Sexual Orientation and Gender Identity Discrimination
By Lark Lewis, J.D. | Legally reviewed by Laura Temme, Esq. | Last reviewed January 22, 2025
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Americans have rights against sex-based discrimination. These legal protections extend to those who identify as lesbian, gay, bisexual, transgender, or queer (LGBTQ+). Laws and court rulings support that discriminating against LGBTQ+ people is illegal in many contexts.
Millions of lesbian, gay, bisexual, transgender, and queer Americans now have greater protections against discriminatory treatment. Modern laws help ensure LGBTQ+ people have equal access to housing, work opportunities, and more.
The federal government protects people against sex discrimination, among other things. The same is true for many states. A U.S. Supreme Court decision has clarified that "sex" in this context includes sexual orientation and gender identity.
Federal, state, and corporate rules about LGBTQ+ rights constantly evolve. Be sure to check back here for updates or contact a local attorney to get the most up-to-date information.
Do Sex Discrimination Laws Include Gender and Sexuality?
Yes, sex discrimination can include discrimination based on gender identity and sexual orientation. Federal court rulings set this precedent, which may shape future discrimination laws and cases.
An example of sexual orientation is being gay. In contrast, an example of gender identity is being transgender or not conforming to the "gender binary." Gender expression can include how a person behaves, speaks, or appears in a manner usually associated with a person’s gender identity.
In 2020, the Supreme Court decided a case called Bostock v. Clayton County. The decision related to three incidents. The first involved a Georgia man, Gerald Bostock, who was fired for being gay. The second involved a New York man, Donald Zarda, who was also fired for being gay. The third involved a transgender woman fired by a Michigan funeral home.
The court ruled that discrimination on the basis of sex includes discrimination based on gender identity and sexual orientation. This means employers can't base employment decisions like hiring or firing on sexual orientation or gender identity.
Gender and Sexuality Employment Discrimination
Americans enjoy federal protection against employment discrimination based on sexual orientation and gender identity. These laws encourage a safe and fair work environment.
Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of:
- Race
- Religion
- National origin
- Sex
Due to the Bostock ruling, the basis of sex under Title VII now also includes the basis of sexual orientation and gender identity. The law entitles LGBTQ+ workers to equal treatment at work.
These protections extend to workplace discrimination that:
- Takes place during the interview process
- Results in unequal pay
- Takes the form of sexual harassment
For example, a manager might be discriminatory if they ask invasive personal questions to a transgender employee or job applicant.
Other Examples of LGBTQ+ Sex Discrimination Protections
Federal law also protects against sexual orientation or gender identity discrimination in other areas. These include:
- Housing discrimination (see the Fair Housing Act)
- Lending discrimination (addressed by the Equal Credit Opportunity Act)
- Education discrimination (look to Title IX of the Educational Amendments of 1972)
- Health care and insurance discrimination (under laws including the Affordable Care Act)
Federal law doesn't protect against sexual orientation or gender identity discrimination in public accommodations.
Other areas for which there is protection include:
- Hate crimes
- Miscellaneous policies
- Same-sex marriage
Hate Crimes
Federal law protects LGBTQ+ individuals from hate crimes motivated by the victim's sexual orientation. Some states have their own laws about hate crimes.
The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (often called the Matthew Shepard Act) became law in 2009. It more severely penalizes violent offenders who target gay and lesbian people.
Miscellaneous Policies
The president has the power to issue policies that expand the rights of LGBTQ+ citizens. This can be achieved through executive orders. Federal agencies under the president's control execute and enforce these policies.
For example, President Barack Obama ordered all hospitals accepting Medicare and Medicaid payments to:
- Allow same-sex partners of patients to visit their loved ones
- Allow same-sex partners of patients to make medical decisions for their loved ones
Same-Sex Marriage
Finally, the federal government recognizes same-sex marriages. Married gay and lesbian couples enjoy the same privileges as straight couples. Transgender people also hold the same rights.
On June 26, 2015, the U.S. Supreme Court decided a case called Obergefell v. Hodges. The majority of justices held that same-sex couples have a fundamental right to marriage. The court's ruling relied on the Constitution's equal protection clause and the due process clause.
The Supreme Court's landmark decision overturned all state laws banning same-sex marriage. As a result, same-sex marriage became legal in all 50 states and U.S. territories except American Samoa.
State Protections for Gender Identity and Sexual Orientation
Each state can choose to add protections for LGBTQ people. For example, laws in New York may be quite different from laws in Texas. Check your state's nondiscrimination laws to determine your protections. Certain issues, such as protected use of bathrooms and locker rooms, vary significantly.
State laws can affect the following legal areas:
- Discrimination in employment
- Discrimination in housing
- Discrimination in lending
- Discrimination in education
- Discrimination in public accommodations
- Family law
Same-sex marriage is legal in all states. Still, some states have other options for same-sex couples. These include civil unions and domestic partnerships. Another relevant area of family law concerns adoption by same-sex couples and transgender individuals.
Additional Protections by Private Employers
Employers may grant higher protections to gay, lesbian, bisexual, transgender, and queer employees. These safeguards can exist even when federal or local laws don't require them.
If you've experienced harassment or discrimination on the job, look at your employer's discrimination policies. The human resources department should make this information available to you. Note that the law offers exemptions to some types of employers.
Complaints of discrimination on the basis of sexual orientation can often be brought to the federal Equal Employment Opportunity Commission (EEOC).
Talk to an Attorney About Sexual Orientation or Gender Identity Discrimination
Have you suffered sexual orientation or gender identity discrimination?
Maybe you're wondering if you've been singled out based on your transgender status. Federal law may or may not protect your human rights. State laws could apply, however.
Civil rights law concerning sexual orientation discrimination can be complex. An experienced civil rights attorney can help you understand your rights.
Can I Solve This on My Own or Do I Need an Attorney?
- Most civil rights cases need the help of an attorney
- Complex civil rights cases (such as employment discrimination, racial segregation, or discrimination based on gender) need the support of a lawyer
An attorney can help you enforce your civil rights and other constitutional rights. Many offer free consultations and can offer tailored advice during your court case.
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