The LGBT Equality Gap and Federalism

Abstract

LGBT people in the United States live with an Equality Gap that seems to grow wider with each legislative session. The majority of states do not have non-discrimination protections in place for LGBT people. In the absence of blanket federal non-discrimination protections, a same-sex couple can be denied service by bakers, catering halls, and photographers while trying to exercise their constitutionally protected right to marry. A transgender person can be denied access to a public bathroom that matches their gender identity. A federally funded adoption agency can refuse to work with LGBT persons who wish to adopt. In addition, many states have enacted explicitly anti-LGBT measures and prohibitions that exacerbate the Equality Gap and further underscore regional disparities. Even states with non-discrimination protections for LGBT people have considered expanding religious exemptions in a way that could greatly undercut the effectiveness and scope of existing non-discrimination protections. As a result of this mismatch of laws, the lived experience of LGBT people varies wildly depending on where they reside. For example, LGBT people living in New York enjoy many more protections and suffer none of the disabilities that are imposed on LGBT people living in Mississippi. The regional disparities are so extreme that some countries have issued travel advisories for their citizens visiting certain parts of the United States. This article examines the role federalism has played in the trajectory of LGBT rights and the creation of the Equality Gap. The first section of this article explores federalism as an institutional choice that strikes a balance between state and national power. The second section reviews the instrumental use of federalism by LGBT advocates to advance the legal strategy that ultimately led to nationwide marriage equality. It also provides an overview of corresponding and complementary visions of federalism expressed in both Windsor and Obergefell. The last section reviews the current Equality Gap and the most recent anti-LGBT initiatives that are being considered on the state and local levels in light of Bostock v. Clayton County, the 2020 US Supreme County case that extended Title VII non-discrimination protections to sexual orientation and gender identity. A brief conclusion closes with the observation that federalism has proven to be a pragmatic, but also imperfect, institutional choice for LGBT rights advocates because state level civil rights protections are, by their nature, partial, not portable, and especially vulnerable to majoritarian bias. This observation has particular salience for both our understanding of federalism and the future of LGBT advocacy.