Know the Law and Celebrate LGBTQ+ History Month!
October is LGBTQ+ History Month, and Fennemore is pleased to celebrate the history and achievements of the LGBTQ+ community.
LGBTQ+ History Month is a month-long celebration of the history of the diverse and beautiful lesbian, gay, bisexual, transgender, and queer community and the importance of civil rights movements in progressing the rights of these individuals in America. The observance was started by a high school history teacher in Missouri in 1994, and the following year, it was added to the list of commemorative months by the National Education Association.
The month-long commemoration is primarily celebrated in the U.S., the U.K. Canada, Australia, Hungary, Brazil, and the city of Berlin. Here in the United States, the laws concerning protections for the LGBTQ+ community continue to evolve. This article examines some of the laws protecting this community.
Employment Discrimination Based on Sexual Orientation or Gender Identity
A significant protection for the LGBTQ+ community is that employers with 15 or more employees cannot discriminate on the basis of sex. This form of discrimination is prohibited by Title VII of the 1964 Civil Rights Act. Moreover, some courts have ruled that Title VII also bans discrimination based on sexual orientation or gender identity. And many states and cities have laws that ban this kind of discrimination.
Most notably, the U.S. Supreme Court issued its landmark decision in the case Bostock v. Clayton County in the summer of 2020. The case held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) includes employment discrimination against an individual on the basis of sexual orientation or transgender status.
Discrimination in Housing
The federal Fair Housing Act prohibits sex discrimination by most landlords, and this can be interpreted to protect those in the LGBTQ+ community. Note that state and local laws may also bar housing discrimination. Plus, those housing providers that receive funding from the Department of Housing and Urban Development (HUD) or have loans insured by the Federal Housing Administration (FHA), as well as lenders insured by FHA, most comply with HUD’s Equal Access Rule. That rule prohibits discrimination in HUD programs on the basis of sexual orientation or gender identity. In addition, the Fair Housing Act and the Equal Credit Opportunity Act prohibit discrimination—including sex discrimination—in the sale or rental of housing and in other residential real estate transactions.
Discrimination in Public Accommodations
In public places, such as retail shops and restaurants, there’s no federal law that bans discrimination based on sexual orientation or gender identity; however, some states and cities may ban this type of discrimination.
Discrimination in Schools
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex by public schools. Moreover, there have been several federal court decisions that have held this law also protects LGBTQ+ students from discrimination or harassment. In addition, federal courts have held that Title IX requires public schools to respond to harassment based on appearance or behavior that doesn’t conform to gender stereotypes, and the First Amendment right to free expression can also apply to school dress codes. An individual’s rights in a school setting include the right to be transgender or transition at school.
It’s important to know that this topic of LGBTQ+ law is evolving and several courts have found that Title IX and the Constitution protect transgender students’ right to access sex-separated programs and facilities consistent with their gender identity. And again, there are some state and local laws that also explicitly protect transgender students from discrimination in schools.
The Right to Use the Restroom Consistent with an Individual’s Gender Identity
There has been a considerable amount of news about gender identity in the past year or so. Gender identity means the gender with which a person identifies. Another term that’s frequently used is “gender expression.” This refers to an individual’s gender-related mannerisms, style of dress, characteristics, appearance, or identity—without regard to their designated sex at birth. A person’s gender expression may or may not conform to his or her gender identity.
State and local laws that prohibit discrimination based on gender identity or expression should protect transgender people’s right to use restrooms and locker rooms that match their gender identity, and advocates say that laws that ban sex discrimination should also be interpreted by the courts to protect transgender people. Federal law in this area is not clear, but most courts that have addressed this question have found in favor of transgender people being able to access facilities most consistent with their gender identity.
Right now, there are 16 states and Washington, D.C. that have enacted laws that prohibit discrimination on the basis of sexual orientation and gender identity. In addition, there are another five states that have passed laws or enacted policies that prohibit discrimination on the basis of sexual orientation, but not gender identity. In contrast, six states have guidance that excludes trans and nonbinary students by requiring students to participate in athletics based on their birth certificate or their sex assigned at birth, with another three that prohibit trans and nonbinary students from participation unless they’ve undergone surgery
Some state and local nondiscrimination laws are much more specific about transgender people’s right to use gender identity-appropriate public restrooms. In fact, many businesses, universities, and other public places are converting their restrooms to all-gender spaces. Colorado, Iowa, Oregon, and Washington, and cities such as San Francisco and New York City, specifically grant transgender people the right to use gender identity-appropriate restrooms in public spaces. In Chicago, businesses are permitted to decide whether transgender customers may access men’s or women’s restrooms based on the gender on their ID, which may or may not reflect accurately the person’s gender identity. And as mentioned earlier, some cities — like Austin, Philadelphia, and West Hollywood — require that single-stall public restrooms be labeled as all-gender.
The Federal Government Recognizes Same-Sex Marriage
The federal government must now recognize valid same-sex marriages; thus, legally married same-sex couples will qualify (with limited exceptions) for federal benefits, no matter where they live. But note that the rules for eligibility are specific to each federal agency.
The Equality Act
New legislation advocated by the LGBTQ+ community would provide clear and consistent protections nationwide in employment, education, public spaces and services, federally funded programs, credit, and jury service. These are areas where LGBTQ+ Americans frequently experience discrimination and abuse.
Advocates point out that an increasing number of Americans—more than 80%—support legislation like the Equality Act. Plus, there are hundreds of major companies, 80% of small business owners, and over 100 religious organizations representing diverse faith traditions from across the country who support this law.
Join us in October in celebrating the history and achievements of the LGBTQ+ community. Understand the laws and how they protect the rights of LGBTQ+.
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