Achieving LGBT Equality Through Litigation, Legislation, Policy, and Public Education

Federal Legislation

NCLR is committed to ending discrimination for all LGBT individuals, which is why we have long supported federal legislation designed to end both state-sanctioned discrimination as well as discrimination by private entities and individuals. Today, more than ever before, federal bills provide a nationwide opportunity to improve the lives of lesbian, gay, bisexual, and transgender people. Several such bills are both much-needed and long overdue, including the Uniting American Families Act (UAFA), a federal hate crimes act that covers both sexual orientation and gender identity, an inclusive Employment Non-Discrimination Act (ENDA), and more. We also support a repeal of discriminatory federal laws, such as the so-called “Don’t Ask, Don’t Tell” military policy and the anti-LGBT federal Defense of Marriage Act (DOMA), among others.

We support federal legislation that moves towards equality, such as a bill that would provide domestic partner benefits to federal employees and end unequal taxation. As a community, we must wage the struggle for equality on multiple fronts, including in the courts, in state and federal legislatures, and in the policy arena.

This is why NCLR is committed to engaging not only in litigation, but also in public education and public advocacy for changes in federal law. We play a distinct but vital role in this arena of federal advocacy, especially in working to ensure that those most vulnerable are included. Part of our commitment is to let you know about federal legislation, and, especially, when critical events or battles are taking place. In the coming months and years, you will hear more from NCLR on the federal front, starting right here with some basic information about some key bills pending or soon to be introduced in Congress.

Uniting American Families Act

The Uniting American Families Act is legislation that would grant U.S. citizens and lawful permanent residents the right to sponsor their same-sex permanent partners to immigrate to the United States. The Uniting American Families Act (UAFA) would provide same-sex couples with the same immigration benefits as opposite-sex couples. Representative Jerrold Nadler (D-NY) first introduced this bill to Congress in 2000. In July 2003, Senator Patrick Leahy (D-VT), introduced the Senate companion bill for the first time. By the end of the 111th Congress, the bill had garnered 135 co-sponsors in the House and 25 co-sponsors in the Senate.

NCLR has long supported passage of this important legislation, particularly participating in efforts to ensure that the entire LGBT community is protected. Additionally, NCLR helped to draft the original bill, which has influenced the current legislation. Through our legal, advocacy, and education work, NCLR helps draw attention to the heartbreaking reality that faces same-sex bi-national couples and their families.



Federal Hate Crimes Bill

In the 111th Congress, Rep. John Conyers introduced the bill in the House of Representatives on April 2, 2009 and Sen. Kennedy introduced a Senate version on April 28, 2009. In the same month, the House of Representatives voted 249 to 175 to add the Hate Crimes Bill, also known as the Local Law Enforcement Hate Crimes Prevention Act, to the 2010 DoD Authorization bill. The bill was then referred to the Senate Judiciary committee, which held a hearing on June 25 and heard testimony from Attorney Genderal Eric Holder on the need to expand the definition of federal hate crimes to cover attacks based on sexual orientation, gender, gender identity, or disability. Read Attorney General Holder’s testimony.

On July 15, 2009, the Senate echoed the House’s decision by passing S.909, which added the Matthew Shepard Act as an amendment in the DoD Authoriization bill. The Senate approved the full defense bill on July 23.

The House and the Senate versions reconciled their versions of the DoD bill in a conference report and renamed the hate crimes provision “The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act” to honor another victim of a hate crime, James Byrd, Jr.

On October 8, 2009 the House of Representatives voted on the conference report on the DoD Authorization bill and passed at 281 to 146. The Senate approved the report, 68 to 29, on October 22, 2009, and on October 28, 2009, President Barack Obama signed the bill into law.

Employment Non-Discrimination Act (ENDA)

The Employment Non Discrimination Act (ENDA) would create a federal law prohibiting discrimination in employment based on sexual orientation or gender identity, defined to include gender expression. It would provide critically-needed protection for people at serious risk of job discrimination. "Fight Workplace Discrimination" is one of the items listed on President Obama’s "Civil Rights Agenda."

NCLR has long supported passage of a fully inclusive piece of to ensure that the entire LGBT community is protected. Through our legal, advocacy and education work, NCLR also highlights the significant problems that LGBT people can face in this area. For example, our publications emphasize the inadequacy of federal law in addressing these problems. In addition, NCLR assisted in drafting the bill language defining sexual orientation and gender identity.

Because of the critical importance of passing an ENDA that includes both sexual orientation and gender identity, NCLR serves on the United ENDA steering committee, devoting significant time to ensuring that the LGBT community and our allies have the resources they need to effectively advocate with their senators and representatives on these issues.

The Defense of Marriage Act (DOMA) and the Respect for Marriage Act

The so-called "Defense of Marriage Act" (DOMA) was enacted in 1996 amid a wave of anti-gay sentiment and discriminates against same-sex couples by purporting to bar any federal recognition of same-sex couples or individuals who are validly married under state law. Under DOMA, the federal government denies married same-sex couples the rights and benefits provided to married heterosexual couples. DOMA also purports to provide states with the authority to refuse to give full faith and credit to the marriages of same-sex couples from other states.

DOMA is anathema to the principles of equal protection, due process, and federalism. It treats individuals differently based on their sexual orientation and bars an entire class of families from a vast array of federal protections. Because of DOMA, same-sex couples are treated unequally with regard to federal benefits and taxes. For example, families are denied the job protections of the Family and Medical Leave Act when a spouse or domestic partner is critically ill; individuals and their children are denied access to survivor benefits when a spouse or partner dies; federal employees are unable to provide their spouses and domestic partners with health insurance coverage; and individuals are denied the right to sponsor a spouse or partner for immigration purposes. These are not "special rights"; rather, they represent just a few of the 1,138 federal rights, responsibilities, protections and benefits currently available to all married different-sex couples but denied to every same-sex couple.

Under longstanding precedent, the federal government honors marriages that are valid under state law. DOMA turns that precedent on its head and treats states unequally by honoring the authority of most states to define their own marriage law, but not those states that have chosen to end the discriminatory practice of barring same-sex couples from marriage. Couples who are validly married under state law should be treated equally by the federal government. For all of these reasons, NCLR supports the legislative repeal (as well as the legal overturn) of DOMA.

In a game-changing reversal of its previous position, the Obama administration announced on February 23, 2011 that the government would no longer defend Section 3 of DOMA. Section 3 of DOMA discriminates against legally married same-sex couples by providing that the federal government will not recognize their marriages for any purpose, which excludes married same-sex couples from all federal benefits and protections, including Social Security survivor benefits, the right to file joint taxes, and the right to petition for permanent residence for a foreign spouse.

Following this important decision, on March 16, 2011, the Respect for Marriage Act was introduced in the House and Senate by Congressman Jerrold Nadler (D-NY) and Senator Dianne Feinstein (D-CA). The bill would repeal DOMA. Section 2 creates an exception to the full faith and credit clause for married same-sex couples. The Respect for Marriage Act would eliminate that provision, but it would leave each state free to decide whether to recognize marriages of same-sex couples from other states. Section 3. The Respect for Marriage Act would require that the federal government and all state governments treat all married couples equally.

NCLR worked in close cooperation with other groups and lead co-sponsors to help define the scope of the bill to repeal DOMA and to secure federal respect for the marriages of same-sex couples. NCLR supports the legislative repeal, as well as the legal overturn, of DOMA.


Don't Ask, Don't Tell

Congress is currently considering a bill to repeal the “Don’t Ask, Don’t Tell” (DADT) law. DADT is the federal law passed in 1993 that cruelly and unconscionably bans patriotic Americans from serving openly in the U.S. military based on their sexual orientation. Since the law’s 1994 implementation, more than 13,500 women and men have been discharged because of their sexual orientation. According to a 2005 Government Accountability Office report, nearly 800 of those discharged were ‘mission-critical’ specialists.

The Military Readiness Enhancement Act was reintroduced on February 28, 2009 with the support of 109 bi-partisan original cosponsors. Rep. Ellen Tauscher (D-CA) is now the lead sponsor, and is joined by 144 bipartisan cosponsors. President Obama openly supports a repeal of this law; “Repeal Don’t Ask, Don’t Tell” is one of the items listed on the Administration’s “Civil Rights Agenda.” NCLR supports passage of this important legislation, which cruelly prevents patriotic service members, who have voluntarily stepped forward to risk their lives for their nation, from serving openly and with dignity. Eliminating discrimination against LGBT people by our government is a critical step towards full equality.

On May 27, 2010, the U.S. House of Representatives and the Senate Armed Services Committee voted to act to end Don’t Ask, Don’t Tell with an amendment to the proposed Department of Defense appropriations bill, the National Defense Authorization Act for Fiscal Year 2011. Rep. Patrick Murphy (D-PA) introduced the amendment in the House version, which was approved 234 to 194 in a floor vote. The Senate Armed Services Committee voted 16 to 12 to include the same language in the Senate version of the appropriations bill, which is scheduled for debate in the full Senate in the summer of 2010.

The amendment outlines a two-step plan that would lead to the repeal of the policy, starting with the delivery of a “Working Group” report by the Pentagon on the implementation of the repeal to Defense Secretary Robert Gates by no later than December 1, 2010. The report and its recommendations, once approved and certified by the Secretary of Defense, Chairman of the Joint Chiefs of Staff, and the President, would then be sent to the House and Senate Armed Services Committees. Action on the repeal of DADT should occur in the first quarter of 2011.

On September 21, 2010, the U.S. Senate failed to break a filibuster to start a debate on the Senate version of National Defense Authorization Act, which contains the amendment that would enable the repeal of Don’t Ask, Don’t Tell.

In the case of Log Cabin Republicans v. U.S., a federal district court judge in the Central District of California held that the federal government’s policy of barring lesbian, gay, and bisexual (LGB) people from serving openly in the military violates the United States Constitution. In a sweeping decision, Judge Virginia Phillips ruled that Don't Ask, Don't Tell is unconstitutional on its face, and must be struck down. The court held that Don’t Ask, Don’t Tell violates the fundamental rights of LGB service members without advancing any important government interest. The court held that the law also violates LGB service members’ First Amendment rights because it forces them to be silent about the most basic information about their identities, family relationships, and daily activities, and prevents them from seeking protection from harassment and discrimination.

LGBT people who are willing to serve should be honored, not required to remain closeted and live in fear of being discovered and drummed out of the service.


Federal Safe Schools Improvement Act

The Safe Schools Improvement Act (SSIA) is an amendment to the Elementary and Secondary Education Act, previously known as the No Child Left Behind Act. It would require schools to implement a comprehensive anti-bullying policy that enumerates categories most often targeted by bullies, including race, religion, sexual orientation, gender identity/expression and others. It also would require states to include bullying and harassment data in their state-wide needs assessments reporting.

Following a recent and tragic spate of LGBT youth suicides that have been linked to anti-LGBT bullying, significant attention has been paid to the issue of bullying in schools, with many in the administration acknowledging the need for federal action. A Congressional briefing was held on November 18th to address the issue and discuss possible legislative solutions. Recently, on March 10, 2011, the White House held its own summit on bullying in schools. SSIA was reintroduced in the Senate on March 8, 2011 by Sens. Robert Casey (D-PA) and Mark Kirk (R-IL) and is expected to be reintroduced soon in the House.

Student Non-Discrimination Act

On March 10, 2011 the Student Non-Discrimination Act (H.R. 998/S. 555) was introduced to ensure that all students have access to public education in a safe environment free from discrimination, including harassment, bullying, intimidation and violence. The Student Non-Discrimination Act would provide nationwide comprehensive prohibition of discrimination in public schools based on actual or perceived sexual orientation or gender identity. The measure would provide victims of such discrimination with meaningful and effective remedies, modeled after Title IX. Rep. Polis (D-CO) and Sen. Al Franken (D-MN) introduced the bills.

According to surveys from the Gay, Lesbian and Straight Education Network, bullying is a serious problem in our nation’s schools, and lesbian, gay, bisexual, and transgender (LGBT) students are particularly at risk. Last year, nearly nine out of 10 LGBT students reported harassment and more than half said they felt unsafe at school because of their sexual orientation. The Student Non-Discrimination Act is designed to address these problems, with a common sense solution that protects all students and creates a safe environment for LGBT youth.

Every Child Deserves a Family Act

The Every Child Deserves a Family Act, would prohibit states and private agencies that receive federal funds or have state contracts from denying or delaying a placement of a child into an adoptive or foster care home based solely on the sexual orientation, gender identity, or marital status of the prospective parent or child. Rep. Pete Stark (D-CA) re-introduced the bill as H.R. 4806 on March 10, 2010, and it had 40 co-sponsors at the end of the 111th Congress.

Every year thousands of youth age out of foster care without permanent homes or adoptive parents. Prohibiting qualified LGBT parents from adopting or fostering children reduces the number of families available to children in need of safe and stable homes. The measure would provide youth with an opportunity to a home with loving parents regardless of their sexual orientation, gender identity, or marital status.

On Thursday, March 11, 2010 Rep. Pete Stark (D-CA) hosted a panel discussion on the Every Child Deserves a Family Act. Panelists included foster children who discussed their experiences in the foster care system, parents who have been prevented from adopting their foster children, and experts on foster care and LGBT family issues. NCLR submitted a letter of support for the bill to Rep. Stark.


The Domestic Partnership Benefits and Obligations Act

NCLR supports the passage of the Domestic Partnership Benefits and Obligations Act (DPBO), a bill which would provide the same family benefits to federal civilian employees and their same-sex partners as are already provided to employees with different sex spouses.

Benefits, such as health insurance and retirement savings, are a significant portion of employee compensation. Although the federal government—the largest civilian employer in the country—offers attractive family benefits to employees with different sex spouses, it does not offer the same benefits to workers with same-sex partners or spouses. As a result, these employees do not receive equal pay for their equal contributions. This has significant implications for thousands of people who are employed by the federal government.

DPBO would bring employment practices in the federal government in line with those of the United States' largest and most successful corporations. 57 percent of Fortune 500 companies provide domestic partner benefits to their employees, and 16 states and over 200 local governments offer their public employees domestic partnership benefits. This legislation would reflect the growing national support for the extension of equal benefits and rights to all same-sex couples including the extension of health insurance coverage to federal employees and their same-sex partners.

To receive benefits, employees would have to submit an affidavit of eligibility for benefits with the Office of Personnel Management, certifying that the employee and domestic partner meet necessary criteria, as provided in the Act.

DPBO was introduced in the 111th Congress by Senators Joe Lieberman (ID-CT) and Susan Collins (R-ME) in the Senate (S. 1102) and by Representatives Tammy Baldwin (D-WI) and Ileana Ros-Lehtinen (R-FL) in the House (H.R. 2517).

On Thursday October 15, 2009 the Senate Homeland Security and Governmental Affairs Committee held a hearing and heard testimony on how the passage of the DPBO bill will strengthen the government’s recruiting and retention power and bring equity to same-sex domestic partners of federal workers. Read more about the hearing in this Washington Post article and at the Senate Homeland Security and Government Affairs Committee website. Video of Rep. Tammy Baldwin’s testimony is also available online.

On Wednesday, November 18, 2009, the House Oversight and Government Reform Committee voted on H.R. 2517 and passed it with a 23 to 12 vote.

President Obama has expressed full support of the Domestic Partnership Benefits and Obligations Act.

House and Senate Resolutions on Uganda's Anti-Homosexuality Bill

A horrifying "Anti-Homosexuality Bill" is currently pending in the Ugandan legislature. If enacted, this bill would impose the death penalty for "aggravated homosexuality" and even imprison citizens for failing to report perceived gays and lesbians to the authorities for 3 to 7 years. Uganda already has an anti-gay law in place that could imprison lesbians and gay men, in certain cases for life. President Obama condemned the bill as "odious" and "unconscionable" and two resolutions condemning the Uganda bill were introduced in the United States House and Senate in February. House Resolution 1064 was introduced with bipartisan support from more than three dozen members of Congress. Senate Resolution 409 was introduced with bipartisan support from Senators Feingold (D-WI), Coburn (R-OK), Cardin (D-MD) and Collins (R-ME), and passed by unanimous consent on April 13, 2010.


Other Issues

We support federal legislation that moves towards equality, such as bills that would provide domestic partner benefits to federal employees and end unequal taxation. As a community, we must wage the struggle for equality on multiple fronts, including in the courts, in state and federal legislatures, and in the policy arena. These are just a few of the issue areas NCLR is working on. Be sure to check back often for more information.

© 2017 National Center for Lesbian Rights. All rights reserved. Give us Feedback. Read our Privacy Policy. State Regulations.

]]