Sexual Orientation, Gender Identity, and the Law in a Nutshell
Author:
Colker, Ruth
Edition:
2nd
Copyright Date:
2022
14 chapters
have results for Sexual Orientation, Gender Identity
Chapter 7. Federal, State and Local Nondiscrimination Laws 97 results (showing 5 best matches)
- Prohibition of inquiries on sexual orientation or gender identity. No owner or administrator of HUD-assisted or HUD-insured housing, approved lender in an FHA mortgage insurance program, nor any (or any other) recipient or subrecipient of HUD funds may inquire about the sexual orientation or gender identity of an applicant for, or occupant of, HUD-assisted housing or housing whose financing is insured by HUD, whether renter-or owner-occupied, for the purpose of determining eligibility for the housing or otherwise making such housing available. This prohibition on inquiries regarding sexual orientation or gender identity does not prohibit any individual from voluntarily self-identifying sexual orientation or gender identity. This prohibition on inquiries does not prohibit lawful inquiries of an applicant or occupant’s sex where the housing provided or to be provided to the individual is temporary, emergency shelter that involves the sharing of sleeping areas or bathrooms, or...
- The Utah statute provides for protection against sexual orientation and gender identity discrimination but has a somewhat contradictory definition of “gender identity” for the purpose of the statute’s protection. It says:
- It also has a somewhat unusual definition of “sexual orientation” to preclude the statute being used for the benefit of those who might be considered pedophiles. The statute provides that sexual orientation “means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth. ‘Sexual orientation’ does not include a physical or sexual attraction to a minor by an adult.”
- By 2007, the gay rights community was split over the issue of whether gender identity issues needed to be included in ENDA. In April 24, 2007, Representative Barney Frank introduced H.R. 2015, 110th Cong. (2007), which added coverage of gender identity for the first time. ENDA still explicitly did not cover disparate impact theories of discrimination and prohibited preferential treatment on the basis of sexual orientation or gender identity. It also continued to exempt religious entities and the armed forces from coverage.
- Local ordinances often ban discrimination in housing, public accommodations and employment on the basis of sexual orientation, gender identity and gender expression. Their remedies, based on their state constitution, may be limited to a misdemeanor. But they may have some kind of local community reconciliation organization that seeks to remedy violations of the ordinance. There is usually a religion exception such as:
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Chapter 9. Religious Freedom 22 results (showing 5 best matches)
- Despite the political uproar over the passage of Senate Bill 101 in Indiana, the law would have had little impact on the LGBT community because Indiana has no state-wide protections for discrimination on the basis of sexual orientation or gender identity. A baker, who does not wish to sell a wedding cake to a gay couple in Indiana, does not need to take advantage of a religious restoration act to do so. The baker can simply decide not to serve a customer on the basis of sexual orientation or gender identity and be unconcerned about potential legal ramifications.
- For the LGBT community, the last limitation may be of the most interest, because the EEOC has begun to interpret Title VII as banning discrimination on the basis of sexual orientation and gender identity. In theory, a religiously-based employer could seek to use RFRA to avoid those requirements. Although banning race discrimination has been found to be a “compelling state interest,” the same conclusion has not yet been drawn about banning sexual orientation or gender identity discrimination. It is not clear if courts will use the third point to avoid religious exceptions to nondiscrimination rules on behalf of the LGBT community.
- authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;
- national origin, disability, sex, sexual orientation, gender identity, or United States military service.
- On appeal, the Colorado Court of Appeals affirmed. It found that Craig and Mullens were discriminated against “because of” their sexual orientation even though the bakery was willing to sell them other products. It also rejected the argument that the denial was not due to their sexual orientation because two men who identity as heterosexual could seek to get married. The court of appeals said: “An isolated example of two heterosexual men marrying does not persuade us that same-sex marriage is not predominantly, and almost exclusively, engaged in by gays, lesbians, and bisexuals.”
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Chapter 3. Regulation of Gender Identity and Expression 117 results (showing 5 best matches)
- On January 20, 2021, President Biden issued an executive order on preventing and combating discrimination on the basis of gender identity or sexual orientation.
- 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. Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity. 77 Fed. Reg. 5661 (Feb. 3, 2012). On September 21, 2016 HUD published a final rule to ensure that all individuals have equal access to many of the Department’s core shelter programs in accordance with their gender identity.
- Plans must provide coverage for plan participants regardless of gender identity or gender dysphoria, including coverage for medically necessary transgender surgery and gender identity or gender dysphoria related health-care services. Gender identity means an individual’s gender-related identity, appearance or behavior regardless of whether such identity, appearance or behavior is different from an individual’s assigned sex at birth or physiology.
- Justice Alito dissented in an opinion joined by Justice Thomas. He accused the majority of enacting legislation rather than interpreting it, noting that Congress has considered but not enacted legislation amending Title VII to ban discrimination on the basis of sexual orientation and gender identity. They insist that the proper textual question is how Americans in 1964 would have understood the term “sex discrimination.” They argue that Americans in 1964 would have been “shocked” to learn that Congress was banning sexual orientation discrimination and “bewildered” to hear that Congress was banning a category that was not even widely understood to exist in 1964.
- Although the transgender movement is primarily concerned with issues of gender identity, rather than sexual orientation, it is currently aligned politically with the gay rights movement, now typically called the “LGBT” movement or the “LGBTQ+” movement. As discussed in
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Chapter 1. Introduction and Overview 4 results
- —sexual orientation, gender identity and the law—is one that has rapidly evolved in the last several decades.
- The legal developments, for those who identify broadly as “trans,” have been less dramatic but have 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 identity” which is defined as the “gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” H.R. 5, 116th Cong. (2019). Further, the Supreme Court recently interpreted Title VII to ban discrimination both on the basis of sexual orientation and transgender status.
- has tried to focus on the topics that are unique to the LGBTQ+ 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 on the broad topics of sex or gender discrimination. The topics included in this 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 LGBTQ+ community.
- Until 1961, when Illinois repealed its sodomy statute, every state in the United States had a sodomy statute. These statutes frequently banned non-procreative sexual activity by heterosexuals or homosexuals. It was not until the American Law Institute promulgated the Model Penal Code in 1955 and recommended that legislatures decriminalize consensual sexual relations conducted in private that state legislatures began updating their criminal law to eliminate such legislation.
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Chapter 8. Freedom of Expression and Association 21 results (showing 5 best matches)
- [U]nable to distinguish between instances of conduct connected to plaintiff’s expression of her female gender identity, such as the wearing of a wig or padded bra, and separate from it, such as grabbing a male student’s buttocks or blowing kisses to a male student. . . . [E]xpression of gender identity through dress can be divorced from conduct in school that warrants punishment, regardless of the gender or gender identity of the offender.
- Because Rowland limited her discussion of her sexual orientation to others at the workplace, rather than in a broader, public forum, the Sixth Circuit found that her “own treatment of the issue of her sexual preference indicates that she recognized that the matter was not one of public concern.” 730 F.2d at 449.
- THEIR SEXUAL ORIENTATION
- , the Eleventh Circuit that city and county ordinances prohibiting therapy to minors with the goal of changing their sexual orientation or gender identity violated the First Amendment rights of licensed marriage and family therapists. The Third Circuit found a similar New Jersey statute did not violate the free speech or free exercise rights of licensed counselors.
- students’ minority status such as race, religion, and sexual orientation. Moreover, our decision is based not only on the type and degree of injury the speech involved causes to impressionable young people, but on the locale in which it takes place. . . . Accordingly, we do not condone the use in public colleges or other public institutions of higher learning of restrictions similar to those permitted here.
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Chapter 6. United States Military 16 results (showing 5 best matches)
- sexual orientation. Would heterosexuals living in a city that passed an ordinance banning those who engaged in or desired to engage in sex with persons of the sex find it easy not only to abstain from heterosexual activity but also to shift the object of their sexual desires to persons of the same sex? It may be that some heterosexuals and homosexuals can change their sexual orientation through extensive therapy, neurosurgery or shock treatment. . . . But the possibility of such a difficult and traumatic change does not make sexual orientation “mutable” for equal protection purposes. To express the same idea under the alternative formulation, we conclude that allowing the government to penalize the failure to change such a central aspect of individual and group identity would be abhorrent to the values
- . 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.
- In 1992, while running for President, candidate Bill Clinton promised to lift the ban on homosexuals serving openly in the military. After running into opposition from Congress, President Clinton agreed to sign into law what was called “Don’t Ask, Don’t Tell,” because it was consistent with President Clinton’s directive that military applicants should no longer be asked about their sexual orientation when enlisting in the military. The new policy, however, continued to provide broad grounds for discharge if a service member sought to be open about his or her homosexuality. Below is an excerpt of that policy:
- 1346. Third, “sexual orientation is immutable for the purposes of equal protection doctrine.”
- 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.”
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Preface 1 result
- 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 transgender 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 LGBTQ+ 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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Chapter 4. Regulation of Parenthood 17 results (showing 5 best matches)
- , 225 N.Y.L.J., No. 9 at 29 (N.Y. Cty. Sup. Ct. Jan. 12, 2001). The court found that a surrogacy agreement would be unenforceable and used a best interest of the child standard to determine the proper outcome. C. raised the argument in the case that the child was suffering from “gender confusion” by being raised by two men. The court heard expert testimony on this issue and accepted the conclusion that such a diagnosis was not even possible for a baby. . at 30. The court awarded sole custody to G. with liberal visitation rights to C. Other than considering the argument about “gender confusion,” the court’s analysis did not appear to consider the sexual orientation of G. as a relevant factor.
- 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.
- 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. There also are no reported cases involving parents who are gender nonbinary. As with cases involving birth certificates and other identity documents, discussed in Chapter 3, one might expect courts to be flexible in applying rules developed under gender binary assumptions to parents who identify as gender nonbinary. The possibility of more than two parents will be discussed in
- Rather than have a statutory ban against LGBT people adopting children, most states have a “best interest of the child” standard for determining if potential adoptive parents are qualified to adopt. That subjective determination can sometimes be used to consider a prospective parent’s sexual orientation.
- . at 1194. The Alabama Supreme Court used a different legal rule. It said that the evidence of detrimental effect upon the child is only necessary when the noncustodial parent argues that the other parent had engaged in sexual misconduct. In this case, the father argued that he had known of his former wife’s lesbian relationship at the time of the divorce and never argued that her sexual orientation made her
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Outline 5 results
Chapter 2. Regulation of Sexuality 22 results (showing 5 best matches)
- . at 567. Instead, the Court found there was a history of banning non-procreative sexual activity, irrespective of the gender of the participants. Further, the Court
- Until 1986, when the Mann Act was amended, it could be used to prosecute anyone who transported a woman across state lines to engage in noncommercial sexual activity outside of marriage. The 1986 version of the Mann Act limits criminalization of “any individual . . . with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” Child Sexual Abuse and Pornography Act of 1986, decision appears to protect consensual, noncommercial sexual acts from criminal prosecution, it would appear that the Mann Act today is limited to prosecuting interstate travel for the purpose of prostitution.
- decision broadened the right of adults to make consensual decisions about their private, sexual behavior. Yet, it remains constitutional in the United States for states to make it illegal for two adults to engage in consensual sexual relations if an exchange of compensation has taken place, i.e., prostitution. At this time, the
- did not provide a police officer with a fundamental liberty interest to engage in private sexual conduct, when that conduct arguably negatively impacted her work as a police officer. was separated from her husband, had a sexual encounter with an officer from another department while attending a police department funded conference). Thus, under rational basis scrutiny, the department could constitutionally require her to act in a manner “that does not bring discredit to [the officer] or [the] agency.”
- Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether,
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Index 4 results
Chapter 5. Regulation of Marriage 2 results
- . at 672. Drawing on the Court’s precedent from both the race and gender areas, he reflected “that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”
- Given the definition of marriage which we have enunciated, the distinction between the case presented by appellants and those presented in Loving and Perez is apparent. In Loving and Perez, the parties were barred from entering into the marriage relationship because of an impermissible racial classification. There is no analogous sexual classification involved in the instant case because appellants are not being denied entry into the marriage relationship because of their sex; rather, they are being denied entry into the marriage relationship because of the recognized definition of that relationship as one which may be entered into only by two persons who are members of the opposite sex. As the court observed in
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- Publication Date: October 20th, 2021
- ISBN: 9781647089702
- 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-LGBT rights measures that have been adopted in various states.