The Return of Jim Crow: Government Discrimination Against Women, LGBTQIA+ Individuals, and Racial/Ethnic Minority Individuals

Within the past 14 years, Congress has enacted prohibitions against sex discrimination in health care, the Supreme Court has granted employment protections to lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual or ally, and other (LGBTQIA+) individuals, and more than 300 US localities have declared racism a public health crisis. These governmental actions sought to make the promise of equality found in the 14th Amendment of the US Constitution a reality for women as well as LGBTQIA+ and racial/ethnic minority individuals.

However, since 2022, some states not only have begun to enact laws targeting these groups, as discussed in this issue of AJPH by Underhill et al. (p. 1335), but have also sought to eliminate civil rights protections for women and LGBTQIA+ and racial/ethnic minority individuals.¹ Both actions evidence a return to the discrimination of the Jim Crow era, when the government mandated and financially supported the unequal treatment of racial/ethnic minority individuals, women, and LGBTQIA+ individuals. This will harm individuals of all gender identities, sexual orientations, races, and ethnicities.^2–4

THE PROMISE OF EQUALITY

The Patient Protection and Affordable Care Act of 2010 (ACA) increased access to health insurance for all individuals.⁵ Section 1557 of the ACA expanded protections against racial discrimination and prohibited sex discrimination by those receiving federal financial assistance, which includes health care institutions, providers, and insurance companies. Moreover, the ACA barred nongroup and individually purchased insurance plans from “charging women higher premiums than men for the same level of coverage (gender rating) or from disqualifying women from coverage because they had certain preexisting medical conditions, including pregnancy.”⁶ The regulations enforcing Section 1557 of the ACA included LGBTQIA+ individuals under these sex nondiscrimination protections.⁷ As a result of the ACA, racial/ethnic inequities in insurance coverage decreased, and just as progress stalled many localities began to declare racism as a public health crisis (RPHC).^2,8

Between 2014 and 2021, 313 localities declared RPHC to decrease racial inequities and increase equity by addressing past and modern-day instances of racial discrimination. For example, Amherst, Massachusetts, declared RPHC and enacted a reparations fund, whereas the RPHC declarations by Lansing, Michigan, Austin, Texas, and Louisville, Kentucky, acknowledged the government’s role in supporting racially segregated housing.⁸ Many of these declarations noted that racial discrimination continued to limit racial/ethnic minority individuals’ equality and were accompanied by plans to address this inequality. However, the protections and benefits of the ACA and RPHC declarations are being eroded by states that are targeting women, LGBTQIA+ individuals, and racial/ethnic minority individuals, which is reminiscent of the Jim Crow era. Table 1 shows the current and Jim Crow era discriminatory policies and actions adopted by states.

TABLE 1—

Current and Jim Crow Era Discriminatory Policies and Actions: United States, 1877–2024

States	Current (2022–Present)			Jim Crow Era (1877–1968)
	Abortion (25 States)	Anti-LGBTQIA+ (17 States)	Petition Against Title VI Disparate Impact (23 States)	Abortion (50 States)	Sodomy Laws Targeting LGBTQIA+ Individuals (21 States)	Hill–Burton Unequal Health Care Facilities (14 States)
Alabama	X	X	X	X	X	X
Arkansas	X	X	X	X	X
Florida	X	X	X	X	X	X
Georgia	X	X	X	X	X	X
Idaho	X		X	X
Indiana	X	X	X	X
Iowa	X	X	X	X
Kansas			X	X	X
Kentucky	X	X	X	X	X	X
Louisiana	X	X		X		X
Maryland				X	X	X
Mississippi	X	X	X	X	X	X
Missouri	X		X	X	X	X
Montana		X	X	X	X
Nebraska	X	X	X	X
Nevada				X	X
North Carolina	X	X		X	X	X
North Dakota	X	X	X	X	X
Oklahoma	X	X	X	X	X	X
Pennsylvania	X			X	X
South Carolina	X		X	X		X
South Dakota	X		X	X	X
Tennessee	X		X	X	X	X
Texas	X	X	X	X	X
Utah	X	X	X	X	X
Virginia			X	X	X	X
Washington				X	X
West Virginia	X		X	X		X
Wyoming	X		X	X

Note. LGBTQIA+ = lesbian, gay, bisexual, transgender, queer or questioning, intersex, asexual or ally, and others.

Source. Data for the Jim Crow era were compiled from Planned Parenthood Action Fund,⁹ American Civil Liberties Union,¹⁰ and Yearby.¹¹ Table compiled from the Center for Reproductive Rights,¹² Underhill et al. (p. 1335), and the State of Florida Attorney General.¹

THE JIM CROW ERA

During the Jim Crow era (1877–1968), also known as the Jane Crow era, the government mandated and financially supported the unequal treatment of women as well as LGBTQIA+ and racial/ethnic minority individuals. They also supported neutral laws and policies, which had a disproportionately harmful effect on these groups. For instance, by 1910, every state had outlawed abortions, with some exceptions for saving the pregnant person’s life. The decision to grant these exceptions was left to physicians, who at that time were predominantly (95%) male.⁹ These abortion bans were supported by White male legislators “as a way to get upper-class White women to have more children”⁹ in response to an increase in immigration.¹⁰ In 1930 almost one in five maternal deaths was connected to illegal abortion.⁹

In the late 1960s, some state legislatures began to rewrite sodomy laws to apply to only gay people, and some state agencies and courts began to apply sodomy laws to only gay people.¹⁰ These laws were used to deny gay parents’ custody of their children and prevent LGBTQIA+ individuals from obtaining jobs.¹⁰ The government also adopted laws and policies that mandated and supported racial/ethnic minority individuals’ unequal access to health care.

In 1935, Congress enacted the Social Security Act, which provided federal funding to private institutions for the care of the elderly. At that time a majority of elderly racial/ethnic minority individuals received their care in public institutions, which were prohibited from receiving this funding.¹¹ The Hill–Burton Act (i.e., the 1946 Hospital Survey and Construction Act) provided federal funding for the construction of public hospitals, creating our current hospital system, but Section 622(f) of the act explicitly allowed states to racially segregate hospitals. As a result, 14 states constructed separate and unequal health care facilities for Black patients.¹¹

States also allowed White-only hospitals to limit medical staff privileges to those who were board certified and members of a medical society. Because most racial/ethnic minority physicians were denied access to specialty training in hospitals and membership in medical societies, this race-neutral policy prevented racial/ethnic minority physicians from obtaining staff privileges at White-only hospitals, which also meant their patients were banned from these hospitals.¹¹ Research shows that Black infant deaths were higher in states with Jim Crow policies and that this disparity shrank with the enactment of civil rights laws.¹³ Several civil rights laws were enacted in the 1960s; however, currently some states are targeting and seeking to eliminate these civil rights protections for women as well as LGBTQIA+ and racial/ethnic minority individuals.

THE RETURN TO JIM CROW SINCE 2022

Since the Supreme Court overturned Roe v Wade in 2022, 25 states have enacted laws that significantly impair or totally ban access to abortions.¹² Similar to the abortion bans during the Jim Crow era, many of these recent bans have been enacted by legislatures that are mostly male, and some of these legislatures have called the bans a “victory for White life” in response to increased immigration.¹⁴ Research has shown that there are higher death rates among all women of reproductive age as well as higher rates of maternal and infant mortality among all racial groups in states that have total bans or restrictions on abortions.⁴ These states also have greater racial/ethnic inequities in their health care systems, including inequities in maternal and infant mortality rates.⁴

During the same time, some states also began enacting laws targeting LGBTQIA+ individuals, including limiting access to gender-affirming care for transgender youths. Many of these same states changed sodomy laws in the 1960s to apply to only LGBTQIA+ individuals. Survey data have shown an association between these laws targeting LGBTQIA+ youths and an increase in LGBTQIA+ youths considering committing suicide.³ In fact, almost one in three LGBTQIA+ youths have said their mental health was worse because of anti-LGBTQIA+ laws and policies.⁹

Additionally, 23 attorneys general have filed a petition for rule making with the Environmental Protection Agency to eliminate regulations prohibiting disparate impact discrimination.¹ Notably, 11 of the 23 states challenging these civil rights protections were the same states that constructed racially separate and unequal health care facilities during Jim Crow. The language of Title VI of the Civil Rights Act of 1964 is based, in large part, on a successful case that challenged disparate treatment and disparate impact discrimination in health care.¹¹ Moreover, since 1966, when the Title VI regulations were finalized, the federal government has used the regulations to address disparate impact discrimination.

For example, in the 1970s, the US Department of Health and Human Services used the regulations to stop Barnes Hospital (St. Louis, MO) from racially segregating obstetrics–gynecology patients. Specifically, Black and White obstetrics–gynecology patients at Barnes Hospital were racially segregated using a race-neutral policy.¹⁵ A civil rights complaint was filed with the Department of Health and Human Services, who ruled against Barnes Hospital and put an end to racial segregation in obstetrics–gynecology services at Barnes Hospital. This ruling and racial integration would not have been possible if the government had not been able to address disparate impact discrimination. Yet, in their 2024 petition, the attorneys general argue that enforcing the regulations require government officials to adopt racial quotas, which harm White individuals. Contrary to these unsupported claims, the enforcement of disparate impact regulations do not result in racial quotas; instead, they allow the government to stop government-sponsored racially segregated health care.

CONCLUSIONS

Some of the same states that were ardent supporters of Jim Crow discrimination are not only enacting laws that target women, LGBTQIA+ individuals, and racial/ethnic minority individuals but also actively trying to eliminate civil rights protections for these groups. These actions are often supported by the same discriminatory rhetoric used during the Jim Crow era. Research has already begun to show that these actions harm women, LGBTQIA+ individuals, and racial/ethnic minority individuals, as well as individuals of all races, ethnicities, gender identities, and sexual orientations.^2–4 Thus, the time has come to counter these state actions by working to make the promise of equality found in the 14th Amendment of the US Constitution a reality for everyone.