Report

2020 State Equality Index

A Review of State Legislation Affecting the Lesbian, Gay, Bisexual, Transgender and Queer Community and a Look Ahead in 2021

Published by the HRC Foundation in 2020

Dear Friends,

This year, as our nation faced unprecedented challenges, leaders in our states took action to help their constituents weather multiple crises while working to deliver the change that our communities need.

By championing pro-LGBTQ legislation, policies and proposals, states have bettered the lives of millions and provided hope and inspiration for the urgent work ahead to advance equality for all.

This year, in a victory generations in the making, Virginia became the first Southern state to enact comprehensive non-discrimination protections for LGBTQ people. The Virginia Values Act, which went into effect this July, extends existing state non-discrimination protections in public employment, housing and credit to Virginians on the basis of sexual orientation and gender identity among several other characteristics, and it adds all-new statewide protections from discrimination in employment and places of public accommodation. This crucial victory would not have been possible without years and years of tireless work from advocates across the Commonwealth.

Virginia also passed several other key pieces of legislation to protect LGBTQ people in the state, including ending the dangerous, debunked practice of so-called “conversion therapy.” We also saw progress this year across our nation’s different regions — as Colorado and New Jersey banned the harmful, dehumanizing LGBTQ panic defense. In spite of many states holding shortened legislative sessions, 47 total pro-equality bills became law.

Our community also realized unprecedented progress at the federal level with the Bostock vs. Clayton County decision, as the Supreme Court made clear that discrimination on the basis of sexual orientation and gender identity is prohibited under the federal employment non-discrimination law. While the Bostock decision will have a major impact on federal employment non-discrimination law and beyond, states must continue to ensure that LGBTQ people’s right to be free from discrimination is treated in the same way they treat discrimination on the basis of other protected characteristics.

Despite this progress, and in the midst of multiple crises, anti-equality forces prioritized pushing legislation targeting the LGBTQ community. Many of these bills sought to bar transgender student-athletes from participating in sports. With much more important issues to be addressed in our schools, lawmakers chose to target transgender youth to score cheap political points. In Idaho, where such a bill passed this year, lawmakers went out of their way to attack an already vulnerable population. Everyone deserves the opportunity to play sports, and lawmakers should be focusing on protecting and educating our children ­— not teaching them that they or their classmates are less than anyone else.

There is urgent work ahead to defeat the forces of hate and discrimination in this nation, and to address the fundamental injustices that have corrupted our institutions for generations. This past year has underscored how white supremacy has a toxic grip on our democracy — a reality that too many of us have lived with for far too long. We have provided leaders with specific recommendations on how they can take concrete action to combat systemic oppression in their states and improve the lives of all the people they serve in the process.

We would not be able to achieve the necessary progress ahead without the strength of our shared partnerships, including our partners at the Equality Federation Institute and statewide LGBTQ organizations. Together, and with your support, we will continue to fight for justice for our communities and to achieve the north star of true equality.

Sincerely,

Alphonso David , President , Human Rights Campaign Foundation


Dear Friends,

As the movement builder and strategic partner to state-based organizations advancing equality for LGBTQ people in the communities we call home, Equality Federation is proud to partner with HRC on the State Equality Index.

The State Equality Index tells the story of how advocates on the ground, in states across the country, achieved wins and battled tough opposition to fight for the rights of the LGBTQ community. But 2020 was not a typical year for advancing LGBTQ equality. It was a year of fighting the triple pandemics of coronavirus, police brutality, and racism while continuing to push back against anti-LGBTQ attacks and holding onto the advancements made for LGBTQ people. Our nation grappled with the racial injustice in this country and the systems that uphold white supremacy, including many within the LGBTQ movement who have committed to do more to right these injustices in our work.

Despite a federal government determined to attack LGBTQ people whenever possible, progress continued at the state level. Equality Federation member organizations and national partners such as HRC encouraged state legislators to introduce pro-LGBTQ bills across the country. Altogether, state legislatures enacted 47 pro-LGBTQ pieces of legislation in 2020. Virginia became the first Southern state to secure statewide non-discrimination protections thanks to the leadership of Equality Virginia and local advocates. But it didn’t stop there. Virginia also protected youth from conversion therapy, added a nonbinary gender option on licenses and IDs, and protected transgender people from discrimination in healthcare.

The 2020 legislative session was cut short in many states due to the coronavirus pandemic, but that did not stop our members. In Utah, advocates protected youth from conversion therapy via regulatory change. Washington partially repealed its HIV criminalization law. Colorado and New Jersey banned the use of the LGBTQ panic defense. Multiple states enacted laws that now allow for nonbinary gender markers on ID documents. And as a result of the Supreme Court’s positive decision in Bostock, agencies in Arizona, Florida, Kansas, and Nebraska are now interpreting the state’s non-discrimination protections to include sexual orientation and gender identity.

Unfortunately, we still faced opponents of equality attacking the dignity and safety of transgender young people. Between 2019 and 2020, bills that target transgender people nearly tripled in number, with 66 bills introduced that targeted transgender youth through banning either their participation in school sports or access to affirming healthcare. Only two of these became law, with Idaho passing a transgender athlete ban and another that prohibits trans people from changing the sex on their birth certificates. We already know we will see more of these attacks against transgender youth in 2021 and we are prepared to support our members as they fight to protect the most vulnerable among us.

As a queer person of color who came out in Alabama in the 1990s, it would have meant everything to me to see progress made for LGBTQ people anywhere, let alone in the South. Now 30 years later, I am so proud of the work being done to achieve full lived equality across the country.

In a year unlike any other, we saw states legally protecting LGBTQ people from discrimination for the first time while others were battling our opposition’s newest attacks against transgender youth. As we look to 2021, we know the greatest opportunities for policy victories that improve the lives of LGBTQ people are in the states — where the work is hard but the impact is great. We are ready for the fight ahead.

Sincerely,

Fran Hutchins , Executive Director , Equality Federation Institute

Summary

Summary of State Developments in 2020

In 2020, the LGBTQ movement saw tremendous momentum on good bills. This map shows the states that passed laws pertaining to LGBTQ equality in their respective SEI categories this year.

This year’s legislative victories set the stage for future advances to further LGBTQ equality. States continued to pass legislation that would protect youth from so-called “conversion therapy” and expand non-discrimination protections to all LGBTQ people.

For a full review of state legislation that was introduced, considered, passed, or failed in 2020, please see HRC.ORG/SEI.

State Map indicating states that passed good bills on religious refusal & relationship recognition, parenting laws, non-discrimination laws, hate crimes and criminal justice, youth laws, and health and safety in 2020.

Good vs Bad Legislation in 2020

Good Bills

In 2020, 379 pro-equality bills were introduced in state legislatures around the country. 47 were signed into law.

Bad Bills

In 2020, 185 anti-equality bills were introduced in state legislatures around the country. 4 were signed into law.


Key state law and policy developments in 2020

The 2020 legislative session was a significant deviation from business as usual in state legislatures.

By March and April - when the majority state legislatures are usually at their busiest points - many state legislatures found themselves needing to close or take prolonged recesses due to the crisis posed by COVID-19. State legislatures that remained in session did so only to deal with the state’s top priorities, including meeting constitutional obligations related to passing budgets. On the heels of the COVID crisis came a renewed push against police brutality and memorials acknowledging this country’s racist past. Some states called socially-distanced special sessions to deal with the crashing economy and social unrest. Most states, even those that generally tend to prioritize anti-LGBTQ legislation, hunkered down and stayed away from overt attacks on the LGBTQ community.

Idaho presented a notable exception. In the weeks after COVID came to Idaho, neither the legislature nor the Governor pivoted from their usual agendas to focus on the pandemic. Instead, the legislature passed and the Governor signed two pieces of legislation expressly targeting transgender people: one prohibiting transgender girls from participating in girls sports and the other barring transgender people from updating the gender marker on their birth certificates. Both laws were clearly motivated by discrimination and warned against by legal experts, including the state’s attorney general. The laws were immediately challenged in court and were blocked from implementation pending resolution of the case. Not even clusters of COVID infections across the state could deter Idaho from its determination to discriminate against transgender people.

Other states took notable action on LGBTQ issues prior to the pandemic, both on the pro-and anti-equality side. Tennessee passed a license to discriminate in child welfare services bill on its first day of session, which the Governor quickly signed into law. On the

pro-equality side, at least 47 laws and one regulation were implemented. Virginia passed 17 of those laws, including laws that prohibit discrimination in health care, ensure schools have adequate policies relating to the rights of transgender students, banning conversion therapy, strengthening hate crimes laws, and making it easier for transgender and gender non-binary people to update their identity documents. Notably, Virginia also passed the landmark Virginia Values Act, which expanded the state’s existing protections to include sexual orientation and gender identity and created all-new protections for Virginians in private employment and places of public accommodation on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and status as a veteran. Virginia is the first state in the South to adopt non-discrimination protections for LGBTQ people, the first state in over a decade to add both sexual orientation and gender identity to existing non-discrimination law, and the first state since 1993 to add a prohibition on discrimination in public accommodations (protecting all Virginians) where none existed before.

Other important new laws include bans on the use of so-called “LGBTQ panic” defenses (NJ, WA), laws that streamline adoption policies for same-sex parents (NJ), requirements that government employees undergo training to become culturally competent regarding LGBTQ issues (VA), updating sex education curricula to be more LGBTQ-inclusive (VA, WA), ensuring that various fertility services are adequately covered by insurance (MD), and expanding access to PrEP (CO). As part of their response to the COVID-19 pandemic, some states also enacted laws or regulations requiring COVID-19 demographic data collection efforts to include sexual orientation and gender identity (CA, D.C., NV, PA, RI).


Comparative Legislation at a Glance

Overall

Parenting Laws

Religious Refusal & Relationship Recognition

Non-Discrimination Laws

Youth Laws

Health & Safety

Hate Crimes & Criminal Justice


Outlook for 2021

The parameters and priorities of the 2021 legislative sessions will undoubtedly be shaped both by the ongoing COVID-19 pandemic and the aftermath of the 2020 election.

The safe reopening of the economy, balancing of state budgets, and dealing with other COVID-related crises are likely to be at the top of legislatures’ lists when they are able to safely reconvene. LGBTQ people have been disproportionately impacted by COVID-19 as a result of having less access to health care, less access to family leave, and a high percentage of employment in the sectors of the economy that have been most affected by the economic crash.1 This makes proactive non-discrimination protections and other pro-equality legislation all the more urgent to ensure that LGBTQ people are able to earn a living, access health care, and have as many supports as possible as we move toward the other side of this crisis.

Unfortunately, opponents of equality have already telegraphed that they are more interested in continuing to attempt to sow divisiveness around LGBTQ issues in an effort to score political points. We anticipate continued attacks on transgender youth, particularly in relation to athletic participation and access to best-practice, affirming medical care, to continue across the country. We also anticipate seeing a resurgence in interest in passing religious refusal legislation, including legislation to create novel religious exemptions to non-discrimination laws. 2020 had the most anti-transgender bills ever filed in one legislative session, and the rhetoric being employed by opponents of equality across the country suggests that 2021 will only bring more of the same.

1For more information about how LGBTQ people have been disproportionately impacted by the COVID-19 crisis, please see HRC’s Issue Brief at hrc.org.

LGBTQ people have been disproportionately impacted by COVID-19 as a result of having less access to health care, less access to family leave, and a high percentage of employment in the sectors of the economy that have been most affected by the economic crash.

Non-Discrimination in Employment

Map of states with Non-Discrimination laws for employment

States that expressly prohibit employment discrimination based on sexual orientation and gender identity

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Utah
  • Vermont
  • Virginia
  • Washington

States that expressly prohibit employment discrimination based on sexual orientation only

  • Wisconsin

Enforcement authorities are accepting complaints on the basis of sexual orientation and gender identity becasue the state has adopted the Bostock rationale into state law

  • Arizona
  • Kansas
  • Nebraska
  • North Dakota
  • Pennsylvania
  • Florida

Non-Discrimination in Housing

Map of states with Non-Discrimination laws for housing

States that expressly prohibit housing discrimination based on sexual orientation and gender identity

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Utah
  • Vermont
  • Virginia
  • Washington

States that expressly prohibit housing discrimination based on sexual orientation only

  • Wisconsin

Enforcement authorities are accepting complaints on the basis of sexual orientation and gender identity because the state has adopted the Bostock rationale into state law

  • Kansas
  • Nebraska
  • North Dakota
  • Pennsylvania

Non-Discrimination in Public Accommodations

Map of states with non-discrimination laws in pubic housing

States that expressly prohibit Public Accommodations discrimination based on sexual orientation and gender identity

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Virginia
  • Washington

States that expressly prohibit Public accommodations discrimination based on sexual orientation only

  • Wisconsin

Enforcement authorities are accepting complaints on the basis of sexual orientation and gender identity because the state has adopted the Bostock rationale into state law

  • Kansas
  • North Dakota
  • Pennsylvania

Non-Discrimination in Education

States that expressly prohibit non-discrimination in education on the basis of sexual orientation and gender identity

  • California
  • Colorado
  • Connecticut
  • District of Columbia
  • Hawaii
  • Illinois
  • Iowa
  • Maine
  • Massachusetts
  • Minnesota
  • Nevada
  • New Hampshire
  • New Jersey
  • New York
  • Oregon
  • Vermont
  • Virginia
  • Washington

States that expressly prohibit non-discrimination in education on the basis of sexual orientation only

  • New Mexico
  • Wisconsin

Anti-Bullying Laws

States With Anti-Bullying Laws That Provide Specific Protection Based On Sexual Orientation and Gender Identity

  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Carolina
  • Oregon
  • Rhode Island
  • Vermont
  • Washington

States with anti-bullying laws that prevent school districts from specifically protecting LGBTQ students

  • Missouri
  • South Dakota

States with laws that restrict the inclusion of LGBTQ topics in schools

  • Alabama
  • Louisiana
  • Mississippi
  • Oklahoma
  • South Carolina
  • Texas

Second Parent Adoption

States where second-parent adoption is an option for same-sex couples statewide

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Idaho
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Montana
  • New Hampshire
  • New Jersey
  • New York
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Dakota
  • Vermont

Please see individual state scorecards for other criteria related to relationship recognition on adoption and non-discrimination provisions.


Transgender Healthcare

States with bans on insurance exclusions for transgender healthcare

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Vermont
  • Virginia
  • Washington
  • Wisconsin

States with transgender coverage exclusions in Medicaid

  • Ohio
  • Tennessee
  • Texas
  • West Virginia
  • Wyoming

Name and Gender Marker Updates on Identification Documents

States With Laws And Policies That Facilitate Gender Marker updates On Driver’s Licenses and Birth Certificates

  • Alaska
  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Kansas
  • Maryland
  • Massachusetts
  • Minnesota
  • Montana
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Virginia
  • Washington

States With Laws And Policies That Facilitate Gender Marker updates On Driver’s License Only

  • Arizon
  • Arkansas
  • Florida
  • Idaho
  • Indiana
  • Maine
  • Michigan
  • Missouri
  • New Hampshire
  • North Carolina
  • North Dakota
  • Ohio
  • Vermont
  • West Virginia

States with laws and policies that prevent transgender people from receiving appropriate identification

  • Idaho
  • Tennessee

HIV/AIDS Criminalization

States with laws that criminalize behaviors that carry a low or negligible risk of HIV transmission

  • Alabama
  • Arkansas
  • Florida
  • Georgia
  • Idaho
  • Illinois
  • Indiana
  • Kentucky
  • Louisiana
  • Maryland
  • Michigan
  • Mississippi
  • Missouri
  • Nebraska
  • New Jersey
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Pennsylvania
  • South Carolina
  • South Dakota
  • Tennessee
  • Utah
  • Virginia
  • Washington

Hate Crimes & Criminal Justice

States that have a law that addresses hate or bias crimes based on sexual orientation and gender identity

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Missouri
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Utah
  • Vermont
  • Virginia
  • Washington

States that have a law that addresses hate or bias crimes based on sexual orientation only

  • Arizona
  • Florida
  • Georgia
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Nebraska
  • Tennessee
  • Texas
  • Wisconsin

States that have a law that eliminates a bias rage or panic defense in criminal acts

  • California
  • Colorado
  • Connecticut
  • Hawaii
  • Illinois
  • Maine
  • Nevada
  • New Jersey
  • New York
  • Rhode Island
  • Washington

Anti-Conversion Therapy

States with Laws That Protect youth From Conversion Therapy

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Utah
  • Vermont
  • Virginia
  • Washington

Data Collection

States that Collect Data on the Behavioral Risk Factor Surveillance System (BRFSS) on the Basis of Sexual Orientation and Gender Identity

  • California
  • Connecticut
  • Delaware
  • District of Columbia
  • Florida
  • Georgia
  • Hawaii
  • Illinois
  • Indiana
  • Iowa
  • Louisiana
  • Massachusetts
  • Minnesota
  • Mississippi
  • Montana
  • Nevada
  • New Mexico
  • New York
  • North Carolina
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • Texas
  • Vermont
  • Virginia
  • Washington
  • Wisconsin

States that Collect Data on the Youth Risk Behavior Surveillance System (YRBSS) on the Basis of Sexual Orientation and gender identity

  • Arizona
  • Arkansas
  • California
  • Connecticut
  • Illinois
  • Iowa
  • Kentucky
  • Mississippi
  • Missouri
  • Nebraska
  • New Hampshire
  • New Mexico
  • North Carolina
  • North Dakota
  • Oklahoma
  • South Carolina
  • Texas
  • Utah
  • West Virginia

State Categories for SEI Scorecards

In the SEI scorecards, we have grouped states into several broad categories to provide a general idea about the type of advocacy that occurs in each state in addition to identifying statewide laws and policies affecting LGBTQ people in such states. The categories are:

Working Towards Innovative Equality

These states have a broad range of protections to ensure equality for LGBTQ people, including comprehensive non-discrimination laws, safer school policies, and healthcare access for transgender people. Advocates focus on the implementation of laws and advance innovative legislation that addresses the needs of vulnerable populations.

Nineteen states and the District of Columbia are in the highest-rated category, “Working Toward Innovative Equality:" California, Colorado; Connecticut; Delaware; District of Columbia; Hawaii; Illinois; Maine; Maryland; Massachusetts; Minnesota; Nevada; New Hampshire; New Jersey; New Mexico; New York; Oregon; Rhode Island; Vermont; and Washington

Solidifying Equality

These states have several basic measures of equality, including non-discrimination protections or anti-bullying laws. Advocates work to ensure the broad implementation of these laws while advancing laws concerning parenting, youth, health and criminal justice to achieve full equality for the LGBTQ community.

Two states are in the category “Solidifying Equality:" Iowa; and Virginia

Building Equality

In these states, advocates work to build upon initial advances toward LGBTQ equality, such as the implementation of safer school policies, expanding non-discrimination protections, or protections in healthcare for transgender people. Work in these states varies widely but may focus on opposing negative legislation, passing comprehensive non-discrimination laws, or making it easier for LGBTQ people to create families.

Four states are in the category “Building Equality:" Kansas; Pennsylvania; Utah; and Wisconsin.

High Priority to Achieve Basic Equality

In these states, advocates focus on raising support for basic LGBTQ equality, such as non-discrimination protections in employment, housing and public accommodations. These states are most likely to have religious refusal or other anti-LGBTQ laws. Advocates often further LGBTQ equality by focusing on municipal protections for LGBTQ people or opposing negative legislation that targets the LGBTQ community.

Twenty-Five states are in the lowest-rated category “High Priority to Achieve Basic Equality:" Alabama; Alaska; Arizona; Arkansas; Florida; Georgia; Idaho; Indiana; Kentucky; Louisiana; Michigan; Mississippi; Missouri; Montana; Nebraska; North Carolina; North Dakota; Ohio; Oklahoma; South Carolina; South Dakota; Tennessee; Texas; West Virginia; and Wyoming

Success Story

Tennessee Equality Project

A public college or university may be the first school or workplace that a Tennessee resident experiences with sexual orientation and gender identity non-discrimination protections. Most K-12 school districts in the state lack them. Faculty and staff at public colleges and universities are the only state government employees in Tennessee explicitly covered by such a policy.

These policies enhance the intellectual and social freedom one would expect to find on college campuses. They have also helped make Tennessee public colleges and universities significant drivers of the movement for LGBTQ equality in Tennessee. A few examples follow:

Northeast State Community College students in Blountville led by Professor Jane Honeycutt focused a Fall 2020 semester project on LGBTQ homelessness. They contacted several local officials with a survey. They described the experience as “eye-opening” when they realized that many leaders were either unaware of the problem or chose not to engage. But the students are committed to finding ways to raise this vital issue.

During the Spring 2019 and Fall 2020 semesters, University of Tennessee-Knoxville psychology graduate students Kevin Fry, Elliott DeVore, and Elliot Spengler assisted us by developing a digital map that plotted LGBTQ-affirming therapeutic resources. They also conducted interviews with survivors of conversion therapy to lay the groundwork for policy reform in Tennessee.

Middle Tennessee State University, Lambda has long been a leader in campus and community advocacy. In 2016 their faculty adviser Dr. William Langston worked with us to found Boro Pride, the yearly Pride event serving the Murfreesboro area. They also host an annual conference that brings together students, advocates, and community leaders from around the state.

Students, faculty, and staff at Tennessee’s public colleges and universities build a more affirming experience for LGBTQ people on campus. Their leadership is also making life better for all LGBTQ Tennesseans.

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Scorecard | Criteria

Parenting Laws and Policies

Every child deserves a loving home and every family should be able to recognize familial relationships free from discrimination on the basis of sexual orientation or gender identity.

This category evaluates state laws, policies, or court cases that allow for the creation and recognition of family units or that affect the ability of LGBTQ families to adopt and provide legal recognition for their families.

Some states prevent LGBTQ individuals or same-sex couples from serving as adoptive or foster parents, and many public child welfare agencies still discriminate against qualified, licensed LGBTQ foster and adoptive families. When LGBTQ families are denied the ability to foster and adopt children, children are denied the right to safe, happy and healthy permanent homes.

Note that not all states allow for each of the family creation legal mechanisms detailed in this category. It is also important to note that family law can differ widely between jurisdictions, and items in the category may not reflect variances in family law issues between different counties within a state. Unless there is a specific prohibition on joint or second parent adoptions in a state, it is likely that at least some same-sex couples are able to adopt via these mechanisms through individual judges.

Positive Laws & Policies

SECOND-PARENT ADOPTION

This item indicates state laws or court decisions that allow a second parent of the same sex to petition to adopt their partner’s children, regardless of whether they are in a legally recognized relationship.

SURROGACY LAWS

This item indicates state laws that explicitly allow for gestational surrogacy but do not exclude LGBTQ people or privilege married partners. Gestational surrogacy is a surrogacy arrangement where the surrogate has no genetic relation to the child.

FOSTER CARE NON-DISCRIMINATION

This item indicates state laws or administrative policies that prohibit discrimination against LGBTQ people in the placement of foster youth.

FOSTER PARENT TRAINING REQUIRED

This item indicates state laws or agency regulations that require prospective foster parents to receive training regarding LGBTQ youth in areas like cultural competency and legal requirements.

PARENTAL PRESUMPTION FOR
SAME-SEX COUPLES

This item indicates that the state, through statewide court rulings, statutes or agency guidance, presumes that a parental relationship exists for both parents in a same-sex marriage with regard to any children born of that marriage.

CONSENT TO INSEMINATE

This item indicates state laws that specifically allow unmarried same-sex couples to create parentage for
both parents for an intended child by formally consenting to insemination of one of the parents.

DE FACTO PARENT RECOGNITION

This item indicates a limited recognition of de facto parents as a basis for visitation or custody, generally through court cases. De facto parents are individuals who serve in the role of a parent but have no legally recognized tie to the child.

Negative Laws & Policies

PROHIBITION OF SURROGACY

This item indicates state laws that explicitly prohibit gestational surrogacy contracts. Gestational surrogacy is a surrogacy arrangement where the surrogate has no genetic relation to the child.

LAWS PERMITTING DISCRIMINATION IN FOSTER or ADOPTION PLACEMENT

This item indicates state laws that allow for discrimination in the placement of foster youth with LGBTQ families or adoption by LGBTQ families. This is generally done either by specifically allowing for discrimination against LGBTQ families or by privileging married couples for adoption or foster placement. Other states will introduce a “conscious” exception for foster or adoption placement agencies, allowing them to discriminate on the basis of their religion against LGBTQ families.


Scorecard | Criteria

Relationship Recognition and Religious Refusal Laws

All loving and committed couples deserve equal respect and legal recognition. Support for marriage equality for same-sex couples has grown steadily, and after the Obergefell ruling by the U.S. Supreme Court, every state is obligated to recognize the marriages of same-sex partners.

Following this historic ruling, several states have continuously introduced bills that would limit recognition of same-sex marriages or allow state officials to refuse to provide licenses or other services for same-sex couples.

STATE RELIGIOUS FREEDOM
RESTORATION ACTS

This item indicates state laws that purport to preserve “religious freedom”, but which may in fact undermine state non-discrimination protections. Their laws generally fall within one of two categories: the so-called “religious freedom restoration acts”, and the laws that specifically allow marriage-service providers to discriminate on the basis of their religion. State laws that explicitly make clear that civil rights protections are not subject to religious refusal will not fall in this category.

RELIGIOUS EXEMPTIONS FOR PROFESSIONAL TRAINING or PRACTICE

This item indicates state laws that specifically prevent public institutions of higher education

or state professional licensing boards from disciplining students or professionals for failing to meet their professional standards of conduct (generally relating to non-discrimination) on the basis of their personal religious beliefs.

FIRST AMENDMENT DEFENSE ACT

This item indicates state laws that purport to protect religious expression but actually grant a right to discriminate. These laws protect people working at a public agency, or a private individual or agency that receives funds, licensing, or other recognition from the state, from losing any of those benefits as a result of discriminatory action that is based on an individual’s sexual orientation or gender identity.

State Spotlight

Equality Virginia


Equality Virginia has been fighting to protect LGBTQ Virginians from discrimination since 1989. After years of building collective power through community organizing, educational programming, and storytelling, we passed the Virginia Values Act.

We will always remember 2020 as the year that we became the first state in the South and the 21st state in the country to pass non-discrimination protections for LGBTQ people in housing, employment, and public spaces.

We started to see real momentum on this in 2018, when the majority of Virginia legislators on both sides of the aisle supported these protections; however, leadership in the House of Delegates consistently blocked votes on non-discrimination protections from moving forward. In response, we strengthened relationships with state and national organizations to launch an organizing effort that mobilized LGBTQ Virginians and allies in key regions of the state.

advocates made over 23,000 calls and knocked on nearly 8,000 doors to build support for LGBTQ-inclusive non-discrimination protections.

This groundswell of support led to a watershed moment for LGBTQ legal equality in Virginia. After 30 years of advocacy, LGBTQ Virginians are finally protected from discrimination. On top of this historic win, we also: protected youth from conversion therapy, modernized the birth certificate and state ID update processes, including a non-binary gender marker option for state IDs, made schools safer for trans and non-binary youth, added sexual orientation and gender identity to hate crimes protections, and repealed the ban on same-sex marriages and unions from the Virginia Code.

In late 2019 and early 2020, we redoubled our efforts through the formation of the Virginia Values Coalition, which brought together community members, faith and business leaders, and public safety advocates as well as national and local organizations. With this community power in our sails, we led dozens of volunteer events where

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Scorecard | Criteria

Non-Discrimination Laws & Policies

It should not be legal to deny someone the right to work, rent a home, receive an education, or be served in a place of public accommodation because of their sexual orientation or gender identity.

Recognizing that LGBTQ people should be free of discrimination in all areas of life, this publication takes a comprehensive view of non-discrimination laws & policies by looking at areas where not every state provides protections. This category evaluates whether discrimination on the basis of sexual orientation and gender identity is explicitly prohibited through statewide laws or policies in a host of areas, including employment, housing, education, and public accommodations. In some states, the protections outlined in a specific area do not exist for any characteristic—including race, sex, or disability.

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, Georgia that sexual orientation and gender identity discrimination are prohibited under federal sex-based employment protections. Nevertheless, it is imperative that states continue enacting explicitly LGBTQ-inclusive

comprehensive non-discrimination laws since it will likely take additional litigation for Bostock to be fully applied to all sex-based protections under existing federal civil rights law. Moreover, federal law currently lacks sex-based protections in numerous key areas of life, including public spaces and services. Lastly, there are many invaluable benefits to enacting inclusive protections even when they exist on higher levels of government (see pg. 40 of the full report). For these reasons, the SEI will continue to only award credit for state non-discrimination laws that expressly include sexual orientation and gender identity. Credit may be awarded on the state level if a state has definitively applied Bostock’s reasoning to include LGBTQ people under state sex non-discrimination protections.

For each item in this category, it is noted whether the law or policy provides non-discrimination protection on the basis of sexual orientation, gender identity or both.

Positive Laws & Policies

EMPLOYMENT

This item indicates state laws that prohibit discrimination in private employment on the basis of sexual orientation or gender identity.

HOUSING

This item indicates state laws that prohibit discrimination in rental or purchase of housing on the basis of sexual orientation or gender identity.

PUBLIC ACCOMMODATIONS

This item indicates state laws that prohibit discrimination in public accommodations on the basis of sexual orientation or gender identity.

Public accommodations are generally defined as entities, both public and private, that are used by the public. Examples may include retail stores, rental establishments, and service establishments, as well as educational institutions or recreation facilities. The types of entities that fall into this category vary widely and are based on state law.

EDUCATION

This item indicates state laws that prohibit discrimination against students in public education on the basis of sexual orientation or gender identity.

ADOPTION

This item indicates state laws or administrative policies that protect youth involved in the adoption system from discrimination on the basis of sexual orientation or gender identity.

FOSTER CARE

This item indicates state laws or administrative policies that protect youth involved in the foster care system from discrimination on the basis of sexual orientation or gender identity.

INSURANCE

This item indicates state laws or administrative policies that prohibit discrimination in at least some forms of insurance on the basis of sexual orientation or gender identity.

CREDIT

This item indicates state laws or administrative policies that prohibit discrimination in the granting of credit, establishment of loans or other elements of banking on the basis of sexual orientation or gender identity.

JURY SELECTION

This item indicates state laws, administrative policies, or court decisions that prohibit discrimination in jury selection on the basis of sexual orientation or gender identity.

COLLEGES AND UNIVERSITIES

This item indicates state laws or state university system policies that prohibit discrimination in admission and access to campus services and facilities on the basis of sexual orientation or gender identity.

NON-DISCRIMINATION POLICY FOR STATE EMPLOYEES

This item indicates state laws or administrative policies that prohibit discrimination against state employees on the basis of sexual orientation or gender identity.

Negative Laws & Policies

RESTRICTIONS ON MUNICIPAL PROTECTIONS

This item indicates state laws that prevent municipalities in a state from passing non-discrimination ordinances that would protect categories broader than those protected by state law, generally leaving out sexual orientation and gender identity.

This is different from states that have adopted “Dillon’s Rule”, which also limits municipal power but does so without a discriminatory intent.

BROAD RELIGIOUS EXEMPTIONS IN STATE NON-DISCRIMINATION LAWS THAT SINGLE OUT SEXUAL ORIENTATION AND/OR GENDER IDENTITY

This criterion indicates state non-discrimination laws that have religious exemptions singling out sexual orientation and/or gender identity from other protected classes.

Recognizing that LGBTQ people should be free of discrimination in all areas of life, this publication takes a comprehensive view of non-discrimination laws & policies, looking at areas where not every state provides protections.

State Spotlight

Equality Utah


Photo of Troy Williams

When people think about Utah, few envision a state consistently advancing LGBTQ equality. And yet, against all odds, that’s what we’re doing here.

It’s true, Utah is very conservative. Our legislature is approximately 80% Republican, and 85% are members of the Church of Jesus Christ of Latter-day Saints.

We’ve learned over the years that to strengthen equality here, it’s essential to build allies in both religious and conservative circles. So, we show up at the Republican State Convention, sponsor a table, throw up our banners, and begin lively conversations. For us, it is queer missionary work. As we engage in these critical conversations, our staff has a clear focus: never see the other side as our enemies; rather, see each and every person as our future ally.

When we approach the work in this manner, it’s exciting to see who shows up. In 2015, Utah advanced LGBTQ employment and housing protections. The bill enjoyed broad bipartisan support and was signed by Governor Herbert with statewide fanfare. But that was just the beginning. In 2017, by a nearly unanimous vote, the Utah Legislature overturned our “No Promo Homo” law, which prohibited teachers and students from discussing LGBTQ issues in public schools. In 2019, the Legislature not only repealed our antiquated anti-sodomy statute but also passed an LGBTQ-inclusive hate crimes law. LGBTQ youth are also now included in our state’s YRBS.

In 2020, Governor Herbert was instrumental in helping us protect minors from the dangerous practice of conversion therapy.

As we approach people thoughtfully and expand legal protections, we are seeing hearts open. A 2019 PRRI poll ranked Utah second in the nation for public support of LGBTQ nondiscrimination laws. (We came in at 77%—tied with Vermont, only a little behind New Hampshire!)

At the end of 2020, Utah state leaders officially adopted the advocacy ethos, “Nothing About Us, Without Us”. When legislation impacts any minority community, state leaders have promised that we will all be engaged at the table. We call this “The Utah Way.”

TROY WILLIAMS

Executive Director

Scorecard | Criteria

Hate Crimes & Criminal Justice Laws

No one should be at risk of violence, targeted by criminal laws, or profiled by law enforcement because of their sexual orientation, gender identity or HIV status.

This category evaluates state criminal laws to determine whether they equally protect residents on the basis of sexual orientation and gender identity, include LGBTQ people in hate crimes laws, eliminate unjust defenses to violent crimes committed against LGBTQ people, and proscribe police profiling of LGBTQ individuals.

This category also notes the presence of negative laws that harm public health efforts, like those that criminalize people living with HIV, as well as unconstitutional statutes like anti-sodomy laws that perpetuate stigma against LGBTQ people by their continued existence.

Positive Laws & Policies

ENUMERATED HATE CRIMES LAWS

This item indicates state laws that specifically
include sexual orientation or gender identity in
hate crimes protections.

MANDATORY REPORTING OF HATE CRIMES STATISTICS

This item indicates state laws that require the collection of data regarding incidents of hate crimes based on sexual orientation or gender identity and reporting that data to the federal government.

ELIMINATION OF BIAS RAGE OR PANIC DEFENSE FOR CRIMINAL ACTS

This item indicates a state law that prohibits the use of an affirmative defense that may be used to excuse or classify a criminal charge as a lesser charge because the revelation of the victim’s sexual orientation or gender identity caused the defendant to lose control and turn violent.

PROHIBITING PROFILING BASED ON ACTUAL OR PERCEIVED LGBTQ STATUS BY LAW ENFORCEMENT

This section denotes a state statute that prohibits law enforcement from targeting a person based on their actual or perceived sexual orientation or gender identity without trustworthy information relevant to linking that person to a crime.

Negative Laws & Policies

SODOMY LAWS

This item indicates state laws that purport to criminalize sodomy, regardless of whether they are enforced. Note that these laws are not enforceable due to the Supreme Court’s Lawrence v. Texas decision, but they still need to be officially repealed by the state legislature.

HIV CRIMINALIZATION LAWS

This item indicates state laws that criminalize behaviors of HIV+ people that carry a low or negligible risk of HIV transmission. States that criminalize behaviors that carry a higher risk of transmission will not be noted by this measure.


Scorecard | Criteria

Youth-Related Laws & Policies

All youth should be able to participate in schools and communities that are safe and welcoming, regardless of their sexual orientation or gender identity.

This category evaluates a range of measures concerning the safety and well-being of LGBTQ youth, including safe school laws, laws to protect youth from dangerous and discredited conversion therapy, and laws to address

youth homelessness. Recognizing that schools play an especially important role in the growth and development of young people, we looked at a number of measures relating to bullying prevention and school safety.

Positive Laws & Policies

ANTI-BULLYING LAWS

These items indicate state laws that protect youth from bullying and harassment, generally by requiring individual school districts to have anti-bullying policies in place. Credit was given for laws that are enumerated, meaning they specifically list characteristics that are frequently the target of bullying and harassment, while providing anti-bullying protection for all students.

Enumeration is especially important to protect LGBTQ students, as research has demonstrated that non-enumerated policies are no more effective to protect vulnerable students than having no policy in place. State laws are only indicated by this item if they provide protection based on both sexual orientation and gender identity.

The second item indicates states with model policies and guidance documents, generally created by the state Department of Education, that enumerate sexual orientation and gender identity.

The “Alternative Discipline” item indicates state laws that specifically include language that supports alternative forms of discipline that focus on education, remediation, prevention, and providing support for the target of bullying, rather than exclusionary discipline, criminalization, or “zero tolerance” policies for bullying and harassment.

Finally, the “Cyberbullying” item indicates that the state’s anti-bullying law covers incidents of bullying and harassment that occur electronically, through the internet or another medium. States and individual school districts vary widely on the degree to which anti-cyberbullying enforcement extends beyond the walls of the school. This category does not assess these distinctions, simply whether the law addresses bullying and harassment through electronic means.

SCHOOL SUICIDE PREVENTION POLICIES

This item indicates state laws that require public school districts to have policies that focus on suicide prevention and intervention.

PROTECTION FROM CONVERSION THERAPY

This item indicates laws designed to protect LGBTQ youth from conversion therapy through licensing restrictions that prevent licensed mental healthcare professionals from conducting conversion therapy
on youth under age 18.

LAWS TO ADDRESS LGBTQ YOUTH HOMELESSNESS

This item indicates state laws that specifically address homelessness among LGBTQ youth. For example, requiring homeless youth service providers to have non-discrimination policies in place, adequate cultural competency training, enhanced data collection to better understand disparities among this vulnerable population, and ensure homeless transgender youth are able to receive appropriate services based on their gender identity and expression.

LGBTQ-INCLUSIVE SEX EDUCATION LAWS

This item indicates state law or regulatory guidance that requires any sexual health education provided to students be specifically inclusive of LGBTQ youth.

LGBTQ-INCLUSIVE JUVENILE JUSTICE POLICIES

This item indicates state laws, regulations, or policies designed to protect LGBTQ youth in juvenile justice settings from discrimination on the basis of sexual orientation and gender identity.

Negative Laws & Policies

TRANSGENDER INCLUSION IN SPORTS

This item indicates either legislation, regulations from the state Department of Education, or authoritative guidance from the state organization that regulates intramural secondary school sports excluding transgender students reasonable opportunity and access to participate in school sports.

INEQUALITY IN AGE OF CONSENT FOR
SAME-SEX COUPLES

This item indicates state laws that create different standards for the age of consent in same-sex and different-sex couples. Many states have a so-called “Romeo and Juliet” exception to age of consent laws, which prevents violation of these laws as long as the couple is within a particular age range; however, for some states this exception only applies to different-sex couples.

SCHOOL LAWS THAT CRIMINALIZE YOUTH

This item refers to anti-bullying laws that have either the mandatory, one-size-fits-all discipline or zero-tolerance policies, or the laws that specifically criminalize either bullying or cyberbullying. The item does not apply to general laws that extend anti-harassment protections to an electronic medium unless they refer specifically to schools, bullying, or cyberbullying.

ANTI-BULLYING LAWS THAT PROHIBIT ENUMERATION

This item indicates state anti-bullying laws that specifically prohibit school districts from listing characteristics that are frequently the target of bullying and harassment. This undermines the protection of the law for vulnerable populations such as LGBTQ youth.

LAWS THAT RESTRICT INCLUSION OF LGBTQ TOPICS IN SCHOOLS

This item indicates state laws that prohibit educators from discussing LGBTQ topics in schools or that require that any discussion of LGBTQ topics in schools be presented in a negative way. While these laws generally pertain only to sexual health education, they are frequently interpreted in a broader way by school districts. In some states these laws are not operative, but because of the negative impact they can have on LGBTQ youth, even if they are not officially enforced, they are still noted as present.


Scorecards | Criteria

Health & Safety Laws & Policies

Everyone should be able to access appropriate health care that is culturally competent and affirming, regardless of their sexual orientation or gender identity. Moreover, everyone should be able to access identity documents that reflect the way in which they live their lives.

Positive Laws & Policies

LGBTQ NON-DISCRIMINATION PROTECTIONS IN AFFORDABLE CARE ACT (ACA) EXCHANGES

This item indicates state laws or administrative policies that specifically prohibit discrimination on the basis of sexual orientation or gender identity by insurance providers and health care providers through state implementation of the ACA. While the ACA and federal regulations make clear that health care and insurance providers must not discriminate, enforcement is administered by the states, and so it is important that state laws and policies establish exchanges that reflect federal non-discrimination mandates.

States that do not operate their own exchanges (and therefore have no relevant laws or policies) cannot receive credit for this item.

BAN ON INSURANCE EXCLUSIONS FOR TRANS HEALTHCARE

This item indicates state laws or administrative policies that prohibit private health insurance providers from issuing policies with explicit bans on transgender or transition-related healthcare.

TRANSGENDER HEALTHCARE INCLUSION IN STATE MEDICAID

This item indicates state laws or agency rules that specifically allow for transition-related coverage for transgender people through state Medicaid.

TRANSGENDER-INCLUSIVE HEALTH BENEFITS FOR STATE EMPLOYEES

This item indicates state laws, administrative policies, or court decisions that provide transgender state employees access to transgender and transition-related health care through their employment health benefits. Health insurance plans accessible to state employees must expressly include gender-affirming procedures, hormone therapy, mental healthcare and other gender-affirming care. The lack of express exclusions for these services is not sufficient for credit because this care is routinely not covered.

NAME AND GENDER MARKER UPDATES ON IDENTIFICATION DOCUMENTS

These items indicate state laws or administrative policies that allow transgender people to update their gender markers on their driver’s licenses or birth certificates with a minimum of difficulty. Generally, this means that these laws or policies will create a clear process and not have specific surgery requirements in order to update one’s gender marker.

While there are sometimes court decisions that allow transgender people to amend their identity documents even in states without explicit rules, these items will consider only statewide laws or policies.

HEALTH DATA COLLECTION

This item indicates the presence of sexual orientation or gender identity-related survey questions on national health data collections that are administered by the state. The Centers for Disease Control and Prevention (CDC) conducts two federal health data surveys in the majority of states: the Behavioral Risk Factor Surveillance System (BRFSS) among adults and the Youth Risk Behavior Surveillance System (YRBSS) among secondary-school aged youth. Only LGBTQ-related optional questions adopted by the CDC are counted for this measure.

While there are many other forms of both state and federal data collection, this measure looks at only these two specific surveys, as they are prominent health surveys and they include optional questions pertaining to LGBTQ populations. Note that not every state administers the YRBSS.

ALL-GENDER SINGLE-OCCUPANCY FACILITIES

This item indicates state laws or agency guidance requiring single occupancy facilities (that is restrooms or changing rooms meant to accommodate only one person at a time) to be designated as all-gender.

Negative Laws & Policies

LAWS PROHIBITING TRANSGENDER PEOPLE FROM RECEIVING APPROPRIATE IDENTIFICATION

This item indicates states laws, administrative policies, or court decisions preventing transgender people from amending the gender markers on their driver’s licenses or birth certificates under any circumstances.

TRANSGENDER EXCEPTIONS IN STATE MEDICAID COVERAGE

This item indicates state laws or administrative policies that explicitly prohibit Medicaid coverage for transition-related care for transgender people.

Data collection pertaining to LGBTQ populations is especially important because over time, it will allow us to assess and address health disparities among LGBTQ communities.

Acknowledging Context

Research Process

The SEI scorecards are meant to assess the presence of statewide laws, policies, and court decisions that affect LGBTQ equality, either positively or negatively. Research for this project was conducted by the SEI team — a group of staff attorneys, pro bono attorneys and law fellows — based on the criteria for each law and policy item, and compiled into a sample scorecard for each state. The data was drawn from publicly available sources. The draft scorecards were provided to members of the Equality Federation, and these organizations were offered an opportunity to review the scorecards, ask any questions, give input, and provide additional sources for the SEI team to consider. These assessments were considered by the SEI team and a final scorecard for each state was developed.

For each of the category descriptions, the SEI team made determinations on whether laws, administrative policies, or court decisions would qualify for each state law and policy item based on the nature of the item, typical statewide laws and policies concerning that item, and our determination about best practices for that item.

Laws refer to statewide statutes, either passed through the state’s legislative process or through referendum. Administrative regulations and policies refer to agency guidance or documented policies from a state executive agency that has a legal effect (i.e., the policy is not merely aspirational – it is enforceable). The nature of these agency regulations and policies can vary widely based on the nature of the category, the state agency, and the administrative process in that state. Court decisions refer to final rulings by a relevant state or federal court with a statewide jurisdiction and for which the decision is in effect.

Importance of Municipal Advocacy

While the SEI examines statewide laws and policies that affect LGBTQ equality, it is important to recognize the substantial and growing role that municipal law has on LGBTQ equality across the country. In many states with a more difficult political climate for LGBTQ equality, advocates may focus on municipal protections rather than statewide law and policy for strategic reasons. Passage of municipal protections can serve to protect a large population of LGBTQ people immediately, whereas passage of statewide protections may not be feasible for years, if at all. Also, passage of municipal protections

can facilitate passage of statewide laws and policies in several ways. For example, it can show that the potential negative outcomes opponents use to block protections for LGBTQ people are demonstrably false, it empowers local advocates to become more involved, and it helps convince lawmakers that protections in their districts should be passed at the state level.

For a nationwide evaluation of municipal law, policies and services affecting LGBTQ equality, please see the Municipal Equality Index, available at hrc.org/mei.

Implementation and Lived Experience

The SEI is an assessment of the statewide laws and policies which affect LGBTQ equality in each state and the District of Columbia. It is a roadmap for the types
of state laws and policies that advocates can work toward to make positive change and a marker by which we can measure the steady passage of statewide laws and policies affecting LGBTQ equality. However, the SEI does not rank states in terms of LGBTQ equality, nor is it an assessment of the culturally friendliest states for LGBTQ people to live.

Moreover, the SEI is not able to measure the implementation of laws, policies, or court cases that affect LGBTQ equality, which can have a very real impact on the day-to-day lived experiences of LGBTQ people. While the SEI looks at the presence or absence of statewide laws and policies, it is impossible to determine the extent to which those laws are actively enforced or whether relevant training occurs. In fact, enforcement may vary considerably between states and municipalities within in a state. Many municipalities will have laws and policies that go beyond the basic requirements of statewide law, creating additional protections in areas such as non-discrimination or safe schools.

Finally, the SEI is not an evaluation of statewide advocacy efforts. We recognize that advocacy for statewide laws and policies concerning LGBTQ equality will vary drastically in different regions, based on state politics, historical context, state legislative issues, and countless other factors. For example, in some regions it may be a major victory for advocates to kill negative legislation, while in other states, such legislation has no real chance of passing. The SEI strives to present a balanced view of the types of advocacy that occurs in different states around the country, as well as a factual record of the presence of statewide laws and policies that positively or negatively affect LGBTQ equality.

Advocacy for statewide laws and policies concerning LGBTQ equality will vary drastically in different regions, based on state politics, historical context, state legislative issues, and countless other factors

Issue Brief

Despite landmark Supreme Court ruling in Bostock, states must continue to advance explicitly LGBTQ-Inclusive Non-discrimination laws and Policies

In June of this year, the Supreme Court of the United States issued a landmark ruling in Bostock v. Clayton County, Georgia confirming that sexual orientation and gender identity discrimination are prohibited under the sex-based employment protections of Title VII of the Civil Rights Act of 1964.

This represents a major step forward for LGBTQ equality and has implications that ought to reach federal civil rights laws forbidding discrimination in all federal laws prohibiting sex discrimination, including education, health care, and housing.

Despite this significant progress on the federal level, it is important that state governments continue enacting comprehensive non-discrimination protections that are expressly inclusive of both sexual orientation and gender identity.


Implementation of Bostock Beyond Employment

Opponents of LGBTQ equality have already begun executing legal strategies to attempt to stymie the full and proper implementation of Bostock beyond the federal employment context. Current federal civil rights laws contain sex-based protections in numerous areas, including education, housing, health care, credit, and jury service. Pursuant to the reasoning of Bostock, LGBTQ people ought to be protected under these federal laws as well. However, due to the resistance of anti-equality officials and organizations, the full implementation of Bostock will likely require protracted litigation that could take years.

While advocates continue the fight for Bostock to be correctly applied throughout all relevant federal civil rights law, state governments have the ability to immediately protect residents from discrimination in many areas beyond employment. States should exercise the fullest extent of their legal authority to clearly and holistically protect the LGBTQ community.

Limitations of Existing Federal Non-Discrimination Law

Importantly, Bostock only impacts areas of federal law where sex discrimination is already explicitly prohibited. Existing federal statutes do not outlaw discrimination on the basis of sex in public spaces and services as well as all federally-funded programs.

While advocates across the country continue to push for the passage of the federal Equality Act, which would remedy these deficiencies and fully codify Bostock, states can, and should, extend vital protections to LGBTQ people including in public accommodations and taxpayer-funded programs.

State Non-Discrimination Laws Are Always Beneficial

Even when LGBTQ-inclusive protections exist at higher levels of government, state legislation can provide many additional, invaluable benefits. This is why states and localities across the nation have enacted laws codifying and expanding protections that exist on the federal and state levels, respectively, for decades.

  • Scope
    Even if federal protections already exist, state non-discrimination laws and policies can provide more expansive protections for workers, visitors, and residents. For example, federal employment non-discrimination law only covers employers that employ fifteen or more people. This excludes many workers of smaller employers all across the country.

  • Enforcement
    States can and should create better, more accessible enforcement options for those who have been discriminated against.
  • Education and Awareness
    The legislative process and implementation of state non-discrimination laws create significant opportunities for preventive anti-discrimination education and awareness. Additionally, state human rights commissions created by non-discrimination laws play an important role in regularly educating communities on the harms of prejudice and discrimination and the importance of diversity, equity, and inclusion.
  • Economic Strength
    The enactment of strong, comprehensive, and fully-inclusive state non-discrimination laws is one of the strongest statements of a community’s values. People in search of new places to live, visitors in search of leisure getaways, and businesses looking to begin or expand operations take heed. States that care enough to adopt inclusive protections position themselves to attract new residents, visitors, and businesses who value diversity, equity, and inclusion.

Conclusion

Although Bostock represents a watershed victory in the fight for LGBTQ-inclusive non-discrimination protections, it does not signal the end of the struggle for full, comprehensive legal equality. The decision itself directly applies to federal sex non-discrimination protections in employment and does not automatically apply to sex non-discrimination
protections under state and local law.

While the only correct implementation of Bostock requires immediate application to all other federal sex non-discrimination protections and ought to apply to state level sex non-discrimnination laws, anti-equality opponents are doing everything they can to prevent this from happening. Even when

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Issue Brief

Addressing Systemic Racism through State Action

Introduction: In every state across the United States, race is a defining social construct that has major impacts on the life of every resident, including those who make up the incredibly diverse LGBTQ community.

The precise form this impact takes is defined by one’s actual or perceived race along with other intersecting identities. The actual or perceived race and intersectional identity of some opens the door to opportunity and advantage, while that of others engenders discrimination, disadvantage, and disparities in virtually every area of life. This has been true since the founding of this country and unfortunately remains true today.


Historical Foundations of Systemic Racism in the United States

Systemic racism, also known as structural racism, refers to an overarching system of racial bias across institutions, culture, and society. Systemic racism does not necessarily mean that institutions are overtly racist or have patently racist policies. It also refers to systems, institutions, and policies that create or allow disparate negative impacts for individuals who are Black, Indigenous, and People of Color (BIPOC).

The origins of modern systemic racism in this country is embedded in its very founding, and the rampant racial disparities—used herein to refer to the stark overrepresentation of BIPOC communities in negative outcomes based on their proportional representation in the general population—that persist today are grim manifestations of the enduring, destructive effects of systemic racism.

Systemic Racism in Policing

Modern American policing provides one of the most prominent examples of enduring systemic racism, an issue thrown into the national spotlight this year by widespread protests against police killings of Black people.

  • Protesting While Black
    The troubled relationship between law enforcement and demonstrators has a history steeped in racial injustice and inequality and unchecked abuses of state-sanctioned power have led to historic confrontations. Nonviolent protesters in the midst of the Civil Rights Movement were routinely met with brutal retaliation from police officers enforcing segregation. These violent skirmishes have been countlessly repeated since and unsurprisingly, they are more likely to occur when protesters are Black.

    A comprehensive study of protests between 1960 and 1990 found that those with Black participants were more likely to be met with police presence than those without. Once police officers arrived at protests, they were also more likely to make arrests and use violence as a method of crowd control.1 It was clear then, as it is now, that police perceive BIPOC to be a greater threat than their white peers. Rubber bullets and tear gas may have replaced water hoses and German Shepherds, but modern laws have failed to adequately address disparities in the treatment of BIPOC by law enforcement.

    Additionally, while this issue received unprecedented national attention this year, the problem of police killings disproportionately affecting Black people has been present throughout our history. Enduring systemic racism in policing is evinced by data clearly showing that police kill Black people at disproportionate rates. In the United States, Black people are three times more likely to be killed by police. One study found that Black Chicagoans are over 650% more likely to be killed by police than white Chicagoans. Even when unarmed, Black people are still more likely to be killed by police.
    What’s more, racial disparities exist throughout police interactions. A recent study found that Black people are 20% more likely to be pulled over, twice as likely to be searched, and less likely to be carrying illegal contraband compared to their white peers. Stark racial disparities do not end with police interactions but hold true throughout the broader criminal justice system. Fortunately, states can take decisive action to begin addressing systemic racism in policing. State authorities should expeditiously implement the following reforms in their law enforcement agencies.
  • Demilitarize the Police.
    Public confidence in law enforcement declines with the presence of militarized units. The transfer of military weapons to police departments increases officer-induced fatalities among civilians. While there is a troubling lack of public data on police militarization, a review of police militarization in Maryland shows that SWAT teams are more likely to be deployed to Black neighborhoods regardless of crime levels, consistent with anecdotal evidence across the country. Because much of the process of militarization occurs as a result of transactions between the federal government and state law enforcement departments, state authorities should take a firm stance against militarization by explicitly prohibiting the purchase and transfer of military equipment by their state and local law enforcement agencies through law, policy, or budgetary decisions
  • Redirect Funds.
    Research shows that investing directly in communities, including vital social services, reduces crime. State governments can reduce incidents of crime by redirecting funds to critical assistance programs as well as housing programs, mental health services, substance abuse treatment, and early intervention programs. (See discussion on intersectionality and equity below for important frameworks that should guide funding decisions.
  • Create Standards for Acceptable Use of Force
    States should create acceptable use of force standards for police departments. At a minimum, it should permit use of force only when necessary and as a last resort when all reasonable options have been exhausted. It should also expressly prohibit maneuvers and restraints that restrict the flow of blood or oxygen to the brain, including neck holds and chokeholds. Moreover, this policy should ban the use of force as a punitive or retaliatory measure and require law enforcement to use de-escalation tactics instead. Peaceful de-escalation tactics should exclude the use of riot and tactical gear by officers.

    Police officers must also act when they observe misconduct by fellow officers. When witnessing a colleague using excessive force or engaging in wrongdoing, police officers should have a duty to intervene and accurately report the incident to supervisors, making it clear to the community and to other officers that law enforcement’s primary responsibility is to protect and serve the public.
  • Transparency and Accountability.
    Police departments must aim to become more transparent by making trainings and departmental procedures accessible to the public. Departments must collect robust data on types of police stops, instances of use of force, and the treatment of vulnerable populations, including immigrant, LGBTQ, and Black and Brown communities. Departments of state police should also be transparent with records regarding officers charged with or disciplined for misconduct. Additionally, body cameras have the potential to increase transparency and provide an additional perspective to police-community encounters. Coupled with a consistent standard of use, body cameras can be used to promote both civilian and officer safety. An appropriate standard should emphasize public availability and regular footage review.
  • End Racial Profiling.
    Profiling and discrimination in policing must be strictly and explicitly prohibited. These policies must prohibit law enforcement from targeting a person based on actual or perceived race, ethnicity, national origin, religion, disability, gender, gender identity, or sexual orientation. Anti-racial profiling policies should also require law enforcement to take affirmative measures to eliminate profiling, including implementing data collection and analysis to accurately assess the extent of the problem, regular mandatory training on issues of profiling, and clear procedures for receiving, investigating, and responding to complaints of alleged profiling.

    No-knock warrants authorize police to enter a premise without announcing their presence or their purpose. Intended to prevent the destruction of evidence or ensure police safety, no-knock warrants have instead led to the killing and injuring of innocent people. An analysis of no-knock warrant raids conducted by the New York Police Department found that 10 percent were wrong-door raids. State governments must prohibit the use of no-knock warrants to ensure the safety of the people.

  • Prohibit No-Knock Warrants.
    No-knock warrants authorize police to enter a premise without announcing their presence or their purpose. Intended to prevent the destruction of evidence or ensure police safety, no-knock warrants have instead led to the killing and injuring of innocent people. An analysis of no-knock warrant raids conducted by the New York Police Department found that 10 percent were wrong-door raids. State governments must prohibit the use of no-knock warrants to ensure the safety of the people.

Employment, Housing, Education, and Beyond

While policing presents a highly visible illustration of the presence and effects of systematic racism, systemic racism affects the municipal institutions with which residents interact in virtually every area of life.

Racial disparities run deep in employment. The U.S. economy was built on the exploitation and occupational segregation of BIPOC. By some estimates, slaveholders extracted more than $14 trillion in labor costs (in today’s dollars) from enslaved people. The legacies of slavery, Black Codes, Jim Crow, racist aspects of the New Deal, and limited funding and reach of government anti-discrimination bodies helped keep BIPOC individuals concentrated in undervalued occupations and promoted employment discrimination as well as wage and benefits disparities based on race.

A recent study by the Harvard Business Review found that since 1990, white applicants received 36% more callbacks on average than Black applicants and 24% more callbacks than Latinx applicants with identical resumes. As of August 2020, the Black unemployment rate is twice as high as the white unemployment rate. Moreover, as we’ve seen in many areas, the COVID-19 pandemic amplifies existing disparities. A recent Human Rights Campaign report found that BIPOC LGBTQ people are 70% more likely than the general population to have lost their jobs since states initiated reopening policies due to COVID-19.

Federal New Deal housing policies played a central role in the creation and persistence of segregated Black neighborhoods during a significant part of the 1900s. The federal Home Owners’ Loan Corporation, created to refinance home mortgages in default to prevent foreclosure, institutionalized “redlining,” or the practice of denying mortgages based on the racial and ethnic makeup of neighborhoods. Communities with large BIPOC populations were assigned the lowest investment rating and deemed too risky for government-backed mortgages. The Public Works Administration, which built the first civilian public housing in the U.S., primarily benefited white middle- and lower-middle class families and built explicitly segregated housing for Black families. What’s more, the Federal Housing Administration subsidized the building of entire suburbs with explicit requirements of restrictive covenants—provisions in deeds prohibiting resale to Black Americans—while subsiding white families to move out of urban areas into all-white suburbs. Housing discrimination and inequality persists today.

A 2012 study by the Department of Housing and Urban Development and the Urban Institute found that real estate agents and rental housing providers recommend and show fewer available homes and apartments to racial minorities than equally qualified whites. Additionally, the Census Bureau reported that Black households had the lowest homeownership rate at 44%, nearly 30 percentage points behind white households.

Systemic racism also begins disadvantaging Black students from the moment they enter the educational system. For example, a 2014 Department of Education study found that although Black students make up only 18% of all preschoolers, they represent 50% of all preschool suspensions. White children, on the other hand, make up 40% of all preschool enrollment but represent 26% of those receiving suspensions. Black students in K-12 are suspended at three times the rate of white students who commit similar infractions. 2015-16 data from the Department of Education found that while Black students make up 15% of the total student population in public schools, 31% of students who were arrested or referred to law enforcement were Black. Furthermore, research shows that majority-Black schools are chronically underfunded.

The economic disparities engendered by enduring systemic racism in all of these areas of life are striking. The income gap between Black and white people in the U.S. has persistently grown over time. The difference in median household incomes between white and Black Americans has grown from about $23,800 in 1970 to roughly $33,000 in 2018. Poverty is particularly high for those who live at the intersection of racial minority and LGBTQ status. BIPOC LGBTQ people have statistically significant higher poverty rates than their same-race non-LGBTQ counterparts. For example, 30.8% of Black LGBTQ people live in poverty, whereas 25.3% of Black non-LGBTQ people live in poverty.

The scourge of systemic racism extends to many other areas of life, including health care and public services. This reality combined with transphobia and sexism contributes to the tragic, escalating epidemic of fatal violence against Black and Brown transgender women.

While the pervasiveness of systemic racism and the severity of the racial disparities it creates may seem daunting, municipal officials have many tools at their disposal to begin addressing these issues in their communities.

Crafting Solutions

Understanding and operationalizing the core concepts of intersectionality and equity are central to developing and implementing effective state laws, policies, and services to begin addressing the disparities engendered by systemic racism.

Intersectionality

Intersectionality refers to the complex, cumulative way in which the effects of multiple forms of discrimination (such as racism, sexism, homophobia, transphobia, ableism, and classism) combine, overlap, or intersect, especially in the experiences of marginalized individuals or groups. A person who identifies as Black, transgender, and female, and who is living with a disability, lives at the intersection of all of these marginalized identities. Their life and daily experiences are unfortunately shaped by a complex, compounded mix of prejudices and discrimination on account of their actual or perceived identities as Black, transgender, female, and a person living with a disability. This term was born out of Black feminism, coined by lawyer, scholar, and professor Kimberlé Crenshaw in a 1989 paper published in the University of Chicago Legal Forum entitled “Demarginalizing the Intersection of Race and Sex.”

Equity

Equity is an important concept that is distinct from the concept of equality. Equity means providing tools and resources according to need such that historically disadvantaged communities truly have the same access to opportunities intended to be equally available to everyone. This takes into account the unequal footing traditionally marginalized groups, including LGBTQ people and Black and Brown communities, start off on because of the effects of historical and extant systemic marginalization and discrimination. Equality, on the other hand, refers to treating everyone the same and offering everyone the same opportunities. In essence, equality is the foundation that makes the ultimate goal of equity possible. Equity is important because even if opportunities are equally available to everyone, those who are oppressed by systemic barriers (like systemic racism) face unique difficulties in accessing those equal opportunities, often resulting in continued inequality.

Checklist

Build a Strong Foundation of Non-Discrimination

As noted above, true equity cannot be achieved without the baseline of robust enforceable non-discrimination laws and policies. State officials must ensure that every state department has an enumerated non-discrimination policy that expressly prohibits discrimination against BIPOC individuals, including BIPOC LGBTQ people. These policies should cover employment, as well as state services, programs, and facilities. State legislators should enact robust statewide non-discrimination protections exceeding existing federal protections that explicitly includes race and ethnicity as well as sexual orientation and gender identity (among other protected characteristics) in all areas of life including employment, housing, and public spaces. These non-discrimination laws must meaningfully provide recourse.

Empower and Adequately Fund State Human Rights Commissions

As state bodies specifically designed to take on the issues of prejudice and discrimination, human rights commissions are well-situated to begin addressing system racism at the state level with a focus on intersectionality and equity. They can be empowered by executive action or legislation and should be adequately funded to enforce statewide non-discrimination laws. These entities should also be given the authority to review state laws and policies for unintended racial disparities and propose revisions or other potential solutions. State commissions should be composed of diverse community members—including BIPOC residents, LGBTQ residents, and those with intersecting marginalized identities—who possess thorough understandings of systemic racism, intersectionality, and equity. Human rights commissioners should regularly consult with state advocates representing BIPOC communities and those with multiple marginalized identities. Moreover, state human rights commissions should make it part of their mission to end the epidemic of violence against transgender and gender non-conforming individuals, which disproportionately affects Black and Brown transgender women.

Innovate

Addressing issues as pervasive and complex as systemic racism, the racial disparities it creates, and the compounding effects of multiple intersecting identities requires thorough study and innovative thinking. One innovative approach states can take is creating an Equity Task Force that brings together members of the state human rights commission, the General Assembly, the Governor’s office, the Attorney General’s office, and state agencies to study and identify racial disparities, review state policies and services for effectiveness in reducing disparities, identify unmet community needs, and formulate services and policies that further equity and well-being for BIPOC residents, including BIPOC LGBTQ residents.

Advocate for Reform Beyond State Limits

The voices of state officials, as close representatives of the people, carry significant clout. Governors, general assembly members, state police superintendents, human rights commissioners, and other state officials should voice their support for policy reforms to address systemic racism not only within their own spheres of authority, but also in the federal government. State officials can make their voices heard in many ways including through official statements, social media channels, proclamations, and resolutions.

Conclusion

Systemic racism is a grave and pervasive problem deeply rooted in our nation’s history. The legacies of slavery, Black Codes, Jim Crow, the New Deal, and many other racially biased governmental laws and policies still affect the institutions and systems that shape every aspect of American life. Together, these create the conditions where racialized police violence endures with impunity and where Black Americans continue to suffer the worst racial disparities in virtually every area of life. These racial disparities are often drastically compounded for BIPOC individuals who live at the intersection

of multiple marginalized identities, like BIPOC transgender and gender non-conforming people. Though the issue of systemic racism may seem dauntingly colossal, state officials have many tools at their disposal to begin addressing this issue head on, including reshaping state budgets and creating task forces to promote genuine equity for BIPOC communities. As leaders entrusted with the most important task of ensuring the health, safety, and well-being of all residents, state officials must immediately begin to address the blight of systemic racism in their communities and beyond.

Though the issue of systemic racism may seem dauntingly colossal, state officials have many tools at their disposal to begin addressing this issue head on, including reshaping state budgets and creating task forces to promote genuine equity for BIPOC communities.

National Stats

TOTAL STATES WITH NON-DISCRIMINATION PROTECTIONS*

*Does not include the District of Columbia


SCORECARD | NATIONAL OVERVIEW

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State Scorecards

Scorecard Changes For the 2021 State Equality Index

The legal landscape for LGBTQ equality has shifted rapidly in the past several years

States have continued to push for LGBTQ equality beyond relationship recognition after the ruling in Obergefell v. Hodges made marriage equality the law of the land. Many are increasingly focused on passing non-discrimination laws, protecting LGBTQ youth, and expanding healthcare access for transgender people. This publication will continue to evaluate the changing landscape of law and provide the fullest picture of LGBTQ equality in the states.

The rise in religious refusal bills and bills that target transgender student athletes have become law and call for greater attention from LGBTQ advocates. The SEI will continue to recognize various laws that fall in this category. Future editions may include more nuance if particular types of laws gain traction.

We will consider other changes to the SEI scorecard based on developments in state law over the next few years. As a general matter, we will not include an item in the SEI scorecard unless at least one state has passed a law or policy that qualifies under the criteria for an item. Potential new criteria for future editions may include:

Positive

  • LGBTQ cultural competency training requirements for various types of professionals (doctors, mental health professionals, educators, etc.)
  • Proper gender and name requirements on death certificates for transgender people
  • Mandatory LGBTQ-inclusive training for law enforcement
  • LGBTQ-inclusive paid leave laws
  • Gender marker updates for identification documents that include a non-binary, ‘X’, or similar option
  • States must offer at least one health insurance plan for public employees that expressly covers transgender healthcare needs, including gender-affirming surgical procedures, hormone therapy, mental health care, and all related medical visits and laboratory services. The lack of express exclusions for these services is not sufficient for credit because this care is routinely not covered. The plan should also ensure coverage of routine, chronic, or urgent non-transition services and eliminate other barriers to coverage including, but not limited to, separate dollar maximums and exclusions for covered dependents. Moreover, all out-of-network gender-affirming care for which in-network care is unavailable should be covered on the same terms as out-of-network coverage for other types of necessary care.

Negative

  • Laws that restrict access to supportive student groups in public schools
  • Laws that allow government officials or businesses to refuse to recognize legal marriages

Acknowledgements

The SEI Team

Sarah Warbelow is the legal director at the Human Rights Campaign, leading HRC’s team of lawyers and fellows focused on federal, state, and municipal policy. She also coordinates HRC’s advocacy efforts as amicus curiae (“friend of the court”) in litigation affecting the lesbian, gay, bisexual, transgender and queer community. She received her bachelors’ degrees in social relations and women’s studies from Michigan State University and her master’s of public policy and law degree from the University of Michigan. Warbelow is admitted to the bar of Michigan.

Courtnay Avant serves as legislative counsel at the Human Rights Campaign, focusing on federal and state advocacy. She handles a range of issues, including those related to criminal justice, voting rights, and LGBTQ youth. Courtnay received her bachelor’s degree from Virginia Polytechnic Institute and law degree from the George Mason University School of Law. Courtnay is admitted to the D.C. Bar.

Colin Kutney is the senior manager of HRC’s state and municipal programs and manages the State Equality Index (SEI) from start to finish. Colin’s optimism and dedication to equality drives the SEI forward year after year. He coordinates the research, design, outreach, composition, and launch of the report. He received his bachelor’s degree from the University at Albany and is currently pursuing a Master of Public Administration from George Washington University.

Contributing Partners

The SEI would not be complete without the time, talent, and commitment of the many folks mentioned below.

Thank you to our colleague Cathryn Oakley, who serves as HRC’s state legislative director and senior counsel, for lending her expertise, guidance and support.

A significant portion of the research for the SEI was conducted by HRC’s 2019 McCleary law fellows. We thank them for their research and willingness to lend
a hand when needed.

Every year, our press team delivers the story of state equality to the masses. Our colleagues Madeleine Roberts and Aryn Fields lent their talent to capture the state of LGBTQ equality in 2020. We appreciate their thoughtfulness and ability to juggle many deadlines.

We’d also like to thank Bob Villaflor for his consultation with this year’s design. The SEI’s design was imagined by the brilliant team at General Design Company. Soung Wiser, Lillian Ling, Lissy Essmann and Melanie Harker lent their creativity, flexibility and patience to make this year’s report.

Ella Schneiburg ensured that this report, plus all state scorecards, are available on the web at hrc.org/sei.

The Equality Federation Institute

It’s been our great pleasure to work in partnership with the Equality Federation Institute on this report. Members of the Equality Federation strive each day to achieve the equality measures that this report indexes, bringing state policy and advocacy expertise, grassroots organizing, and local experience to the fight for LGBTQ equality. The State Index Equality, and indeed, the tremendous gains in LGBTQ equality at the state level, would not be possible without their effort and relentless commitment.

We look forward to working with you again for the 2021 SEI!

For questions or additional information, please contact sei@hrc.org or visit www.hrc.org/sei.


The State Equality Index would not have been possible without the valuable contributions made by state advocates.

The strength of the state-based LGBTQ movement is critical to elevate our representation, visibility and equality across the country. As we look to the next legislative session, the State Equality Index should serve as a recognition of how far we have come and how much we have yet to achieve.

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