Several great strides for LGBTQ rights were made in 2021, but we also encountered an unprecedented upsurge in discriminatory legislation. Our vision of a world where LGBTQ people can truly live freely and openly is far from reality, particularly for LGBTQ people of color as well as trans and non-binary people. This year saw the passing of Jim Hormel, who helped start what is now the ACLU’s LGBTQ & HIV Project, and we also gained confidence that our work will continue thanks to the generosity of Jon L. Stryker and Slobodan Randjelović.

Here are some of the highlights — and lowlights — of 2021 in LGBTQ rights.

Biden Acts to Protect Trans Rights

On day one of his administration, President Biden issued an executive order directing all federal agencies to recognize that existing federal bans on sex discrimination protect against LGBTQ discrimination as well. This order recognized the incredible victories won by Aimee Stephens, Don Zarda, and Gerald Bostock at the Supreme Court in 2020, as well as many other victories by LGBTQ people in other courts.

On January 25, President Joe Biden repealed the transgender military ban enacted by the Trump administration. The ban was the subject of multiple lawsuits including Stone v. Trump which was filed by the ACLU, the ACLU of Maryland, and Covington & Burling LLP on behalf of six transgender members of the armed forces.

As we’ve seen before, however, a more supportive federal government means those who are opposed to LGBTQ equality moved their fights to the states.

https://twitter.com/ACLU/status/1353805468792201217?s=20

More Anti-Trans Bills Were Introduced and Passed in 2021 Than any Other Year

2021 set a record for the most anti-LGBTQ bills passed during a legislative session. Over 100 anti-LGBTQ laws were proposed in 35 states around the country, and these bills overwhelmingly targeted trans youth. While the attacks differ — some would ban medical care for trans youth, some would ban trans youth from school sports, and others would make it harder for trans people to get accurate state IDs — they are not isolated. They represent a coordinated campaign to push trans people out of public life.

https://twitter.com/ACLU/status/1385377914158518273?s=20

The ACLU has filed lawsuits in Arkansas, Idaho, Montana, Tennessee (twice), and West Virginia challenging laws passed since 2020. These lawsuits have already blocked enforcement of unconstitutional laws attacking trans people in four states.

Wins for Accurate Gender Markers on IDs

After years of advocacy by transgender, non-binary, and intersex people, the Biden administration in June announced that the Department of State will now update the gender marker on passports without requiring medical documentation, and will add an “X” designation option. In January, the ACLU launched its largest-ever campaign targeting the federal government on LGBTQ rights to urge the Biden administration to issue an executive order on accurate federal IDs across all federal agencies. Nearly 100,000 Americans contacted the White House in support of access to accurate IDs for all people, alongside a coalition of over 80 advocacy organizations and several Congressional offices.

https://www.aclu.org/news/topic/they-the-people-accurate-gender-markers-for-all/

A federal court sided with our clients Darcy and Destiny in January, finding that Alabama’s driver’s license policy, which refuses to provide accurate gender markers on licenses belonging to transgender individuals, violates the rights of transgender people. The state appealed and we expect an argument to be scheduled before a federal appeals court soon.

And in late March, The New York Civil Liberties Union and Legal Services of NYC sued the New York State Office of Temporary and Disability Assistance on behalf of our clients Jules and Jaime for discriminating on the basis of gender identity against non-binary New York residents by barring non-binary people from applying for or receiving benefits using an accurate gender marker.

Trans Women Fight Abuse in the Criminal Legal System

In New Jersey, the Department of Corrections recently agreed to adopt a system-wide policy to help protect transgender, intersex, and non-binary people in prisons. This was the result of an agreement settling a civil rights suit brought by a woman who was forced to live in men’s prisons for a year and a half, represented by the ACLU of New Jersey.

https://twitter.com/ACLUNJ/status/1430957029737254913?s=20

In Illinois, a federal court ordered the Department of Corrections to take immediate steps to improve housing and health care conditions for transgender people. The ACLU of Illinois brought a class-action lawsuit on behalf of transgender women. In the trial, Sora Kuykendall said:

“during strip searches I would break down and cry and shake, and when I would get back to my cell I would do the same.”

https://twitter.com/ACLUofIL/status/1425163440398733317?s=20

Supreme Court Again Refuses to Rule That the Constitution Protects a License to Discriminate

For the second time in three years, the Supreme Court once again refused to rule that there is a constitutional license to discriminate. The case involved Catholic Social Services, a taxpayer-funded foster care agency, which had sued Philadelphia claiming a constitutional right to discriminate against qualified same-sex parent families because of a religious objection. The ruling means other taxpayer-funded government programs such as homeless shelters, disaster relief programs, and health care should continue to ensure that LGBTQ individuals have equal access to necessary social services. And for the over 400,000 children in foster care across the country, the ruling will help ensure that placement decisions are made in the child’s best interest rather than based on an agency’s discriminatory beliefs.

https://twitter.com/ACLU/status/1405677549515067420?s=20

Expanding Access to Gender-Affirming Care

Doctors agree that gender-affirming care is lifesaving care. Both courts and the federal government have agreed for much of the past decade that denying gender-affirming care is discrimination. Yet many private insurance companies and state-funded health care programs still turn trans and non-binary people away when they seek this medically necessary care.

Our lawsuit in Iowa — on behalf of Mika Covington and Aiden Vasquez — and our advocacy in Kansas — on behalf of Charley Osman — have led to changes in discriminatory policies. And the Supreme Court refused to hear a case that could have opened the door to even more discrimination in health care.

https://twitter.com/ACLU/status/1455263708528119808?s=20

Shon Thomas and Gwendolyn Cheney of Georgia are still waiting for an end to their state’s ban on Medicaid coverage for gender-affirming care.

Financial Institutions Told to Stop Discriminating Against Sex Workers

MasterCard recently instituted a new and restrictive policy targeting adult content websites. This is bad news for many sex workers, whose safety and livelihoods depend on access to financial services and online platforms. The policy makes it harder for sex workers to do business online and makes sex workers more vulnerable, especially those who are trans women of color.

We’ve mobilized thousands of people who want to see MasterCard change their policies. Decriminalizing and destigmatizing sex work is key to ending the violence and harassment so often faced by sex workers.

https://www.youtube.com/watch?v=EWh4wvx7n3I

We also took action to end discrimination towards trans and non-binary workers at Uber, Alaska Airlines and CVS.

Gavin Grimm Finally Wins

The Supreme Court declined to hear Grimm v. Gloucester County School Board, a victory for Gavin Grimm. Years after Gavin first spoke in front of his school board, and after multiple courts ruled in his favor, it was finally clear that his school violated federal law when Gavin was prohibited from using the same restrooms as other boys.

https://twitter.com/ACLU/status/1409512004994408450?s=20

Unfortunately, not all Virginia lawmakers have gotten the memo that trans people belong in schools. In spite of Gavin’s victory and a new state law, the ACLU of Virginia recently sued the Hanover County school district for refusing to protect transgender students. A similar suit was filed by the ACLU of Indiana this year.

In 2022, we expect attacks on trans youth to continue: those who fought against marriage equality shifted to bathroom bills, then sports, then health care and now they are working to ban books and curriculums that acknowledge the existence of trans people.

We will need your voice and your support to respond to these attacks in 2022 and beyond.

The FBI has refused to confirm or deny if it has recent records about its practice of requiring local police to sign strict nondisclosure agreements prior to purchasing invasive cell phone tracking technology. But the FBI acknowledged imposing these NDAs on local police years ago, and even recognized problems created by the practice. So what is the FBI trying to hide now? And do the feds really not appreciate the irony of refusing to confirm or deny the existence of secrecy agreements? The public deserves to know, and we’re suing to find out.

Cell site simulators — also known as “Stingrays” or “IMSI catchers” — function by mimicking signals sent from a cell tower and forcing mobile phones in the area to communicate with them. They permit law enforcement to track individuals even when they’re somewhere that’s typically protected from warrantless searches, like a home. Regardless of law enforcement’s intended target, cell site simulators collect data from all phones in their vicinity and can also interfere with nearby phones’ connections to the cellular network.

For decades, law enforcement agencies across the country have used Stingrays to locate and track people in all manner of investigations, from local cops in Annapolis trying to find a guy who nabbed 15 chicken wings from a delivery driver, to ICE tracking down undocumented immigrants in New York and Detroit. But until a few years ago, even the existence of this technology was shrouded in near-complete secrecy. As it turns out, the FBI went to great lengths to prevent knowledge of cell site simulators from entering public awareness, requiring state and local law enforcement agencies to sign nondisclosure agreements before purchasing the technology — a practice it now refuses to confirm or deny if it has continued. These agreements not only prevented cops from revealing their purchase or use of the technology to the public, but it even forced them hide it from judges and defense attorneys in court proceedings.

After the ACLU, journalists, and others successfully forced release of copies of the NDAs through public records requests, judges and lawmakers started learning about the previously secret surveillance and criticized the FBI for imposing such draconian secrecy. As one court put it, “such an extensive prohibition on disclosure of information to the court .. . prevents the court from exercising its fundamental duties under the Constitution.” The FBI itself acknowledged the practice and tried to distance itself from the knots local police had tied themselves in attempting to comply with the NDA’s secrecy requirements including going as far as dismissing criminal prosecutions instead of revealing accurate information about tech surveillance to criminal defense lawyers.

The problems posed by cell site simulators have been largely out of the spotlight for a few years, but recent reporting indicates that while police departments have started buying cell site simulators from new sources, the public lacks information about whether the FBI continues to impose secrecy requirements on local cops. In January 2021, the ACLU submitted a FOIA request to the FBI asking the agency to release any nondisclosure agreements entered into since 2018 to keep state and local law enforcement’s purchase and use of cell site simulators secret, as well as information about other conditions imposed on local police when they purchase and use the technology.

Normally, federal agencies must respond to FOIA requests by searching for responsive records and releasing them to the requester, with narrow redactions of legitimately secret information if necessary. But in response to our request, the FBI issued a “Glomar response,” meaning they refused to confirm or deny the existence of any responsive records. Glomar responses are only legal in rare situations where disclosing the existence (or non-existence) of the requested records would itself reveal information that is exempt from disclosure under FOIA.

In this case, the FBI’s Glomar response doesn’t come close to passing the sniff test. The FBI merely claimed, without explanation, that disclosing whether it has any nondisclosure agreements about cell site simulators “would disclose the existence or non-existence of non-public law enforcement techniques, procedures, and/or guidelines.” It is true that non-public law enforcement techniques, procedures, and guidelines can sometimes be exempt from disclosure under FOIA. But the fact of whether the FBI has continued to impose nondisclosure agreements and other conditions on local and state police isn’t a secret law enforcement technique or procedure — it’s basic information about whether the government is evading foundational transparency requirements we expect in a democratic society. And it’s something the FBI has already publicly admitted to doing.

This is not the first time we’ve seen efforts to keep information about cell site simulators secret devolve into farce. In fact, this secrecy on top of secrecy (a Stingray secrecy sandwich, if you will) would be silly if it wasn’t so offensive to basic notions of government transparency — and illegal.

The public has a right to know whether the FBI is continuing to require law enforcement agencies to withhold information regarding invasive surveillance technology. We’re suing so that information reaches the light of day.

Throughout his presidential campaign, then-candidate Joe Biden promised to “revitalize our national commitment to advancing human rights and democracy around the world.” More than a year after the election, however, his administration hasn’t gone far enough to significantly move the needle on human rights.

The United States’ meager commitments presented before last week’s Summit for Democracy are illustrative. Instead of undertaking new initiatives to protect democracy, advance racial justice, and implement U.S. obligations on human rights, the Biden administration chose, with few exceptions, to essentially repackage existing and ongoing actions.

The White House’s statement ahead of the Summit for Democracy contained more than 10,000 words on strengthening democracy, fighting corruption, and advancing human rights, but there was not a single word about implementing U.S. human rights obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), or the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

Strengthening democracy and fighting corruption are noble causes, but it is essential that the Biden administration translate its commitment to center human rights in foreign and domestic policy into concrete actions. If the Biden administration wants to get serious on human rights, it can act now on three essential areas to further demonstrate its commitment.

First, it can establish an inter-agency working group dedicated to implementing our human rights obligations. This is a critical component to ensuring that we are fulfilling our promises to international human rights bodies and leading by the power of example. We have yet to fully implement a number of international human rights treaties, including the ICERD and CAT.

The failure to create a federal body to oversee implementation of human rights treaties that many other democracies have had in place for years or even decades is a stain on the U.S. human rights record and one that can be easily fixed with action from the Biden administration.

The U.S. has claimed in multiple reports issued this year that it is “committed to performing its obligations” under treaties including the ICCPR, CAT, and ICERD, but the reports fail to even mention exploring new mechanisms to promote U.S. accountability and fail to accurately address policies and practices — including the treatment of asylum seekers — that are in direct conflict with the treaties. This is unacceptable, and the Biden administration has a responsibility and a mandate to accurately reflect our limited progress on human rights and to take bold action to realize our promises.

The administration’s prioritization of racial justice and equity at home and abroad are laudable improvements compared to the prior administration, but the U.S. must also prioritize the inclusion and implementation of our human rights obligations, especially under the International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. ratified nearly three decades ago.

The executive branch can play a pivotal role here. An administrative review of racial equity across the federal government already mandated by President Biden’s executive order can be easily expanded to cover review and implementation of the ICERD.

After four years under the Trump administration during which human rights were repeatedly violated and international human rights bodies were attacked and boycotted, the implementation of human rights treaties would send a powerful message that the United States firmly supports these agreements and is reengaging on the world stage in a meaningful way and building the necessary domestic infrastructure to sustain our progress on human rights and prevent future assaults.

Second, the United States can heed the over 340 recommendations from the United Nations Human Rights Council’s Universal Periodic Review, which in November called on the U.S., among many human rights issues, to abolish the death penalty, extreme sentencing, and disproportionate punishments and take more action to end systemic racism, especially in the context of law enforcement.

The U.S. recently won an uncontested election for a seat on the Human Rights Council, but reengagement on human rights requires more than membership in the world’s largest human rights body. It requires that the Biden administration look critically at the U.S.’ human rights record and commit to making these important changes at the executive level and advocating for Congress and states across the country to take additional action to ensure we are leading on human rights at home and abroad.

Third, the Biden administration can pledge to study the feasibility of a National Human Rights Institution, which advocates including the ACLU have been calling on the U.S. to establish for years. A NHRI charged with monitoring and promoting international human rights standards would serve as a key watchdog in ensuring we are up to date on our obligations and that federal, state, and local governments are protecting human rights norms and fostering a respect for universal human rights here at home.

President Biden’s Summit for Democracy wasn’t completely devoid of important new commitments, however. New actions by the Centers for Medicare & Medicaid Services and Small Business Administration to improve access to voter registration are important steps to help protect and expand access to the ballot box. But those commitments would be further strengthened by the Biden administration taking action on human rights and racial justice.

We are at a critical inflection point on human rights. President Biden’s promise to take “decisive action to restore and strengthen American democracy” requires a transformative investment in domestic human rights, including by incentivizing state and local governments to uphold human rights here at home, as the U.N. High Commissioner for Human Rights called for in her landmark report on systemic anti-Black racism this summer.

Centering human rights in domestic policy need not wait for another summit, but should be turned into reality to positively impact the lives of millions of people in the United States. There is no time to waste.