Although the two topics may be discussed related to similar issues, sexual orientation and gender identity discrimination are two distinct concepts. Sexual orientation discrimination is a form of discrimination. It refers to individuals who receive differential treatment or are harassed due to the fact that they either are or are perceived to be:

  • Gay;
  • Lesbian;
  • Transgender;
  • Heterosexual; or
  • Bi-sexual.

An individual does not actually have to fall into one of the categories noted above in order to be afforded protection under the law from sexual orientation discrimination. Gender identity discrimination is a type of discrimination which occurs specifically when an individual is harassed or receives differential treatment based upon how they express themselves related to their gender.

For example, if an individual present themselves in a manner which is associated with the opposite sex or if they undergo medical treatment in order to transition to the opposite gender. Gender discrimination is a different concept and should not be confused with gender identity discrimination.

Gender discrimination occurs when an individual receives differential treatment or is harassed because of their gender. Gender discriminations may also be referred to as sexism.

The distinction between gender discrimination and gender identity discrimination is that gender identity discrimination also includes gender expression. The United States Supreme Court held in 2020 that all three forms of discrimination discussed above are illegal and are protected by the Civil Rights Act of 1964 (“Title VII”).

Prior to this decision, Title VII only recognized gender discrimination. This means that it is now against the law in every state for employer to terminate workers simply because they are:

  • Gay;
  • Transgender; or
  • Bi-sexual.

Do Federal Laws Explicitly Protect Against Sexual Orientation Discrimination?

Yes, as discussed above, Title VII is a federal law which now applies to:

  • Sexual orientation discrimination;
  • Gender identity discrimination; and
  • Gender discrimination.

Generally, Title VII applies to employers both in the private and public sectors, as long as they have 15 or more employees. In addition, Title VII also applies to:

  • Federal agencies;
  • Labor organizations; and
  • The federal government.

Therefore, as a result of this court ruling, federal laws do explicitly protect against sexual orientation discrimination in both the private and public sectors when it meets the requirements laid out in Title VII.

Do Federal Laws Protect Me from Gender Identity Discrimination?

Similar to sexual orientation discrimination, gender identity discrimination is now considered to be illegal under Title VII, as noted above. For example, if an employer harasses or discriminates against a worker because the employer believes they do not conform to their respective gender stereotype or role, the employer’s behavior will be considered illegal according to the terms of VII.

It is important to note that the steps required to file a claim for gender identity discrimination are very similar to those require to file a claim for sexual orientation discrimination.

Does State Law Afford Any Protections for Sexual Orientation and Gender Identity Discrimination?

Traditionally, federal laws only prohibited discrimination based upon certain characteristics, including:

  • Race;
  • Ethnicity;
  • National origin;
  • Religion; and
  • Sex.

Because of this, many states provided protections beyond those provided by the federal laws to offer protections against discriminatory action which involved sexual orientation or gender identity. In contrast, in states which did not enact their own laws to protect individuals from these forms of discrimination, it was difficult for an individual to bring a lawsuit against their employer based on these grounds.

Currently, however, whether or not a state has provided additional protections, an individual may bring a lawsuit under Title VII for gender identity and sexual orientation discrimination claims. This means that even in states which previously had no relevant laws, for example, West Virginia and Alabama, an employer may now face legal repercussions for these types of discriminatory behavior.

Are There Protections against Sexual Orientation Discrimination by Landlords?

If a landlord discriminates against an individual due to their sexual orientation by not renting to the individual or attempting to evict them, there are actions an individual can take in response, depending upon the following three factors:

  • Whether there are legal protections in the state or city that make it illegal to discriminate on the basis of sexual orientation;
  • Whether the discrimination occurred when the individual applied for the rental or during their rental period; and
  • Whether they had a lease or rental agreement at the time of the discrimination.

What Can I Do if a Landlord Refuses to Rent to Me?

There are currently no federal laws which prohibit sexual orientation discrimination in housing at the rental stage. However, some states and cities have passed laws which make sexual orientation discrimination related to renting property illegal.

The states which provide protections against sexual orientation discrimination include:

  • California;
  • Connecticut;
  • Massachusetts;
  • Minnesota;
  • New Jersey;
  • Rhode Island;
  • Vermont;
  • Wisconsin; and
  • The District of Columbia.

Of the states listed above, there are three that also provide protections to transgender individuals, including:

  • Connecticut;
  • Minnesota; and
  • Rhode Island.

The cities which prohibit sexual orientation discrimination include:

  • Atlanta;
  • Chicago;
  • Detroit;
  • Miami;
  • New York;
  • Pittsburgh;
  • St. Louis; and
  • Seattle.

Unless an individual resides in one of the states or cities listed above, it is unlikely that they will be able to take any legal action in response to sexual orientation discrimination by a landlord, at least during the application stage.

Does it Make a Difference if I Have a Lease?

Yes, having a lease may make a difference. Once an individual’s tenancy has begun, their landlord can only terminate their lease if they break a clause in the contract or if they break the law.

The majority of leases do not contain clauses related to an individual’s sexual orientation. Therefore, if an individual’s lease does not contain any clauses referencing sexual orientation and there are no laws prohibiting an individual’s behavior, a landlord will have a very difficult time terminating the individual’s lease.

What if My Rental Agreement is on a Month-to-Month Basis?

If an individual has a month-to-month lease, they do not have the same protections of those individuals who do have a lease. This is due to the fact that, with a month-to-month rental agreement, a landlord is permitted to terminate the agreement so long as they provide the required amount of notice, which is typically 30 days.

Unless an individual resides in a city or state which makes sexual orientation discrimination illegal, they do not have many options.

Do I Need a Lawyer for My Sexual Orientation Discrimination in Housing Problem?

Laws governing discrimination are constantly evolving and changing. If you believe you have been the victim of sexual orientation discrimination related to housing, either by a landlord refusing to rent a property to you or by your landlord attempting to terminate your lease, it may be helpful to consult with a real estate lawyer.

Your lawyer can advise you of the laws in your state the latest developments in discrimination law, and whether you will have the basis for a claim. If the laws in your state do support a claim, your attorney will assist you in filing it as well as represent you in court.

If the laws in your state do not support this type of claim, your attorney will be able to advise you if any other applicable laws will help resolve your situation.