Current Government Policies Discriminating Against Gays*
This sheet was distributed at Lavender Law Conference, October 25, 1997 in Los Angeles by William Eskridge.

Current government policies which discriminate against gays  are
in the areas of crime, marriage, children, employment,
antidiscrimination rules and "no promo homo" laws.

 Crime

The sodomy laws of six states (Arkansas, Kansas, Maryland, Missouri,
Oklahoma, Texas) still make same-sex, but not different-sex, sodomy illegal.
Solicitation for same-sex, but not different-sex, intercourse is illegal in some states.
 

Marriage

All states except Hawaii exclude same-sex couples from receiving civil marriage
licenses given to different-sex couples. Only one other state (New Jersey) will allow a male-to-female transsexual to marry a male. More than twenty-five states have adopted statutes refusing to recognize other states' same-sex marriages in their jurisdictions. The Defense Of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996) exempts these statutes from challenge under the full faith and credit clause and directs that 1049 federal statutes adverting to spousehood or marriage never include same-sex couples.
 

Children

Several states have created express presumptions against child custody for
lesbian or gay male parents when former spouses desire custody, e.g., G.A. v. D.A., 745 S.W.2d 726 (Mo. App. 1987); Roe v. Roe, 324 S.E.2d 691 (Va. 1985), and other states have effectively the same approach because they consider social prejudice when determining the "best interests of the child." S. v. S., 608 S.W.2d 64 (Ky. App. 1980). Similar presumptions have been imposed against transsexual parents, and at least one state allows their parenthood rights to be terminated. daly v. Daly, 715 P.2d 56 (Nev. 1986). At least three states prohibit
gay people from adopting. In re  Appeal of Pima County Juvenile Action B-10489, 727 P.2d 830 (Ariz. App. 1986); Fla. Stats. § 63.042(3); N.H. Rev. Stat. § § 170-B:4 (adoption), 170-F:6 (foster parenting).
 

Employment

The United States armed forces exclude gay people, as well as anyone who commits same-sex sodomy and cannot persuade the military that he or she is straight. Pub. L. No. 103-160 § 571(a)(1), 107 Stat. 1670. Some state amd local governments formally or infirmally exclude openly gay or transgendered people from employment as teachers, police officers, or even firefighters.
 

Antidiscrimination Rules

Federal law prohobits discrimination because of sex, including sexual
harassment, in private, as well as public schools and workplaces. These
policies protect females and males discriminated against because they do not
conform to gender stereotypes, except nonconforming transsexuals,
transvestites, lesbians,  bisexuals and gay men. These policies have been
interpreted to protect women harassed by men, men harassed by women,
straights harassed by gays, but not gay employees harassed by homophobic
straight employees. Dillon v. Frank, 952 F.2d 403 (6th Cir.1992) (gay man
harassed by coworkers); Ulane v. Eastern Airlines, 742 F.2d 1041 (7th Cir. 1984) (transsexual); De Santis v. Pacific Tel. & Te. Co., 608 F.2d 327 (9th Cir. 1979) (discrimination and/or harassment claims by effeminate man, lesbian couple, other
gay people); Katherine Franke, "What's Wrong With Sexual Harassment?,"
49 Stanford L. Rev. 691 (1997) (exhaustive survey of cases). See also 42 U.S.C. § 12208 (excluding transsexualism, transvestitism, and homosexuality from "disabilities" covered under the Americans with Disabilities Act); 29 U.S.C. § 706(8)(F)(i) (transvestites and transsexuals now excluded from previous protection under Rehabilitation Act).

No Promo Homo

Eight states (Alabama, Arizona, Georgia, Louisiana, North Carolina, South
Carolina, Texas, Virginia) require or recommend that their schools teach
that homosexuality or same-sex intimacy is not acceptable in their states.
See National Abortion Rights Action League, Sexuality Education in America:
A State-by-State Review  (Sept. 1995). Similar "no promo homo" (no-promotion-of-homosexuality) provisions are regularly proposed for
federal legislatiojn, although they are usually diluted or even defeated. AIDS
education and funding for the arts programs are supposed to consider
"offensiveness," a code for editing out materials that are gay-friendly.
See Gay Men's Health Crisis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992),
and Finley v NEA, 100 F.3d 671 (9th Cir. 1996)

*Bill Eskridge explained that he was using this term to include lesbians, bisexuals, transsexuals, transvestites and gay men.