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Sexual Orientation and Gender Identity Discrimination

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Laws against Sexual Orientation and Gender Identity Discrimination

Sexual orientation discrimination is differential treatment or harassment based on an individual who is or perceived to be gay, lesbian, transgender, heterosexual, or bi-sexual. The individual does not actually have to be gay, transgender, or bi-sexual to be protected from sexual orientation discrimination.

Gender identity discrimination is harassment or differential treatment based on an individual who expresses himself or undergoes medical treatment to become the opposite gender. 

Gender discrimination is harassment or differential treatment based on an individual’s perceived gender. Unlike sexual orientation or gender identity, gender discrimination is explicitly protected by the Civil Rights Act, also known as Title VII.

Does Federal Law Explicitly Protect Against Sexual Orientation Discrimination?

It depends on whether the employee is a federal or private sector employee. Federal law does protect a federal employee from sexual orientation discrimination. However, federal law doesn’t explicitly prohibit sexual orientation discrimination in the private sector. 

How Does Federal Law Protect Against Private Sector Sexual Orientation Discrimination?

Although federal law does not explicitly protect against sexual orientation discrimination in the private sector, federal law does prohibit gender discrimination. The Supreme Court has held that Title VII prohibits workplace harassment from someone of the same sex because of the person’s sex. It doesn’t matter if the harassment or different treatment arose from propositions of sexual activity or not.

For example, a gay woman who is bullied at her private sector job cannot sue for sexual orientation discrimination. Under current federal law, that type of discrimination in the private sector doesn’t exist. However, she can sue for, and will likely prevail, under gender discrimination.

Does Federal Law Protect Me from Gender Identity Discrimination?

Yes. Federal law does prohibit employers from making employment decisions based on gender identity as a form of gender discrimination. For example, Title VII makes it illegal for an employer to harass or discriminate against an employee because he doesn’t conform to his respective gender role or stereotype.

Do States Afford Homosexuals Protection?

Traditionally, the federal government only prohibited discrimination based on race, ethnicity, national origin, religion, and sex. As a result, many states offer protection against discrimination based on ones sexual orientation or gender identity.

  • States protecting both sexual orientation and gender identity by law: California, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, and Washington.
  • States protecting sexual orientation by law: Delaware, Maryland, New Hampshire, New York, and Wisconsin.
  • States protecting both sexual orientation and gender identity in public employment: Kansas, Kentucky, Indiana, Michigan, Ohio, and Pennsylvania.
  • States protecting sexual orientation in public employment: Alaska, Arizona, Delaware, Michigan, Missouri, and Montana.
  • States offering no protections: Alabama, Arkansas, Florida, Georgia, Idaho, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming.   

Should I Contact an Attorney about Sexual Orientation or Gender Identity Discrimination?

Yes, if you’ve been a victim of gender identity discrimination or sexual orientation discrimination, contact an employment attorney. The attorney may be able to file a lawsuit to challenge the discrimination.

Photo of page author Taelonnda Sewell

, LegalMatch Legal Writer

Last Modified: 06-21-2018 06:56 PM PDT

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