welcomed the ruling. The decision was good for equality, tourism and business in general.

But fierce debate both in Bermuda's parliament and wider society, about whether marriage should be preserved as a union between a woman and a man, followed the court's ruling.

The Bermuda government introduced the Domestic Partnership Act 2017, which overrides the ruling on same-sex marriage, in an attempt to calm tensions and reconcile opposing views. The bill passed the House of Assembly and the Senate, and only needed the signature of the Bermuda governor to become formalized. This week saw that final step taken.

So where does this leave same-sex couples who married in Bermuda after the court's ruling but before the Act comes into effect? The Minister of Home Affairs, Walton Brown, has said that same-sex marriages lawfully contracted under Bermuda law will continue to be recognized. He added that any same-sex marriages taking place elsewhere before and during the transition period will also be legally recognized.

The decision to abolish the right to marry for same-sex couples is harsh, unprecedented, and runs counter to developments in other parts of the world.

The Netherlands was the first country in the world to introduce marriage equality at the beginning of the century, in 2001.

Since then, 25 countries have extended civil marriage to same-sex couples.

In 2017, legislation for same-sex marriage came into force in both Germany and Malta, two European Union member states. In Austria, the Constitutional Court ruled that the government and parliament have until January 1, 2019, to introduce legislation allowing same-sex couples to marry. If the government does not act by then, the law on civil marriage law will be automatically be read as if amended and from then on, same-sex marriages can take place.

In Asia, in a May ruling, Taiwan's Constitutional Court paved the way for marriage equality too, striking down the legal definition of marriage as "between a man and a woman." The court gave parliament two years to amend existing laws or pass new legislation to include same-sex marriage. If parliament fails to act, same-sex couples will automatically be able to marry. Thus, by 2019 or sooner, Taiwan will become the first Asian country with marriage equality.

In Chile, President Michelle Bachelet introduced a marriage equality bill in August, which Chile's Congress began debating in November. The debates will continue in 2018. If the bill is adopted, Chile will become the sixth country in Latin America with marriage equality.

The Australian government introduced legislation permitting same sex marriages in Parliament following the results of a national postal survey, in which 61.6 percent of respondents voted in favor of marriage equality. The Senate and the House of Representatives approved the bill, and the first marriages took place in December 2017.

The early days of 2018 have also been very positive for marriage equality in the Americas. On January 9. the Inter American Court of Human Rights affirmed, in a landmark advisory opinion, that the American Convention on Human Rights requires countries to allow same-sex couples access to civil marriage, and all of the rights and benefits that derive from it. This ruling creates an opening in the states who have ratified the Convention to follow the marriage equality example of Argentina, Brazil, Colombia, Mexico and Uruguay.

Bermuda's decision is a serious set-back for its gay and lesbian couples. Their government has sent them a message that they are somehow second-class citizens, simply because they love someone of the same sex.

However, while there is also a risk the decision will embolden conservative groups in other countries who do not respect non-discrimination, the tide of equality is inevitably rising. And this week's move by Bermuda's government will ultimately be shown to be on the wrong side of history.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Ugandan human rights activists hold a press conference on February 9 to condemn the violent break-in at Human Rights Awareness and Promotion Forum (HRAPF) and call on police to investigate. 

2018 HURINET
 

(Nairobi) – Ugandan rights organization Human Rights Awareness and Promotion Forum (HRAPF) was the target of a violent break-in on the night of February 8, 2018, Human Rights Watch said today. HRAPF works to protect the rights of marginalized groups including lesbian, gay, bisexual, transgender and intersex (LGBTI) people, and sex workers. The group reported that unidentified assailants broke into its office overnight, disabled parts of the security system, and slashed two guards with machetes, severely injuring them.

The break-in continues a string of burglaries and attacks on the offices of independent nongovernmental groups in Uganda, including a previous attack on HRAPF in May 2016, in which a security guard was beaten to death and documents were stolen. The Uganda police neither identified nor arrested suspects in that attack. According to DefendDefenders, a Kampala-based regional human rights organization, over 30 organizations in Uganda have experienced similar break-ins since 2012. No one has ever been prosecuted for any of the attacks.

“In failing to effectively investigate attacks on nongovernmental groups, the Uganda police send a clear message that human rights defenders are on their own, and cannot count on the authorities for basic protection,” said Maria Burnett, East Africa director at Human Rights Watch. “We are deeply concerned that the pattern of attacks and consistent lack of police investigations is a tactic to intimidate Uganda’s outspoken human rights activists.”

Following a series of attacks on nongovernmental organizations in 2016, including the attack on HRAPF, Human Rights Watch and 30 Ugandan and international human rights organizations sent a letter to the inspector general of police, Gen. Kale Kayihura, expressing grave concern about the wave of break-ins and assaults. The letter requested the police to issue a public statement clarifying the steps police had taken to investigate the attacks, and how the police would ensure that human rights defenders who had been attacked, including the HRAPF defenders, would be effectively protected from further acts of violence. The inspector general did not respond or issue such a statement.

The targeted groups work on a range of sensitive issues. HRAPF, for example, provides pro-bono legal aid services to LGBTI people and sex workers and conducts research and advocacy, including with the Uganda police. On February 8, the day of the attack, HRAPF staff had held a training session for police officers in the Elgon region on the rights of LGBTI people. Organizations working on land rights and the rights of journalists and women have also experienced break-ins, and in some cases, their security guards were attacked.

As a party to the African Charter on Human and Peoples’ Rights, Uganda is obligated to uphold a resolution adopted at the African Commission on Human and Peoples’ Rights in May 2017 to take “necessary measures to provide human rights defenders with a conducive environment to be able to carry out their activities without fear of acts of violence, threat, intimidation, reprisal, discrimination, oppression, and harassment from State and non-State actors.”

The United Nations General Assembly adopted a resolution in November 2017 calling on countries to actively support the work of human rights defenders, including by “duly investigating and condemning publicly all cases of violence and discrimination against human rights defenders.”

“The Uganda Police Force should respect its obligations under African and international law to protect human rights defenders,” Burnett said. “Police indifference to attacks targeting activist groups needs to end.”

 

Posted: January 1, 1970, 12:00 am

People sing the Russian national anthem while raising rainbow flags and a Russian flag in solidarity with the lesbian, gay, bisexual and transgender (LGBT) community of Russia, as part of a film project called "Live and Let Love", at the Stockholm Olympic Stadium October 6, 2013.

©2013 Reuters Erik Martensson/TT News Agency

In June 2013, just months before the opening ceremony of the Sochi Olympics, Russian President Vladimir Putin signed what became known as the “gay propaganda law,” arguing that “nontraditional sexual relations” were a danger to children, the family and society. The law, Putin claimed, would uphold “traditional values.”

On paper and compared to a spectrum of anti-gay laws in some other countries, this new law was not the worst. It made the sharing of “propaganda of non-traditional sexual relationships” an administrative, not criminal, offense, punishable with a fine, not imprisonment. But its most harmful effects are insidious. It effectively excluded a vulnerable minority from full participation in society and gave state sanction to their status as outsiders.

The well-founded fear of activists in Russia was that the law would not only restrict freedom of expression, but would send a message that the government condoned homophobia, leaving gay people vulnerable to violence and abuse.

And that is exactly what happened.

The passage of the law coincided with a ratcheting up of homophobic rhetoric in state media and a dramatic increase in attacks by vigilante groups and individuals. Vigilantes preyed on young gay men, lured them via dating apps to fake rendezvous, and beat, humiliated and tortured them. The attackers filmed these attacks, and posted the footage on social media, including images of themselves attacking the men they perceived as gay, confident in their impunity. As expected, the police failed to recognize the attacks as hate crimes.

In passing the law though, the Russian Duma did not seem to anticipate the uproar that became the most enduring image of the Sochi games. Protests took place in cities across the globe and, under pressure, the International Olympic Committee said it was open to expressly forbidding discrimination on grounds of “sexual orientation” in the Olympic charter, which it subsequently did. Media coverage of the games put an enormous spotlight on LGBT Russians, with some going so far as to call the games the “gay Olympics.” Putin’s moment of anticipated glory, for him and for Russia, was clouded by the outcry against this law.

Indeed, the passage of the law sparked more international outrage than other serious human rights violations committed during preparations for other Olympics, including abuse against migrant workers, local residents, and protesters.

But despite the furor, the facts on the ground for LGBT Russians were not changed. The four years since Sochi have been marked by discrimination and brutal anti-gay violence, and while the focus of the international media has long ago moved on, Putin’s “traditional values” continue to do immeasurable damage.

For the Kremlin the law was classic political homophobia – a way of consolidating their conservative support base in Russia and, internationally, to forge an anti-Western alliance under the rubric of “traditional values.” This has been an effective and damaging strategy, that seeks to undermine the universality of rights, by suggesting that rights are subordinate to cultural norms, and subjective moral values. In Russia’s attack on human rights norms, LGBT people are a lightning rod ― portrayed as the antithesis of morality and culture. 

The propaganda law also provided some of the rhetorical justification and presumed political cover for a violent anti-gay purge in Russia’s Chechen Republic that took place last year. Police and security officials rounded up men presumed to be gay, tortured them in informal facilities, mined their social media accounts for the names of others, and detained them. Ramzan Kadyrov, who has been ruling Chechnya through brutal repression with the Kremlin’s blessing, fluctuated between denying there were any gay people in Chechnya, and justifying the purge as a social cleansing ritual. Through public rituals of humiliation in front of senior male relatives, the purge symbolically and violently reasserted notions of traditional masculinity in Chechnya. The level of brutality, and the direct involvement of high ranking officials, was chilling.

One victim recalled being hauled before male relatives: “[Officials] shout abuse at you, call you names, the most offensive names, and they order you to step forward, admit it to your relatives, admit that you’re gay.” Detainees were then released to elder male relatives, and their captors encouraged families to commit so-called “honor killings.”

Commenting on his childhood socialization, Kadyrov, who projects his own version of strongman masculinity, said:  “This is how they teach us from childhood. My father told me when I was a little boy, ‘If you’re coming home because you got scared, don’t come home. I have no need for you. You’re not a girl, you’re a man.’”

Sustained international pressure ultimately compelled the Kremlin to ensure the suspension of the purge by Chechen authorities and open a federal inquest. That inquest has been a non-starter, but the crimes have not gone completely unheeded. Both Kadyrov and Ayub Kataev, an official in the Chechen Internal Affairs Ministry who allegedly operated one of the unlawful detention facilities, were sanctioned under the United States government’s Magnitsky Act, which allows the executive branch to impose visa bans and targeted sanctions on individuals in Russia responsible for human rights violations.

But for men caught up in the purge, their lives have been shattered. Some were fortunate enough to escape to bigger metropolitan centers in Russia, and from there some were resettled in other countries. As of October, Russia’s leading LGBT support group saidthey had helped evacuate at least 79 people affected by the purge.

In 2017, the European Court of Human Rights condemned the “gay propaganda” law and ordered the government to pay restitution to three plaintiffs ― a decision that Russia is obligated by treaty to respect ― but Russian courts continue to punish people under the law. At least seven people have been convicted in the last year alone, including for years-old Facebook posts.

However, a recent video sensation showed that ordinary Russians value their freedom to laugh over so-called “traditional values.” In January, footage of freshmen air transport cadets performing a homoerotic parody to the song ”Satisfaction” went viral and caused a scandal in Russia. When participants were threatened with disciplinary action, other groups – including construction workers, agricultural students and stable hands ― made similar campy, parody videos in support. In the face of these viral acts of solidarity poking fun at the hallmarks of hegemonic masculinity, authorities backed down, and the cadets will not be charged.

This protest, like those around the Sochi Olympics, showed the Russian government is not immune to pressure. But absent permanent reform, the propaganda law remains a tool for repression. And it’s the obligation of the international community to not let that stand.

The Olympics may have moved on, but LGBT Russians don’t have that luxury.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

People celebrate after the Inter-American Court of Human Rights called on Costa Rica and Latin America to recognize equal marriage, in San Jose, Costa Rica, January 9, 2018. The sign reads: "The court said yes". 

©2018 Reuters/Juan Carlos Ulate

In a moment when some countries have stepped back on LGBT rights, a January 9th decision by the Inter-American Court of Human Rights has opened a window of opportunity for Latin America to lead the way.  

In a landmark advisory opinion, the court affirmed that the American Convention on Human Rights requires countries to allow same-sex couples to access civil marriage, and all of the rights and benefits that derive from it. It also asserted that governments should allow people, through a fast, easy and cost-free process, to change their name and gender marker on official documents, in accordance with their self-perceived gender identity.

Conservative lobbyists in Latin America quickly suggested that the court’s advisory opinions don’t directly obligate other countries to comply. But the court’s authoritative guidance leaves no doubt that the American Convention does indeed guarantee these important rights to LGBT people. And state parties are required to take the court’s opinion into consideration in developing their own laws and policies.  

In terms of marriage equality, the opinion is a gigantic leap forward. Of the 20 countries that are parties to the American Convention, only Argentina, Colombia, Brazil and Uruguay recognize same-sex marriage nationally. Mexico does too, but in two thirds of its states, same-sex couples must undertake a slow, burdensome and costly judicial procedure not required of different-sex couples. The court´s interpretation is that all 20 countries are obliged to allow same-sex couples to marry, with all of its benefits and rights. This comes at a particularly key moment for Panama, Chile and Costa Rica, which have engaged in national debates around the issue over the last few months.

The most extensive and ground-breaking part of the opinion, however, has to do with legal gender recognition. In most Latin American countries, transgender men and women can’t change their gender marker in public records and legal documents. Some countries allow it, but only through a complex, costly and time-consuming process involving court appearances (as in Peru), psychological evaluation (in Bolivia), or in the case of Uruguay, approval by an “inter-disciplinary committee.”

 Others, like Ecuador, will make the change but also imprint a permanent marker on the person’s records, which can be even more stigmatizing. Only Argentina, Colombia and Mexico City allow name and gender reaffirmation in a fast, easy and inexpensive manner.

Legal recognition of one’s gender identity is not only essential for a person’s dignity, but for access to the most basic public services, including social security, public safety, and justice. Not having gender-matching documents can result in denial of services, travel restrictions, bullying, humiliation, and even violence.

The court said that all 20 countries should adopt a simplified process that allows anyone to change their name and affirm their self-perceived gender identity in all public records and documents. The process should be confidential, free, and not require surgery or hormone treatment.

Translating the court’s eloquent opinion into reality across the region, however, will require work, determination and political will.  

For the past two years, conservative movements have led a strong backlash against LGBT rights across the Americas. In 2016, they managed to turn Mexican President Peña Nieto´s own party against him, blocking his constitutional bill on marriage equality in congress. Last year, the opposition derailed a proposed LGBT-inclusive curriculum in Peru. And most recently, people have rallied in Paraguay and Ecuador, claiming a need to defend the “traditional family” from so-called “gender ideology.”

The upcoming elections in the region, including in Costa Rica, Mexico, Brazil, and Colombia, could also put these measures on hold with lawmakers reluctant to incur the political costs of supporting the rights of a minority.

But the Inter-American Court’s advisory opinion could well be the fuel that LGBT advocates needed, not only to resist efforts to roll back LGBT rights, but to push wavering countries into the lead in the international arena. The opinion will become an asset that activists can immediately use before national courts, lawmakers, and most important, before the general public. By making clear that the American Convention guarantees the rights of LGBT people to civil marriage equality and legal gender recognition, the Inter-American Court has redirected the debate.

Latin America can lead the way for LGBT rights in 2018. The question is whether regional governments and lawmakers will have the courage and the capacity to take advantage of this unique opportunity. 

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am
Posted: January 1, 1970, 12:00 am