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Rights of Gays and Lesbians

Further Readings

Gay and Lesbian Civil Rights
The average American does not realize that that it is legal to discriminate against another American on the basis of sexual orientation. A Greenberg Research poll in 1996 found that 85 percent of Americans did not know that federalcivil rights laws do not prohibit firing a person solely on the basis of sexual orientation. Current laws do not provide a remedy to gay and lesbian citizens who seek legal protection. The Equal Protection Clause of the FourteenthAmendment guarantees that no state shall "deny to any person within its jurisdiction the equal protection of the laws," meaning that citizens in similarcircumstances should be treated alike. Only actions that aim to discriminateviolate Equal Rights Protection. To use this as a defense when treated unfairly, one must prove intentional discrimination, not just negligence.
The gay and lesbian civil rights movement presses for fairness in five majorareas: employment and the work environment (including the school environment), military service, health care issues, state ballot initiatives prohibitinggay civil-rights ordinances, and custody rights and state laws prohibiting same-sex marriage.
A Gallup poll in late 1996 found that 84 percent of Americans believe that gays should have equal rights in terms of the job opportunities available to them, up from 74 percent in 1992 and 56 percent in 1977. The poll also showed that 90 percent of Americans have no problem with gays as sales people, and two third approve of gays working in the president's cabinet, in the armed forces and as doctors. The Gallup survey also found that 60 percent approved of gays as high school teachers, 55 percent approved of gays as elementary teachers and 53 percent approved of gay clergy.
The gay and lesbian civil rights movement has been guided by the Lambda LegalDefense and Education Fund, Inc., which was founded in 1973. Lambda's courtbattles have broken ground in issues such as honorable discharge from the military, medical coverage for AIDS patients, domestic benefits for gay couples,adoption and visitation rights for gay parents, and protection for gay and lesbian immigrants.
Employment and School Fairness
Harassment at school and in the work environment due to sexual orientation isnot always legally defensible. Massachusetts, Vermont, Wisconsin and the District of Columbia have statutes that address sexual orientation discrimination in schools. Other states do not. Laws prohibiting discrimination based on sex are more common, but the victim of harassment must demonstrate that the school acted or failed to act because of the victim's sexual orientation and made a decision based on that sexual orientation. It is difficult to provide evidence to this effect.
The most prominent federal sex discrimination statutes are Title IX and TitleVII. Title IX applies to sex discrimination in education or any activity receiving federal financial assistance. Courts are reluctant to interpret the prohibition against sex discrimination as a prohibition against sexual orientation discrimination, but in a few cases sexual orientation discrimination hasbeen included.
Title VII of the Civil Rights Act of 1964 applies to sex discrimination in employment, and applies to compensation, extension of health care benefits to aspouse, and retirement. Discrimination in employment on the basis of sexualorientation is currently legal in 41 states, meaning individuals may be firedfrom their jobs solely because of sexual orientation, even when it has no bearing on their job performance.
Sexual harassment claims fall under this statute. Gay and lesbian cases sought to show that sexual orientation discrimination is sex discrimination. Courts rejecting this argument most commonly did so by examining the harasser's motivation. Proof of the employer/harasser's discriminatory motive is crucial to the plaintiff's case. The first lawsuits applying this standard resulted ina variety of decisions and no consistent holdings. The 1969 case of Norton v. Macy held that sexual orientation that does not affect performance on the job or the public reputation of the job cannot be the basis for discrimination. But in 1977, the Federal Appellate Court for the Ninth Circuit determined that the Equal Employment Opportunity Commissions could fire an employee for being gay because of his openness about his homosexuality. Then in March of 1998, the Supreme Court ruled in Oncale v. Sundowner Offshore Services Incorporated et al. that Title VII's prohibition aganst sex discrimination extends to same-sex sexual harassment.
Many companies and organizations extend benefits to homosexual partners of their employees despite controversy, with the list including such names as TheAmerican Red Cross, Federal Express, Barnes & Noble, Walt Disney Company,Levi Strauss, Microsoft, IBM, and Time Warner.
In June of 1998, President Clinton amended Executive Order No. 11,478, whichgoverns equal employment opportunity in the federal government, by adding sexual orientation to the list of prohibited bases for discrimination. ExecutiveOrder No. 11,478 was first signed by President Nixon to prohibit discrimination in federal employment on the grounds of race, color, sex, religion or national origin. It was later amended to add disability and age to the list.
Clinton's amendment extends protection under the Civil Service Reform Act of1978, which specifies that federal civilian employers cannot discriminate foror against any employee or applicant on the basis of conduct which does notadversely affect the performance of the employee or the performance of others. The Office of Personnel Management in 1980 sent a memorandum clarifying that the Reform Act of 1978 protects gay and lesbian federal employees from discrimination. The result is that federal employees have several avenues of appeal when discrimination on the basis of sexual orientation occurs.
But the implementation of policy on an agency-by-agency basis has not been uniform. The Departments of Justice, Agriculture and Transportation developed model policies with clear anti-discrimination statements backed up by clear processes to address grievances. Other agencies failed to adopt any sexual orientation discrimination policy, meaning that a federal worker with a complainthad to go to court. Gay plaintiffs usually lose when courts conclude that the employer's actions result from employee conduct, and that the two are not mutually exclusive.
Legislation proposed by four Senators to remedy the hostile workplace environment narrowly failed to pass when voted on by the 104th Congress. The Employment Non-Discrimination Act was reintroduced in the 105th Congress with 33 co-sponsors.
Serving in the Armed Forces
Historically, homosexuals have been banned from military service. A report bythe Government Accounting Office based on Defense Department data from 1980to 1990 found that the various service branches discharged around 1,500 people each year due to sexual orientation. The GAO also calculated that it cost the government $27 million to recruit and train replacements for gays discharged in 1990. Between 1980 and 1990, 227 officers and 16,692 enlisted men and women were either resigned or discharged because of their sexual orientation,even though U. S. Department of Defense studies released in 1989 showed thatgays and lesbians in the military have the highest performance records on theaverage of any single subgroup, consistently in the top 5 percent.
In 1993, the Clinton administration created a new policy for homosexuals in the armed services that took effect in October of 1993. The "Don't ask, Don'ttell" policy allows gays to serve as long as they are silent about their sexual orientation and do not engage in homosexual acts. Clinton's intention wasto make it easier for gays and lesbians to serve in the armed forces. A studydone two years later by the Service Members' Legal Defense Network found that the policy did not make life better for gay service persons. Air force discharges for homosexuality were up 30 percent in 1995 over 1994, and dischargesfor homosexuality for the armed forces overall increased 21 percent.
A navy petty officer, Keith Meinhold, tested the constitutionality of Clinton's redirected policy by declaring his homosexuality on national TV. The navydischarged him immediately. Meinhold sued, won, and was reinstated. The U. S.Court of Appeals for the Fourth Circuit upheld Clinton's policy for gays inthe military in a case brought by homosexual service members who challenge the legality of the regulations of Clinton's policy.
Same-Sex Marriage and Custody
While the Supreme Court has long recognized that the right to marry is a fundamental right, the right to a same-sex marriage had been universally rejectedby courts until Baehr v. Miike in 1996. The Hawaii Circuit Court heldthat the failure to legalize same-sex marriages violates the Equal Protection Clause of the Hawaii constitution. Anticipating that same-sex marriage would become legal, Congress passed the Defense of Marriage Act (DOMA) in 1996, which defines "marriage" and "spouse" under federal law to include only partners of the opposite sex. This classification excludes same-sex partners from federal benefits. Another provision of DOMA provides is that a state does nothave to recognize same-sex marriages performed in other states. This provision will likely be challenged constitutionally on the grounds that it violatesthe Full Faith and Credit Clause of Article IV, which says that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." No constitutional challenges to DOMA have been filed in court to date.
Battles for custody and adoption of children follow a similar path. In 1995 aNew York Court of Appeals issued a ruling allowing co-parent adoptions. Thenin July, 1998, a New York high court removed two boys from their father's custody because of the father's sexual orientation. The judge ruled the gay household would likely create emotional difficulty for the children.
Health Care
The AIDS epidemic aroused public fear of gay and lesbian citizens. Many insurance companies refused medical coverage to gays. Initially, almost any treatment was exempt from coverage because it was considered experimental. Other insurance company strategies included stretching out the legal process to let the AIDS patient die before a judgment was entered in favor of the patient anda more recent effort to place monetary limits on medical coverage. Lambda filed suit in January of 1998 against Mutual of Omaha to abolish caps on insurance payments with respect to the treatment of HIV and AIDS patients, allegingthat the caps violated the federal Americans with Disabilities Act and the Illinois Insurance Code.
Lambda won a case in the New York Court of Appeals that required an insurancecompany to pay AIDS related disability claims on behalf of a homosexual whohad paid premiums for five years. The largest national survey of AIDS policies and education programs in the workplace by the Center for Disease Control revealed in 1996 that nearly half of American work sites had implemented HIV/AIDS workplace policies, and one in six worksites offered their employees education programs that address HIV and AIDS. Nearly all worksites offered grouphealth insurance, although 5 percent limited or excluded HIV from at least one of the policies offered to employees.
City and State Ordinances
In Romer v. Evans (1996), one of Lamba's biggest successes, the Supreme Court struck down a Colorado statute that denied certain protections to gays. In 1993, Cincinnati amended its charter to prohibit city government from extending preferential treatment to gays and lesbians. San Francisco's city attorney gathered support from eight other cities to ask the U. S. Supreme Court to invalidate the Cincinnati law and overturn the Sixth Circuit U. S. Courtof Appeals decision that upheld the law. In April of 1998, the Fort Collinscity council adopted an ordinance that prohibits sexual orientation discrimination in housing, employment and public accommodations.
Opposers of the gay and lesbian civil rights movement have accused gays of seeking special treatment and seeking to introduce quotas to employment regulations. Gays serving in the armed forces are typically categorized as representing a security risk. President Clinton's Executive Order was opposed by Houserepresentatives who drafted an amendment to the Treasury/Postal Service appropriations bill that would prohibit the expenditure of funds to implement, administer or enforce the order. Other citizen groups such as the Southern Baptist Convention, called on the president to rescind the order.
A key issue argued in courts, in scientific studies and in public debates iswhether gay men and women choose to be gay or if it is genetic. In the Supreme Court's first case addressing the constitutional rights of gays and lesbians, Bowers v. Hardwick (1986) lawyers supporting gays used choice-affirming arguments and lost.

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