Legal & Legislative Initiatives

Our Legal & Legislative Initiatives unit monitors local, state, and federal legislation that impacts the LGBTQIA+ community across the country. In recent months, we've seen countless numbers of legislation aiming to restrict, even outright prohibit, the rights of the community at a variety of levels in many states. State medical boards, school administrations, library oversight committees, and others continue to push policies and regulations that negatively impact the LGBTQIA+ community in its entirety but, especially our transgender siblings.

Anti-Trans Bills

These measures target transgender and nonbinary people for discrimination, such as by barring or criminalizing healthcare for trans youth, barring access to the use of appropriate facilities like restrooms, restricting trans students’ ability to fully participate in school and sports, allowing religiously motivated discrimination against trans people, or making it more difficult for them to get identification documents with their name and gender.

Bills Pre-Empting Local Protections

These bills prevent cities and other local government entities from passing nondiscrimination protections that are more expansive than the protections offered at the state level, including protections for LGBTQ people.

Transgender Violence

Transgender and gender-expansive people face a disproportionately high risk of physical and sexual violence in our society, much of which is motivated by hate or fear, and stems from a lack of understanding and acceptance. This violence can be perpetrated by loved ones, family and friends, or strangers, and can occur in the home, school, workplace or on the street.

Intimate Partner Violence

Intimate partner violence (sometimes called domestic violence) involves physical or emotional harm by a significant other — usually a partner, spouse or date. Typically, intimate partner violence begins with verbal threats and can escalate to physical abuse. Early recognition is important, and individuals can seek help as soon as possible. Intimate partner violence often involves manipulation and control. Some of the barriers faced by gender-expansive survivors of intimate partner violence include:

Access to support services.
Lack of training on the part of service providers.
Discrimination in shelters.

The National Coalition Against Domestic Violence has information on services and organizations that are inclusive and supportive of trans survivors. Research suggests that gender non-conforming people face intimate partner violence at much higher rates than other adults. However, victims may be hesitant to seek help because they fear discrimination from law enforcement and health care providers. Sadly, not all intimate partner violence resources accommodate transgender and gender-expansive people, but specific assistance is available in certain areas.

Workplace Discrimination

26 percent of transgender and gender-expansive adults report being fired because of their identity. Because gender non-conforming people face such extreme job discrimination, some may turn to sex work as a last resort. This puts them at far greater risk of physical and sexual violence. Make sure you know your rights as an employee.

Discrimination

Our Legal Affairs & Legislative Initiatives group evaluates alleged claims of discrimination and, if deemed viable, will assist individuals, or a group of people, in bringing legal action in the appropriate local, state, or federal forum.

With more than 5.5 million LGBTQIA+ individuals living in the United States, it’s important to recognize not only our progress in furthering equality efforts, but also the barriers LGBTQIA+ people still face in fair and equal access to employment, housing, healthcare, and public accommodation. According to the Center for American Progress, as many as 1 in 4 LGBTQIA+ individuals in the U.S. reported experiencing some form of discrimination in 2016.

While there exist a number of nondiscrimination laws on the federal, state, and local levels that protect people from discrimination on the basis of characteristics such as age, sex, or national origin—until recently, federal law did not protect individuals from discrimination on the basis of sexual orientation or gender identity. That changed in June 2020 with the Supreme Court’s landmark ruling in Bostock v. Clayton County, where the Court ruled that the provision of Title VII of the Civil Rights Act of 1964 that protects employees from sex discrimination also extends to the protection of employees based on their gender identity and sexual orientation. However, it is important to note that this ruling only prohibits such discrimination in the employment context – it does not offer protection under this law to such individuals on in other areas such as housing.

How Discrimination Affects LGBTQIA+ Individuals

Experiencing discrimination is not something that can or should be easily brushed off, despite the reality that many people often feel they must brush off discrimination in order to maintain peace. Yet supporting or promoting discriminatory acts has real consequences on the lives of those affected.

The impact of discrimination in the LGBTQIA+ community may include effects on:

physical health
mental and psychological health
education
employment
housing status
treatment in public and social settings
economic security

Recent data on the health and livelihood of LGBTQIA+ individuals in the U.S. shows that:

46 percent of LGBTQIA+ workers are closeted in the workplace.
23 percent of transgender individuals in a 2011 survey reported experiencing “catastrophic discrimination,” which is defined as three or more life-disrupting events.
LGBTQ immigrants face unique barriers in gaining access to adequate healthcare and legal protections against federal and employment discrimination.
One in five survivors of anti-LGBTQIA+ violence in the U.S. are undocumented LGBTQIA+ immigrants.
68.5 percent of LGBTQIA+ respondents in a 2017 survey who had experienced discrimination reported a negative impact on their psychological wellbeing.
56.6 percent of LGBTQIA+ respondents from the same survey reported a negative impact on their neighborhood and community environment.

The effects of discrimination can be even more significant among LGBTQIA+ individuals who are marginalized in other ways. For instance, LGBTQIA+ people of color are 19 percent more likely than white LGBTQIA+ individuals to face discrimination when applying for a job in the U.S.

Transgender and non-binary people of color report higher rates of suicidal thoughts and behaviors and are more likely to experience violence, poverty, and incarceration than their white counterparts.

Being a woman, identifying as non-binary, or being transgender also carries a higher chance of facing discrimination among those in the LGBTQIA+ community.

Other factors that can contribute to the prevalence and types of discrimination faced by LGBTQIA+ individuals include a person’s age, national origin, religion, disability status, and more.

LGBTQIA+ Workplace Discrimination

Seventy-five countries across the globe, including the United States as of June 2020, prohibit employment discrimination on account of sexual orientation. In addition to the recently provided federal protections, a number of states, territories, counties, and municipalities have passed their own anti-discrimination laws. Some of them, such as Florida, are expressly intended to mirror federal laws providing for the same protections. So, until the Supreme Court issued its ruling in Bostock, gender identity and sexual orientation discrimination in the State of Florida were not prohibited, but they are now.

As of January 2020:

22 states and two U.S. territories have laws that prohibit workplace discrimination based on sexual orientation.
21 states and two U.S. territories prohibit workplace discrimination based on gender identity.

However, discrimination can also take several other forms. Employees may be discriminated against in their wages, how they are treated by their boss and coworkers, and in hiring practices.

Even more muddled are LGBTQIA+ rights in situations of harassment in the workplace, such as offensive comments and other acts meant to make LGBTQIA+ employees feel uncomfortable and unsafe. The legal standard that must be met in order to prove “workplace harassment” (also known as “hostile work environment”), the employee must be able to show that the offensive conduct was “so severe or pervasive that it materially altered the terms and conditions of the employment.” It is a relatively high standard that usually requires more than an isolated comment.

The following states and territories expressly prohibit sexual-orientation and gender-based discrimination in employment:

California
Colorado
Connecticut
Delaware
District of Columbia (D.C.)
Florida
Guam
Hawaii
Illinois
Iowa
Maine
Maryland
Massachusetts
Minnesota
Nevada
New Hampshire
New Jersey
New Mexico
New York
Oregon
Puerto Rico
Rhode Island
Utah
Vermont
Washington

Medical Care Discrimination Against LGBTQIA+ Individuals

LGBTQIA+ individuals can encounter significant barriers in receiving accessible and inclusive health care and finding medical providers that are knowledgable about their needs.

Many LGBTQIA+ people report delaying or avoiding seeking care because they’re concerned about how they may be treated by a provider. Bias and stigma in medical, employment, and other social settings can, in this way, not only have a significant mental and emotional toll, but also pose dangers to physical health and wellbeing.

There is no federal legislation in the United States that currently protects individuals from healthcare discrimination on the basis of gender identity and sexual orientation.

On the contrary, in 2017 the US Department of Health and Human Services (HHS) began proposing regulations that would make it easier for medical providers to discriminate against LGBTQIA+ patients, providing wider platitude to refuse care on moral or religious grounds.

In May of 2017, the HHS made moves to begin rolling back federal regulations that prohibit discrimination against transgender individuals who seek care through federally funded healthcare programs.

Examples of LGBTQIA+ healthcare discrimination include:

refusal of care
promotion of inappropriate treatment interventions
use of abusive language by a medical provider
discrimination from fertility and sexual health specialists

A nationally representative 2017 survey from the Center for American Progress found that 8 percent of LGBTQIA+ respondents reported delaying or forgoing medical care due to concerns about discrimination.

In the same survey, 8 percent of lesbian, gay, and bisexual respondents and 29 percent of transgender respondents reported experiencing a refusal of care from a medical provider because of their gender identity or sexual orientation in the past year.

Members of the LGBTQIA+ community experience higher rates of mental and physical health problems compared to the general population. Thus, these barriers faced by LGBTQ individuals in healthcare settings pose a serious concern.

Discrimination Against LGBTQIA+ Individuals in a Legal Setting

LGBTQIA+ individuals can also face discrimination in legal settings. With a lack of federal oversight, or even state-level protection in most areas of the country, there is little recourse available to LGBTQIA+ people who face discrimination by lawyers, attorneys, and other legal professionals on account of their sexual orientation or gender identity.

Legal settings, as well as many public and private settings, can become abusive spaces for LGBTQ people, with individuals living in small or rural towns at heightened risk for mistreatment.

Discrimination Against LGBTQIA+ Individuals

in Social Settings

Discrimination can occur in a variety of settings, extending beyond just a person’s place of employment or their doctor’s office.

Social and public settings in the community can also become unsafe or unwelcoming for LGBTQIA+ individuals, depending on the attitudes and beliefs expressed by those who occupy these spaces.

LGBTQIA+ parents, children, teachers, and community workers can face exclusion and abuse from other people in their community through attempted participation in social activities, events, or education-based organizations.

Examples of public and social settings where discrimination can occur:

schools
playgrounds
community centers
parks
parties
bars
restaurants
libraries
transportation services

Even covert forms of discrimination such as avoiding LGBTQIA+ community memberso r failing to accommodate the needs of disabled LGBTQIA+ community members, can have negative impacts on a person’s quality of life.

It’s also legal in most states for businesses and other areas offering public accommodation to discriminate against LGBTQIA+ individuals, as there is no federal law that explicitly prohibits this.

Individuals living in smaller towns that contain a reduced number of available business and service providers can face even greater costs from these discriminatory practices. This can affect where individuals are able to—or feel comfortable— buying their groceries, shopping for clothes, seeking auto repair, and engaging in other forms of consumer or social activity.

Laws Protecting LGBTQIA+ Rights

Despite widespread concern and reports of discrimination targeting LGBTQ individuals, the options LGBTQ people have for legal recourse in situations of discrimination are limited.

Employment And Housing

Federal law prohibits discrimination based on sex, gender identity, and sexual orientation (among other things). Twenty-one states nationwide have passed state laws that explicitly prohibit employment and housing discrimination on the basis of sexual orientation and gender identity. An additional state (Wisconsin) has a state law that prohibits discrimination due to sexual orientation only.

Employment discrimination is also prohibited in the U.S. territories of Guam, Puerto Rico, and the District of Columbia (D.C.). This does not extend to protection against housing discrimination in these territories.

Public Accommodation

Public accommodation non-discrimination laws protect the rights of LGBTQIA+ people from being refused service or discriminated against in public places on the basis of sexual orientation and gender identity.

Nondiscrimination laws prohibiting this type of discrimination have been passed in 20 states and D.C. There are no laws explicitly prohibiting this type of discrimination in 27 states and five U.S. territories.

Credit

Fourteen states have state laws protecting the rights of LGBTQIA+ people from being denied credit and lending services on the basis of sexual orientation and gender identity. There are no such laws passed in D.C. or any of the U.S territories.

State Employees

Discriminatory protections for LGBTQIA+ state employees are provided through explicit coverage in public employment nondiscrimination policies in 31 states and three U.S. territories.

An additional three states and one U.S. territory offer these protections on the basis of sexual orientation only.

Several rulings by the federal Equal Employment Opportunity Commission (EEOC) have also extended Title VII of the Civil Rights Act of 1964 prohibition on sex discrimination to include discrimination because of gender identity and sexual orientation. These rulings do not apply to private employers.

Healthcare

As of July 2018, 37 states do not expressly prohibit health insurance discrimination on the basis of sexual orientation and gender identity. The state of New Jersey prohibits this type of discrimination on the basis of gender identity only.

Only 19 states and D.C. prohibit the exclusion of medical services for transgender people in insurance plans. Twenty-two states have no policy on transgender health coverage, and 10 states expressly exclude it.

Certain provisions within the Affordable Care Act (ACA) of 2010 attempted to address some of the issues experienced by LGBTQIA+ people in healthcare settings in the following ways:

included more health coverage options, including Medicaid expansions
required most health insurance plans to offer the same level of coverage (i.e. parity) for behavioral and mental health services as for medical and surgical services
prohibited healthcare discrimination on the basis of “sex,” which includes gender identity

However, as of 2017, the last provision (section 1557 of the ACA) has been challenged in eight states in an attempted rollback.

Rollbacks on a federal prohibition against sex discrimination in healthcare settings leave transgender individuals particularly vulnerable, as this creates further confusion and adds greater heat to the controversial, if essential, national discussion on LGBTQIA+ rights.

If you believe that you, or a loved one, has been subjected to discrimination, please contact our office. We will evaluate the facts specific to your situation and, if the allegation(s) meet our criteria, we may be able to assist you in seeking redress.

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