Sexual Orientation, Gender Identity, and the Law in a Nutshell
Author:
Colker, Ruth
Edition:
1st
Copyright Date:
2017
17 chapters
have results for Federal Law of Employment Discrimination in a Nutshell
Preface 4 results
- As with all Nutshells, a word of caution is required. This book presents an of the relevant federal and state laws and major legal decisions pertaining to discrimination against the LGBT community. It is not intended to provide a comprehensive analysis of those laws. Case citations are provided but the citations are not exhaustive as might occur with a Treatise. With a few exceptions, there is little discussion of policy issues, although the relevant statutes, regulations and case law are often placed in historical perspective for clarity.
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- The objective of this book is to help law students, lawyers and others recognize and understand the federal and state laws protecting the lesbian, gay, bisexual and transgendered community from discrimination. Students taking courses related to sexual orientation, sexuality, and gender are among the intended beneficiaries. The book will also benefit other students as well, such as those taking courses on civil rights issues. In addition, the book will assist lawyers, educators, employers, members of the LGBT community and others who have direct or indirect interests in these significant federal and state laws, either on their own behalf or on behalf of those they represent or with whom they work.
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- The topic of the rights of lesbians, gay men, bisexuals, and trans individuals (“LGBT”) is very broad and could include a nearly endless list of topics. This Nutshell has tried to focus on the topics that are unique to the LGBT community rather than focus on the topic of “gender” broadly as it applies to these communities and others. In other words, this is not a Nutshell on the broad topics of sex or gender discrimination. The topics included in this Nutshell include: regulation of sexuality, regulation of gender/appearance, regulation of marriage and family, the United States military, federal state and local nondiscrimination statutes and ordinances, First Amendment case law, and religious freedom. But these topics are only covered as they relate to the LGBT community.
- The legal developments, for those who identify broadly as “trans,” have been less dramatic but has also been evolving in a more protective manner. When the gay rights community first proposed the “Employment Nondiscrimination Act,” which was a federal law to prohibit discrimination against gay men, lesbians, and bisexuals, that bill explicitly did not seek to extend protections to people on the basis of “trans” identity or expression. S. 2056, 104th Cong. (1996). Nonetheless, the most recently proposed “Equality Act” seeks to ban discrimination on the basis of one’s “gender-related identity, appearance, mannerisms, or characteristics, regardless of the individual’s designated sex at birth.”
- The topic of this Nutshell—sexual orientation, gender identity and the law—is one that has rapidly evolved in the last several decades.
- This topic is very dynamic as reflected in the significant changes that have occurred since 2015. This Nutshell is not intended to serve as a substitute for thorough analysis and examination of the very complex legal rules at issue. It should be used as guidance only, for a very broad background of the subject matter. Readers are encouraged to supplement this Nutshell with research on the current legal rules.
- And, then, in 2014 and 2015, the United States Supreme Court concluded that § 2 and § 3 of DOMA were unconstitutional and that, additionally, it was unconstitutional for states to ban same-sex marriage. (discussed in Nutshell, § 5.6). In the span of 20 years, same-sex marriage went from being a legal non-entity to a right in every state in the United States.
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Chapter Part 4 169 results (showing 5 best matches)
- In the absence of federal legislation explicitly banning sexual orientation and gender identity discrimination, plaintiffs have had to try to use existing federal law to attain workplace protection. Title VII of the Civil Rights Act of 1964 has been a fertile ground for protection in recent years. Title VII makes it illegal to discriminate in employment against a job applicant, employee or former employee because of the person’s sex. Title VII also prohibits employers from retaliating against workers who oppose discriminatory employment practices such as reporting incidents of sexual harassment or filing claims of discrimination against an employer.
- Until 1993, the primary method of seeking to pass a law that would ban sexual orientation discrimination was to amend the existing Civil Rights Act of 1964. In 1994, the strategy shifted to seek to pass a new, free-standing bill to ban sexual orientation discrimination. These bills were narrower and tended to focus exclusively on employment discrimination.
- The New York State Human Rights Law can also be a vehicle for quite significant relief. In addition to prohibiting discrimination in employment and housing, it also prohibits discrimination by places of public accommodation. It provides that it shall be:
- Illinois is typical of states that have enacted laws banning sexual orientation discrimination and some aspects of gender identity discrimination. The Illinois Human Rights Act, which became effective on January 1, 2006, bans discrimination in employment and housing on the basis of sexual orientation. Like the Employment Non-Discrimination Act (“ENDA”) legislation proposed in Congress, it provides that the statute should not be construed to require “any employer, employment agency, or labor organization to give preferential treatment or special rights based on sexual orientation or to implement affirmative action policies or programs based on sexual orientation.” Illinois Human Rights Act, 775 ILCS 5 § 1–101.1 (Ill. 2006).
- Seventeen states and the District of Columbia ban discrimination on the basis of sexual orientation and gender identity or expression in employment, housing, and public accommodations. An additional five states provide partial nondiscrimination protection.
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Chapter Part 5 88 results (showing 5 best matches)
- decision, a university may refuse to fund student organizations if they refuse to abide by university nondiscrimination policies. That kind of refusal is not considered to be an unconstitutional viewpoint discrimination under . In
- [T]he State’s interest in eradicating discrimination is not sufficiently compelling to outweigh this interference with the Jaycees’ constitutional rights, because the organization is not wholly ‘public’, the state interest had been asserted selectively, and the anti-discrimination policy could be served in a number of ways less intrusive of First Amendment freedoms.”
- In an opinion authored by Chief Justice Roberts, the . at 64. The Court further noted: “[w]e have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. . . . Surely students have not lost that ability by the time they get to law school.” . at 65. Even if the Solomon Amendment were deemed to be a regulation of expressive conduct, the Court found it test because “the means chosen by Congress add to the effectiveness of military recruitment.” . at 67. As in (the draft card burning case), the Court found that the government’s military justification served a substantial government interest. Finally, the Court rejected the argument that the Solomon Amendment violated a law school’s associational rights. “A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school...
- Another First Amendment issue concerns the rights of student organizations to receive university or public school funds on a nondiscriminatory basis. Some of those cases are now resolved under a federal statute, discussed in Nutshell, § 8.2. But they can also involve constitutional principles. In
- As to the right to expressive association, the Court found that it was plainly implicated by the statute’s attempt to “interfere with the internal organization or affairs of the group.” . at 623. Nonetheless, the Court found that the right of expressive association is not absolute. “Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” . at 623. Further, the Court found that “eradicating discrimination against its female citizens” constituted a compelling state interest. . at 623. It also explained that government has a compelling state interest in preventing “invidious discrimination in the distribution of publicly available good, services, and other advantages.” ...analogized the Jaycees’ policies of exclusion as akin to “potentially expressive activities that produce special harms distinct from...
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Chapter Part 9 146 results (showing 5 best matches)
- Many state and local laws explicitly prohibit discrimination based on gender identity or expression. Employment nondiscrimination laws cover sexual orientation and gender identity in twenty states and the District of Columbia. As of 2015, those jurisdictions include California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, and Washington. In states that have not adopted nondiscrimination protection, there is often nondiscrimination protection by ordinance in major cities.
- In January 2012, HUD issued regulations explicitly prohibiting discrimination on the basis of gender identity, sexual orientation, or marital status in all federally-funded housing programs. Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity,
- Although the modern gender expression case law often applies to cases involving individuals who identify as a member of the lesbian, gay, bisexual and transgender (“LGBT”) community, the leading case in this area involved a woman who allegedly faced discrimination merely because she wasn’t sufficiently “feminine.” . For general discussion of the application of Title VII to LGBT issues,
- Title VII of the Civil Rights Act of 1964, , makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”
- They brought their initial housing discrimination claim under New York City Human Rights Law, N.Y.C. Admin. Code § 8–107[5][b][1], and New York State Human Rights Law,
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- In order for RFRA to be relevant, a statute must arguably burden an individual’s religious exercise. One way such an arguable burden could take place would be if a public accommodation, such as florist or baker, wanted to exclude the LGBT community from accessing its services and a statute existed that banned such exclusion. At this time, however, there are no federal statutes requiring entities to engage in nondiscrimination on the basis of sexual orientation or gender identity with respect to public accommodations, like bakeries or florists. The only federal public accommodation laws concern race discrimination and disability discrimination. Thus, there have been no RFRA cases directly impacting the LGBT community. As we will discuss below, however, some have passed their own version of RFRA. State courts may borrow from the federal case law under RFRA to guide them in interpreting their state statutes. Further, one might imagine that Congress will .... At that time, the federal...
- . (2012) was enacted in 1993. The Supreme Court found it to be unconstitutional as applied to state and local government in
- , it does appear that the federal RFRA is an important basis for arguments by entities that they do not want to comply with federal laws that are inconsistent with their religious beliefs. Given the religious objections that have been made at the state level, as will be discussed below, one can imagine these arguments will be further pursued if Congress enacts broader legislative protections for the LGBT community. Such arguments could also be used, conceivably, to avoid compliance with the new rules and regulations issued by EEOC and HUD, discussed in Nutshell, §§ 7.17 & 7.19. It is not clear if the Supreme Court’s statement that RFRA cannot be used to undermine Title VII’s race-based employment protections would also apply to sexual orientation and gender identity protections.
- In the wake of the (discussed in Nutshell, § 5.6), the Mississippi legislature enacted House Bill 1523, called the “Protecting Freedom of Conscience from Government Discrimination Act.” The Governor signed it into law on April 5, 2016; it was scheduled to go into effect on July 1, 2016.
- Although the state of Mississippi does not have an LGBT anti-discrimination statute, some cities and universities have such policies. The plaintiffs, therefore, argued that they would lose their protection from certain anti-discrimination policies if this law were to go into effect. Citing , 517 U.S. 620 (1996), the court found that this statute was enacted in direct response to and “condones discrimination against the LGBT community, but in its simplest terms it denies LGBT citizens equal protection under the law.”
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- While a complete discussion of the Court’s reproductive freedom jurisprudence is beyond the scope of this Nutshell, a brief survey of that case law can help show the interplay between that area of the law and the sodomy case law, discussed above. In both areas, the Court has wrestled with the question of whether it should broadly define the meaning of the term “Due Process” to encompass personal liberty-based decisions.
- The legal system has not been a strong tool for prostitution advocates to overturn laws that ban or limit prostitution in the United States. In Canada, however, laws that restricted prostitution were found to violate the Canadian Charter of Rights and Freedoms. , 3 R.C.R. 1101 (S.C.C. 2013). Prostitution, itself, was not illegal in Canada, but federal law outlawed public communication for the purposes of prostitution, and made it illegal to operate a bawdy house or live off of the avails of prostitution. Three sex workers challenged these rules as depriving them of their right to security by forcing them to work secretly. In a unanimous ruling, the Canadian Supreme Court struck down each of these provisions, overturning a 1990 decision that had upheld these provisions. The Court, however, suspended the declaration of invalidity for a year, to give the Canadian
- At the federal level, United States law has a history of quite rigid restrictions on prostitution. The immigration laws have been one source of such restrictions. Through the Act of March 3, 1875, relating to immigration, it was a felony to “knowingly and willfully import, or cause any importation of, women into the United States for the purposes of ‘prostitution.’ ” Act of March 3, 1975, 43d Cong., ch. 141, 18 Stat. § 477. On February 20, 1907, Congress passed a more comprehensive immigration law that also banned the importation of “any alien woman or girl for the purpose of prostitution, or for any other immoral purpose.” Act of February 20, 1907, 59th Cong., ch. 1134, 34 Stat. § 898. The Supreme Court interpreted “or for any other immoral purpose” to include importation to be a “concubine” rather than merely a prostitute.
- Despite those narrow interpretations of , the Supreme Court did cite it extensively in 2015 when it found that states may not limit marriage to opposite-sex couples. (discussed in Nutshell, § 5.6).
- Despite the uncertainties about the Court’s abortion jurisprudence, and how that jurisprudence might continue to support sodomy statutes, the Supreme Court had signaled in 517 U.S. 620 (1996) that it was willing to invalidate anti-LGBT measures. Colorado voters had enacted a state-wide initiative that precluded Colorado municipalities from enacting LGBT nondiscrimination ordinances. In a 6–3 opinion, authored by Justice Kennedy, the Supreme Court invalidated the initiative. The opinion purported to use mere rational basis legal analysis but was quite sharp in its condemnation of the state measure. For example, the Court said “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” at 633. It also concluded that the initiative imposed a disadvantage that is born of animosity toward the class of persons affected.” ...If a...
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- Nutshell Series, In a Nutshell
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Chapter Part 3 70 results (showing 5 best matches)
- The first legal challenge to women’s unequal participation in the military occurred in 1971 when First Lieutenant Sharron A. Frontiero, a physical therapist assigned to Maxwell Air Force Base Hospital in Alabama, challenged her level of veterans’ benefits under federal law. . Under existing law, a married man automatically received certain benefits, but a married woman had to establish that her husband received at least one-half of his support from her in order for the female service member to receive the extra benefits. Distinguishing , which had struck down a state probate statute that used gender as a tie-breaker for reasons of administrative convenience, the three-judge district court concluded (with one dissent) that the military’s rule could be upheld because it provided a vehicle through which female service members could seek the extra benefits. In an 8–1 decision, with the plurality opinion authored by Justice Brennan, the Supreme Court reversed the district court. ...an...
- Following World War I, the military favored a medical model for screening homosexuals out of the military. For example, Army standards listed “ ‘sexual perversion,” which included oral and anal sex among men, as one sign of ‘functional’ degeneracy.”
- In overturning the Army regulation, the Ninth Circuit panel concluded that homosexuals constitute a suspect class under equal protection jurisprudence, applying the factors the Court has traditionally used to make that determination. First, the Ninth Circuit concluded that homosexuals have “suffered a history of purposeful discrimination,” . at 1345, as reflected in their history of experiencing violence as well as being excluded from “jobs, schools, housing, churches, and even families.” . at 1345. Second, this discrimination can be characterized as “invidious,” because the trait has no relevance “to the quality of a person’s contribution to society.” . at 1346. Third, “sexual orientation is immutable for the purposes of equal protection doctrine.” . at 1347. Fourth, the group “lacks the political power necessary to obtain redress from the political branches of government.”
- This decision of the Ninth Circuit, however, was withdrawn and Perry Watkins was allowed to stay in the military through an estoppel analysis. . But the withdrawn opinion was an important example of a court trying to elevate sexual orientation discrimination to strict scrutiny status, such as used in the race discrimination area.
- The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.
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- The marriage equality issue relies on two sets of rights that will be discussed in this chapter—the right to marry and the freedom to choose your marital partner on a nondiscriminatory basis. When states failed to recognize same-sex marriage, they were violating both rights. Technically, members of the lesbian and gay community could because they could marry someone of the “opposite sex” but, realistically, they could not choose to marry the person they loved. As we will see in Nutshell, §§ 5.5 and 5.6, when the Supreme Court finally concluded that states and the federal government could not refuse to recognize same-sex marriages, it relied on both of those constitutional principles.
- Defense of Marriage Act, ). The effect of this provision was that same-sex couples, who had gotten married in their state, could not take advantage of the myriad of federal benefits available to same-sex partners. The constitutionality of this provision was successfully challenged in , discussed in Nutshell, § 5.5, below.
- 517 U.S. 620 (1996), the Court held that the “avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” . at 2693. It described the interference with the “dignity” of same-sex marriages as the “essence” of the statute. . at 2693. It found that the “federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
- The other major piece of resistance to was in Kentucky, where clerk Kim Davis refused to issue marriage licenses. That resistance will be discussed in Nutshell, § 9.6.
- In order to have standing to sue, Windsor had to demonstrate that her marriage was recognized under New York law in 2009, the relevant tax year, because the law of the state of domicile ordinarily determines whether two persons are married at the time of death. This argument was made somewhat difficult by the fact that a 2006 state court decision had concluded that the “New York Constitution does not compel recognition of marriages between members of the same sex.” district court found that New York would recognize their marriage based on the unanimous views of the state courts and governmental officials that New York would recognize a marriage consummated in another jurisdiction. . In other words, New York did not grant marriages to same-sex partners, but it recognized the validity of same-sex marriages that were consummated in other jurisdictions. Concluding that Windsor did have standing to pursue her claim, the federal district court granted her motion for summary judgment,...
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- As will be discussed below, some courts used to conclude that an LGBT parent was unfit. Therefore, the LGBT parent would have all parental rights terminated. Even though the LGBT parent may not have had legal custody, the courts also had to determine if he or she should have visitation. As will be discussed in Nutshell, § 4.6, courts used to place visitation restrictions on LGBT parents to minimize the exposure of the child to an LGBT “lifestyle.” Although the legal principles involving custody and visitation are similar, this Nutshell will discuss those legal principles separately in §§ 4.5 and 4.6
- Nonetheless, some appellate courts did continue to affirm restrictions placed on parents related to their homosexuality. In , the trial court judge awarded sole custody to the mother and imposed two restrictions on the father’s visitation rights: (1) he could not have a non-blood related person in the house overnight when the children were present and (2) he could not include the children in any activities that promoted a “homosexual lifestyle.” . at 735. The court of appeals affirmed that order concluding that it was based on the best interest of the children rather than private bias against the father’s homosexuality. Similarly, in
- Cases involving gestational motherhood can affect both gay men and lesbians. Gay men may hire a gestational surrogate to bear a child with an egg that has been donated from another woman. A lesbian might bear a child that is the result of a donated sperm and her partner (or another woman’s) egg. These situations could cause a court to inquire about who are the legally recognized parents. In the cases discussed above, the courts seem to assume that there will be a male and female parent, but one would expect the same principles to apply when the outcome is two male parents or two female parents. The possibility of more than two parents will be discussed in Nutshell, § 4.11.
- The New York court suggested that a narrow reading of the adoption statute would constitute discrimination on the basis of sexual orientation or marital status. At the time that decision was written, same-sex couples could not marry in New York. Even though same-sex couples can now marry, one could arguably still claim, as the court stated above, that the parent’s “misconduct” (in deciding not to marry) should not be used to harm the child who would benefit from having two legally-recognized parents.
- In interpreting the Uniform Parentage Act, in situations where sperm donors to be the legally recognized father, states have to be mindful of the Supreme Court’s decision in . In , an unmarried couple had had three children together and lived together intermittently for eighteen years. Upon the mother’s death, the children became wards of the state under Illinois law. The father was not given an opportunity to demonstrate he was a fit parent. The statute presumed the father was unfit if the parents were not married. The Supreme Court concluded that the father “was entitled to a hearing on his fitness as a parent before his children were taken from him and that, by denying him a hearing and extending it to all other parents whose custody of their children is challenged, the State denied Stanley the equal protection of the laws.” . at 649. Nonetheless, the Supreme Court also ruled in that the biological father of an unmarried couple had no constitutional right to challenge an...
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- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Robert A. Sullivan Professor of Law Emeritus, University of Michigan
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: December 2nd, 2016
- ISBN: 9781634608992
- Subject: Gender law
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell presents a very timely overview of legal topics relating to sexual orientation, gender identity and the law. Topics covered include: regulation of sexuality, gender identity and expression, parenthood, marriage, United States military, nondiscrimination statutes and ordinances, freedom of expression, freedom of association, and religious freedom. Discussion includes developments at the federal, state and local level. Statutes discussed include Title VII of the Civil Rights Act of 1964; Title IX; the Fair Housing Act; the Affordable Care Act; Don’t Ask, Don’t Tell; Defense of Marriage Act, as well as some of the anti-gay rights measures that have been adopted in various statutes such as North Carolina.