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Gay and Lesbian Rights / Sexual Orientation Discrimination

The U.S. and many state governments have robust protections against discrimination on the basis of race, national origin, or sex. However, the civil rights of gay and lesbian citizens are currently in a state of flux. Gay and lesbian individuals are protected by a patchwork of federal, state, and corporate rules and regulations. This article reviews the kinds of protections that are currently available. However, it's important to remember that these rights are constantly changing. Be sure to check back here for updates, or contact a local attorney to get the most up-to-date information.

Federal Protections

As a general rule, federal law doesn't protect individuals from sexual orientation discrimination in employment, housing, lending, education, or in any other area. There are, however, certain exceptions to this rule.

One of those exceptions deals with hate crimes. Federal law protects gay and lesbian individuals against hate crimes motivated by animosity over their sexual orientation. The Matthew Shepard Act, signed into law in 2009, gives violent offenders who target gay and lesbian people higher penalties than they would otherwise receive.

Secondly, The EEOC may enforce the rights of gay and lesbian employees if the discrimination at issue was on the basis of sex. For example, if a woman faces a hostile work environment because she cuts her hair short, refuses to wear a skirt and heels, and is generally not "effeminate" enough, she may file a complaint with the EEOC. Sex stereotyping is considered sex discrimination which the EEOC may investigate. While not every instance of sex stereotyping relates to a gay or lesbian employee, many employees must endure this kind of discrimination and the EEOC can provide a powerful protection.

In addition, the President may issue policies that have a positive effect for gay and lesbian citizens. It's generally left to the agencies in the executive branch to execute and enforce these policies. For example, the Obama administration ordered that all hospitals which accept Medicare and Medicaid payments must allow same-sex partners of patients to visit and make medical decisions for their loved ones.

Finally, the federal government recognizes same-sex marriages, which means that married gay and lesbian couples enjoy all of the same privileges as their heterosexual counterparts, provided that they live in a state in which same sex marriage is legal. This recognition is due to the Supreme Court's decision in U.S. v. Windsor, which established that the federal government's traditionally disparate treatment for same sex couples under the Defense of Marriage Act (DOMA) violated the Equal Protection Clause. However, the federal government does not require states to allow same sex marriages.

State Protections

Each state is free to make its own laws regarding its gay and lesbian residents. Be sure to check the laws in your state to determine what protections you have. The laws that states pass can affect the following legal areas:

  • Marriage, which affects tax filing status, immigration rights, inheritance rights, and employee benefits;
  • Adoption;
  • Discrimination in employment, housing, lending, and education.

This area of law is constantly changing because states are frequently updating their statutes and constitutions to allow or discourage same-sex marriage. Same-sex marriage is legal in California and a number of states in the northeastern United States. Many other states such as Alaska, Mississippi, and Colorado have constitutional amendments banning same-sex marriage. However, some of these states allow same-sex couples to enter into civil unions.

Still other states, such as Utah, Texas, and Alabama have constitutional amendments banning same-sex marriage and civil unions, but still allow same-sex couples to enter into contracts that would grant them some of the legal benefits of marriage. Finally, a fourth category of states consisting of Michigan and Virginia do not even allow same sex couples to enter into these contracts.

Protections by Private Employers

Employers may grant higher protections to their gay and lesbian employees even when not required to do so by state law. Therefore, if you have experienced harassment or discrimination on the job, the first place to check is your employer's internal discrimination policies. The human resources department should make this information available to you.

For more information, see FindLaw's sections on Discrimination and on Domestic Partnerships.

Next Steps
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(e.g., Chicago, IL or 60611)

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