In a previous piece,[1] I discussed anti-LGBTQ+ discrimination and associated barriers to accessing public benefits in the United States. Addressing the compounding inequities faced by LGBTQ+ individuals will require a multi-faceted approach on two levels: addressing explicit and implicit barriers to accessing public benefits and addressing the root causes of disproportionate poverty in the LGBTQ+ community. The approach on both levels must be multi-faceted because a long-term solution cannot focus only on federal or state policy and cannot rely only on legislative policy as a tool. A one-dimensional solution risks losing momentum with the election of hostile politicians or the continuation of partisan gridlock in decision-making bodies. Rather, the approach must be holistic and include support for grassroots and community organizations that can withstand and outlast changes in political will and power. Additionally, every piece of this effort should include collecting more, and better, data about the experiences of LGBTQ+ people.

 

Legislation and Policy

Advocates should push Congress to pass broad anti-discrimination legislation and to repeal or amend existing federal legislation that reinforces the cycle of poverty in the LGBTQ+ community. The most prominent anti-discrimination legislation being discussed today is the Equality Act, which was passed by the House of Representatives in 2021.[2] If it became law, the Equality Act would prohibit discrimination against LGBTQ+ individuals in employment, housing, federally funded programs, and many other settings.[3] President Biden supports the passage of the Equality Act[4] and the Biden administration has already made certain related improvements, such as promulgating regulations under the Fair Housing Act that prohibit discrimination on the basis of sexual orientation or gender identity[5] and interpreting Section 1557 of the Affordable Care Act to prohibit discrimination on the basis of sexual orientation or gender identity.[6] However, concerns about the continuing partisan gridlock in Congress mean that the passage of the Equality Act is not guaranteed in the immediate future.[7]

One benefit of achieving policy changes on the federal level is uniformity, but there are many legal and logistical reasons to focus on state-level advocacy, examples of which are abundant in the changes between recent presidential administrations. The Trump administration stalled or rolled back protections for LGBTQ+ people through many of its actions and policies,[8] such as promulgating a final rule interpreting Section 1557 of the Affordable Care Act as not prohibiting discrimination against LGBTQ+ people.[9] Though some improvements have been made during the Biden administration, there are still barriers to true systemic change at the federal level and another administration could undo many of these changes.

In addition to avoiding some, though certainly not all, of the problems of a federal government plagued with partisan gridlock and susceptible to detrimental shifts in political power, working on state-level policy also opens additional policy areas over which states have primary authority.[10] Advocates working at the state level should push for state-level removal of work requirements and drug testing from public benefit programs, cultural competence training for program administrators, changes to laws governing name and gender changes on identification documents, and passage of state-level anti-discrimination laws and policies.[11] Successful state-level efforts can provide models on which to base future advocacy,[12] as can efforts to coordinate between state-level initiatives.[13]

 

Local Grassroots and Community Organizing

In addition to leveraging advocacy strategies to influence and improve legislation and policy, advocates should keep in mind that solely relying on the highly polarized political system is unlikely to provide an avenue for consistent long-term solutions. In some states dominated by conservative political powers, state-level legislation and advocacy may not be effective means of initiating systemic change. Therefore, it is important for advocates working at the federal or state level to also cultivate relationships with, and support for, grassroots and community organizations seeking to improve access to benefits or fill access gaps in the LGBTQ+ community.[14]

Grassroots, community-led LGBTQ+ organizations can take many forms and focus on many issue areas and tend to take a very holistic view of their work. Such organizations exist around the country,[15] and have existed throughout history,[16] working to address the root causes of LGBTQ+ poverty and assist individuals who are unable to overcome barriers to accessing government public benefits. Grassroots efforts also exist around advocating for local anti-discrimination ordinances.[17] Especially in states where state-level improvements may be impracticable, local ordinances may help to protect at least some LGBTQ+ residents in the state.[18] Additionally, grassroots organizing can help gain public support and build political pressure on decision-makers.[19]

Legal advocates should support grassroots and community organizations by taking an expansive view of their obligation to eliminate root causes of poverty in the LGBTQ+ community, even beyond public benefit programs. This may look like bringing impact litigation to remove barriers to harm reduction initiatives,[20] advocating for decarceration and decriminalization of sex work or drug use,[21] or fighting for reproductive health and freedom.[22]

 

Collecting More, and Better, Data Across All Efforts

Lack of adequate data has been an underlying theme in this paper and is a persistent issue in LGBTQ+ advocacy. Without consistent sexual orientation and gender identity data collection in Medicaid applications, accurate data on the proportion of LGBTQ+ Medicaid beneficiaries is difficult to compile.[23] Federal data tracking LGBTQ+ participation in SNAP or TANF programs is also very limited,[24] though the U.S. Census Bureau did capture data about food and economic insecurity in LGBT adults in the 2021 Household Pulse Survey.[25]

All advocacy efforts, at the federal, state, and community level, should involve data collection to capture the prevalence of poverty and barriers to public benefits access in the LGBTQ+ community and to document the successes and pitfalls of different strategies. While LGBTQ+ individuals and allies understand anti-LGBTQ+ bias and discrimination are prevalent and embedded in many government and social systems, activists and advocates need data to convey the scale of the issue and demonstrate the efficacy of proposed solutions to decisionmakers.[26] While it is possible to compile data across surveys to identify likely correlations, making available the funding and resources to collect data directly on point for a given argument is a better option and an important investment.[27]

In addition to being helpful in promoting affirmative legislative and policy efforts, data is crucial to countering legislative and policy efforts that would harm LGBTQ+ individuals. Prior to the addition of questions capturing respondents’ sexual orientation and gender identity to the U.S. Census in 2021,[28] only one in six LGBT adults could be identified from U.S. Census Bureau data.[29] Failing to accurately capture data identifying LGBTQ+ people is a form of erasure that allows decision-makers to willfully or ignorantly support anti-LGBTQ+ legislation without acknowledging that many of their constituents are LGBTQ+ individuals. Coming into conversations armed with data that can map to election prospects may help advocates make their case to lawmakers.

Members of the LGBTQ+ community face compounding inequities, as systemic discrimination has led to a high prevalence of poverty in the LGBTQ+ community and created heightened barriers to accessing public benefits through explicitly anti-LGBTQ+ means and through program requirements that disproportionately burden the LGBTQ+ community. To effectively address these problems, advocates must work to remove barriers to accessing public benefits and alleviate poverty in the LGBTQ+ community through pushing for improvements to federal and state policy, supporting LGBTQ+ grassroots and community organizations, and collecting more, and better, data about the experiences and needs of LGBTQ+ individuals.

 

 

[1] See Shannon Henris, Anti-LGBTQ+ Discrimination and Barriers to Accessing Public Benefits, https://www.law.georgetown.edu/poverty-journal/blog/anti-lgbtq-discrimination-and-barriers-to-accessing-public-benefits/ (Feb. 6, 2023).

[2] See H.R.5 – Equality Act, Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/5/committees (last visited May 13, 2022).

[3] Equality Act, H.R. 5, 117th Cong. (2021); see also Thee Santos et al., What You Need to Know About the Equality Act, Ctr. for Am. Progress (Mar. 15, 2021), https://www.americanprogress.org/article/need-know-equality-act/.

[4] Matt Gonzales, President Biden Calls for Passage of Equality Act to Advance LGBTQ Rights, SHRM, Mar. 2, 2022, https://www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/pages/president-biden-calls-for-passage-of-equality-act-.aspx.

[5] LGBTQ+ Discrimination and HUD Equal Access and Gender Identity Rules, Housing Equality Ctr. of Pa., https://www.equalhousing.org/fair-housing-topics/lgbt-discrimination-and-hud-equal-access-rule/ (last visited Apr. 28, 2022).

[6] Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act, 86 Fed. Reg. 27,984 (May 25, 2021) (to be codified at 45 C.F.R. 92).

[7] See The Associated Press, Prospects dim for passage of LGBTQ rights bill in Senate, NBC News, May 10, 2021, https://www.nbcnews.com/nbc-out/out-news/prospects-dim-passage-lgbtq-rights-bill-senate-rcna879.

[8] Kimberly Lewis, Anti-discrimination Protections for Health Care of LGBTQ People Under Attack, Nat’l Health L. Program (Sep. 28, 2017), https://healthlaw.org/anti-discrimination-protections-for-health-care-of-lgbtq-people-under-attack/.

[9] Nondiscrimination in Health and Health Education Programs or Activities, 85 Fed. Reg. 37,160 (June 19, 2020); see also MaryBeth Musumeci et al., The Trump Administration’s Final Rule on Section 1557 Non-Discrimination Regulations Under the ACA and Current Status, KFF (Sep. 18, 2020), https://www.kff.org/racial-equity-and-health-policy/issue-brief/the-trump-administrations-final-rule-on-section-1557-non-discrimination-regulations-under-the-aca-and-current-status/.

[10] See, e.g., The 1996 Personal Responsibility and Work Opportunity Reconciliation Act in the US, Ctr. for Pub. Impact (Oct. 30, 2017), https://www.centreforpublicimpact.org/case-study/personal-responsibility-and-work-opportunity-reconciliation-act-the-clinton-welfare-reform.  

[11] See, e.g., Nondiscrimination Laws, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/non_discrimination_laws (May 12, 2022).

[12] See, e.g., Abigail Coursolle, Calif., Leader in Protecting LGBTQ Health Care Rights, But Trump Administration Continues to Threaten Those Rights, Nat’l Health L. Program (June 28, 2019), https://healthlaw.org/calif-leader-in-protecting-lgbtq-health-care-rights-but-trump-administration-continues-to-threaten-those-rights/; Sharon Lurye, States With the Most Protections for LGBTQ Youth, U.S. News, Mar. 14, 2022, https://www.usnews.com/news/best-states/articles/2022-03-14/states-with-the-most-protections-for-lgbtq-youth.

[13] See Adam McClain-Snipes, Improving Coordination in State and Federal LGBTQ Advocacy, Equal. Fed’n, https://www.billtrack50.com/case-studies/the-equality-federation (last visited May 15, 2022).

[14] See generally Resources for Grassroots and State-Level Advocacy on LGBTQ+ Issues, Am. Psych. Assoc., https://www.apa.org/pi/lgbt/resources/policy/issues?_ga=2.206999059.1248106549.1652640306-1734725319.1652640306 (last visited May 15, 2022).

[15] See Organizations Working to Improve the Lives of LGBT Americans, Movement Advancement Project, https://www.lgbtmap.org/resource-page (last visited May 14, 2022); Programs, The Audre Lorde Project, https://alp.org/programs (last visited May 14, 2022).

[16] Bonnie J. Morris, History of Lesbian, Gay, Bisexual and Transgender Social Movements, https://www.apa.org/pi/lgbt/resources/history (last visited May 14, 2022).

[17] Local Nondiscrimination Ordinances, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/non_discrimination_ordinances/ (May 12, 2022).

[18] Id.

[19] See, e.g., Brief of Appellees, United States v. Safehouse (3d Cir. 2020) (No. 20-1422), https://www.safehousephilly.org/sites/default/files/attachments/2020-07/6-29-20_Third%20Circuit%20Brief%20%28Final%2C%20as-filed%206-29-2020%29.pdf.

[20] See Is Sex Work Decriminalization the Answer? What Research Tells Us, Am. Civ. Liberties Union, https://www.aclu.org/sites/default/files/field_document/aclu_sex_work_decrim_research_brief_new.pdf (last visited May 14, 2022); LGBTQIA+ People and the Drug War, Drug Pol’y All., https://drugpolicy.org/issues/lgbtqia-drug-war (last visited May 14, 2022); Jane Hereth & Alida Bouris, Queering Smart Decarceration: Centering the Experiences of LGBTQ+ Young People to Imagine a World Without Prisons, SAGE Journals (Dec. 11, 2019), https://journals.sagepub.com/doi/abs/10.1177/0886109919871268.

[21] See Queering Reproductive Justice: A Mini Toolkit, Nat’l LGBTQ Task Force (June 2019), https://www.thetaskforce.org/wp-content/uploads/2019/06/Queering-Reproductive-Justice-Mini-Toolkit.pdf.

[22] Candace Gibson & Priscilla Huang, Medicaid as an LGBTQ Reproductive Justice Issue: A Primer, Nat’l Health L. Program (June 21, 2019), https://healthlaw.org/resource/medicaid-as-an-lgbtq-reproductive-justice-issue-a-primer/.

[23] See Kellan Baker et al., The Medicaid Program and LGBT Communities: Overview and Policy Recommendations, Ctr. for Am. Progress, Aug. 9, 2016, https://www.americanprogress.org/article/the-medicaid-program-and-lgbt-communities-overview-and-policy-recommendations/; see also Kimberly Proctor et al., Identifying the Transgender Population in the Medicare Program, 1 Transgender Health 250 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5367475/.

[24] Taylor N.T. Brown et al, Food Insecurity and SNAP Participation in the LGBT Community, UCLA Sch. of L. Williams Inst. 2 (July 2016), https://williamsinstitute.law.ucla.edu/publications/lgbt-food-insecurity-snap/.

[25] Thom File & Joey Marshall, Household Pulse Survey Shows LGBT Adults More Likely to Report Living in Households With Food and Economic Insecurity Than Non-LGBT Respondents, U.S. Census Bureau, Aug. 11, 2021, https://www.census.gov/library/stories/2021/08/lgbt-community-harder-hit-by-economic-impact-of-pandemic.html.

[26] See, e.g., Kellan Baker et al., How to Collect Data About LGBT Communities, Ctr. for Am. Progress (Mar. 15, 2016), https://cf.americanprogress.org/wp-content/uploads/2016/03/SOGIDataCollectionFactSheet.pdf?_ga=2.55728043.1211801597.1639757971-602467777.1639757971.

[27] Caroline Medina & Shoshana Goldberg, Guest Presentation at Georgetown University Law Center (Feb. 25, 2022).

[28] Id. at 27; see also Lydia Anderson et al., New Household Pulse Survey Data Reveals Differences between LGBT and Non-LGBT Respondents During COVID-19 Pandemic, U.S. Census Bureau (Nov. 4, 2021), https://www.census.gov/library/stories/2021/11/census-bureau-survey-explores-sexual-orientation-and-gender-identity.html.

[29] Medina & Goldberg, supra note 27, at 27.