A Review of State Legislation Affecting the Lesbian, Gay, Bisexual, Transgender and Queer Community and a Look Ahead in 2022
Published by the HRC Foundation in 2022
The 2021 State Equality Index (SEI), our annual comprehensive report on statewide laws and policies that affect LGBTQ+ people and their families, is HRC’s most valuable tool to create a comprehensive view of where the LGBTQ+ community has made legislative progress and where we have seen setbacks. More than in any other year, we gain value through the SEI in understanding the impact of legislative attacks on our community in states across the country.
This year, our nation saw the beginning of a new pro-equality presidential administration, one that helped advance LGBTQ+ progress across the nation. While we celebrate new federal leadership, anti-equality state legislators across the country rolled out attacks in unprecedented numbers.
Anti-equality forces prioritized pushing legislation targeting the LGBTQ+ community, particularly trans and non-binary young people. 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. 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.
These attacks, in turn, further fuel anti-trans stigma, which in turn further fuels the epidemic of violence facing our trans and non-binary family and which particularly targets Black trans women. It is no coincidence that in a year when we saw unprecedented legislative attacks in the states, we also lost an unprecedented number of trans and non-binary people to fatal violence. More must be done to dismantle the systems of oppression -- of transphobia, of homophobia and biphobia, of racism, and misogyny -- that fuel this violence, and to defeat the bad actors who target trans lives for political gain.
There is urgent work ahead to defeat the forces of hate and discrimination and to address the fundamental injustices that have corrupted our institutions for generations. As the report makes clear, the 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 have our work cut out for us in the year ahead, work that we would not be able to take on 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 in order to achieve our shared mission of liberation.
Joni Madison , Interim President , Human Rights Campaign
At Equality Federation, we know the importance of statewide protections for the LGBTQ+ community. As an advocacy accelerator dedicated to building power in our network of state-based LGBTQ+ advocacy organizations, we are 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, achieve wins and battle tough opposition to fight for the rights of the LGBTQ+ community year after year.
This past year was one of the toughest in recent memory for our state partners and the LGBTQ+ community. Our opposition, after learning to refine their attacks by taking aim at particularly vulnerable communities such as transgender youth, covered the country with anti-trans bills, largely concentrated in the areas of trans youth healthcare access and participation in school sports.
This led to lawmakers introducing a record number of anti-transgender bills in 2021. It is heartbreaking and maddening that transgender youth are the latest targets of the wrath of anti-LGBTQ+ opponents. But state partners across the country are organizing, storytelling, and beating back these attacks, ensuring only a small percentage become law.
Despite facing indescribable challenges, state partners were able to do amazing work in difficult political situations to push good policies forward even as they played defense. State and national partners encouraged state legislators to introduce historic numbers of pro-LGBTQ+ bills across the country. Three of these bills were thanks to local advocates and state leaders in Oregon, Vermont, and Virginia, states which banned the use of the LGBTQ+ panic defense, sending the message that violence against LGBTQ+ people is never acceptable.
We know that the lives and identities of LGBTQ+ people are intersecting and complex. No one law will change every aspect of our lives, but some can contribute to the larger work being done to achieve full lived equality. For example, Illinois fully repealed its HIV criminalization law and local leaders in Virginia passed a law modernizing HIV criminalization, a first step in making life better for people living with HIV in the state. Michigan, New Jersey, and Nevada also took legislative steps to improve HIV laws in their states. California, Colorado, Michigan, New Hampshire, and New York made it easier for individuals to update and receive accurate identity documents. And I’m delighted that my home state of Alabama improved its sex education curriculum by removing inaccurate and stigmatizing anti-LGBTQ+ language.
Despite difficult legislative sessions in many states, I am so proud of the work being done by advocates and elected officials to make the lives of LGBTQ+ people better and more accepting no matter the community they call home.
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. As we look to 2022, we already know state partners will be facing more attacks against transgender youth, in athletics, medical care, and schools. We are prepared to support them in the fights ahead.
Fran Hutchins , Executive Director , Equality Federation Institute
In 2021, 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.
Good vs Bad Legislation in 2021
In 2021, 201 pro-equality bills were introduced in state legislatures around the country. 44 were signed into law.
In 2021, 268 anti-equality bills were introduced in state legislatures around the country. 27 were signed into law.
Key state law and policy developments in 2021
2021 was a historic year for the LGBTQ+ community, but as far as state legislation was concerned, it was historic for all the wrong reasons.
By only March, 2021 had seen more legislation filed that specifically targeted the transgender community than in modern history. HRC has been tracking anti-transgender legislation across state legislatures for decades, including since the surge in anti-LGBTQ+ legislation since 2015. 2020 had previously held the record of the most anti-transgender legislation introduced, with 79 pieces of legislation. 2021 had .
Often prioritized over COVID relief - and in Texas, over fixing the failed energy grid - anti-transgender legislation took several forms:  bills aimed to prevent transgender youth from playing school sports consistent with their gender identity, and  bills were filed to prevent transgender youth from receiving age-appropriate, medically-necessary, gender-affirming health care. The first and second bathroom bills passed since North Carolina’s infamous HB2 were passed in Tennessee. Arkansas passed the first ever ban preventing transgender youth from accessing age-appropriate, medically-necessary, gender affirming care. All in all,  bills targeting transgender youth passed into law - another record.
Anti-LGBTQ+ legislation took other forms as well, however, and one of the most notable trends was a resurgence of laws that carve all-new religious exemptions into existing laws in order to allow people of certain religious beliefs to refuse to serve people with whom they disagree.
This includes everything from so-called “RFRA” legislation to bills that would allow medical care providers to refuse to provide certain services if they assert a religious justification.  religious refusal bills were filed across the country this year, including [about a dozen] RFRAs and [a dozen more] bills that would allow for religious refusals, including against LGBTQ+ patients, in medical care. Among the religious refusal bills that passed this year were RFRAs passed in both South Dakota and Montana, and a medical care refusal bill that Ohio passed as part of its budget.
In the midst of this historically bad year, however,  new pro-equality laws were passed. These range in topics from ensuring that utility companies allow consumers to change their names and pronouns; to streamlining adoption requirements for stepparents; to ensuring that places of public accommodation have gender-neutral bathrooms; to making it easier to update birth and death certificates with correct names and pronouns; to eliminating the “gay-” or “trans-panic defense”. All ensure that LGBTQ+people are able to creep closer to full legal and lived equality. While considerable effort has been and continues to be made to prevent anti-LGBTQ+ legislation from becoming law, progress toward LGBTQ+ equality in the states simply, truly, cannot be stopped.
Comparative Legislation at a Glance
Outlook for 2022
2021 made history: a record amount of anti-LGBTQ+ legislation was filed; a record amount of legislation targeting transgender people was filed; and a record number of anti-LGBTQ+ legislation passed into law. It wasn’t just the volume of legislation that was striking, however. The legislation that defined 2021 was particularly malignant, relying on a combination of fear-based messaging, counter-scientific argument, and exploitation of an exhausted public that struggled to safely mobilize against this legislation during a global pandemic.
Unfortunately, 2022 is poised to eclipse even the brutality of last year. Legislators are emboldened: they’ve declared a return to bills that didn’t make it across the finish line last year, and they’ve begun prefiling more of the same harmful legislation.
In particular, two trends seem likely to continue into 2022. The first trend is a continued focus on curbing the ability of transgender youth to live lives as their authentic selves, be that in school classrooms, school bathrooms, school sports, or - chillingly - in restricting the ability of transgender youth from accessing age-appropriate, medically-necessary, life-saving gender-affirming medical care. The second trend is continued work to create exemptions from current law to allow people to refuse to provide medical and other services to LGBTQ+ people if they assert a religious justification for doing so.
Both of these trends are deeply harmful, as well as misguided. School administrators, coaches, athletes, and sports associations have spoken out against restrictions on sports participation that violate students’ privacy as well as their civil rights. Educators have explained why restrictions on curriculum are dangerous, and why using the correct name and pronouns for their students is essential (as well as easy). Doctors and mental health experts have spoken out against the unscientific, fear-mongering claims behind the bans on age-appropriate gender-affirming care,
and the dire consequences that such bans will have on transgender youth cut off from the care they need. Transgender students don’t want or need to have a culture war built on their backs for the political expediency of adults; they simply want to be kids.
Similarly, it is a perversion of true religious liberty to carve all-new religious exemptions into laws that allow people of certain religious beliefs to refuse to serve people with whom they disagree. Whether the harm of the refusal is by a florist and the hurt is to a patron’s dignity, or if the harm is by a paramedic and the hurt is to the injured’s ability to survive, discrimination cannot be allowed to root itself in the public square. The First Amendment is a shield for religious liberty, not a sword - and faith leaders of many denominations continue to decry efforts to invoke religious freedom when the effect of these laws is actually to allow discrimination.
2022 will be a year of hard fights to defend progress and fend off efforts to write anti-LGBTQ+ discrimination into law. Unfortunately, the well-being of transgender youth will once more be at stake in too many states. There are very real costs to these anti-LGBTQ+ bills being filed, even when they don’t pass: LGBTQ+ youth see all too well how little legislators seem to understand or care about who they truly are.
Transgender students don’t want or need to have a culture war built on their backs for the political expediency of adults; they simply want to be kids.
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 make it challenging for LGBTQ+ individuals or same-sex couples to serve as adoptive or foster parents, and many tax-payer funded 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 statewide law or ruling, it is likely that LGBTQ+ individuals and same-sex couples experiences differ based upon individual judges.
a. Positive Laws & Policies
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.
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 such as 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.
b. 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 by creating a “conscious” exception for foster or adoption placement agencies, allowing them to discriminate on the basis of their religion against LGBTQ+ families.
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.
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 and/ or state actions 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. [X] 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.
a. Positive Laws & Policies
This item indicates state laws that prohibit discrimination in private employment on the basis of sexual orientation or gender identity.
This item indicates state laws that prohibit discrimination in rental or purchase of housing on the basis of sexual orientation or gender identity.
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.
This item indicates state laws that prohibit discrimination against students in public education on the basis of sexual orientation or gender identity.
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.
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.
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.
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.
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.
b. 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.
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, such as those that criminalize people living with HIV, as well as unconstitutional statutes such as anti-sodomy laws that perpetuate stigma against LGBTQ+ people by their continued existence.
a. 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.
B. Negative Laws and Policies
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.
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.
a. Positive Laws & Policies
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, but 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 health service 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 EDUCATON LAWS
This item indicates state laws 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.
b. Negative Laws & Policies
TRANSGENDER EXCLUSION 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.
Everyone should be able to access appropriate healthcare 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.
This category evaluates a range of measures relating to the health and safety of LGBTQ+ people, including access to healthcare, the ability to obtain appropriate identity documents, and the collection of health survey data of LGBTQ+ 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.
With the rapidly evolving nature of healthcare and consistent push for reforms from elected officials, it is likely that measures relating to non-discrimination in healthcare and prohibitions on transgender healthcare exclusion will continue to grow.
a. 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 healthcare 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 states that offer at least one health insurance plan for public employees that expressly covers transgender healthcare needs, including gender-affirming surgical procedures, hormone therapy, laboratory services, mental health care, and all related medical visits. 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.
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.
b. 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 EXCLUSIONS IN STATE MEDICAID COVERAGE
This item indicates state laws or administrative policies that explicitly prohibit Medicaid coverage for transition-related care for transgender people.
The collaborative efforts of state and local advocates accelerated LGBTQ+ inclusive state laws and policies this year. At the same time, our partners simultaneously defended against the harms of anti-equality forces. Take a closer look at what happened during this legislative session in these State Spotlights.
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.
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.
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.
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.
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 stop 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.
The singling-out of sexual orientation and gender identity in the classroom disproportionately disadvantages LGBTQ+ youth, who may already feel ostracized at home or in their communities. Additionally, LGBTQ+ youth of color experience additional stress and adverse effects to their health and wellbeing because of bias around their intersecting identities.
The data is undeniable. Research continues to demonstrate that when transgender youth have access to gender-affirming services, competent care and affirmation, their risk of depression, anxiety and other negative mental health outcomes is greatly reduced.
TOTAL STATES WITH NON-DISCRIMINATION STATUTORY PROTECTIONS*
*Does not include the District of Columbia
State Advocacy 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:
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.
Twenty-two 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; Iowa; Maine; Maryland; Massachusetts; Minnesota; Nevada; New Hampshire; New Jersey; New Mexico; New York; Oregon; Rhode Island; Vermont; Virginia; and Washington.
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.
Three states are in the category “Solidifying Equality:" Alaska; Pennsylvania; and Utah
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:" Florida; Kansas; North Dakota; and Wisconsin.
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-Two states are in the lowest-rated category “High Priority to Achieve Basic Equality:" Alabama; Arizona; Arkansas; Georgia; Idaho; Indiana; Kentucky; Louisiana; Michigan; Mississippi; Missouri; Montana; Nebraska; North Carolina; Ohio; Oklahoma; South Carolina; South Dakota; Tennessee; Texas; West Virginia; and Wyoming.
Scorecard Changes For the 2022 State Equality Index
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. In 2022, the SEI will rate states that allow gender marker updates for identification documents that include a non-binary, ‘X’, or similar option.
The rise in religious refusal bills and bills that target transgender student athletes 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:
Laws that restrict access to supportive student groups in public schools
Laws that allow government officials or businesses to refuse to recognize legal marriages
SARAH WARBELOW is the Legal Director for the Human Rights Campaign, where she leads HRC’s team of litigators, policy attorneys and law fellows, and oversees the Municipal Equality and State Equality Indices.
CATHRYN OAKLEY is HRC’s State Legislative Director and Senior Counsel and the founding author of the Municipal Equality Index. She supervises the Municipal Equality Index and State Equality Index and state and local policy work.
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.
COLIN KUTNEY is HRC’s Associate Director of State and Municipal Programs, where he manages both the Municipal Equality Index and the State Equality Index each year. Colin works with the attorneys and law fellows to create the content for this report, and ensures the digital and communications teams can promote the State Equality Index to the masses.
The SEI would not be complete without the time, talent, and commitment of many folks. We appreciate all those that contributed to this year’s report.
A significant portion of the research for the SEI was conducted by HRC’s 2021 McCleary law fellows. We thank them for their research and willingness to lend a hand when needed.
Bob Villaflor, Tarine Wright and Carly Fox ensured that this report, plus all state scorecards, are available on the web at hrc.org/sei. Aryn Fields, from our press team delivered the story of state equality to the masses. The SEI’s design was imagined by the brilliant team at General Design Company.
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 firstname.lastname@example.org or visit www.hrc.org/sei.
The State Equality Index would not have been possible without the valuable contributions made by the Equality Federation Institute and their state group members.
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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