LGBTQ+ Rights That Are and Aren’t Protected

Picture this: You and your partner are long overdue for date night. You call them and both decide to try the new, trendy spot for dinner. The night of, you pull out that outfit you’ve been saving, accessorize, and feel like that girl going to the restaurant. You get there, but what was supposed to be a relaxing evening turns into a nightmare as the staff and others in the restaurant stare, whisper, and even give nasty looks because you and your partner are holding hands. The manager approaches the table and asks you to leave because others in the restaurant are “uncomfortable.”

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Sounds silly, right? For those in LGBTQ+ communities, it is not silly at all and, in fact, is very real. Like all marginalized communities, LGBTQ+ people face an ongoing struggle with recognition of legal rights. It was only seven years ago that same-sex marriage became legal in all 50 states and only two years ago that sexual orientation and gender identity became federally protected against discrimination under the Civil Rights Act of 1964. However, with anti-LGBTQ+ legislation popping up across the country, legal protection and social acceptance of LGBTQ+ communities continue to be an uphill battle. In the wake of challenges new and old, knowing LGBTQ+ rights is crucial for those inside the communities as well as allies on the outside. Let’s take a look at a few legally recognized rights that help support LGBTQ+ communities as well as rights that are not (but should be) protected.

 

Rights with Full Protection

 

LGBTQ+ Rights at Work

Title VII of the Civil Rights Act of 1964 protects against discrimination in the workplace on the basis of gender identity and sexual orientation. Sex-based discrimination at work includes infringement of any rights related to employment: interviewing and training, hiring and pay, terminations and layoffs, and everything in between. Unfortunately, sex-based discrimination is a common occurrence, especially for those in LGBTQ+ communities. A 2021 report by UCLA School of Law’s Williams Institute found that more than 40% of adult LGBTQ+ employees have experienced unfair treatment at work during some point in their lives. While sex-based discrimination has long been illegal under the Civil Rights Act, legal protection for LGBTQ+ employees, specifically, is relatively new. In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton Cnty., GA, that discrimination “because of sex” applies to sexual orientation and gender identity, not just instances of sexual harassment or pregnancy. If you experience sex-based discrimination at work or know of a colleague’s experience of sex-based discrimination at work, you should consider filing a complaint with the Equal Employment Opportunity Commission (EEOC). Complaints must be filed within 180 days of the discriminatory act, and filing is completely free. Note that if you’re a federal employee, the complaint process has different filing and timeline requirements.

 

LGBTQ+ Rights in Education

Title IX of the 1972 Education Amendments prevents discrimination on the basis of sex in all federally funded schools, including primary, secondary, and post-secondary institutions. Since the Bostock case expanded the definition of “sex” to include sexual orientation and gender identity in academic settings too, LGBTQ+ students are now afforded protection for recruitment, admissions, lessons and instruction, housing, financial aid, and sports and extracurricular activities. Recent legislation passed in Florida and Virginia limit LGBTQ+ discussions in schools, and many critics point to Title IX to prove that the bills are illegal. Dubbed “Don’t Say Gay” bills, advocates claim that they uphold parents’ rights to have discussions about LGBTQ+ topics with their children at home rather than in school. Critics, on the other hand, point to free speech and discrimination issues under the First Amendment and Title IX. We saw Florida’s “Don’t Say Gay” bill in action recently when a Florida teen delivered his high school graduation speech using coded language about having curly hair in Florida’s humid climate as an analogy to his experience as a gay youth. With at least 20 states introducing “Don’t Say Gay” bills in 2022 alone, the extent of Title IX’s protection will likely be put to the legal test in coming months.

 

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LGBTQ+ Rights While Traveling

Proper gender identification is a major part of affirming LGBTQ+ communities. Though some might disagree, pronouns matter, and individuals should be addressed by their preferred pronouns wherever possible. Last summer, the U.S. Department of State took an inclusive step by expanding the gender options available for U.S. passport applicants, adding an “X” option to the existing “Male” and “Female” list. The passport gender marker does not have to match the gender identification on any other official documents like birth certificates or state-issued IDs. The Department also abandoned its policy of requiring medical documentation in order to change one’s gender identity on their passport, and now, passport holders can simply submit an application to have their listed gender identity changed. The expansion applies to adults and minors but is currently limited to passport applications with routine service, not expedited or urgent service, which is expected to start in 2023. By introducing this inclusive option, the State Department is leading the way for other federal agencies to recognize LGBTQ+ identities in a simple yet impactful way. If “X” marks the correct spot of your gender identity, head to the State Department’s website to have it reflected on your passport.

 

Rights with Limited or Missing Protection

 

LGBTQ+ Rights in Health

Health information can be one of the most private aspects of our lives. We have the choice to share as much as we’d like with others or, under the Health Information Portability and Accountability Act (HIPAA), as little as we’d like. For LGBTQ+ communities, health information related to HIV status can be especially sensitive. Each state has different laws when it comes to disclosing HIV status to sexual partners, but in most cases, HIV status is one piece of health information that is not required to be disclosed to employers. If a potential employer hasn’t officially offered a job to a candidate, the employer cannot legally ask the candidate about their HIV status. But if a job offer is extended and a medical examination is required or if the person is a current employee, an employer can legally ask about HIV status as long as they ask everyone who’s in a similar position. Unless an employer is asking for reasons related to the work, there’s no obligation to disclose even once an employer asks.

 

LGBTQ+ Rights in the Bathroom

Gendered bathrooms are an ongoing topic of debate, and much of the legislation has been left for individual states to decide. In general, transgender people can use the bathroom that most closely aligns with their gender identity. The only federal protection related to gendered bathrooms exists through the Occupational Safety and Health Administration (OSHA), which requires workplaces to allow transgender employees to use bathrooms that align with their gender identity, regardless of whether or not the employees have had gender-affirming medical procedures. This is only an at-work protection, though. In non-work settings, unisex or all-gender bathrooms are open for everyone, but there is a lot of disagreement about which gendered bathroom transgender people should use in public places. Research shows that limiting access to gendered bathrooms has a negative impact on transgender people’s physical health, mental health, and participation in public life. Yes, transgender people can technically use the bathroom they prefer, but misconceptions about sexual abuse and verbal or physical harassment can make a nightmare out of something as simple as using the bathroom for transgender communities.

 

Source: Mikhail Nilov | Pexels

 

LGBTQ+ Rights in Family Planning

Same-sex marriage became federally recognized in 2015, which led to same-sex adoption becoming legal across the U.S. the following year. While gay and lesbian couples can adopt, some state laws still have limitations that impact foster children’s placements in same-sex homes, and other state laws restrict adoption only to same-sex couples who are legally married. For same-sex couples, adoption is a significant component of family planning since traditional conception isn’t usually an option. Many couples either adopt children through adoption agencies or one of the partners in the couple conceives and the other partner adopts the child once they are born. State barriers can complicate family planning for same-sex couples, especially with international adoptions, so there is room for improvement. Same-sex families who are interested in adopting should check with their state’s children and family services agency to determine eligibility.

 

Discrimination in Public Places

Of the legally protected rights for LGBTQ+ communities, a major protection is missing with sex-based discrimination in public places. Title II of the Civil Rights Act of 1964 prevents discrimination in public places on the basis of race, color, religion, or national origin, but sex is not a factor. Public places that fall within Title II’s scope include hotels and lodging, restaurants and other food retail establishments, and entertainment venues. This means that these businesses violate federal law if they discriminate against racial minorities, those from other countries, or people with differing religious beliefs. However, unless the businesses are located in states with individual laws against sex discrimination, they can legally discriminate against LGBTQ+ communities, including denial of services or refusals to sell. This is a major pitfall that leaves LGBTQ+ communities vulnerable to discriminatory experiences in public places without any federal solutions. Sex-based discrimination has the potential to happen anywhere, and people deserve to be federally protected against that possibility no matter the location.

 

LGBTQ+ Rights are Everyone’s Rights

For underrepresented and underserved communities, knowing your rights can make a huge difference in day-to-day life—it equips you with the knowledge to defend yourself and demand the rights that you’re entitled to. As allies to underrepresented and underserved communities, being familiar with these rights is another way to “walk the walk” and not just “talk the talk” of support and advocacy. There is still much to be done to ensure equal protections for LGBTQ+ communities. With so many state legislatures leading active campaigns to silence and ignore LGBTQ+ experiences, this is a particularly critical time to know and advocate for LGBTQ+ rights. Even if you’re not part of LGBTQ+ communities, the strength of each of our legal rights hinges on the extension of those rights to everyone, not just cisgender, heterosexual people.

 

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