Understanding the Well-Being of LGBTQI+ Populations (2020) / Chapter Skim
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5 Law and Legal Systems
5 Law and Legal Systems
Pages 95-120
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From page 95... ...
However, as one can see from the examples of women and people of color, the achievement of broad formal equality under law does not automatically stop the kinds of mistreatment that can diminish a person's capacity for well-being. For SGD people, legal equality is still new and somewhat precarious.
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From page 96... ...
The decision means that the federal law which prohibits discrimination in the workplace based on sex -- Title VII of the 1964 Civil Rights Act -- also prohibits job discrimination based on sexual orientation or gender identity. With this decision, the Court put into place the final component of what has become the new baseline for the law's treatment of SGD people: nationwide protection for LGBT people with respect to employment, marriage, intimate sexual conduct in a domestic setting, and, partially, military service (this is explained in further detail below)
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From page 97... ...
Clayton County is especially important because it will apply to all federal statutes that prohibit sex discrimination. Such laws cover education (Title IX)
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From page 98... ...
State laws may fill in the missing protections, but only about half the states have explicit coverage for sexual orientation and gender identity, and the scope of sex discrimination under most state laws has not been determined. Even in situations in which there are now protective laws, the degree of enforcement varies.
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From page 99... ...
. A local study in New York found that transgender people of color were twice as likely to be arrested for sex work as white transgender people (Goldberg et al., 2019)
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From page 100... ...
. Treatment in the Criminal Law System Studies have repeatedly found routine mistreatment of SGD people by police officers and prison staff (Goldberg et al., 2019)
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From page 101... ...
, more than 100 correctional experts from inside and outside the United States endorsed the need for such oversight.2 Immigration Prior to 1990, immigration law was used to exclude people classified as "sexual deviants," which included SGD people (Eskridge, Hunter, and Joslin, 2018)
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From page 102... ...
. Anti-Discrimination Laws Federal, state, and local laws prohibit some forms of discrimination based on sexual orientation or gender identity, but coverage can be inconsistent depending on the scope of each law.
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From page 103... ...
One state -- Wisconsin -- specifies only sexual orientation. The remaining state laws, like Title VII, prohibit sex discrimination in employment. Several states have issued regulatory guidance that interprets the prohibition of sex discrimination in state law to include sexual orientation and gender identity (Movement Advancement Project, 2020b)
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From page 104... ...
that receive federal funding.3 Here again, the logic of the Supreme Court's 2020 ruling in Bostock v. Clayton County is expected to apply, so that discrimination based on sexual orientation or gender identity will be included within the scope of the prohibition of discrimination based on sex.
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From page 105... ...
In addition to Title IX, there are also some state laws that address issues affecting SGD students in K–12 educational systems. In 17 states and the District of Columbia, laws explicitly prohibit sexual orientation and gender identity discrimination (Movement Advancement Project, 2020a)
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From page 106... ...
As in the case of anti-discrimination protections in education under Title IX, however, courts are likely to interpret the scope of sex discrimination in Section 1557 to ban discrimination on the basis of sexual orientation and gender identity. Of note while the question of federal protections continues to evolve, the scope of public accommodations protections in state law has sometimes been interpreted to include medical services.
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From page 107... ...
Housing and Credit In light of the reasoning of Bostock v. Clayton County, the prohibitions of sex discrimination in the Fair Housing Act and the Equal Credit Opportunity Act can now be interpreted to include sexual orientation and gender identity (Fair Housing and Equal Opportunity, 2019)
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From page 108... ...
. Identity documents present urgent issues for SGD people because the sex markers or names recorded on essential documents often differ from their gender identity or expression (Taylor et al., 2018)
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From page 109... ...
Two states, Ohio and Tennessee, do not permit birth certificates to be amended. In all but 10 states, birth certificates must contain either male or female as a gender marker; there is no third option for intersex or other gender diverse people (Movement Advancement Project, 2020b)
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From page 110... ...
In 24 states and the District of Columbia, adoption agencies cannot discriminate against people seeking to adopt on the basis of sexual orientation and gender identity, and 4 other states cover only sexual orientation. In the remaining states, discriminatory actions may be prohibited by laws banning sex discrimination. Eleven states permit child welfare agencies to decline to serve SGD people and same-sex couples based on religious belief (Movement Advancement Project, 2020a)
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From page 111... ...
. In addition, 35 states and the District of Columbia have laws that punish hate crimes committed because of sexual orientation or gender identity (Movement Advancement Project, 2020b)
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From page 112... ...
In many cases, victimization rates were greater for transgender respondents of color than for white transgender people (James et al., 2016) . The inclusion of sexual orientation and gender identity questions in federally sponsored surveys, such as the NCVS, represents progress toward expanding data collection efforts.
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From page 113... ...
Under the RFRA standard, courts must assess in each case whether a neutral and generally applicable federal statute, such as Title VII, imposes a substantial burden that is necessary to satisfy a compelling government interest. No case has yet come before the Supreme Court in which a small business has sought to use the religious beliefs of its owners to justify adverse employment decisions against SGD people with respect to issues such as hiring, firing, recognition of a marriage, or coverage of particular medical services, such as transition-related care in a workplace health insurance plan.
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From page 114... ...
The ruling in Fulton is likely to determine or at least influence similar cases pending in the lower courts. SUMMARY AND CONCLUSIONS SGD people come into contact with the law in a wide range of life contexts, including employment; health insurance and health care; housing; public accommodations; interactions with police and other parts of the criminal justice system; and access to and participation in government programs and government-administered systems, such as foster care, adop
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From page 115... ...
Federal law now protects against discrimination based on sexual orientation and gender identity in employment, a principle that is likely to be extended to education, housing, credit, and access to health care and health insurance. However, in some realms, such as public accommodations, federal law does not offer such protections.
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From page 116... ...
Such assaults tend to dispro portionately victimize sexual and gender diverse people of color and transgender people. Statistics from the Uniform Crime Reports suggest that sexual orientation hate crimes have increased since 2013.
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From page 117... ...
Available: https://www.hud.gov/program_offices/fair_housing_equal_opp/ housing_discrimination_and_people_identifying_lgbtq. Federal Interagency Working Group on Improving Measurement of Sexual Orientation and Gender Identity in Federal Surveys.
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From page 118... ...
. Prevalence and Public Health Implications of State Laws that Criminal ize Potential HIV Exposure in the United States.
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From page 119... ...
. The National Intimate Partner and Sexual Violence Survey: 2010 findings on victimization by sexual orientation. PsycEXTRA Dataset.
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