The Best and Worse States to Live if You are LGBT

Last weeks ruling in Bostock v. Clayton County granted federal employment non-discrimination protections to LGBT Americans nationwide and some have suggested perhaps the gay rights movement has finished its work and accomplished its goals. My response to this ludicrous suggestion is "hell no" since there remains huge amounts of work to be done at the state level and even with the newly granted federal protections, I suspect in many red states and even rural areas of some blue states being LGBT will continue to be a potentially life threatening situation.  Thus, the questions becomes what states should one consider moving to or visiting on vacations if you are LGBT and want to have some sense of safety and legal protections.  USA Today is reporting the results of a national survey of states ranking the states from worse to best places for LGBT citizens.  The rankings include laws protection LGBT citizens and is slightly out of date because it uses 2019 laws  which, as a result does not include the panoply of laws enacted in Virginia this spring.  As a result, per the survey, Virginia earns a 35th place ranking (hopefully, this ranking will move up markedly next year.  Not surprisingly, Alabama wins the worse place ranking and surprisingly, Mississippi ranks a number of rungs higher, thereby depriving Alabamians the often cited saying "thank god for Mississippi" for saving them from last place.  Below are the rankings of several states.  Take the time to read the entire piece, especially if you are thinking of relocating - both individually or moving a business - or traveling domestically during the coming year.  Here are article excerpts:

Across the United States, Americans have increasingly embraced equal treatment and access for lesbian, gay, bisexual, transgender, and queer (LGBTQ) Americans over the last decade. According to a Gallup poll in 2019, 63% of Americans supported same-sex marriage, compared with about 44% in 2010.  Some cities are more welcoming to the LGBTQ community than their respective states – Austin, Texas, is one example – but, in general, entire states (rather than just cities within them) are moving toward  protecting and empowering their LGBTQ residents.

In acknowledgement of Pride month, 24/7 Wall St. reviewed the states most and least welcoming to the LGBTQ community. We created an index of three measures – hate crimes motivated by gender and sexual orientation reported per 100,000 people, laws protecting the LGTBQ community, and the percentage of each state's population who identifies as LGTBQ – to identify the best and worst states for LGBTQ people.

While there has been no doubt progress toward equality, anti-equality activists and politicians still have a lot of influence – in some states more than others. In Texas alone, 19 anti-LGBTQ bills were filed in 2019. In Iowa, transgender health care benefits were removed from the state’s medical plan. Across the country, 102 anti-LGBTQ bills were introduced, and seven became laws. 

Even though the U.S. – and the world – is slowly becoming a more welcoming place for LGBTQ people, there are still many places where same-sex relationships are considered criminal behavior. 

50. AlabamaBased on its relatively small LGBTQ population and lack of progress passing laws that protect LGBTQ communities, Alabama is the worst state in the nation for LGBTQ Americans. Unlike the vast majority of states, which have mandatory hate crime reporting laws, Alabama police jurisdictions do not participate in reporting of hate crimes motivated by gender or sexual orientation.

In fact, the state has very few laws that positively affect LGTBQ residents, and plenty of rules that negatively affect LGBTQ communities. For example, in 2017, Gov. Kay Ivey signed legislation that would permit religious agencies to deny placing an adopted child in LGBTQ families. Alabama also restricts inclusion of LGBTQ topics in schools, and the state is one of 26 states that criminalize behaviors that carry low or negligible risk of HIV transmission (such as anti-sodomy laws). Such laws are considered archaic and frequently lead to abuse and discrimination against HIV-positive individuals and harms public health efforts.

49. WyomingJust 3.3% of Wyoming's population identifies as LGBTQ, the ninth lowest such share of any state. Relatively low numbers of LGBTQ state residents could reflect lower likelihood of identifying as LGBTQ and a generally less hospitable state for the community.

Wyoming is the state where Matthew Shepard, a gay college student, was beaten and left to die in the town of Laramie in 1998, in an incident that shocked the nation. There have been other incidents against gay people in recent years, and a gay man who was bullied committed suicide in 2016. Tragic incidents such as these are unfortunately common across the country, but considering the general inhospitable environment in the state, including lacking laws that would protect basic LGBTQ civil rights, these incidents take perhaps additional meaning in Wyoming. Still, there are people in Wyoming who continue to struggle for equal rights under the law. The cities of Casper and Cheyenne held their first pride marches in 2017.

35. VirginiaUntil very recently, Virginia was not making progress toward equality for the LGBTQ community. In April 2020, a few months after the HRC latest report was published, the state passed several laws that provided anti-discrimination protections to the LGBTQ community, making Virginia the first state in the South to do so. The state made it easier for people to update the gender marker on their birth certificate. The laws will take effect July 1.

While progress has been made, LGBTQ residents still face challenges that non-LGBTQ residents do not. Virginia has legal provisions that allow adoption and foster care agencies to turn away prospective LGBTQ parents on the grounds of religious freedom. The state does not have laws protecting students from discrimination in schools based on their sexual orientation or gender identity.

3. New YorkNew York has special significance to the LGBTQ community, as the Stonewall riots of 1969 in New York City helped spark massive changes in the nation's understanding of LGBTQ issues and paved the way for more equality to the LGBTQ community.

Today, New York ranks as one of the best states for LGBTQ people. In the last decade, the state legislature has passed 30 laws protecting the rights and safety of its LGBTQ residents. The state has some of the most comprehensive non discrimination laws of any state.

2. VermontVermont ranks as one of the best states for LGBTQ people. It provides better access to CenterLink pride centers than any other state. Vermont has an estimated 26,000 LGBTQ people and three pride centers.

The state also has some of the most comprehensive health and safety laws for LGBTQ residents among all states. It ensures that transgender people cannot be excluded from health care. Vermont also collects data on the health and well being of LGBTQ youth and adults. It also has extensive nondiscrimination laws.

1. NevadaNevada ranks as the best state in America for LGBTQ people. It has a relatively low share of hate crimes motivated by gender identity or sexual orientation. It also has nearly all laws suggested by the HRC for LGBTQ rights, including nondiscrimination laws, parenting laws, statutes against hate crimes, and those ensuring protections for health care access.

Nevada passed 34 laws protecting the rights and safety of its LGBTQ residents from 2009 to 2019. The state also has no laws considered infringing on these protections, according to the HRC.

To identify the best and worst states for LGBTQ people, 24/7 Wall St. created an index of three measures: hate crimes reported per 100,000 people, laws protecting LGTBQ communities, and the percentage of each state's population who identify as LGTBQ. Each of these three measures were weighted equally in the index.

State laws affecting LGBTQ communities came from the Human Rights Campaign’s 2019 State Equality Index, which defined such laws as positive or negative to LGBTQ Americans. The Equality Index classified each state into one of four categories: “high priority for basic equality,” "building equality," "solidifying equality," “working toward innovative equality.” 24/7 Wall St. assigned scores to each of the categories that could be normalized for the index. States that were labeled a “high priority for basic equality” received the lowest score, while states that were “working toward innovative equality” were ranked higher on our list.

Pro-Gay States Luring Discriminated Couples to Relocate

Numerous posts on this blog have tracked research that underscores that a thriving gay community is one of the hallmarks of cities and localities that attract the so-called creative class.  Similar research has led to the formulation of a "gay index" which shows that a large population of gays correlates with high tech businesses.  States like Virginia and North Carolina go out of their way to make life intolerable for gays and have written anti-gay discrimination into their laws.  Now, as Bloomberg reports, gay friendly states are seeking to lure gays to relocate from their hostile home states and to bring their talents and assets to those gay friendly states.  Here are articles from Bloomberg:

Hans Bernhard and Mitch Null say they may leave North Carolina -- taking their daughter, their jobs as a veterinarian and an information technology business operations manager at Cisco Systems Inc. (CSCO) and the tax revenue from their properties.

Following the U.S. Supreme Court’s decision to overturn a key part of the Defense of Marriage Act, the couple is considering moving to Maryland, where they could have a recognized marriage and guaranteed access to the related federal benefits. Bernhard could also become a lawful father to the couple’s 1-year-old daughter, Eva, since North Carolina law prevents residents from adopting a child if they aren’t married to the legal parent.

Thirteen states and the District of Columbia, making up 34 percent of gross domestic product, have legalized same-sex marriage, including Minnesota and Rhode Island, where laws took effect Aug. 1.

Bernhard and Null’s dilemma illustrates the economic benefits and consequences of a state’s same-sex marriage policy. Following the Supreme Court’s June 26 ruling, gay rights proponents and some economic development officials say states with gay-friendly laws can leverage them for financial gain, while those with prohibitive policies will miss out. 

The Supreme Court ruling will force some states to examine whether it’s worth losing out on talent and businesses that are attracted to areas that allow same-sex marriages, said Richard Florida, a professor at the University of Toronto Rotman School of Management. Acceptance of gay communities signals cultural openness and attracts highly educated people and innovators, Florida wrote in his 2002 book “The Rise of the Creative Class.” 

Welcoming all people is necessary for states that want to “flourish economically and be an engine for innovation,” Chris Hughes, co-founder of Facebook Inc. and a native of Hickory, North Carolina, said in an e-mail. Hughes, now the editor-in-chief and publisher of the New Republic magazine, wrote an open letter to the North Carolina General Assembly in 2011 opposing the constitutional amendment banning same-sex marriage. 

“Entrepreneurs are very careful when deciding where to start a company,” said Hughes, who now lives in Shokan, New York, with his husband Sean Eldridge. “Building a business in a state that denies basic rights to LGBT couples is difficult to justify to potential employees -- straight or gay.”

It all is actually common sense.  Not that common sense means much to lunatics like Cuccinelli and the hate merchants at The Family Foundation.

The IRS's Gay-Marriage Tax Problem

One of the questions that I keep getting asked by many LGBT couples as an estate planning attorney and an attorney with many LGBT clients is what is the status of their marriage vis-a-vis federal rights post Windsor.  On many issues, the answer continues to be, 9I0 that things are still up in the air and that federal agencies are working through the issue and that hopefully answers will be forthcoming soon, and/or (ii) it depends on where you live and whether or not your home state recognizes gay marriage.  One such area is with respect to taxes and whether or not couples can or should file joint returns with the IRS.  A piece in Business Week gives a good current overview of this uncertain issue.  Here are highlights:

During the runup to the Supreme Court’s June 26 ruling on the Defense of Marriage Act, one number kept recurring: The government’s refusal to recognize same-sex marriages meant gay couples were denied more than 1,000 federal benefits that straight couples enjoy. Now that the justices have struck down DOMA, gays can look forward to equality under U.S. tax laws. That is, just as soon as the Internal Revenue Service can figure out how to make equality happen. The tax agency has promised to “move swiftly” to recognize gay unions, but for many couples it won’t be as simple as checking the “married” box on their 1040. 

Those living in Washington, D.C., or the 13 states that allow same-sex marriages can file a federal tax return next April just like other married couples. Not so for the thousands of gay couples who took their vows in one of those states but who live in one of the 37 others where same-sex marriage isn’t recognized. It’s not yet clear whose definition of marriage the IRS is supposed to follow in evaluating their taxes—the state where the couple got married, or the one in which they reside. And will the federal government recognize gay couples in civil unions who file a joint return?

To avoid confusion, a single nationwide rule makes the most sense, says Patricia Cain, a tax law professor at Santa Clara University in California. “The IRS has the power to construe the Internal Revenue Code,” she says. “So for them it’s, ‘What does the word spouse mean?’ ” President Obama has weighed in, saying it’s his “personal belief” that same-sex couples should get the same federal benefits as married couples regardless of where they live. He’s asked federal agencies to research legal issues that might stand in the way. Such a ruling, though, could cause headaches for the IRS, which until now has typically followed states’ definitions of marriage, says David Herzig, a tax law professor at Valparaiso University. “You may solve this problem,” he says, “but you may open up another.”

Many gay couples might not like what marriage equality looks like on a tax form. Until now, they’ve been able to take advantage of their separate status to maximize tax savings—claiming multiple capital-loss deductions unavailable to opposite-sex married couples or multiple tax credits for adopting children. Straight married spouses with roughly equal incomes typically pay a marriage penalty under the tax code, because more of their income is subject to higher marginal tax rates. Gay couples would get hit with the same penalty. And unless the IRS exempts them from paying back taxes, some same-sex married couples could owe penalties for underwithholding during the time they’ve been married, even though the federal government didn’t recognize their unions until now. 

On the other hand, gay couples with unequal incomes would get the same marriage bonus as straight couples and could seek a refund for the extra taxes they paid in recent years. Typically the IRS allows taxpayers three years to redo their tax returns. “One of the biggest issues is what to do retroactively,” says Elda Di Re, a partner at Ernst & Young in New York. “One would think that the IRS will allow there to be filing refunds—but not mandate filing to pay additional tax.”

Another potential mess: what to do about payroll taxes workers paid on employer-provided health insurance for their same-sex spouses, which isn’t taxable for married couples. The IRS could allow refunds, and then businesses would have to figure out how to distribute them to employees and ex-employees. Some companies pay married gay employees extra to cover their health-care tax burdens; they would have to decide whether to seek reimbursements from workers who get income tax refunds. And the IRS has to figure out whether or how to tax alimony payments from gay marriages that end in divorce, and money inherited from the retirement account of a same-sex spouse.

All these decisions will be made with a skeptical—and sometimes hostile—Congress ready to call foul. The IRS is already under scrutiny for its clumsy probes of political groups, and its efforts to formalize gay marriage in the tax code are likely to provoke congressional hearings and lawsuits. “No matter what they do,” says Herzig, “it’s such a volatile issue they’ll end up getting a challenge.”

Are Some Activists in a Snit Over Norfolk Gay Marriage Lawsuit?

One of the frustrations of living in a state like Virginia where LGBT citizens have literally zero non-discrimination protections and where our life commitments and relationships have zero legal recognition is hearing gay activists who usually reside in liberal states lecture us about the need to be patient.  That's easy to say when one is safely residing in New York or other states with employment protections, partner benefits and full marriage rights.  A comment I received on my post about the federal lawsuit filed by friends last week raises the issue whether or not some are pissed off that the couple who filed the lawsuit did not dutifully wait for permission from "those who know best."   Yes, it is important that any lawsuits be framed in the best manner possible.  At the same time, however, the professional activists at Lambda Legal and the ACLU need to realize that some of us are tired of waiting for someone else to tell us we have permission to demand equality.   The following are excerpts from Lambda Legal on the as yet un-filed lawsuits that are supposed to be coming in Virgina and other states:

We have chosen the states we have because, after in-depth analysis, we have concluded they have the best chances of yielding good results. In some parts of the country, a lawsuit may be ill-advised because existing appellate precedent may make it hard to win. It is not that we care less about certain states or think that people living in those states are less deserving of the same rights as everyone else. Instead, we are being strategic in trying to rack up wins and avoid losses.

We have seen time and again that filing cases in states where the odds are stacked against victory can create adverse precedent and interfere with momentum, making future cases harder to win. Positive momentum will help us reach nationwide success sooner, and that’s why we are concentrating on jurisdictions where we think the chances are best to win.

The impatience that people feel is very understandable - we feel impatient too! It is manifestly wrong that same-sex couples in 37 states are still denied a basic and fundamental freedom that others enjoy, and the harms from being excluded from the tangible and intangible rights and responsibilities of marriage are serious and manifold.

They are impatient too?  I think not.  Yes, I am being harsh, but when I represented Michael Moore who was fired from the Virginia Museum of Natural History for being gay, I did not receive ANY assistance form Lambda Legal.  That's right none whatsoever.  In fact, the only assistance I received was from an attorney in the D.C. office of the ACLU.  If you want to play God, then do something.  Don't just sit back in your liberal state in your ivory tower while the rest of us are left in a fourth class citizenship status.