With more than 5.5 million LGBTQ individuals living in the United States, it’s important to recognize not only our progress in furthering equality efforts, but also the barriers LGBTQ people still face in fair and equal access to employment, housing, healthcare, and public accommodation.
According to the Center for American Progress, as many as 1 in 4 LGBTQ individuals in the U.S. reported experiencing some form of discrimination in 2016.
While there exist a number of nondiscrimination laws on the federal, state, and local levels that protect people from discrimination on the basis of characteristics such as age, sex, or national origin — there is not currently any federal law that protects individuals from discrimination on the basis of sexual orientation or gender identity.
That is, laws do exist offering specific protections for LGBTQ individuals in certain states and regions, but these do not necessarily extend nationwide.
What Is Discrimination?
The legal definition of discrimination is the unequal treatment of persons on the basis of an identifying characteristic.
Discrimination can refer to any sort of act or behavior that distinguishes or singles out individuals on account of factors such as age, sex, race, national origin, sexual orientation, and gender identity. This can include revoking or extending preferential treatment.
The primary forms of discrimination discussed in reference to the LGBTQ population are those based on sexual orientation and gender identity. However, LGBTQ individuals can also face discrimination as a result of other identifiers, such as their skin color, national origin, or abilities.
Types Of Discrimination
Discrimination can come in many forms and occur in a variety of settings. From the workplace to your doctor’s office, to the store you frequent for groceries — any setting that involves contact with another person can become a site of discrimination.
Types of discrimination include:
• national origin
• disability (including mental, physical, psychological, and learning disabilities)
• marital status
• religious belief or activity
• gender identity
• sexual orientation
• pregnancy status
How these types of discrimination occur can vary according to personal circumstances. In some situations, discrimination may be covert or implied — such as purposely excluding a gay coworker from a company-wide party invitation.
Discrimination can also be overt, and this is where the few legal protections that exist in the United States can serve use.
Examples of overt discrimination may be:
• denying equal pay
• denying goods and services on account of gender or sexual orientation
• refusing housing
• sexual harassment
• failing to accommodate individuals with disabilities
How Discrimination Affects LGBTQ Individuals
Experiencing discrimination is not something that can or should be easily brushed off, despite the reality that many people often feel they must brush off discrimination in order to maintain peace. Yet supporting or promoting discriminatory acts has real consequences on the lives of those affected.
The impact of discrimination in the LGBTQ community may include effects on:
• physical health
• mental and psychological health
• housing status
• treatment in public and social settings
• economic security
Recent data on the health and livelihood of LGBTQ individuals in the U.S. shows that:
• 46 percent of LGBTQ workers are closeted in the workplace.
• 23 percent of transgender individuals in a 2011 survey reported experiencing “catastrophic discrimination,” which is defined as three or more life-disrupting events.
• LGBTQ immigrants face unique barriers in gaining access to adequate healthcare and legal protections against federal and employment discrimination.
• One in five survivors of anti-LGBTQ violence in the U.S. are undocumented LGBTQ immigrants.
• 68.5 percent of LGBTQ respondents in a 2017 survey who had experienced discrimination reported a negative impact on their psychological wellbeing.
• 56.6 percent of LGBTQ respondents from the same survey reported a negative impact on their neighborhood and community environment.
The effects of discrimination can be even more significant among LGBTQ individuals who are marginalized in other ways. For instance, LGBTQ people of color are 19 percent more likely than white LGBTQ individuals to face discrimination when applying for a job in the U.S.
Transgender and non-binary people of color report higher rates of suicidal thoughts and behaviors and are more likely to experience violence, poverty, and incarceration than their white counterparts.
Being a woman, identifying as non-binary, or being transgender also carries a higher chance of facing discrimination among those in the LGBTQ community.
Other factors that can contribute to the prevalence and types of discrimination faced by LGBTQ individuals include a person’s age, national origin, religion, disability status, and more.
Discrimination Against LGBTQ Individuals In The Workplace
Seventy-four countries across the globe prohibit employment discrimination on account of sexual orientation. The United States is not one of them.
Although many employers have introduced non-discrimination policies on a company-level — including 93 percent of Fortune 500 companies — laws that explicitly prohibit employment discrimination for sexual orientation and gender identity have only been passed in select states.
As of January 2020:
• 22 states and two U.S. territories have laws that prohibit workplace discrimination based on sexual orientation.
• 21 states and two U.S. territories prohibit workplace discrimination based on gender identity.
What are some of the ways LGBTQ employees can face discrimination on the job? If employees live in one of the 27 states that don’t have a law prohibiting sexual orientation-based discrimination in the workplace, an employee may be fired for being LGBTQ.
However, discrimination can also take several other forms. Employees may be discriminated against in their wages, how they are treated by their boss and coworkers, and in hiring practices.
Even more muddled are LGBTQ rights in situations of harassment in the workplace, such as offensive jokes, sexual harassment, and other acts meant to make LGBTQ employees feel uncomfortable and unsafe.
The following states and territories expressly prohibit sexual-orientation and gender-based discrimination in employment:
District of Columbia
Medical Care Discrimination Against LGBTQ Individuals
Lesbian, gay, bisexual, and transgender individuals can encounter significant barriers in receiving accessible and inclusive health care and finding medical providers that are knowledgable about their needs.
Many LGBTQ people report delaying or avoiding seeking care because they’re concerned about how they may be treated by a provider. Bias and stigma in medical, employment and other social settings can, in this way, not only have a significant mental and emotional toll but also pose dangers to physical health and wellbeing.
There is no federal legislation in the United States that currently protects individuals from healthcare discrimination on the basis of gender identity and sexual orientation.
On the contrary, in 2017 the US Department of Health and Human Services (HHS) began proposing regulations that would make it easier for medical providers to discriminate against LGBTQ patients, providing wider platitude to refuse care on moral or religious grounds.
In May of 2017, the HHS made moves to begin rolling back federal regulations that prohibit discrimination against transgender individuals who seek care through federally funded healthcare programs.
Examples of LGBTQ healthcare discrimination include:
• refusal of care
• promotion of inappropriate treatment interventions
• use of abusive language by a medical provider
• discrimination from fertility and sexual health specialists
A nationally representative 2017 survey from the Center for American Progress found that 8 percent of LGBTQ respondents reported delaying or forgoing medical care due to concerns about discrimination.
In the same survey, 8 percent of lesbian, gay, and bisexual respondents and 29 percent of transgender respondents reported experiencing a refusal of care from a medical provider because of their gender identity or sexual orientation in the past year.
Members of the LGBTQ community experience higher rates of mental and physical health problems compared to the general population. Thus, these barriers faced by LGBTQ individuals in healthcare settings pose a serious concern.
Discrimination Against LGBTQ Individuals In A Legal Setting
Lesbian, gay, bisexual, and transgender individuals can also face discrimination in legal settings.
With a lack of federal oversight, or even state-level protection in most areas of the country, there is little recourse available to LGBTQ people who face discrimination by lawyers, attorneys, and other legal professionals on account of their sexual orientation or gender identity.
Legal settings, as well as many public and private settings, can become abusive spaces for LGBTQ people, with individuals living in small or rural towns at heightened risk for mistreatment.
Discrimination Against LGBTQ Individuals In Social Settings
Discrimination can occur in a variety of settings, extending beyond just a person’s place of employment or their doctor’s office.
Social and public settings in the community can also become unsafe or unwelcoming for LGBTQ individuals, depending on the attitudes and beliefs expressed by those who occupy these spaces.
LGBTQ parents, children, teachers, and community workers can face exclusion and abuse from other people in their community through attempted participation in social activities, events, or education-based organizations.
Examples of public and social settings where discrimination can occur:
• community centers
• transportation services
Even covert forms of discrimination such as avoiding LGBTQ community members, or failing to accommodate the needs of disabled LGBTQ community members, can have negative impacts on a person’s quality of life.
It’s also legal in most states for businesses and other areas offering public accommodation to discriminate against LGBTQ individuals, as there is no federal law that explicitly prohibits this.
Individuals living in smaller towns that contain a reduced number of available business and service providers can face even greater costs from these discriminatory practices. This can affect where individuals are able to — or feel comfortable — buying their groceries, shopping for clothes, seeking auto repair, and engaging in other forms of consumer or social activity.
Laws Protecting LGBTQ Rights
Despite widespread concern and reports of discrimination targeting LGBTQ individuals, the options LGBTQ people have for legal recourse in situations of discrimination are limited.
Employment And Housing
Twenty-one states nationwide have passed state laws that explicitly prohibit employment and housing discrimination on the basis of sexual orientation and gender identity. An additional state (Wisconsin) has a state law that prohibits discrimination due to sexual orientation only.
Employment discrimination is also prohibited in the U.S. territories of Guam, Puerto Rico, and the District of Columbia (D.C.). This does not extend to protection against housing discrimination in these territories.
Public accommodation non-discrimination laws protect the rights of LGBT people from being refused service or discriminated against in public places on the basis of sexual orientation and gender identity.
Nondiscrimination laws prohibiting this type of discrimination have been passed in 20 states and D.C. There are no laws explicitly prohibiting this type of discrimination in 27 states and five U.S. territories.
Fourteen states have state laws protecting the rights of LGBT people from being denied credit and lending services on the basis of sexual orientation and gender identity. There are no such laws passed in D.C. or any of the U.S territories.
Discriminatory protections for LGBTQ state employees are provided through explicit coverage in public employment nondiscrimination policies in 31 states and three U.S. territories.
An additional three states and one U.S. territory offer these protections on the basis of sexual orientation only.
Several rulings by the federal Equal Employment Opportunity Commission (EEOC) have also extended Title VII’s prohibition on sex discrimination to include discrimination because of gender identity and sexual orientation. These rulings do not apply to private employers.
As of July 2018, 37 states do not expressly prohibit health insurance discrimination on the basis of sexual orientation and gender identity. The state of New Jersey prohibits this type of discrimination on the basis of gender identity only.
Only 19 states and D.C. prohibit the exclusion of medical services for transgender people in insurance plans. Twenty-two states have no policy on transgender health coverage, and 10 states expressly exclude it.
Certain provisions within the Affordable Care Act (ACA) of 2010 attempted to address some of the issues experienced by LGBTQ people in healthcare settings in the following ways:
• included more health coverage options, including Medicaid expansions
• required most health insurance plans to offer the same level of coverage (i.e. parity) for behavioral and mental health services as for medical and surgical services
• prohibited healthcare discrimination on the basis of “sex,” which includes gender identity
However, as of 2017, the last provision (section 1557 of the ACA) has been challenged in eight states in an attempted rollback.
Rollbacks on a federal prohibition against sex discrimination in healthcare settings leave transgender individuals particularly vulnerable, as this creates further confusion and adds greater heat to the controversial, if essential, national discussion on LGBTQ rights.
What To Do If You Have Experienced Discrimination: A Step-By-Step Guide
Following an experience of discrimination, it’s important to learn your legal rights and contact an attorney who can help you navigate the process of filing a discrimination lawsuit.
Follow these steps if you’ve been discriminated against for your gender identity or sexual orientation:
1. Contact An Attorney With Experience In LGBTQ Discrimination
If you’ve been discriminated against in your employment, housing search, by a doctor, or in a public space, seek the legal guidance of an experienced attorney. State, local, and company-level laws and policies on discriminating against LGBTQ people change frequently, and it can be difficult for the average person to keep track.
Attorneys who work in discrimination law have a responsibility to remain up-to-date on these laws and other legal protections for marginalized populations such as the LGBTQ community.
Speaking to an attorney about an incident of discrimination due to your gender or sexual orientation is the most effective way to learn your rights and options for legal recourse.
2. Document The Incident
Collect any information you can about the discriminatory conduct. If you experienced workplace discrimination, for instance, see if you can get witness testimony from anyone else who may have witnessed the incident.
Other information to document, depending on the type of discrimination and the nature of the incident, may include:
• personal information from the individual or employer
• date, time, and location of where the discrimination took place
• description of the incident (or recurring instances of discriminatory conduct)
• photos of any offensive material (if applicable)
• any statements demonstrating discriminatory practices or conduct
If you experienced discrimination in your place of work, it may also be helpful to locate or acquire a copy of your company’s non-discrimination policies. If you experienced housing discrimination or discrimination in a medical setting, you may similarly be able to find nondiscrimination policies followed by the relevant individual, landlord, or healthcare provider.
Documenting the incident of discrimination and collecting this information can be important as you gather evidence to file a discrimination claim or lawsuit.
3. Report The Discrimination (If Applicable)
If you’ve experienced discrimination on account of your gender or sexual orientation at your workplace, consider any grievance procedures that are available to you through your employer.
You may be able to report the discriminatory conduct to a supervisor, human resources personnel, or a union representative. You can do this in writing, by email, or in person, depending on your own comfort level.
Many people find the prospect of reporting an incident of discrimination intimidating. Contacting a legal professional can give you an ally in this process, as an individual who can effectively assert your rights and represent your interests in seeking legal recourse.
4. File A Discrimination Lawsuit
Once you’ve sought legal guidance, an experienced discrimination attorney can share with you your options as far as what legal action you can pursue based on the details of your case.
At Florin|Roebig, our attorneys have managed a number of discrimination claims and lawsuits, identifying and asserting the rights of clients who have faced discrimination in various settings.
Through an initial consultation, attorneys can help you determine your legal options and file a legal claim or lawsuit if that is an option you wish to pursue.
LGBTQ Discrimination Lawsuits In The U.S.
On a national level, the U.S. Supreme Court is currently considering three landmark cases concerning LGBTQ discrimination, with a decision expected to be made on these cases by June 2020.
These landmark cases include:
• R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (discrimination based on gender identity and expression)
• Bostock v. Clayton County (discrimination based on sexual orientation)
• Altitude Express Inc. v. Zarda (discrimination based on sexual orientation)
Across the nation, LGBTQ individuals face discrimination every single day in their neighborhoods, schools, workplaces, and local community spaces.
Without federal protections against sexual orientation and gender discrimination, it can be difficult for LGBTQ people to pursue legal action against individuals or employers — especially if they live in one of the 27 states that have not passed state laws expressly prohibiting these forms of discrimination.
According to the Movement Advancement Project (MAP), 44 percent of the nation’s LGBTQ population live in states that do not prohibit discrimination on the basis of sexual orientation or gender identity.
Incidents of LGBTQ discrimination in the workplace can be brought to the attention of the Equal Employment Opportunity Commission (EEOC) in order to seek legal recourse.
Additionally, some state and federal agencies, as well as some courts, may interpret LGBTQ discrimination as prohibited under Title VII’s protections against “sex bias”.
In 2019, more than 200 companies urged the Supreme Court to extend job nondiscrimination laws to include protections for sexual orientation and gender identity.
The international organization, Human Rights Watch, has also urged the implementation of greater protections for LGBTQ individuals against discrimination in healthcare settings.
Find Legal Help For A Discrimination Lawsuit
If you’ve experienced discrimination on account of your gender expression or sexual orientation, your options for legal recourse will likely depend on your location and the nature of your case.
Select a team of attorneys that has the knowledge, skills and resources necessary to help you navigate your state’s LGBTQ nondiscrimination laws and begin the process of filing a discrimination lawsuit.
Florin|Roebig is a multi-state trial and litigation firm headquartered in Palm Harbor, Fla.