Much of our focus on LGBTQ rights centers at the federal level because those decisions impact the entire United States, but there are many ongoing battles in a multitude of states that concern LGBTQ equality.

The first that's gotten a bit of press lately is the attempt by South Carolina legislators to introduce a bill defining any marriage not between one man and one woman as a “parody” marriage, based on shaky language equating nonheterosexual marriage with secular humanism. By linking same-sex marriage with a religion, the language of this bill concludes that treating same-sex marriage as equal is actually promoting a religion, which violates the establishment clause of the Constitution's First Amendment.

This laughable reasoning is nothing short of transparent homophobia and is a blatant attempt to flout the Obergefell v Hodges decision legalizing same-sex marriages. It's in virtual direct violation of the Obergefell language, which invalidates any state law “to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Wyoming had a similar attempt, but it has since died in committee. Unfortunately, South Carolina's attempt is still in the works, but with such severe constitutionality issues, it's doubtful it'll see a vote.

Anti-Trans Legislation

In Anchorage, Alaska, Proposition 1 is an effort to mandate “intimate facilities” such as restrooms and locker rooms be protected for only the sex assigned at birth. In 2015, Anchorage passed a nondiscrimination ordinance protecting gender identity, so Proposition 1 would erase those protections. The proposition was on the ballot for an April vote, which voters narrowly rejected. There are similar bills in six other states with regard to facility usage.

In Massachusetts, lawmakers are seeking to repeal a 2017 anti-discrimination law put into effect to protect gender identity in public places like hotels, restaurants and stores. While the Anchorage legislation only affects the city and not the state of Alaska, Massachusetts' bill would override statewide local ordinances.

Pennsylvania sought to limit medical expenses to CHIP (Children's Health Insurance Program) recipients barring transition-related coverage. Thankfully, the bill died in committee, but a more invasive bill in New Hampshire seeks to limit transition-related services being covered under Medicare, as well as prohibit minors seeking gender confirmation surgery, while also allowing medical care professionals to refuse treatment to patients based on “religious, moral or ethical convictions.”

Homosexual Ed in Schools

Seven states currently have laws on the books prohibiting educators from promoting positive homosexual education in schools. This includes human sexuality education subjects, and while many of these laws were enacted in the 1980s and 1990s, Indiana is seeking to enact a law in 2018. SB 65 would require written parental consent for students to receive any kind of human sexuality education, including information on sexual activity, sexual orientation and gender identity.

Religious Exemption Laws

Perhaps more commonly in the limelight is religious exemption legislation. A bill in Kentucky would prevent government interference with religious exercise, allowing religious organizations to refuse services based on moral, ethical or closely held beliefs. In Colorado and Oklahoma, legislation has been introduced to authorize foster parents to make faith-based decisions concerning the minors in their care, including sending them for conversion therapy, and the states would be powerless to stop them. Only nine states in the country, plus Washington D.C., have outlawed conversion therapy for minors.

Religious exemption laws are particularly odious because they embolden public servants to discriminate, and they prevent LGBTQ citizens from seeking necessary services—particularly detrimental in the field of medicine—out of fear of facing humiliation and discrimination. These laws make it clear LGBTQ people are still considered second-class citizens.

Prevention of Nondiscrimination Laws

A few states—Arkansas, Tennessee and North Carolina—have laws in place that prevent local governments from enacting nondiscrimination protections that exceed state level laws. The most notorious is HB2 in North Carolina, which was set in motion in reaction to a law passed in Charlotte protecting sexual orientation and gender identity at the local level. It rolled back those protections as well as prevents new ordinances from being enacted in other North Carolinian municipalities. Florida is set to join the ranks of these three states with proposed legislation in 2018.

Adoption Laws

The Georgia State Senate has passed SB 375, a bill allowing child welfare organizations, including adoption agencies and foster care groups, to refuse to place children in the homes of same-sex couples based on religious views. The bill also prevents Georgia's Department of Human Services from intervening in these decisions. The bill's sponsor, Sen. William Ligon has been quoted saying, “This bill does not prevent anyone from adopting,” going on to say protections of workers in the affected agencies simply want the right to practice their religion in their work. Detractors have rightfully pointed out that limiting the number of good homes in which Georgia's 14,000 foster children can be placed doesn't provide an easier path to these kids uniting with loving families. By reducing the number of loving families allowed to take in these children, this bill makes the lives of foster children worse, not better.

The Good News

There are, however, fewer of these bills being introduced in states across the union. The ACLU, which tracks all these bills across the country, has entire sections that have no pending legislation listed in them. The section of roadblocks for transgender people to update identification documentation is blank, as is the health care access section.

While there are still far too many homophobic and transphobic attempts to pass laws, there is even better news.

Nondiscrimination Protections

The number of states offering legislation to protect both sexual orientation and gender identity is growing. Fourteen states have current legislation in the works, and some of those states have both Senate and House bills working toward more protections simultaneously. Eight more states have introduced bills to protect based on sexual orientation, and while incomplete for our transgender community members, it's definitely a step in the right direction.

The tide is slowing, and public tolerance for wasting taxpayer money on these nonstarter bills—many of which die in committee or are never signed into law due to constitutionality issues—is lower than ever. Society is no longer as willing to look away from LGBTQ discrimination as it once was. What's left of these bills are the last bastions of homophobia and transphobia, and they appear to be shrinking as courts whittle away the loopholes.

A Huge Win for LGBTQ Rights

On Monday, Feb. 26, the U.S. Court of Appeals for the Second Circuit handed down a 10-3 ruling LGBTQ activists have long been hoping for: the 1964 Civil Rights Law bars employers from discriminating based on sexual orientation.

In the ruling, Chief Judge Robert A. Katzmann wrote, “Sexual orientation is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted,” adding that this condition makes it “impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

The case in question is a lawsuit brought by Donald Zarda, a skydiving instructor who assured a female student who seemed uncomfortable being so tightly strapped to him that he was “100-percent gay.” He was subsequently fired from Altitude Express after the student's boyfriend complained. Zarda was killed in 2014 in a BASE-jumping accident, but his family and estate has continued the lawsuit in his name.

The Second Circuit's decision overrules lower court rulings, leaving the only avenue to appeal through the Supreme Court. The ruling is a blow to the Trump administration, with the Justice Department having filed an amicus brief in opposition to Zarda's claim of discrimination, and stating it is the Justice Department's policy that Title VII of the 1964 Civil Rights Act does not cover sexual orientation under the umbrella of sex discrimination.

Ten of the 13 judges—the full panel of the Second Circuit—disagree with the Justice Department, handing the LGBTQ community a major win in the fight for equal rights.

While we wait for the Masterpiece Cakeshop case to be decided by the U.S. Supreme Court in the next session, it's heartening to see not only the shaky ground the existing bills stand on is getting shakier, but the instances of these awful pieces of legislation are getting fewer, farther between, and more difficult to justify.

Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Contact her at [email protected].