Midyear Meeting

ABA House passes resolutions opposing legal discrimination against the LGBT community

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Rainbow flag and a gavel sitting on a law book.

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The ABA House of Delegates overwhelmingly passed two resolutions Monday opposing legal discrimination on the basis of sexual orientation or gender identity.

Resolution 114, sponsored by the ABA Commission on Sexual Orientation and Gender Identity, takes a stand on a live legal issue: the extent to which LGBT people are protected from discrimination by federal law. It urges Congress to enact legislation affirming that discrimination based on sexual orientation or gender identity is sex discrimination under the Civil Rights Act, and affirming that religious freedom laws don’t authorize otherwise illegal discrimination.

Resolution 113, sponsored by the National LGBT Bar Association as well as the Commission on Sexual Orientation and Gender Identity, says the ABA opposes laws that discriminate against LGBT people exercising their right to parent.

The intersection between LGBT rights and religious freedom has taken on a high profile in recent years as business owners have increasingly challenged laws of general applicability on religious freedom grounds. Religious rights were the basis for the Supreme Court ruling that permitted Hobby Lobby and other closely held companies not to offer birth control coverage to employees. More recently, a baker in Colorado and other wedding vendors have challenged state anti-discrimination laws that penalized them for refusing to serve same-sex couples, arguing that they sincerely believe their Christianity requires them to refuse.

At the same time, a related issue has arisen: whether federally prohibited sex discrimination includes discrimination on the basis of gender identity or sexual orientation. Under President Barack Obama, the Equal Employment Opportunity Commission said it did; the Trump administration reversed that decision. The U.S. Supreme Court is currently considering whether to take up three cases that raise that question, all involving people fired from their jobs for their sexuality or transgender status.

Resolution 114 was moved in the House by Victor Marquez, chair of the Commission on Sexual Orientation and Gender Identity. Marquez noted that the resolution is consistent with earlier ABA policies. Indeed, he said the ABA has taken public positions against discrimination on the basis of sexual orientation as early as 1989 and on the basis of gender identity starting in 2006.

No one spoke in opposition, and the measure passed easily.

That resolution was considered after Resolution 113, on a similar topic of parenting rights for LGBT people. The report for the resolution says 10 states currently permit state-licensed child welfare agencies to refuse placement of foster or adoptive children based on the agency’s religious or moral beliefs. The report says this is contrary to the best interests of the children, and in some cases also violates the law.

Delegate John Francis Stephens of the National LGBT Bar Association moved the resolution in the House but said little on the subject, likely because there was no opposition. More was said by ABA President-elect Judy Perry Martinez, who told the House about her niece, who is part of a same-sex couple living in Louisiana. When the two women decided they’d like to become foster parents and eventually adopt, they had a home visit from a woman who told them up front about her feelings on the matter.

“She advised them that she was Baptist but regardless of what she believed, she was going to fulfill her duties and do what the law required,” Martinez said. “She followed the law with respect, fairness and equality.”

Martinez’s niece and her wife have now fostered 20 children and are on track to adopt their third child this spring. Martinez urged the House to help create more such stories by voting for the resolution. Overwhelmingly, it did.

Follow along with ABA Media Relations’ full coverage of the 2019 ABA Midyear Meeting and the ABA Journal’s news stories.

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