Controversies in the LGBT Rights Movement

There's that old saying about never bringing up religion or politics over the dinner table. But if you think religion and politics are a difficult subject, try passing the cranberry sauce with a side of gay marriage at your conservative brother-in-law's house this Thanksgiving. Below is a brief list of controversial issues within the LGBT rights movement. Some are controversial in respect to the larger society (e.g. the debate over employment non-discrimination), while some are also internal struggles within the LGBT rights movement (e.g. those that champion civil unions vs. gay marriage, and vice versa).

1. Decades of Addressing Workplace Inequity: Debates over the Employment Non-Discrimination Act

In 1994, twenty years after the first bill to address sexual orientation discrimination was debated in Congress, the “Employment Non-Discrimination Act” (ENDA) was introduced in Congress. The act proposed a U.S. federal law that would prevent employers from discriminating on the basis of sexual orientation; it came up for a vote three times but was defeated each time. As a result, today in 30 states gay and lesbian
citizens can still be fired because of their sexual orientation in 30 states, while transgender individuals can be fired in 38 states.

LGBT organizations argue that ENDA would protect LGBT individuals from being discriminated against in the workplace because of their sexual orientation, much like the Civil Rights Act of 1964 protects U.S. citizens on the basis of race and gender. Opponents of ENDA argue that the bill would make LGBT citizens a special class, and suggest that ENDA would force religious businesses to condone homosexuality even if their religious teachings condemn it.

In November 2007, H.R. 3685, a version of ENDA that included protections for gay, lesbian, and bisexual individuals – but not for transgender people – passed in the U.S. House by a 235-184 vote, the first time a version of ENDA has ever passed a body of the U.S. Congress. Despite this historic passage, more than 300 LGBT organizations urged the House of Representatives to reject this bill and support H.R. 2015, a version of ENDA that provided protections for transgender people along with protections for gays and lesbians. The U.S. Senate has yet to take up its version of ENDA.

Additional Resources:

• The narrative on sexual orientation discrimination in the workplace
• Status of H.R. 3685 on THOMAS, the Library of Congress site for legislation
• Examining the Employment Non-Discrimination Act: The Scientist’s Perspective

2. Striving to Openly Serve: Fifteen Years of “Don’t Ask, Don’t Tell”

“Don’t Ask, Don’t Tell,” refers to the U.S. military policy enacted in 1993 under President Bill Clinton. Clinton had promised in his Presidential campaign to reverse the ban on gays and lesbians serving in the U.S. military. “Don’t Ask, Don’t Tell” became a compromise deal with U.S. military officials and Congress, under which U.S. service members are prohibited from disclosing their sexual orientation or speaking about any same-sex relationships without penalty of being discharged from the military. Since 1994, the first full year of “Don’t Ask, Don’t Tell,” more than 12,000 service members have been discharged from the U.S. military for being gay or lesbian.

Proponents of “Don’t Ask, Don’t Tell” argue that openly gay, lesbian, and bisexual individuals would create risks to unit cohesion and order within the U.S. military, despite a July 2008 study conducted by several retired Army generals, suggesting that this claim is not true. An additional study by the Center for the Study of Sexual Minorities in the Military, which has studied the integration of gays and lesbians into the military in Israel, Great Britain, Canada and Australia, also indicated that allowing gays and lesbians to serve openly in the military has no impact on unit cohesion.

Recent polling suggests that the majority of U.S.citizens support openly gay men and women serving in the U.S. military. Twenty-four nations already allow openly gay men and women to serve – including twenty-two countries with troops currently stationed in Iraq and Afghanistan. U.S. Rep. Patrick Murphy, the only Iraq War veteran currently in Congress, has testified that continuing “Don’t Ask, Don’t Tell” insults U.S. troops by not trusting “our military professionals to serve openly with people who might be different.”

Additional Resources

• Fact sheets on the impact of “Don’t Ask, Don’t Tell”
• Statement of Generals and Admirals calling for repeal of “Don’t Ask, Don’t Tell”
• “Don’t Ask, Don’t Tell, Don’t Pursue”: A digital law project of the Robert Crown Law Library at Stanford University on the U.S. military’s policy on sexual orientation

3. The Definition of Family: Gay Adoption

As more and more LGBT Americans adopt children, the issue of whether or not gay adoption is acceptable – or should be legal -- has come to the fore. Studies from the American Academy of Pediatrics, the Child Welfare League of America, the American Psychological Association and others assert that LGBT parents are equally as effective as heterosexual parents. Other studies have found that preventing LGBT individuals from adopting children could cost the U.S. between $87 and $130 million per year.

Yet much controversy still exists around the question of whether LGBT individuals should be allowed to adopt children, essentially because of questions raised by opponents. Opponents of gay adoption argue that children could experience negative consequences if brought up in a same-sex household, including gender confusion, social stigma and lack of exposure to either a mother or father. Around the world, only 10 countries have laws that explicitly permit LGBT adoption.

In the U.S., only Florida has an outright ban on LGBT adoption. While anti-LGBT adoption measures on state ballots have been largely unsuccessful to date – failing in Alabama, Arizona, Georgia, Missouri and several other states – the Attorney General of Arkansas has recently approved a statewide ballot measure that will put a resolution before Arkansas voters in November 2008, prohibiting adoption and foster parenting by LGBT individuals.

Currently, the Urban Institute estimates that nearly 14,100 foster children are living with LGBT parents in the United States. This represents nearly three percent of the nation’s foster children index. An estimated 65,000 adopted children are living with LGBT parents.

Additional Resources:

• Adoption and foster care by lesbian and gay parents in the United States
• Gay adoption ad from the International Lesbian and Gay Association
• Does equality include the right to create a family?

4. Recognizing Sexual Orientation Rights as Human Rights: Decriminalizing Homosexuality

Homosexual behavior remains illegal in more than 80 countries around the world, with many countries banning all forms of homosexual activity or specifically male homosexuality. No country solely bans female homosexuality.

In countries throughout Africa, Asia and the Americas, penalties for homosexuality range from prison sentences to hard labor to the death penalty. Europe is the only continent without a nation that bans homosexuality; membership in the European Union (EU) requires repeal of anti-GLBT legislation, and activists have made sure that the EU continues its commitment toward recognizing sexual orientation as a human rights.

Reasons for banning homosexuality span religious, cultural, and moral arguments. Opponents of homosexuality have argued that LGBT people experience a higher rate of negative health effects than heterosexuals, that homosexuality is incompatible with Christian, Muslim and Jewish theology, and that LGBT couples experience higher rates of domestic violence than heterosexual couples.

In order to protect and monitor LGBT rights around the globe, several international organizations have formed over the last few decades. Arguments for decriminalizing homosexuality include that anti-sodomy laws promote violence toward LGBT citizens; impede public health education; and repress those individuals who identify as gay, lesbian, bisexual or transgender. In 2006, dozens of activists, Nobel Laureates, political leaders and celebrities launched a global campaign to decriminalize homosexuality citing many of these concerns, and many of these reasons were cited in Lawrence v. Texas, the U.S. Supreme Court case that overturned statewide bans on sodomy throughout the U.S. in 2005.

Additional resources:

• Love, Hate and the Law: Decriminalizing Homosexuality
• Homosexuality: From Declassification to Decriminalization. Where do we go from here?
• International Lesbian and Gay Association country archives on LGBT legislation

5. Expanding Marriage Rights: Increasing Global Acceptance of Same-Sex Marraige

Over the last decade, the issue of LGBT rights has turned on efforts to legalize gay marriage in Europe, South Africa and North America. While the issue is still very much at play (especially in the U.S.), recent years may have marked a tipping point in legal acceptance. In 2001, the Netherlands became the first country to allow gay marriage. Today, Belgium, Canada, Norway, South Africa and Spain also allow gays and lesbians to marry, as do Massachusetts and California in the United States.

In the U.S., gay marriage has increasingly become a political wedge issue, starting with the Defense of Marriage Act (DOMA) in 1996, legislation signed by President Bill Clinton that federally defined marriage as between a man and a woman. Since then, twenty-six states have passed constitutional amendments defining marriage as between a man and a woman. In November 2008, Florida, California and Arizona voters could face ballot measures banning (or in the case of California, repealing) gay marriage.

Those supporting such amendments often argue that gay marriage threatens the sanctity of marriage, and/or undermines the unit of a family helmed by a mother and a father. Some people are surprised to learn that some within the LGBT community also oppose efforts to legalize same-sex marriage. These activists suggest that the push for the social benefits of governmentally sanctioned marriage excludes individuals who are single or who have more than one partner. Some see efforts to push for civil unions as a more just and less exclusionary effort.

Proponents of gay marriage in the U.S. argue that the institution of marriage is in fact strengthened by opening it up to GLBT individuals, and point out that social benefits afforded to married couples – including inheritance rights, tax breaks, and the more than 1,000 laws that treat married people differently than single people – should be afforded to GLBT citizens as a matter of equal justice. The fight is far from over, but progress is being made each year.

Additional resources:

• Gay and Lesbian Advocates and Defenders (GLAD) same-sex marriage cases
• Same-sex marriage and relationship recognition
• State by State: Interactive map covering the legal battle over gay marriage