By striking down the Defense of Marriage Act (DOMA) provisions, the Supreme Court has upheld lesbian, gay, bisexual, and transgender (LGBT) rights in many major areas of the law. Single individual gay persons may adopt in all 50 states and the District of Columbia, although there are fewer states where they may adopt children jointly with their partners. Hate crimes based on sexual orientation or gender identity are also punishable by federal law under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.
Twenty-one states plus Washington, D.C. and Puerto Rico outlaw discrimination based on sexual orientation, and seventeen states (although not Michigan) plus Washington, D.C. and Puerto Rico outlaw discrimination based on gender identity or expression. Through executive orders, the governors of Indiana, Kansas, Kentucky, Maryland, Michigan, New York, and Pennsylvania have banned discrimination against transgender state workers. The Employment Non-Discrimination Act (ENDA), which aims to prevent discrimination against gay and transgender employees, passed in the Senate with bipartisan support (54 Democrats and 10 Republicans). As noted in the Senate committee report accompanying ENDA, state and local nondiscrimination laws encompass about 40% of the U.S. population.
According to the Equal Employment Opportunity Commission (EEOC), gender identity discrimination is “discrimination because of sex,” and the EEOC will process claims by LGBT complainants as if Title VII of the Civil Rights Act covers this issue. Gender Identity also includes sexual stereotyping. The Supreme Court upheld sexual stereotyping in a 1989 case as covered under Title VII, but only for traditional biological males or females. To expand it to reach beyond traditional, the Court stated, would require Congress to pass a law (such as ENDA). However, the Supreme Court has ruled that Title VII covers same sex harassment. Therefore, if a man pursues another man for a sexual relationship and it is unwelcomed, regardless of the orientation of the victim, Title VII would protect the victim.
Transgender Issues
Expanding the definition “boundary of sex,” the U.S. 6th Circuit Court of Appeals, which includes Michigan, has ruled that sexual stereotyping cases as sex discrimination cases will cover situations involving transgender. This logic contends that if employers discriminate against women based on their not being feminine enough, employers who discriminate against men because they wear dresses and makeup, or otherwise act femininely, also engage in sex discrimination because the injustice only occurs as a result of the victim's sex. Similarly, the 9th Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) and the 11th Circuit (Florida, Alabama, and Georgia) have ruled in this way. A federal district court in Washington, D.C. has also determined that employment discrimination against an individual for transitioning from one gender to another is a form of discrimination "because of sex," prohibited by federal law.
Transgender and bathrooms is still a hot topic that does not provide much protection for the transgendered. Most courts still use the theory that one’s sex is the biological sex at birth. For example, they have ruled to require that a transgendered woman must use the men’s room.
Title VII and LGBT
Although there are reportedly 9 million LGBTs in the U.S., without hard census data this statistic is difficult to prove. In a 2011 study, Gary J. Gates of the Williams Institute states that estimates of those who had same-sex encounters are higher than those who identified as LGBT. According to his report, an estimated 19 million Americans related that they have engaged in same-sex sexual behavior. Additionally, nearly 25.6 million Americans acknowledged at least some same-sex sexual attraction.
So what does this mean in the future? Title VII is likely to cover LGBT by law or by court decree. Therefore, employers need to enforce their policies to protect all who work for them. Human Resources must make sure managers and employees receive training to prevent harassment of any kind. Same sex partner marriage has made a complete about face in less than 10 years, in particular with the support of the Millennials. Employers should recognize that this same group, the workforce of the future, will gravitate to employers who actively demonstrate respect for the rights of all individuals as a strong component of the employer’s culture.
Source: Wikipedia, Smith, Gambrell & Russell, LLP, EEOC, ACLU, The Williams Institute