By James Esseks, Director, ACLU LGBT & HIV Project

This piece was originally published on Advocate.com.

Joe Biden’s election isn’t the end of our struggle for LGBTQ justice, it’s a new beginning. As hopeful as we are that the Biden/Harris administration will live up to its campaign promises to LGBTQ people, nothing is going to happen by itself. Our community needs to push hard not only to remedy the many harms that the Trump administration inflicted on us, but also to build a more expansive demand for justice from the federal government. We need to fight back against the extreme attacks we face in many states, and do damage control in the newly super conservative courts stacked with anti-LGBTQ judges. This is no time to let up.

The federal level: Un-doing the damage from Trump and creating stronger protections.

The Trump administration spent the last four years attacking LGBQ and especially transgender and non-binary people. The first thing we have to do is reverse these harmful policies. They range from the transgender military ban to a proposed rule that would allow homeless shelters to turn away trans people to the rescission of guidance for school districts about their obligations to prevent discrimination against LGBTQ youth.

We must all urge the new administration to swiftly root out each of these policies — and many more — from the federal rulebook. And then we need to go further and not just reverse Trump’s many regressive policies, but use the full power of the federal government to create more protections for LGBTQ people in all realms of society, from employment to housing to schools to prisons, jails, and immigration detention facilities.

These new protections should include the Equality Act, which will add express protections for LGBTQ people to the Civil Rights Act and also fill several important gaps in that law for all women and people of color. The federal government should also take steps to ensure that transgender and non-binary people have access to accurate identification documents, a move that would reduce the violence and harassment that many trans folks face.

Fighting attacks in the states.

Over the past several years we have seen anti-LGBTQ bills proposed repeatedly in state legislatures. With the defeat of Trump, many of the anti-LGBTQ advocates who have been able to advance their agenda through high positions in his administration will head back to the states, where they will bolster the dangerous efforts to attack LGBTQ people. We need to fight back.

The coming 2021 state legislative sessions are likely to include many anti-trans bills, such as proposals to criminalize doctors who provide gender affirming health care to transgender youth, or bills that would bar transgender people from participating in sports. We also anticipate a new wave of bills seeking to create religious exemptions that would license discrimination against LGBTQ people in a range of contexts from health care to schools.

We have to stop these attacks from taking hold at the state level. The ACLU will be educating members of state legislatures and the news media about why these proposals are discriminatory and harmful. And our offices in every state, D.C., and Puerto Rico will mobilize people to turn out at statehouses across the country and lobby their representatives to oppose these bills. This winter and spring will be an all-hands-on-deck moment for our community.

Doing damage control in the courts.

The Trump administration and the Republican-led Senate packed the federal courts — from the Supreme Court down through the lower federal courts — with extremely conservative judges, many of whom had clearly articulated anti-LGBTQ views. So we can’t count on the courts to protect LGBTQ rights in the way that they have sometimes done in the past.
 
The danger is not just that the courts will fail to recognize the rights of LGBTQ people under existing law. It’s that they may well rule that the U.S. Constitution grants anyone with a claimed religious objection to LGBTQ people, or even just an objection to being near a trans person, a right to discriminate. In fact, the U.S. Supreme Court recently heard arguments in a case that could give a religiously affiliated, taxpayer-funded foster care agency a constitutional right to discriminate against LGBTQ people when performing a government service. That’s terrifying. 

To fight this, the ACLU will prioritize getting involved in the cases seeking a constitutional right to discriminate and do our best to do damage control wherever possible.

There are still fair-minded judges on the federal bench who will follow the law. For example, back in June, the Supreme Court ruled in Bostock v. Clayton County that federal law bars anti-LGBTQ discrimination in the workplace, recognizing that anti-LGBTQ discrimination is a form of sex discrimination. In the few months that followed, five federal courts ruled in favor of transgender plaintiffs raising claims of sex discrimination in health care, schools, and sports. That gives me hope for the role the courts can still play in our movement.

Those courts could rule for the transgender plaintiffs in significant part because of how much the country has learned over the past few years about the reality of transgender people’s lives. That education happened because transgender people shared their stories with the courts and thousands of voices — from parents and friends to doctors, business owners and teachers — shared that protecting people from discrimination is a basic American value, and one that doesn’t harm anyone else.

We can still make progress if we work together. If we as a community stay engaged and fight for each other and for other communities who are facing attacks, we can fix the damage at the federal level and create even better protections for LGBTQ people going forward. We can stop the anti-LGBTQ bills that will be proposed in the states. And we can work in the courts both to do damage control and to seek progress where-ever we can.

But to realize all of this promise requires us to reinvigorate our activism, rather than to rest on our laurels or to assume that someone else will take care of the work. It’s up to us. Together, we can do it.

By Ian S. Thompson, ACLU Washington Legislative Office

On election night, voters in Boulder, Colorado delivered a critical win in the fight for housing justice. By a margin of 59-41 percent, voters passed No Eviction Without Representation (NEWR) — a critical measure that will ensure all Boulder tenants who are facing the terrifying, complex process that is an eviction proceeding will be provided with free legal representation. NEWR also establishes a rental assistance fund and an education process that will notify Boulder renters of their housing rights.

Protections like those afforded by NEWR are always important, but they are particularly crucial in the midst of a devastating global pandemic. The economic consequences of the pandemic have cost millions of people across the country their jobs and the ability to pay the rent — leaving millions of renters with the added threat of eviction and losing their homes.

The odds are stacked heavily against tenants who are taken to  eviction court. Less than 2 percent of renters in Boulder who are summoned to court are able to find or afford legal representation. This is not surprising considering many are facing eviction because of unforeseen circumstances or financial stress that prevents them from being able to afford their rent. Meanwhile, the vast majority of landlords are armed with legal representation and the protection of professional organizations that lobby on their behalf. Many renters don’t even get to the courthouse because of the severe financial burdens they already bear.

With the passage of NEWR, Boulder becomes the seventh city in the country with a right to counsel program. Other cities that have adopted right to counsel measures in eviction proceedings — including New York City and San Francisco — have seen reductions in evictions. In securing a universal right to counsel in eviction proceedings, NEWR will ensure that renters have the tools and knowledge they need to safeguard their housing rights and help balance power between landlords and tenants.

Where does the fight for housing justice in the form of right to counsel head now?

On Tuesday, the Baltimore City Council will hold a hearing on a right to counsel bill. Passage of this legislation is critically important. Baltimore currently has one of the highest eviction rates in the United States. Approximately 70,000 eviction orders are issued in Baltimore every year, resulting in thousands of evictions. Unsurprisingly, 96 percent of landlords are represented by a lawyer in eviction cases in the city while the same is true for just 1 percent of renters. A recent report found that a right to counsel program like NEWR in Baltimore could cut evictions by 92 percent. Furthermore, the report estimates that every dollar Baltimore spends on providing free legal representation in eviction cases would result in more than $3 in savings on social safety net resources.

Ending mass evictions is a key racial and gender justice priority. Due to decades of inequalities in our housing system, communities of color and low-income women feel the impacts of eviction the most — Black women in particular. The numbers say it all: Black women are more than twice as likely to have evictions filed against them as white people. Less than half of Black and Latinx families own their homes compared to 73 percent of white families. Longstanding systemic income and wealth inequality also put communities of color at higher risk of eviction. 

The harms of eviction also run deep — having an eviction on your record can make it difficult to secure future housing since some landlords will not consider a prospective renter with a past eviction. Eviction marginalizes and stigmatizes already vulnerable groups with limited financial means.

With the federal eviction moratorium set to lift before the end of the year and no federal emergency rent relief in sight, it is paramount for Congress, states, and cities to act. As the voters of Boulder showed us on Election Day, right to counsel programs are one important step that can be taken to keep people in their homes. We need action to stop mass evictions during the pandemic and beyond. All people — regardless of their circumstances or background — should have access to safe and stable housing.

By Anthony D. Romero, National ACLU Executive Director

Today we turn a page from one of the darkest moments in civil liberties and civil rights. Over the last four years, we weathered an all-out attack on immigrants; withstood racist dog whistles as loud as bull-horns; and witnessed presidential back-slapping of white supremacists. For his anti-civil rights and civil liberties agenda, Donald Trump was democratically and ceremoniously removed from the Oval Office by his employer: the American people. 

Our nation’s electoral systems have withstood record turnout, an avalanche of mail-in ballots in a pandemic, and the attacks of a president who would rather tear down democratic norms and institutions than admit he is a loser in a national election. It may have been slow — at times excruciating — but our democracy worked as it should have: Every vote will be counted. And the people will choose their leader — rather than leaders choosing the voters.

Throughout our history as a nation, some presidents have tested this country’s dedication to democratic values more than others. Against Trump’s administration, we’ve filed over 400 legal actions and brought thousands of people to airports, courthouses, and mass mobilizations. Together, we won victories to stop LGBTQ employment discrimination, protected and expanded voting rights, blocked state-level abortion bans, and battled Trump’s Muslim ban in court three times.

With his policies and rhetoric, this president tried to make us a nation of us versus them. He pitted citizens against immigrants. He encouraged white supremacists while Black people are being murdered by police. And he waged war against our free press. Yet in spite of that, our staff and supporters poured their hearts and souls into fighting to ensure that the promise of America withstands Trump’s assaults on our values — as we have repeatedly done throughout our history. 

After 100 years, we know that the ACLU will fight to advance freedoms where we can and defend them where we must regardless of whomever resides in the White House. As we did with President Trump, we are determined to hold President-elect Biden and Vice President-elect Harris accountable to the promise of our Constitution. And thanks to our supporters and members, we now have the strongest ACLU our nation has ever known. 

And while Trump’s relentless attacks on our civil liberties will soon be over, there is work to do to create a more perfect union. And we at ACLU are here to do it. Right now, we are looking for the families of 545 children who were separated at the border. We are representing LGBTQ rights and defending the census at the Supreme Court. There are more battles just around the corner to preserve the rights many have fought and won. 

We will forge a pathway to citizenship for the 11 million undocumented and stateless people living in the United States — without caveats or compromise. 

We will join the chorus calling for this nation’s long overdue racial reckoning. 

“We the people” won’t rest until we live in an America where equality and justice are a lived reality for all of us.

Now is not the moment to sit back. We are still fighting and we are more resolute than ever to ensure that in our United States of America, the Constitution’s promise to “we the people” means all of us. We will continue that fight, no matter who occupies the White House, and we will prevail.