Are LGBT Workers Protected from Discrimination? It’s Complicated

For many people, it it’s shocking to learn that nearly half of LGBT adults live in states lacking laws explicitly prohibiting discrimination at work based on sexual orientation and/or gender identity. Further, most people believe that there is a federal law explicitly prohibiting anti-LGBT discrimination. (Hint: there’s not).

Last week, the ACLU filed a response before the U.S. Supreme Court in a case in which Aimee Stephens, a transgender woman, was fired when she came out to her employer and informed them that she planned to start dressing in appropriate business attire for a woman.

Today, MAP, the ACLU and Lambda Legal released a new report that outlines the complicated patchwork of employment nondiscrimination protections for LGBT people. Are LGBT Workers Protected from Discrimination? Unravelling the Patchwork of Federal, State, and Local Employment Protections examines federal, state and local laws and court rulings that offer protections to LGBT workers and highlights the gaps that leave LGBT workers vulnerable to discrimination because laws don’t explicitly include the terms “sexual orientation” or “gender identity,” and courts have not interpreted sex discrimination provisions correctly.

  • Federal protections: A growing number of federal courts and the Equal Employment Opportunity Commission (EEOC) have concluded that when a person is discriminated against because of their sexual orientation or gender identity, such discrimination is inherently differential treatment based on the individual’s sex and illegal under federal laws’ prohibitions on sex discrimination.
  • State laws: Only 20 states and the District of Columbia have state statutes that explicitly prohibit discrimination in employment based on sexual orientation and gender identity, while two states have statutes that explicitly prohibit discrimination based on sexual orientation but not gender identity.
  • Local progress: Because of a lack of progress at the federal and state levels, some cities and counties are acting to protect their residents. Since the first local nondiscrimination ordinance was passed in 1974, hundreds of cities and counties have passed local nondiscrimination ordinances to protect LGBT workers from discrimination. These local ordinances currently provide important job safeguards for thousands of LGBT individuals living in states lacking explicit state-level protections.

There is broad public support for employment protections and yet, many Americans assume incorrectly that these laws already exist protecting LGBT workers from discrimination in the workplace. In 2018, 71% of Americans said they support laws that protect LGBT people from discrimination, including majority support in every state across the country.

That’s why efforts like Yes on 3 in Massachusetts and the successful New Hampshire campaign to pass HB 1319 are so critical. It’s time to update our nondiscrimination laws, so that everyone can have a fair shot to earn a living and provide for their family.

Intersex Awareness Day 2018

Today is Intersex Awareness Day, a day to bring advocates and allies together in a grassroots effort to raise awareness around intersex people. Intersex people—who compose up to 1.7% of the population—are born with sex characteristics that don’t line up with what society tends to think of as a typical “male” or “female” body.

Unfortunately, for many intersex people, the stigma surrounding intersex often creates dangerous medical interventions for infants, as well as barriers to accessing critical protections and resources later in life.

Earlier this week, The New York Times reported that the Trump Administration is preparing to redefine the term “sex” for the purposes of several key government agencies in a way that would rely only on the sex listed on an individual’s original birth certificate.

The Administration’s attempt to roll back recognition and protections would have a devastating impact on intersex people.

This redefinition is not only out of step with science, medicine and the law—but it could eliminate protections for intersex people and transgender people and could even stop recognizing intersex and transgender people all together. Click here to read an important op-ed from an intersex advocate in The New York Times responding to the Administration’s harmful proposal.

The negative impact of this potential new regulation would be felt by intersex people who frequently are forced to undergo painful, medically unnecessary surgeries as infants or children, without their consent.

Groups like InterACT work to educate the public and the medical establishment about the experiences of intersex youth and adults with the goal to stop these medical interventions. The changes proposed by HHS would put intersex children at an even higher risk for discrimination in institutional settings like hospitals and schools where they would be left without the protection of the federal government.

In honor of Intersex Awareness Day, we’re asking supporters and allies to spread the word about intersex people and help break down barriers to understanding.

Here are a few great resources from our colleagues at InterACT:

We also encourage you to share these on social media using #IntersexAwarenessDay. Here are a few #IntersexAwarenessDay 2018 graphics and posters.

Trump Administration’s Attempt to Redefine “Sex” & What It Means for Transgender and Intersex People

On Sunday, October 21, The New York Times reported that the Trump Administration is preparing to redefine the term “sex” for the purposes of several key government agencies. This redefinition is out of step with science, medicine and the law—and it is intended to not only to eliminate protections for transgender and intersex people, but to stop recognizing transgender and intersex people all together.

What is proposed redefinition of “sex” proposed by the Trump Administration?

The federal Department of Health and Human Services (HHS) would redefine sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth. The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.” The agency is promoting this redefinition of “sex” across other federal agencies, including the Departments of Justice, Housing, Education, and Labor, which implement and enforce key nondiscrimination laws across the country.

How do transgender and intersex people fit into this redefinition of sex?

This redefinition would mean that the sex marked on an individual’s birth certificate at birth would be the only way they recognized by the federal government, regardless of their gender identity, the gender they live every day, or the clear medical and scientific consensus that transgender people are who they say they are, or what their ID documents say. This redefinition would negate a transgender person’s identity. For example, a transgender woman who has lived as a woman for 40 years would be treated as a man for the purposes of federal law regardless of her gender identity, and even if her birth certificate, driver’s license, and passport had all been updated to reflect her identity as a woman.

The Trump Administration’s redefinition of sex also runs counter to the medical understanding of sex, genetics and the biological diversity of human beings, particularly for intersex people. Take the example of an infant born with sex-chromosomal anomalies like XXY or XYY, or the thousands of intersex people who are born with so-called “ambiguous genitalia.” Intersex people have worked for decades for the right to be who they are, and to not be forced to undergo unnecessary, painful, and irreversible surgeries–often as infants or without their consent–simply so they can be made to fit into a box on a birth certificate. This redefinition of sex advanced by the Trump Administration flatly ignores the biological diversity and very existence of intersex people.

In short, the Trump administration is working to ensure that trans and intersex people don’t fit into this redefinition at all. This is an effort not only to eliminate protections for trans and intersex people, but to stop recognizing trans and intersex people all together.

What would this redefinition of sex mean for federal laws and protections for Americans?

The proposed redefinition of “sex” would impact programs administered by the Department of Health and Human Services, which oversees protections in health care. If, however, the Trump Administration were to use this redefinition across the other federal agencies, this would mean that the federal government would back away from protecting transgender and intersex people from discrimination across a wide range of settings and instead enforce a view of sex that limits the type of programs, services and benefits that transgender and intersex people could pursue through administrative agencies.

There are many laws that prohibit discrimination on the basis of sex and these laws are designed to ensure that all people have the ability to go to work (Title VII of the Civil Rights Act of 1964), be paid fairly (Equal Pay Act of 1963), and take time off to care for themselves or a loved one (Family and Medical Leave Act); to pursue an education (Title IX of the Education Amendments of 1972), to access health care (the Affordable Care Act), to get credit (Equal Credit Opportunity Act), and to find housing (Fair Housing Act). These federal laws are supposed to be enforced by the federal government through Departments of Justice, Housing, Labor, Education, and Health and Human Services through civil rights offices and other enforcement offices. If all of these agencies and their offices tasked with enforcing federal law adopt this redefinition of “sex,” it means that the federal government is removing protections for both transgender and intersex people in terms of these vital laws, and preventing them from the equal treatment that a growing number of courts agree they are entitled to under federal law.

What can be done? What about the courts?  Or states that want to protect transgender and intersex people?

A growing number of federal courts have ruled that discrimination based on sex includes discrimination based on someone’s gender identity and expression. These courts have taken into consideration the science and medical community’s understanding of sex as well as the lived experience of transgender people. Regardless of the Trump Administration’s redefinition of sex, those court decisions in five circuits, covering 23 states, would remain binding. And the proposed changes do not alter the actual statutes of laws prohibiting discrimination. Only the courts or Congress can interpret or alter the statutes.

Nothing about the administration’s redefinition of sex would preclude Congress, state legislatures, or even city councils from passing nondiscrimination laws and ordinances that explicitly protect people from discrimination based on gender identity, gender expression, or sex. Currently 50% of LGBT people live in states that lack any explicit laws prohibiting discrimination based on gender identity in employment, housing, and public accommodations.

What happens next?

The administration is still drafting regulations that would enshrine this redefinition. When they are published in the federal register, individuals and organizations will have an opportunity to emphasize the science, medical, and legal consensus that the proposed redefinition of sex is out of step.

Additionally, it is important to continue to increase the public’s familiarity with transgender people and intersex people. They are our neighbors, coworkers, and children. Learn more about what it means to be transgender and intersex.

How can you support transgender and intersex people?

Now is the time tor raise your voice in support for transgender and intersex people. Express your personal support through phone calls and emails, both to your transgender and intersex friends, and to your elected officials. Donate to the National Center for Transgender Equality and the ACLU, who are leading the effort to ensure visibility, accessibility, and legal equality for transgender people, and to InterAct, which advocates for intersex youth.

Celebrate Your Local LGBT Community Center

Today is LGBT Community Center Awareness Day!

For many people, LGBT community centers are critical and sometimes the only source of social, educational, and health services.

MAP and CenterLink released a new report in August showing the critical role LGBT community centers play in the lives of LGBT people and their families, serving more than 40,000 people each week and providing targeted referrals to nearly 5,500 people.

Not only do community centers provide crucial direct services, including free access to computers and programming, but community centers play a huge role in advancing policy change at the federal, state, and local levels. Nearly every community center (93%) engages in public education and advocacy with  88% of these LGBT community centers doing the difficult and important work of educating the public about issues that matter to LGBT people and their families. Half of centers (52%) offer voter registration, which is crucial to ensuring that LGBT people participate in elections that impact their lives. Click here to see a new infographic about advocacy efforts at LGBT community centers.

What’s also striking is that 25% of centers have no paid staff and rely solely on volunteers. And, small centers with budgets of less than $150,000 are much more likely to have few or no paid staff.  Data from the 2018 LGBT Community Center Survey show that participating centers employ nearly 2,000 paid staff yet engage with more than 14,000 volunteers for nearly half a million volunteer hours annually.

So, if you’re looking for a way to support LGBT people in your community, consider making a donation to your community center—a proven way to strengthen the LGBT movement and provide support for LGBT people living across the country.

Click here to find and support the center nearest you.

Why Coming Out Day Can Be Hard for Incarcerated Youth

Did you know that 58% of girls in America’s juvenile justice facilities identify as lesbian, gay, bisexual, transgender, queer, or questioning?  That’s according to analysis of data from the Bureau of Justice Statistics by the Williams Institute at UCLA School of Law. And the majority of LGBTQ youth—a shocking 85%—in the juvenile justice system are youth of color, according to a national survey conducted by Ceres Policy Research.  

For these LGBTQ youth in the juvenile justice system, coming out or being out can be fraught. Coming Out Day is a national day of awareness and celebration of LGBTQ people celebrated every October. This year marks the 30th anniversary of National Coming Out Day.  

That’s because LGBTQ youth in the juvenile justice system face high rates of discrimination, harassment, and violence, as detailed in a report from the Movement Advancement Project, the Center for American Progress, and Youth First. Gay and bisexual boys, for example, were nearly 11x more likely than straight boys to report sexual violence. Many LGBTQ youth are also subjected by biased staff members to harmful conversion therapy and sex-offender counseling simply because the youth is LGBTQ, while many are also denied critical medical care. Finally, lack of supportive services and limits on family visitation mean LGBTQ youth who are incarcerated are often denied equal opportunities to successfully reenter their communities upon release. 

 

 

 

 

 

 

It’s clear that much reform is needed to reduce the number of youth incarcerated, to improve the opportunities and safety of youth in the system, and to support youth as they reach adulthood. For example, it is still the case that youth who are 17 years old in four states (Georgia, Michigan, Texas, and Wisconsin) are automatically charged as adults. In five other states (Louisiana, Missouri, New York, North Carolina, South Carolina) changes to keep children under 18 out of the adult system have not yet gone into full effect. The Michigan legislature has begun to take up reform legislation this fall.   

Especially today, as the LGBT movement and the nation highlight the need for support, acceptance, and welcoming spaces for LGBTQ youth, it is crucial that we look for ways to support LGBTQ youth in our country’s juvenile justice halls, our jails, and our adult prisons.  

Share these graphics and your own national coming out (#NCOD) for youth justice (#YJAM and) increase the visibility and awareness of the needs of LGBTQ youth in the juvenile and criminal justice systems.

LGBTQ Discrimination on College Campuses

Coming Out Week is here and for thousands of people across the country, this is a week of celebration and visibility of the LGBTQ community.

But for some students on college campuses, coming out can be dangerous—resulting in discrimination, harassment, or even expulsion.

Unfortunately, laws protecting LGBTQ students from discrimination are under attack. According a new brief released today by MAP and the National Center for Transgender Equality, Title IX, Religious Exemptions and Campus Climate: LGBT Protections in Higher Education, the expansion of the ability of colleges and universities to claim a religious exemption to federal nondiscrimination laws can have a profoundly negative impact on LGBTQ students. These risks include threats of expulsion, increased disciplinary action simply for being LGBT, being denied participation in extracurricular activities, or forced into conversion therapy or counseling.

What is Title IX?

Title IX of the Education Amendments of 1972 is a federal law that prohibits discrimination on the basis of sex in federally-funded educational institutions, including colleges and universities. For years, Title IX protections have been a critical protection for LGBTQ students—and not just for K-12 students.

In 2014, the Obama administration issued official guidance clarifying that transgender students are protected from discrimination based on Title IX’s prohibition on sex discrimination. However, in 2017, the Trump administration rescinded that guidance. In February of this year, the U.S. Department of Education’s Office of Civil Rights announced that they will no longer be investigating complaints of discrimination filed by transgender students.

What’s worse, according a recent leaked draft of new proposed rules from the Department of Education, the Department is exploring expanding the ability of schools to claim religious exemptions, and allowing schools to claim such an exemption without even notifying the Department of Education. This means schools basically have a de facto exemption from Title IX.

Importantly, federal Title IX continues to prohibit discrimination based on sex, and many courts have held explicitly includes discrimination based on gender identity and/or sexual orientation.

What does this mean for LGBTQ students?

Many campuses provide a welcoming and supportive campus climate for LGBTQ students including nondiscrimination policies that include sexual orientation and gender identity; provide facilities access and equal housing for LGBTQ students; establish preferred name policies; and support and prioritize the needs of LGBTQ student-led organizations, including those measured by The Campus Pride Index. However, there are an increasing number of campuses that are seeking religious exemptions to following even the basic nondiscrimination requirements of Title IX. Because of the reduced oversight from the federal government guided by actions from the Trump administration, it is likely more universities will request religious exemptions with regard to LGBTQ students, allowing them to discriminate against students on their campuses.

Is there any recourse?

Yes! As the brief points out, federal courts have determined that federal sex discrimination laws, including Title IX, prohibit discrimination on the basis of gender identity and/or sexual orientation.

Just like in K-12 schools, universities have a responsibility to ensure a safe campus environment for all students and to follow federal law. It is crucial to foster inclusion on campus so that LGBTQ students have the same chance as other students to pursue an education and be prepared to support themselves.

Click here to read Title IX, Religious Exemptions and Campus Climate: LGBT Protections in Higher Education.

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New Poll: Americans Believe Businesses Should Be Open to All

New Harris Poll data released today shows that the overwhelming majority of Americans believe that businesses should be open to all and should not be allowed to deny services to people based on their race, ethnicity or national origin (87%), sex (87%), sexual orientation (81%), gender identity (80%), religion (85%) or disability (88%).

The poll, conducted in conjunction with Out & Equal Workplace Advocates, surveyed 2,006 U.S. adults, including 184 respondents who identified as LGBT, from Sept. 13-17, 2018. Among the survey’s other key findings:

  • 75% of Americans believe when businesses open their door to the public, they should be open to all and serve everyone on the same terms—compared to the 25% of respondents who say that businesses should be able to refuse to provide services to certain customers if that would go against their religious beliefs.
  • 89% of Americans say they are likely to support, shop at, or work for a business that declares it does not discriminate based on race, ethnicity, national origin, sex, sexual orientation, gender identity, religion or disability.

Additional findings from the new Harris Poll can be found here.

Click here to read more about the Harris Poll and Open to All in this article in USA Today.