June 23, 2022
The Past Work of State AGs in Advancing LGBTQ+ Equality and a New Vision for Their Efforts
Assistant Attorney General, Civil Rights Division, Massachusetts Attorney General’s Office.
Chief Program Officer at Public Rights Project; Former Chief of the Public Protection & Advocacy Bureau, Massachusetts Attorney General's Office
This is the fourth piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs.
Seven years ago this month, the U.S. Supreme Court made marriage equality the law of the land in Obergefell v. Hodges, concluding that the Constitution protects the right of same-sex couples to wed. Like so many issues—past, present, and future—of LGBTQ+ equality, state attorneys general (AGs) were central players in the marriage equality fight.
In Obergefell, 20 state AGs fought in support of marriage equality. It was a landmark moment, given how quickly the landscape had shifted in the prior decade. But there were 18 states on the other side, arguing in support of discriminatory marriage laws, including Ohio which was defending its exclusion as a party directly before the Court. These divisions among state AGs have continued to play out on issues ranging from the intersection of religious freedom and anti-discrimination laws to the scope of federal civil rights protections in schools and the workplace.
From these efforts three themes of advocacy clearly emerge. First, state AGs have a crucial role to play in lending their voices and legal might to the fight for greater equality, acceptance, and inclusion. That is a role worthy of some celebration. Second, many state AGs continue to do serious harm with policies, legal arguments, and directives that degrade and undercut rights. As we applaud the crucial role that state AGs have played in the fight for equality, it is just as important to name the ways in which state AGs have worked to undermine LGBTQ+ rights. Third, the future of rights protection requires a new visioning for these chief law enforcement officers, which must include active and repeated interventions and increasingly innovative and bold uses of the power of these offices.
It is an effort we see beginning to formulate in response to the leaked draft decision in Dobbs v. Jackson Women’s Health Organization in the area of reproductive justice, and it will be absolutely necessary to maintain hard-fought victories in the LGBTQ+ equality front.
1. State AGs Have Demonstrated Great Leadership in Advancing LGBTQ+ Equality
In May 2008, the California Supreme Court ruled that the state’s constitution guaranteed the right of same-sex couples to marry. Thousands of couples in California—many of whom had waited decades—got married over the next six months. Then, California voters passed Proposition 8, which effectively reversed the decision of the state courts. Ted Olsen and David Boies, who had famously been opponents in Bush v. Gore, worked together to launch a federal lawsuit aimed at extending Loving v. Virginia to same-sex couples. In the early months of that case, then-state attorney general Jerry Brown made a crucial decision to decline to defend Prop 8, having concluded that it was unconstitutional. That pivotal decision meant that Prop 8 did not have the imprimatur of legitimacy because it had no backing by the government. Ultimately, the U.S. Supreme Court allowed a lower court decision to remain in place when it concluded that the proponents of the law did not have standing to appeal the case in Hollingsworth v. Perry. While the Prop 8 decision did not guarantee marriage equality in other states, it—when combined with United States v. Windsor—laid the groundwork for a cascade of new cases over the next 24 months which resulted in Obergefell. In fact, Jerry Brown’s decision to decline to defend Prop 8 set important precedent, as several state AGs followed suit in subsequent years and refused to defend discriminatory marriage laws.
But state AGs are not only on the defendant side of the “v”. In 2009, for example, then- Massachusetts Attorney General Martha Coakley partnered with GLBTQ Legal Advocates and Defenders (GLAD), and brought a case led by now-attorney general Maura Healey against the U.S. government challenging the federal Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman for the purposes of all federal statutes and regulations. Massachusetts’ suit, which was consolidated with Gill v. OPM (a case brought by private plaintiffs represented by GLAD), became the first-ever successful challenge to DOMA – and the first federal statute struck down on rational basis equal protection analysis since the 1970s.
These two cases were the beginning of a wide array of advocacy by state AGs to advance LGBTQ+ equality, especially over the past decade. Since that time, state AGs have pushed for transgender anti-discrimination protections under state and federal law, and they have challenged federal policies seeking to curtail these rights. They have fought against gay conversion therapy, pushed to ensure that the ACA includes extensive protections for LGBTQ+ people, and have advocated that schools be more welcoming and inclusive places, especially for people who have been traditionally bullied and harassed by other students and faculty. It is an expansive and growing track record of championing equality.
2. State AGs Have Done Significant Harm to LGBTQ+ People
As much as state AGs have been critically important vectors for change in the fight for LGBTQ+ equality, these efforts have been offset by AGs in conservative states who have sought, often in increasingly aggressive ways, to undermine LGBTQ+ rights.
The most recent and draconian example of the potential of state AGs to inflict serious harm on LGBTQ+ communities is Texas AG Ken Paxton’s issuance of a formal legal opinion that equated the provision of gender affirming care to minors with child abuse. AG Paxton did so after the Texas legislature declined to enact a ban on gender affirming care and despite overwhelming evidence that gender affirming care is safe and medically necessary for the health and well-being of transgender youth. The Texas Governor then used AG Paxton’s opinion as the basis for a directive requiring the state’s Child Protective Services agency to open child abuse investigations into all reports of families with children who are receiving gender affirming care. Unsurprisingly, the Governor’s directive was quickly challenged and enjoined by Texas state courts, but AG Paxton has continued to vehemently defend the directive and his opinion on appeal. Not only has AG Paxton’s actions—the issuance of the legal opinion, his fear-mongering public statements about gender affirming care and minors in connection, and the legal arguments that his office has advanced to defend his opinion and the directive—singled out transgender children and their families for devastating discrimination and harassment, but they have communicated to these families and their communities that transgender people should not exist and are unwelcome in Texas.
AG Paxton’s opinion is not an outlier in its purpose or effect. For decades, conservative AGs have defended state laws that barred LGBTQ+ people from marriage or adoption, criminalized sodomy, and sanctioned discrimination in public accommodations, housing, and employment. Conservative AGs across the country are currently defending state laws that bar transgender people from accessing healthcare and restrooms and that prohibit transgender kids from participating in school athletics. They do so despite the Supreme Court’s clear admonition that “if the constitutional conception of ‘equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Department of Agriculture v. Moreno. State AGs have likewise led and joined multi-state litigations and amicus briefs that have argued in favor of denying LGBTQ+ people full equality and restricting protections at the federal level, including in Bostock v. Clayton County, Georgia, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Obergefell, Windsor, and Lawrence v. Texas. Indeed, conservative AGs have consistently used all of the tools at their disposal, including their pulpits, to make the case that targeting LGBTQ+ people for discrimination and harassment is necessary and appropriate.
Unfortunately, in many states, these efforts have helped shift public policy and discourse, particularly with respect to transgender people—as of this writing, 18 states have enacted laws that ban transgender kids from school athletics, at least 15 states have restricted access to gender affirming care or are considering laws that would do so, 6 states have censored discussion of LGBTQ+ people and issues in schools, and anti-LGBTQ+ sentiment continues to rise.
3. The Moment Calls for Aggressive Interventions to Protect LGBTQ+ People
As conservative states become increasingly bold in their attempts to rollback LGBTQ+ rights, and as the Supreme Court continues its rightward shift, it is imperative that state AGs continue to use their offices to protect LGBTQ+ rights, including in more aggressive and creative ways. While Justice Alito’s draft decision in Dobbs suggests that other precedents relying on the constitutional right to privacy, including Obergefell and Lawrence, are different from abortion and therefore not impacted by the decision, the fact remains that the draft opinion chips away at the doctrinal support for constitutionally protected privacy rights and sets the stage for future restrictions on LGBTQ+ rights as well. The threat to LGBTQ+ rights posed by the current Supreme Court is compounded by its sympathy to religious liberty claims, which are increasingly used to narrow LGBTQ+ rights. And the recent state legislative landscape makes abundantly clear that abortion restrictions are often adopted alongside anti-LGBTQ+ measures, suggesting that it may only be a matter of time until the Supreme Court takes up those measures too and further erodes these rights.
Against this backdrop, the roles that state AGs have historically played to advance LGBTQ+ equality—supporting lawsuits, advocating for new bills and policy positions, and investigating and suing private actors who engage in discrimination—will remain essential. But the preservation of rights in this increasingly hostile national landscape may require even more persistent and repeated interventions, and innovative, bold uses of the power of state AG offices. For example, building on the success of many state AGs in protecting LGBTQ+ people, AGs may consider further expanding that work by adopting a “whole-of-office” approach to civil rights enforcement, including with respect to LGBTQ+ rights. This model could include prioritizing civil rights and consumer protection investigations of violations of state anti-discrimination laws and strategic enforcement actions to advance rights, requiring criminal prosecutors to prioritize prosecutions of hate crimes and hate groups who target LGBTQ+ people and communities (even and especially when those attacks are from out of state), and directing assistant attorneys general who advise state agencies and defend state laws to employ an equity lens to their work to proactively mitigate any potential to harm LGBTQ+ people and communities.
State AGs may consider making further investments in community engagement and outreach, particularly in communities that have been historically marginalized and disempowered—especially Black and Brown transgender people. These communities are often skeptical of law enforcement and government agencies, so AGs must work intentionally and in community to build trust and to empower people to seek the assistance and protection of the office. This, in turn, will allow AGs to focus their work on the specific needs of the LGBTQ+ populations they serve and ensure that actions they take and statements they make help—not hurt—these communities.
In addition, state AGs should build upon existing multi-state partnerships by strengthening and deepening collaborations on civil rights issues, including LGBTQ+ rights. This can be achieved by sharing information about relevant trends or concerns in their states or policies that have proven particularly effective before a lawsuit has been filed or an investigation initiated. Proactive information sharing may lead to earlier interventions and consistent litigation and policy positions across offices. Likewise, state AGs can increase their collaborations with relevant federal agencies where there is synergy around the protection of LGBTQ+ people.
Finally, state AGs each have an important role to play in norm setting within their states. By setting transparent office priorities, taking public policy positions, making arguments in court and in briefs, opening investigations, and pursuing litigations, AGs communicate directly to the people of their states precisely who and what matters. By deploying all of the tools at their disposal, AGs can make clear in their states and, indeed across the country, that LGBTQ+ people not only matter, but merit the most zealous advocacy by their state to help realize true equality and liberation.
Amanda Hainsworth is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office. Jonathan Miller is Chief Program Officer at Public Rights Project. This article represents the opinions and legal conclusions of its author(s) and not necessarily those of the Office of the Massachusetts Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.