LGBTQ Rights in the U.S.

 

The legislation specifically designed to protect the lesbian, gay, bisexual, transsexual, and questioning/queer (LGBTQ) population are relatively new. Historically, the Supreme Court has overwhelmingly chosen to limit the rights of the LGBTQ community. In the 1973 court case Baker V. Nelson, the Supreme Court ruled that there was no guarantee of marriage for same-sex couples in the U.S. constitution.1

In Bowers V. Hardwick (1986), the Supreme Court concluded that “the Constitution does not protect the right of gay adults to engage in consensual sodomy in private.”1 However, in 2003, the Supreme Court astonishingly chose to defend and side with the LGBTQ community. In Lawrence V. Texas, the federal judges decided to overturn Bowers V. Hardwick, thus insinuating the first steps of legal equality for the LGBTQ community.

However, many U.S. states had abolished discriminatory laws against the LGBTQ community decades before the Supreme Court ruled them unconstitutional in 2003. For instance, in 1982, Wisconsin became the first state to outlaw discrimination against sexual orientation.1

Eventually, many states would follow the “Wisconsin model” and ban discriminatory policies against sexual orientation. This model was later expanded to include gender identity by states like California. Today, LGBTQ rights vary significantly from state to state. Below are seven categories of rights that states have expanded to include the LGBTQ community.

 

Schools

Nearly every state has adopted laws against the bullying of children within public schools but these anti-bullying laws often do not define categories of protection. For instance, a child can receive punishment for saying racial slurs, but not for homophobic curses.1 Without defining categories, it is often difficult to enforce anti-bullying policies.1

As of 2019, nearly all southeast states have failed to address bullying based on sexual orientation, sexual identity, or gender identity.2 Some states even require educators to portray LGBTQ people in negative or misinformed ways.2 These negative associations and misinformation can increase the rate of bullying and the rate of isolation that occurs to LGBTQ inclined youth.2 Both enumerated anti-bullying laws and non-discriminatory laws can be useful in the protection of children on school grounds.2

States protecting students in public schools against bullying through the use of discrimination or harassment on the basis of sexual orientation, sexual identity, and gender identity include: Arkansas, California, Colorado, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington.2

States protecting students in public schools against discrimination on the basis of sexual orientation and sexual identity only include the above states, (with the expectation of Arkansas and Maryland) Wisconsin, and Illinois.2

 

Hate Crimes

Hate crimes, also known as bias crimes, are crimes that are motivated by prejudice. At the federal level, the LGBTQ population is protected under hate crime laws.

Unfortunately, only 19 states and DC have hate crime enhancement based on sexual orientation and gender identity. Eleven states have hate crime enhancement based on sexual orientation, and sexual identity only. All but five states have a hate crime enhancement. Consequently, when the “state and local law enforcement cannot or will not investigate and prosecute these crimes, the federal government [will have] no authority to ensure that the perpetrators are brought to justice.”3 Thus, the inclusion of sexual orientation and sexual identity is crucial for the protection of the LGBTQ community.

States with bias crime enhancements which define sexual orientation and gender identity include Washington, Oregon, California, Nevada, Colorado, New Mexico, Hawaii, Minnesota, Illinois, Missouri, New York, Maryland, Delaware, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, and Maine.4

States with bias crimes enhancements which define sexual orientation only include New Hampshire, Kentucky, Tennessee, Florida, Louisiana, Wisconsin, Iowa, Nebraska, Kansas, Texas, and Arizona.4

The five states without bias crime enhancements are Arkansas, Georgia, South Carolina, Wyoming, and Indiana.4

 

Housing

The federal government requires the Department of Housing and Urban Development (HUD) to fund several mandatory housing programs that must be implemented at the state level.8 These programs include housing development block grants to help communities with economic development, rental assistance for low-income families, public or subsidized housing, mortgage/loan insurance, and homeless assistance programs.8 Homeless assistance programs are often faith-based non-profits which may complicate assistance for homeless LGBTQ people in some states if the organization is anti-LGBTQ.8 In exchange for these grants and general assistance, the federal government receives the ability to address discrimination in federally funded programs and communities regarding sexual orientation, sexual identity, and gender identity.⁸ While these programs ideally protect against discrimination from organizations and communities that use federal funds, it doesn't require at the state level an equal distribution of housing for communities that refuse this federal funding.⁹ Nor does the federal program have enough funding to adequately enforce its stated nondiscrimination policies.9 State law enforcement will usually only assist with enforcement if there are state laws preventing housing discrimination.10 Still, only 22 states and DC have laws protecting the LGBTQ community against housing discrimination.4

States with laws prohibiting discrimination in housing on the basis of sexual orientation and gender identity include, Washington, Oregon, California, Nevada, Utah, Hawaii, Colorado, New Mexico, Minnesota, Iowa, Illinois, New York, Maryland, Delaware, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, and Maine.4 The sole exception that prohibits against discrimination based on housing on the basis of homosexuality only is Wisconsin.4

 

Employment

Anti-discrimination laws protect LGBTQ workers from being fired without reasonable cause. Anyone without these protective anti-discrimination laws for their given identity can be fired for identifying with the LGBTQ community according to state law. However federal law now prohibits most forms of discrimination. As of 2019, there are 32 states and DC that have protections of some type with regards to workplace discrimination. The Federal Equal Employment Commission (FEEC) also accepts complaints against sexual orientation and gender identity discrimination in the workplace.

States with laws prohibiting discrimination in the workplace on the basis of sexual orientation and gender identity include, Washington, Oregon, California, Nevada, Utah, Hawaii, Colorado, New Mexico, Minnesota, Iowa, Illinois, New York, Maryland, Delaware, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, and Maine.4

Some states only prohibit workplace discrimination on the basis of sexual orientation, sexual identity and gender identity for public employees. These states include Montana, Michigan, Wisconsin, Indiana, Ohio, Kentucky, Virginia, and Pennsylvania.4

Four states only prohibit workplace discrimination on the basis of sexual orientation or identity. Those states are Alaska, Missouri, North Carolina, and Arizona.4

 

Public Accommodations

Public accommodations are the services one receives in both government agencies and private businesses if they provide those services to the general public.4 Public accommodation protection definitions include but are not limited to libraries, shops, restaurants, movie theatres, and hotels.4 Discrimination based on one's sexual orientation, sexual identity, and gender identity can legally occur without public accommodation laws.10 Public accommodation laws do not protect against discrimination from private clubs.4 Public accommodation has become increasingly more relevant since the Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case which stated that Masterpiece Cakeshop could refuse to serve a same-sex couple.5  The courts ruled that Masterpiece Cakeshop had the first amendment rights to refuse service to a same-sex couple based on the owner's religious beliefs and “reversed” the case to the lower courts.5 While this decision only affected this case, it brought to the general public the issue of public accommodation discrimination against LGBTQ people. 20 states and DC have created laws to guarantee that discrimination based on sexual orientation, sexual identity, or gender identity have a lower chance of occurring.4 Wisconsin is the only state to protect only on the basis of sexual orientation and sexual identity.4

States with inclusive public accommodation laws include Oregon, Washington, Nevada, California, Hawaii, Colorado, New Mexico, Minnesota, Iowa, Illinois, New York, Maryland, Delaware, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, and Maine.4

Adoption

Every state has laws permitting single parents to adopt children. Therefore, an unmarried LGBTQ person can legally adopt a child. After the Obergefell v. Hodges decision, the Supreme Court case which legalized same-sex marriage, federal laws protecting the family and adoption has allowed for same-sex couples to adopt as well.6 However, these laws are not always enforced by the states. Mississippi is the only state that disallows for a same-sex couple to jointly adopt although they may adopt independently regardless of their sexual orientation.7

Marriage

Marriage allows same-sex couples to receive crucial benefits, such as tax exemptions and hospital visitation rights. As of Obergefell v. Hodges, all states and DC recognize same-sex marriage.6  This 2015 landmark case stated that under the due process clause and the equal protection clause of the 14th amendment, all states must license and recognize same-sex marriages.6

For more information on same-sex marriage, please click here.

 

Concluding Remarks

While the United States has had many discriminatory laws in its past, recent court cases, such as Obergfell, have been instrumental in guaranteeing the equal protection of LGBTQ identifying people. Although much more work needs to be done to ensure that LGBTQ rights are fully protected as seen in the Masterpiece cakeshop case, state laws protecting LGBTQ people are a good start.

 

References:​

  1. Staff, NPR. "Timeline: Gay Marriage In Law, Pop Culture And The Courts." NPR. NPR, n.d. Web. 21 Jan. 2014.
  2. Staff, Glsen. “State Maps [on LGBTQ rights in the United States].” GLSEN (2019). Web. 18 Feb 2019.
  3. Staff, HRC. "Hate Crimes Law." Human Rights Campaign. HRC. Org, n.d. Web. 20 Jan. 2014.
  4. Staff, HRC. “State Maps.” Human Rights Campaign. HRC. Org. (2019). Web 18 Feb 2019.
  5. Masterpiece Cakeshop LTD., et al. v. Colorado Civil Rights Commission et al. 16-111 U.S. Supreme Court (2017). Web. 18 Feb 2019.
  6. Obergefell v. Hodges, 576 U.S. Supreme Court (2015). Web. 18 Feb 2019.
  7. Staff, LifelongAdoptions. “LGBT Adoption Laws” (2019). LifelongAdoptions, 2019. Web 18 Feb 2019.  
  8. Staff, HUD. “Questions and answers about HUD” (2019). Department of Housing and Urban Development. Web. 11 March 2019.
  9. Mallory, Christy, and Brad Sears. "Evidence of Housing Discrimination Based on Sexual Orientation and Gender Identity: An Analysis of Complaints Filed with State Enforcement Agencies, 2008-2014." (2016). Web.
  10. Mallory, Christy, Amira Hasenbush, and Sarah Liebowitz. "Employment, Housing, and Public Accommodations Discrimination Based on Sexual Orientation and Gender Identity in Missouri." (2013). Web.

Last updated 11 March 2019.

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