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Despite Trump, States Advancing on LGBTQ Rights

Red states show least progress, but pushback on trans students falling short

Out gay State Senator Brad Hoylman has led the charge in 2019 in enacting transgender rights, a ban on conversion therapy, and amendments to the 2011 Marriage Equality Act eliminating any remaining ambiguities in state law on the rights of same-sex married couples.
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The Human Rights Campaign’s newly unveiled State Equality Index report, which offers a comprehensive look at the status of local laws and polices pertaining to LGBTQ rights nationwide, demonstrates a slight improvement throughout the last year in the efforts to enact comprehensive protections.

Sixteen states and Washington, D.C. received the top “Working Toward Innovative Equality” grade for 2018, which is an increase from the 13 states on the list in last year’s report.

The best and worst states were largely divided along party lines corresponding to the results of the 2016 presidential election. Each state with a top grade for 2018 voted for Democratic nominee Hillary Clinton in 2016, while 26 of the 27 worst states on the list voted for Donald Trump.

Leading the way in the latest report were California, Colorado, Connecticut, Delaware, Washington DC, Illinois, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

The states receiving the worst grades were Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming.

Meanwhile, there were only a handful of states stuck in the middle of the pack. Hawaii, Iowa, Maryland, and New Hampshire were listed under “Solidifying Equality,” meaning they have several basic measures of equality but advocates are still seeking broader implementation of laws and policies providing for comprehensive coverage. Wisconsin and Utah were a step below those four states, rated “Building Equality,” reflecting uneven progress toward equality.

Non-discrimination laws saw improvements in 2018, especially in the northeast. New Hampshire expanded its non-discrimination law to include gender identity protections, while Massachusetts voters opted not to repeal the state’s ban on discrimination on the basis of gender identity.

There were also the beginnings of movement last year on hate crimes-related laws across a variety of state, even if none enacted new measures. Georgia, Iowa, Mississippi, Oklahoma, South Carolina, and Tennessee introduced bills to improve existing laws or create new ones to cover hate crimes victims on the basis of sexual orientation and gender identity.

On the criminal justice front, Rhode Island banned the use of a “gay or trans panic” defense in criminal cases and Massachusetts will no longer allow LGBTQ prisoners to be placed in solitary confinement because of their sexual orientation or gender identity. Connecticut also added protections for transgender inmates, whose gender identity now must be respected.

California passed a law requiring LGBTQ-inclusive training for police officers.

State lawmakers worked to boost youth-related protections, as well. A whopping 25 states considered legislation targeting conversion therapy, with Washington, Maryland, Hawaii, New Hampshire, and Delaware banning the practice where minors are involved. New York followed suit in the first month of 2019.

Lawmakers staved off efforts in 11 states to prevent transgender youth from using bathrooms aligned with their gender identity. None of the proposals in those states passed.

Hawaii passed a bill banning discrimination against LGBTQ students.

Action on laws and policies regarding children’s welfare represented a mixed bag last year. Oklahoma and Kansas enacted laws allowing discrimination in child welfare agencies on the question of working with same-sex couples, and in recent weeks the federal Department of Health and Human Services issued a waiver for faith-based child welfare agencies in South Carolina to act in a similarly discriminatory fashion. But California and Hawaii updated the foster care bill of rights in their states to include affirming care for LGBTQ youth. Washington and New Jersey instituted protections to strengthen the rights of non-biological parents as well as the surrogates carrying their babies.

Rhode Island and New Jersey implemented changes to ensure that death certificates reflect an individual’s gender identity. New Jersey did the same for birth certificates.

Notably, the report pointed, as well, to gains already made in 2019 and other anticipated advances in the year ahead.

“HRC and our partners on the ground defeated dozens of anti-LGBTQ bills last year, and worked to pass crucial pro-equality measures that ensure LGBTQ Americans are protected wherever they live,” HRC President Chad Griffin said in a written statement. “Already, we see the promise of even more protections passing in 2019.”

The State of New York, which in the past election saw Democrats take control of the Senate while the party maintained its big majority in the Assembly, has been the most active thus far in the new year. In addition to the conversion therapy ban, New York added statutory nondiscrimination and hate crimes protections based on gender identity and expression, bolstering an existing gubernatorial policy that had defined existing sex nondiscrimination protections — but not hate crimes protections — to cover gender identity and expression. And New York is amending its 2011 marriage equality law to eliminate ambiguities where same-sex spouses could be treated differently than different-sex spouses.

The governors of Michigan, Wisconsin, Ohio, and Kansas have utilized executive actions to improve nondiscrimination protections. In the case of Ohio, it is a new Republican governor, Mike DeWine, who is responsible for the action, something not often seen in the LGBTQ rights arena.

Updated 3:04 pm, February 5, 2019
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