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LGBTQ+ people have faced discrimination in many areas, ranging from workplaces to schools to healthcare facilities. Our LGBTQ+ Legal Resource Center discusses the victories that this community has won and the obstacles that they still confront.
Each June, LGBTQ+ Pride Month commemorates the events of the Stonewall Uprising, a 1969 clash between LGBTQ+ individuals and police at a bar in New York City. Beginning on June 28, these events unfolded over several days and galvanized the LGBTQ+ rights movement nationwide. A year later, the tradition of the Pride march began. While Pride initially was limited to a single day, it has extended to a wide range of events that span the full month of June. These activities generally focus on celebrating the contributions of LGBTQ+ people to the U.S. and the world, while continuing to advocate for their rights.
At Justia, we firmly believe in the values of diversity and inclusion. We also support the efforts of traditionally marginalized populations to achieve equal treatment under the law. To help inform and empower LGBTQ+ Americans, we discuss their legal rights and potential concerns in the LGBTQ+ Legal Resource Center in our Legal Guides. The Center covers areas such as family law, employment, health care, education, and more.
Family Law Issues for LGBTQ+ Individuals
After a series of hard-fought court battles, the LGBTQ+ community won a landmark victory in 2015 with Obergefell v. Hodges, which established a constitutional right to same-sex marriage. This U.S. Supreme Court decision had sweeping implications, providing access to employment benefits, tax advantages, and inheritance rights, among other things. Marriage equality also means that both spouses in a married same-sex couple are presumed to be the parents of a child born during their marriage. This gives each spouse key parental rights, like the authority to make healthcare decisions for the child. If the marriage ends, each spouse will have the same opportunity for custody rights as a divorcing spouse in an opposite-sex marriage.
More complex concerns involving child custody may arise for unmarried same-sex couples, of whom one partner is the biological parent of the child. The non-biological parent may not be entitled to custody unless they have adopted the child or gotten a parentage judgment. If they take one of these steps, they will have the same status as the biological parent. As an alternative, an unmarried same-sex couple could consider devising a parenting agreement with the help of an attorney. This can provide that both partners are considered the parents of the child and acknowledge their parental rights and responsibilities. However, a parenting agreement may not fully control the outcome of any later dispute.
Employment Discrimination Affecting LGBTQ+ Individuals
Five years after Obergefell, the U.S. Supreme Court delivered another victory to LGBTQ+ individuals in the area of employment. In Bostock v. Clayton County, the Court ruled that the prohibition against “sex discrimination” in Title VII of the Civil Rights Act includes sexual orientation discrimination and gender identity discrimination, even though the statute does not explicitly contain those phrases. The decision extended anti-discrimination protections in the workplace to members of the LGBTQ+ community who work for employers with 15 or more employees. Many state anti-discrimination laws also include sexual orientation and gender identity among protected traits in the workplace. These laws may cover a broader range of employers or provide greater remedies.
Another type of discrimination that may affect this population is “sex stereotyping,” which is also forbidden under Title VII. This occurs when an employer treats an employee adversely because they do not conform to the appearance or behaviors typically associated with their sex or gender. Sometimes discrimination based on sex stereotyping takes the form of harassment. A claim may arise if harassment leads to a hostile work environment.
Health Care Issues for LGBTQ+ Individuals
Often known as “Obamacare,” the Affordable Care Act greatly expanded access to health care for all Americans. Among many other provisions, this law prohibits discrimination in health insurance due to the sexual orientation or gender identity of a consumer, or on the basis of HIV or other health conditions that are more prevalent in the LGBTQ+ community. The Affordable Care Act removes a loophole that had allowed insurers to withhold coverage from transgender people because their gender identity was considered a pre-existing condition. It also contains a non-discrimination provision that applies to healthcare facilities that receive federal funds. This should help LGBTQ+ individuals assert rights such as visitation at a hospital, although discrimination persists in some cases.
Fears surrounding AIDS historically have complicated the ability of gay and bisexual men to donate blood. Until recently, the federal Food and Drug Administration had imposed a policy that prevented sexually active gay and bisexual men from donating blood, even if they were married or in a monogamous relationship. To donate, gay and bisexual men needed to affirm that they had not had sex with other men for three months. This regressive policy finally ended this year, when the FDA replaced time-based deferrals for gay and bisexual men with a recommendation that donor eligibility should be determined on an individual risk basis, regardless of the sexual orientation of the potential donor.
Schools & LGBTQ+ Youth
As their sexuality and gender identity develop, children who are starting to identify as LGBTQ+ may face severe problems at school, such as bullying by their peers. LGBTQ+ children in public schools are constitutionally entitled to the same protections against school bullying that other children receive. Meanwhile, a federal law called Title IX prohibits discrimination based on sex in schools that receive federal funding. The U.S. Department of Education has interpreted Title IX to prohibit discrimination based on sexual orientation and gender identity as well. In 2022, a federal court in Tennessee temporarily blocked the implementation of this interpretation in various states that have challenged it. Proposed rules consolidating the interpretation are currently pending.
LGBTQ+ students have certain protections related to their expression of orientation and identity. The First Amendment generally shields their freedom of expression unless it significantly disrupts the learning environment. For example, a student can bring a person of their gender as their date to a prom. They also can wear clothing that bears symbols associated with the LGBTQ+ community.
Final Thoughts
Despite several notable victories in recent years, the LGBTQ+ community continues to face discrimination and hostility. The law in this area remains especially fluid, and someone who is concerned that they may be facing mistreatment due to their sexual orientation or gender identity should talk to a lawyer about their specific situation. Federal and state laws, as well as constitutional provisions, could support legal action. Meanwhile, the LGBTQ+ Legal Resource Center at Justia provides some basic information about the rights and options available to this community. Like other Justia Legal Guides, it aims to make the law transparent and accessible to all.
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