Gays And The Law: Breaking Rules And Boundaries

The legal landscape for LGBTQ+ people is constantly evolving, with public opinion and jurisprudence changing significantly since the late 1980s. In the US, there are currently no federal laws banning discrimination based on sexual orientation or gender identity in public accommodations, like restaurants, theatres, and other businesses. However, state and local laws may ban this kind of discrimination.

In the US, there are 11 states with unenforceable laws prohibiting consensual same-sex conduct, despite a 2003 Supreme Court decision that found such laws unconstitutional. Globally, there are at least 67 countries with national laws criminalising same-sex relations between consenting adults, and at least nine countries with national laws criminalising forms of gender expression that target transgender and gender non-conforming people.

Employment discrimination

Prior to Bostock, protections for LGBTQ+ employees were inconsistent across the United States. While some states and localities explicitly prohibited bias and harassment in employment decisions based on sexual orientation and/or gender identity, others did not.

In 1995, President Bill Clinton's Executive Order 12968 included "sexual orientation" in its non-discrimination language for the first time, stating that "the United States Government does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information." In 1998, Clinton's Executive Order 13087 prohibited discrimination based on sexual orientation in the federal civilian workforce, though it did not apply to certain excepted services, such as the CIA, NSA, and FBI.

In 2010, the Obama administration included "gender identity" among the classes protected against discrimination under the Equal Employment Opportunity Commission (EEOC). In 2012, the EEOC ruled that Title VII of the Civil Rights Act of 1964 prohibits gender identity-based employment discrimination because it is a form of sex discrimination. In 2015, the EEOC concluded that Title VII also prohibits sexual orientation discrimination in employment for the same reason.

Despite these advancements, LGBTQ+ people continue to face employment discrimination. In 2020, 8.9% of employed LGBTQ+ people reported being fired or not hired because of their sexual orientation or gender identity. This figure rose to 11.3% for LGBTQ+ employees of color and 6.5% for white LGBTQ+ employees.

To address ongoing discrimination, the Biden administration has strengthened laws prohibiting sex discrimination based on gender identity and sexual orientation. Additionally, the heads of federal agencies must ensure compliance with existing policies and develop plans to combat workplace discrimination.

Housing discrimination

The Fair Housing Act prohibits housing discrimination on the basis of race, colour, national origin, religion, sex, disability, and familial status. While this includes sexual orientation and gender identity, there is no federal law that consistently protects LGBTQ+ individuals from housing discrimination. Only 22 states and Washington, D.C., prohibit discrimination in housing based on both sexual orientation and gender identity.

Examples of housing discrimination against LGBTQ+ people include:

• A realtor refusing to show houses listed for sale to a potential buyer because they are transgender.
• A housing provider refusing to rent a house to a same-sex couple because of their "family composition".
• A maintenance worker subjecting a female tenant to pervasive harassment because she is a lesbian, and the housing provider failing to take action when the tenant reports the harassment.
• A tenant being evicted after the housing provider discovers they have dated people of the same sex and identify as bisexual.
• A same-sex couple being shown rental units only in a part of the city known for having many LGBTQ+ residents.
• A building manager refusing to authorise repairs after observing a tenant's teenage daughter holding hands with her girlfriend, citing disagreement with the teenager's "homosexual lifestyle".
• A leasing manager rejecting a male tenant's request to add his same-sex partner to his lease, stating that the community only accepts married couples comprising "one man and one woman".

HUD will accept and investigate all legally sufficient complaints of sex discrimination, including those based on sexual orientation and gender identity. The Fair and Equal Housing Act, reintroduced in the House of Representatives in 2023, would provide explicit non-discrimination protections for LGBTQ+ people in housing by adding "sexual orientation" and "gender identity" as protected characteristics under the Fair Housing Act.

Discrimination in public accommodations

However, some states have passed laws to protect the rights of LGBTQ+ people in public accommodations. As of 2016, 21 states and the District of Columbia expressly prohibited discrimination in public accommodations on the basis of sexual orientation, and 17 of those states and the District of Columbia also expressly prohibited discrimination on the basis of gender identity.

The lack of federal protection for LGBTQ+ people in public accommodations has led to a high number of anti-LGBTQ+ bills being introduced and passed at the state level. In 2023, over 520 anti-LGBTQ+ bills were introduced in state legislatures, a record number. Of these, over 220 bills specifically targeted transgender and non-binary people, and 70 anti-LGBTQ+ laws were enacted.

Despite this legislative pushback, public opinion in the US is largely supportive of LGBTQ+ rights. A 2022 Grinnell College National Poll found that 74% of Americans agree that same-sex marriage should be a guaranteed right, and by 2024, same-sex marriage was no longer a topic of substantial public debate. Additionally, a 2021 Public Religion Research Institute poll found majority support for the legal recognition of same-sex marriage in 47 states, with only two states, Arkansas and Mississippi, having majority opposition.

The legal landscape for LGBTQ+ people is constantly evolving, and there are resources available to help individuals who believe they have experienced discrimination. For example, the ACLU offers assistance to those who have experienced discrimination based on sexual orientation or gender identity and can help individuals understand their rights under federal and state laws.

Discrimination in schools

Discrimination against LGBTQ+ students in schools is a pervasive issue in the United States. While the rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ+) people in the United States are among the most advanced in the world, with public opinion and jurisprudence changing significantly since the late 1980s, LGBTQ+ students continue to face discrimination and harassment in schools.

Forms of Discrimination

LGBTQ+ students face various forms of discrimination in schools, including:

• Bullying and Harassment: LGBTQ+ students often experience bullying, name-calling, threats, and physical harm due to their sexual orientation or gender identity. This type of anti-LGBTQ+ harassment is one of the most pervasive, frightening, and potentially damaging threats faced by LGBTQ+ students in public schools.
• Restroom and Locker Room Accessibility: Transgender and gender non-conforming students often face challenges regarding restroom and locker room accessibility, as some schools restrict their access to facilities that align with their gender identity.
• Censorship and Silencing: Schools sometimes try to silence LGBTQ+ students by punishing them for talking about their sexual orientation or expressing their beliefs. Additionally, schools may censor LGBTQ+-themed clothing or symbols, such as rainbow-themed t-shirts or gay pride symbols.
• Outing: Schools may "out" LGBTQ+ students to their parents or others without their permission, which can have tragic consequences. It is important to note that schools do not have the right to "out" students and can be held legally responsible for violating the student's right to privacy.
• Curriculum Censorship: Some states have enacted laws censoring school curricula and banning instruction on LGBTQ+ topics, sexual orientation, and gender identity in schools.
• Gay-Straight Alliances: While the federal Equal Access Act protects the formation of Gay-Straight Alliances (GSAs) in public schools, some schools may try to block or treat these student clubs differently from other non-curricular clubs.
• Prom and Homecoming Events: LGBTQ+ students may face discrimination when bringing same-sex dates to prom or homecoming events, despite their First Amendment right to do so.

Legal Protections and Resources

It is important to know that LGBTQ+ students have legal protections and resources available to address discrimination in schools:

• Title IX of the Education Amendments of 1972 bans discrimination on the basis of sex in public schools, and this includes discrimination based on sexual orientation and gender identity.
• The First Amendment protects the right to free expression, which applies to school dress codes and students' right to express their sexual orientation or gender identity.
• The U.S. Constitution and Title IX protect the right of transgender and gender non-conforming students to express their gender identity, including their choice of clothing, as long as it aligns with the school's dress code.
• Students facing harassment or discrimination should report it to a principal or counselor, as schools have a legal responsibility to address these issues. It is crucial to document and keep records of all incidents and interactions.
• Local and national organizations, such as the American Civil Liberties Union (ACLU) and its LGBTQ+ Project, can provide support and guidance to LGBTQ+ students facing discrimination in schools.

Discrimination in healthcare

LGBTQ+ individuals frequently avoid healthcare settings due to fears of discrimination, harassment, or denial of service. This is further exacerbated by the lack of explicit statewide laws against LGBTQ+ discrimination in healthcare in many states, such as Michigan. As a result, LGBTQ+ people may experience delays or denials of medically necessary care, putting their lives at risk. For example, a patient with HIV was refused HIV medication by hospital staff after disclosing their sexual orientation. In another case, a transgender teenager who was admitted to a hospital for suicidal ideation and self-inflicted injuries was repeatedly misgendered and discharged early, later committing suicide.

LGBTQ+ people of color, those with disabilities, and those facing mental health issues or addiction are even more likely to face discrimination in healthcare settings. Additionally, LGBTQ+ adults, particularly those who are lower income, younger, or women, experience higher rates of discrimination and unfair treatment in their daily lives, including in healthcare. They are twice as likely as non-LGBTQ+ adults to report negative experiences while receiving healthcare, such as being treated unfairly or with disrespect, having their requests ignored, or being denied pain medication.

The stress and anxiety caused by discrimination can also lead to underlying health issues and negatively impact cardiovascular health. Furthermore, the lack of inclusive healthcare settings can result in LGBTQ+ individuals hiding their identities or remaining silent about their experiences, which can lead to limited information for healthcare providers and potentially impact the quality of care.

To address these issues, it is essential to create a more inclusive and safe healthcare landscape, enforce non-discrimination policies, and improve training for healthcare providers to ensure they are equipped to provide care for people of all backgrounds and orientations.

Frequently asked questions