This op-ed was originally published by The Hill.

Thirty-five years ago today, while the country was still reeling from the tragic death of Len Bias — a University of Maryland basketball star who, just days after being drafted by the Boston Celtics, died from a drug overdose — Congress passed and President Reagan signed into law the Anti-Drug Abuse Act. . Assuming that the drug that killed Len was crack, Congress drafted a law that would impose harsher penalties on crack offenses. It would impose the same mandatory prison sentence for five grams of crack cocaine as 500 grams of powder cocaine. Even after it became known that the drug that killed Len was powder cocaine, not crack, the narrative had taken off that crack is more dangerous than powder, and Congress established the 100-to-1 disparity between crack and powder cocaine in federal law.

Over the years, this sentencing disparity has become emblematic of both the ineffectiveness of reactionary criminal justice policy and the racial disparities existing in our criminal justice system.

After years of work by advocates, in 2010, Congress decreased the sentencing disparity from 100-to-1 to 18-to-1 through the passage of the Fair Sentencing Act (FSA). But those who were sentenced before 2010 were left behind until Congress enacted and President Trump signed into law the FIRST STEP Act, which provided relief to people sentenced under the original disparity. These reforms were motivated by what we know now — this disparity between two chemically identical substances has done nothing to improve public safety or reduce drug use, but it does disproportionately harm communities of color.

After the passage of the FIRST STEP Act and its provisions allowing individuals in federal prison to apply for resentencing, 3,705 people had their sentences reduced by approximately six years. The fact that 91 percent of those who received reductions were Black further proves the racially disproportionate impact of the crack laws.

But even after these bipartisan reforms, the disparate racial impact persists. In 2020, 77% of individuals convicted of crack cocaine offenses were Black, while historical data tells us that 66% of crack cocaine users have been white or Hispanic.

The continued existence of this disparity between two forms of the same substance has devastated communities of color and Black families in particular and has failed to provide any public safety or public health benefit. Americans for Prosperity and the American Civil Liberties Union might not always see eye to eye on every political issue, but our organizations agree it is time to end this unjust sentencing framework.

The EQUAL Act is a common-sense reform that will end it once and for all. It has bipartisan support in both the U.S. House of Representatives and the U.S. Senate. By eliminating the sentencing disparity between crack and powder cocaine, we can make strides towards reducing over-incarceration in our federal prisons and free up resources that can be better spent on critical reentry services for those exiting federal prison and recovery resources for individuals struggling with a substance use disorder.

The EQUAL Act recently passed the House of Representatives with an overwhelming bipartisan vote of 361 to 66. It is rare to see Louie Gohmert (R-Texas), a former Texas judge and nationally-recognized staunch conservative, agree with Hakeem Jeffries (D-N.Y.), one of the leading progressive voices in the leadership of the Democratic Party, on criminal justice reform, but that is just what happened on the House floor when they both spoke in support of the EQUAL Act. It is now up to the Senate to pass this long-overdue legislation and send the EQUAL Act to President Biden’s desk for his signature. Senators Cory Booker (D-N.J.), Dick Durbin (D-Ill.), Rob Portman (R-Ohio), Thom Tillis (R-N.C.), Rand Paul (R-Ky.), and Patrick Leahy (D-Vt.), and Lindsey Graham (R-S.C.) are the sponsors of the Senate companion legislation (S. 79) and have taken the lead in building a coalition to pass this legislation during the 117th Congress. The time is now for the Senate to take action and rectify this long-standing injustice in our criminal legal system.

Aamra Ahmad is the Senior Policy Counsel for the American Civil Liberties Union’s Justice Division. Jeremiah Mosteller is the Senior Policy Analyst for Criminal Justice at Americans for Prosperity.

Recently, U.S. Customs and Border Protection (CBP) issued new guidance requiring baby bassinets and “snacks” to be available to infants and people who are pregnant, postpartum, or nursing in CBP detention. Neither are of comfort in hieleras — freezing cold, overcrowded holding cells notorious for their harsh conditions. And none of the added features included in the new policy can compensate for the physical and emotional strain of CBP detention conditions on people who are pregnant, postpartum, or nursing their newborns.

Though highly anticipated, CBP’s guidance falls embarrassingly short and will do little to address the well-documented pattern of mistreatment of pregnant people in the agency’s custody. The new guidance demonstrates that instead of moving away from detaining these uniquely vulnerable populations altogether, CBP is attempting to double down on unnecessary and dangerous detention practices.

In January 2020, the ACLU of San Diego & Imperial Counties (ACLU-SDIC) and the ACLU of Texas filed a complaint with the U.S. Department of Homeland Security’s Office of the Inspector General (OIG) calling for an immediate review of mistreatment of pregnant people detained in CBP facilities. Such mistreatment regularly imperiled the viability of pregnancies, even sometimes resulting in miscarriage. Nancy, one mother interviewed by the ACLU-SDIC, reported:

“…that the food she received was spoiled and served cold; she could not bring herself to eat it … [she] had been taken into custody in wet and mud-covered clothing, [and] was neither permitted a change of clothing nor provided a chance to shower for the duration of her detention.”

In April 2020, ACLU-SDIC filed a subsequent complaint on behalf of a pregnant woman who suffered mistreatment at the Chula Vista Border Patrol Station. After arresting her for routine processing, instead of facilitating her immediate access to critical medical care, CBP officers subjected her to a “rough ride” to a Border Patrol station, “jerk[ing] the steering wheel and slamm[ing] on the brakes.” Her experience only deteriorated inside the station, where she was forced to give birth while holding onto a trash can for support. The woman reported:

“Her husband heard the baby’s cries and, desperate to ensure the safety of his newborn child, lowered his wife’s pants and reached for the baby’s head, which was protruding out of her body. A Border Patrol agent and multiple medical staff also reached for the baby, some without gloves, and the baby was born. Although joyous about the birth of her child, [she] felt humiliated after realizing she had been surrounded by about 20 strangers, including multiple CBP agents and other unknown detained men, while she gave birth.”

The woman was finally taken to a hospital after she gave birth. After she was discharged, however, Border Patrol forced her to return to the Chula Vista Border Patrol Station for a night of postpartum detention together with her newborn baby.

In response to the complaint on behalf of the woman who gave birth at the Chula Vista Border Patrol Station, the OIG issued a report in July 2021 finding a number of deficiencies in the manner in which CBP and Border Patrol respond to in-custody births. The OIG recommended that CBP “expedite releases because holding U.S. citizen newborns at Border Patrol stations poses health, safety, and legal concerns.” Eleven senators wrote to Homeland Security Secretary Alejandro Mayorkas urging DHS to adopt a policy similar to one that Immigration and Customs Enforcement (ICE) adopted earlier this year, which states that “[g]enerally, ICE should not detain, arrest, or take into custody” people who are “known to be pregnant, postpartum, and/or nursing.” Instead of heeding the senators’ recommendations and following ICE’s lead on this issue, CBP has chosen a path of further detention, entrenching a practice that jeopardizes the safety and well-being of people like the ACLU-SDIC’s client and her newborn baby.

Among other things, CBP’s new guidance purports to improve access to medical care and basic items like snacks, liquids, and diapers in hieleras; conditions under which parents can nurse and change diapers in hieleras; and documentation of childbirths in hieleras. But it fails to address the fundamental problem that CBP detention in hieleras threatens the health and dignity of pregnant, postpartum, and nursing people and their newborns, and that a humane alternative exists. The risks of CBP detention that the new guidance purports to mitigate, including limited access to medical care, inadequate care for infants, and inconsistent documentation of in-custody births, could be prevented altogether if CBP instead prioritized the prompt release of people who are pregnant, postpartum, or nursing. This would avoid the possibility of in-custody births of U.S. citizen babies and alleviate the need to accommodate postpartum and nursing parents.

The July 2021 OIG report included images of the ACLU-SDIC’s client laying down on a concrete bench in a hielera with her newborn U.S. citizen baby wrapped in an aluminum blanket for warmth. CBP’s response to this disturbing image was to suggest adding a bassinet for the baby and to offer snacks and milk.

Our demand in response is simple: CBP must stop detaining pregnant, postpartum, and nursing people altogether by prioritizing their prompt release to their networks of care in the United States, so that these individuals may pursue their immigration cases in safe and humane conditions.

Several great strides for LGBTQ rights were made in 2021, but we also encountered an unprecedented upsurge in discriminatory legislation. Our vision of a world where LGBTQ people can truly live freely and openly is far from reality, particularly for LGBTQ people of color as well as trans and non-binary people. This year saw the passing of Jim Hormel, who helped start what is now the ACLU’s LGBTQ & HIV Project, and we also gained confidence that our work will continue thanks to the generosity of Jon L. Stryker and Slobodan Randjelović.

Here are some of the highlights — and lowlights — of 2021 in LGBTQ rights.

Biden Acts to Protect Trans Rights

On day one of his administration, President Biden issued an executive order directing all federal agencies to recognize that existing federal bans on sex discrimination protect against LGBTQ discrimination as well. This order recognized the incredible victories won by Aimee Stephens, Don Zarda, and Gerald Bostock at the Supreme Court in 2020, as well as many other victories by LGBTQ people in other courts.

On January 25, President Joe Biden repealed the transgender military ban enacted by the Trump administration. The ban was the subject of multiple lawsuits including Stone v. Trump which was filed by the ACLU, the ACLU of Maryland, and Covington & Burling LLP on behalf of six transgender members of the armed forces.

As we’ve seen before, however, a more supportive federal government means those who are opposed to LGBTQ equality moved their fights to the states.

https://twitter.com/ACLU/status/1353805468792201217?s=20

More Anti-Trans Bills Were Introduced and Passed in 2021 Than any Other Year

2021 set a record for the most anti-LGBTQ bills passed during a legislative session. Over 100 anti-LGBTQ laws were proposed in 35 states around the country, and these bills overwhelmingly targeted trans youth. While the attacks differ — some would ban medical care for trans youth, some would ban trans youth from school sports, and others would make it harder for trans people to get accurate state IDs — they are not isolated. They represent a coordinated campaign to push trans people out of public life.

https://twitter.com/ACLU/status/1385377914158518273?s=20

The ACLU has filed lawsuits in Arkansas, Idaho, Montana, Tennessee (twice), and West Virginia challenging laws passed since 2020. These lawsuits have already blocked enforcement of unconstitutional laws attacking trans people in four states.

Wins for Accurate Gender Markers on IDs

After years of advocacy by transgender, non-binary, and intersex people, the Biden administration in June announced that the Department of State will now update the gender marker on passports without requiring medical documentation, and will add an “X” designation option. In January, the ACLU launched its largest-ever campaign targeting the federal government on LGBTQ rights to urge the Biden administration to issue an executive order on accurate federal IDs across all federal agencies. Nearly 100,000 Americans contacted the White House in support of access to accurate IDs for all people, alongside a coalition of over 80 advocacy organizations and several Congressional offices.

https://www.aclu.org/news/topic/they-the-people-accurate-gender-markers-for-all/

A federal court sided with our clients Darcy and Destiny in January, finding that Alabama’s driver’s license policy, which refuses to provide accurate gender markers on licenses belonging to transgender individuals, violates the rights of transgender people. The state appealed and we expect an argument to be scheduled before a federal appeals court soon.

And in late March, The New York Civil Liberties Union and Legal Services of NYC sued the New York State Office of Temporary and Disability Assistance on behalf of our clients Jules and Jaime for discriminating on the basis of gender identity against non-binary New York residents by barring non-binary people from applying for or receiving benefits using an accurate gender marker.

Trans Women Fight Abuse in the Criminal Legal System

In New Jersey, the Department of Corrections recently agreed to adopt a system-wide policy to help protect transgender, intersex, and non-binary people in prisons. This was the result of an agreement settling a civil rights suit brought by a woman who was forced to live in men’s prisons for a year and a half, represented by the ACLU of New Jersey.

https://twitter.com/ACLUNJ/status/1430957029737254913?s=20

In Illinois, a federal court ordered the Department of Corrections to take immediate steps to improve housing and health care conditions for transgender people. The ACLU of Illinois brought a class-action lawsuit on behalf of transgender women. In the trial, Sora Kuykendall said:

“during strip searches I would break down and cry and shake, and when I would get back to my cell I would do the same.”

https://twitter.com/ACLUofIL/status/1425163440398733317?s=20

Supreme Court Again Refuses to Rule That the Constitution Protects a License to Discriminate

For the second time in three years, the Supreme Court once again refused to rule that there is a constitutional license to discriminate. The case involved Catholic Social Services, a taxpayer-funded foster care agency, which had sued Philadelphia claiming a constitutional right to discriminate against qualified same-sex parent families because of a religious objection. The ruling means other taxpayer-funded government programs such as homeless shelters, disaster relief programs, and health care should continue to ensure that LGBTQ individuals have equal access to necessary social services. And for the over 400,000 children in foster care across the country, the ruling will help ensure that placement decisions are made in the child’s best interest rather than based on an agency’s discriminatory beliefs.

https://twitter.com/ACLU/status/1405677549515067420?s=20

Expanding Access to Gender-Affirming Care

Doctors agree that gender-affirming care is lifesaving care. Both courts and the federal government have agreed for much of the past decade that denying gender-affirming care is discrimination. Yet many private insurance companies and state-funded health care programs still turn trans and non-binary people away when they seek this medically necessary care.

Our lawsuit in Iowa — on behalf of Mika Covington and Aiden Vasquez — and our advocacy in Kansas — on behalf of Charley Osman — have led to changes in discriminatory policies. And the Supreme Court refused to hear a case that could have opened the door to even more discrimination in health care.

https://twitter.com/ACLU/status/1455263708528119808?s=20

Shon Thomas and Gwendolyn Cheney of Georgia are still waiting for an end to their state’s ban on Medicaid coverage for gender-affirming care.

Financial Institutions Told to Stop Discriminating Against Sex Workers

MasterCard recently instituted a new and restrictive policy targeting adult content websites. This is bad news for many sex workers, whose safety and livelihoods depend on access to financial services and online platforms. The policy makes it harder for sex workers to do business online and makes sex workers more vulnerable, especially those who are trans women of color.

We’ve mobilized thousands of people who want to see MasterCard change their policies. Decriminalizing and destigmatizing sex work is key to ending the violence and harassment so often faced by sex workers.

https://www.youtube.com/watch?v=EWh4wvx7n3I

We also took action to end discrimination towards trans and non-binary workers at Uber, Alaska Airlines and CVS.

Gavin Grimm Finally Wins

The Supreme Court declined to hear Grimm v. Gloucester County School Board, a victory for Gavin Grimm. Years after Gavin first spoke in front of his school board, and after multiple courts ruled in his favor, it was finally clear that his school violated federal law when Gavin was prohibited from using the same restrooms as other boys.

https://twitter.com/ACLU/status/1409512004994408450?s=20

Unfortunately, not all Virginia lawmakers have gotten the memo that trans people belong in schools. In spite of Gavin’s victory and a new state law, the ACLU of Virginia recently sued the Hanover County school district for refusing to protect transgender students. A similar suit was filed by the ACLU of Indiana this year.

In 2022, we expect attacks on trans youth to continue: those who fought against marriage equality shifted to bathroom bills, then sports, then health care and now they are working to ban books and curriculums that acknowledge the existence of trans people.

We will need your voice and your support to respond to these attacks in 2022 and beyond.