LGBTQ Policy and Fragmented Federalism in the U.S.

• Author: Daniel C. Lewis,Donald P. Haider-Markel,Jami K. Taylor
• Published date: 01 December 2020
• Date: 01 December 2020
• DOI: 10.1177/0160323X21990839
• Subject Matter: Special Issue 2020

Special Issue 2020
State and Local Government Review
2020, Vol. 52(4) 255-265
LGBTQ Policy and Fragmented
ª The Author(s) 2021
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DOI: 10.1177/0160323X21990839
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Jami K. Taylor1, Daniel C. Lewis2
and Donald P. Haider-Markel3
Abstract
Lesbian, gay, bisexual, transgender, and queer (LGBTQ) Americans face a fragmented policy land-
scape across the country. Some states and localities have taken the lead and adopted policies to
protect LGBTQ citizens, while others have sought to undermine LGBTQ equality. As such, the
rights of LGBTQ citizens are very much dependent on the politics of states they reside in. In this
article, we argue subnational innovation on LGBTQ inclusive policy is a result of national policy
gridlock. We also examine the state-level political factors driving the adoption of policy protections
for LGBTQ citizens. We conclude that LGBTQ policies are driven by local political context and
illustrate the dynamic nature of fragmented federalism in America.
Keywords
federalism, LGBT, policy, state
Introduction
discriminated against in housing in North
Carolina, but not in Virginia. With the 2020
Although a national crisis such as the COVID-
Supreme Court decision in Bostock v. Clayton
19 pandemic can illuminate the fragmented
County, which extended federal Title VII
federalist system of government in the U.S., the
employment protections to gay and transgender
benefits and drawbacks of this institutional
people, the need for local and state employment
arrangement are often invisible to most
nondiscrimination laws is somewhat less press-
Americans (Goelzhauser and Konisky 2020).
ing. Yet, LGBTQ people in many states remain
Yet for marginalized groups, such as the
LGBTQ community, its consequences are read-
ily apparent. There are few national policies
that are explicitly sexual orientation and gender
1 Department of Political Science and Public Administra-
identity inclusive or have been interpreted by
tion, University of Toledo, OH, USA
2
the federal courts to cover LGBTQ people
Department of Political Science & International Relations,
Siena College, Loudonville, NY, USA
(Bishin, Freebourn, and Teten 2020), so the
3 Department of Political Science, University of Kansas,
civil rights of LGBTQ citizens are dependent
Lawrence, KS, USA
on the laws of the jurisdiction that they live
in. For instance, a transgender person can be
Corresponding Author:
Donald P. Haider-Markel, Department of Political Science,
discriminated against in public accommoda-
University of Kansas, 504 Blake Hall, 541 Lilac Lane,
tions under Ohio law, but not under Illinois law
Lawrence, KS 66046, USA.
(Mezey 2020). A gay or lesbian citizen can be
Email: dhmarkel@ku.edu

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256
State and Local Government Review 52(4)
unprotected against discrimination in other
advocacy for transgender rights in a slow and
areas, like public accommodations, housing,
contentious process that picked up significant
health care, and education.
steam in the later 2000’s. This culminated in
In this article, we discuss how the federal
a divisive showdown over the Employment
system in the United States has both enabled
Nondiscrimination Act (Taylor and Lewis
and impeded equality for the LGBTQ commu-
2014). Today, nearly all LGBTQ rights groups
nity. Why have subnational governments taken
press for policies and social changes that apply
the lead on this issue? Absent explicit federal
to the entire LGBTQ community.
policy, what political factors have shaped
Because the LGBTQ movement was a con-
LGBTQ policy at subnational levels? Our anal-
tender social movement rather than a counter
ysis suggests that gridlock impeded new
mobilization (e.g., the Religious Right), it
national LGBTQ policy and this led subna-
needed to change public attitudes and public
tional governments to innovate in LGBTQ
policy to be successful. In the United States,
policy. As states have taken up the issue, our
LGBTQ activists managed to dramatically
analysis suggests that citizen ideology, govern-
shift public attitudes about homosexuality,
mental partisanship, LGBTQ organizing
employment discrimination, same-sex mar-
capacity, and Evangelical Christian religious
riage, and support for LGBTQ people in the
adherence all determine the extent to which
military (Gallup n.d.; Brewer 2008; Taylor,
states adopt inclusive or restrictive policies
Lewis, and Haider-Markel 2018). They have
regarding the LGBTQ community.
also become an important constituency in the
Democratic Party, where there is now broad
National Political Opportunity
support for LGBTQ equality (Taylor et al.
2018).
Structure for LGBTQ Rights
Although these shifts spurred substantial
Historically, LGBTQ people were margina-
subnational policy successes in recent years,
lized by society and subjected to public policies
LGBTQ inclusive policy at the national level
that made them unequal citizens. From the
has lagged behind many other western democ-
criminalization of same-sex sexual relations,
racies (e.g., Wilson 2013). Separation of pow-
to bans on crossdressing, to policies blocking
ers and the super majoritarian rules of the
service in the Armed Forces, gay and transgen-
Senate expand the potential for national policy
der people were persecuted and/or penalized
gridlock. Even with the efforts of nationally
under a variety of local, state, and federal laws
mobilized and well-resourced organizations,
(Rimmerman 2015; Stryker 2008). In addition,
there have been few national opportunities to
they did not have state or federal civil rights
pass fully LGBTQ inclusive legislation. With
protections, such as protections from employ-
exceptions such as the Matthew Shepard and
ment or housing discrimination, which mem-
James Byrd Jr. Hate Crimes Prevention Act of
bers of other minority groups gained in the
2009 and the renewal of the Violence Against
1960s.
Women Act in 2013, the elected branches of
Changing this repressive policy environ-
the national government have rarely passed and
ment would require organized advocacy to
signed into law polices that are fully inclusive
develop a more favorable political opportunity
of the LGBTQ community (Taylor, Lewis, and
structure. Following the 1969 Stonewall Rebel-
Haider-Markel 2018; Mezey 2020). For exam-
lion, the gay and lesbian movement learned
ple, Congress has considered legislation
from the example of the Civil Rights movement
addressing employment discrimination against
and adopted the “civil rights master frame”
gay, lesbian and bisexual individuals since
(McAdam 1994, 42) that created a collective
1974, but it has yet to become law. In 1994, the
identity as victims of discrimination deserving
proposed Employment Nondiscrimination Act
of equal rights (Rimmerman 2015). The gay
was modified to focus only on sexual orienta-
rights movement subsequently incorporated
tion based employment discrimination. In the

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Taylor et al.
257
2000s the measure was renamed the Equality
initiative to fund HIV treatment and prevention
Act and expanded what types of discrimination
in Africa (Stolberg 2008).
were forbidden and who was protected. It too
Indeed, since Stonewall in 1969 there have
has stalled despite strong support from the busi-
only been only a handful of periods where there
ness community and the public (Taylor et al.
has been unified party control of the national
2018).
government: 1977-81 (D), 1993-95 (D), 2003-07
The limited success of the LGBTQ move-
(R), 2009-11 (D), and 2017-19 (R). During the
ment at the national level is a function of an
earliest periods of unified Democratic control,
unfavorable political opportunity structure. The
public attitudes toward gay people and gay
Religious Right has been a core Republican
rights remained fairly negative (Brewer 2008;
constituency since 1980 (Wald and Calhoun-
Gallup n.d.) and transgender rights were not
Brown 2010), and some discriminatory legisla-
yet fully incorporated into the gay rights
tion targeting LGBTQ people has passed
movement. Even during the 1993–1995 period
during periods of divided government. For
of Democratic control, the Clinton administra-
instance, the Defense of Marriage Act in 1996
tion acquiesced to Democrat led Congressional
barred the national government from recogniz-
opposition to allowing openly gay individuals
ing same-sex marriages, and the Americans
to serve in the military. An additional problem
with Disabilities Act of 1990 excluded cover-
in the earlier periods of unified Democratic con-
age based on transvestitism, transsexualism,
trol was that same-sex sexual relations remained
and gender identity related disorders.
criminalized in over a dozen states until the
In addition, the passage of new inclusive
Supreme Court struck down the remaining state
LGBTQ rights legislation has been unlikely
laws against sodomy in Lawrence v. Texas in
as long as Republicans control at least one
2003. Thus, the only real opportunity to pass
chamber of Congress. In general, Republicans
fully inclusive LGBTQ legislation was during
have not responded to attitudinal changes that
the 2009–2011 period. It was during this era that
find support for LGBTQ...