[With special thanks to our summer associate Lennox Mark for his contribution to this post.]
Since 2000, June has been LGBTQ Pride Month in the United States. “Pride” as it has come to be known started as a way to commemorate the Stonewall riots that occurred at the end of June in 1969. It has since morphed into a month-long celebration of inclusiveness and remembrance of the struggles faced by members of this community. Many other countries and cities around the world honor and celebrate the LGBTQ community at different times throughout the year.
As we look back at the events of the last month and in honor of continuing the conversation around US Pride, we review some of the recent strides made for equality and other potentially impactful legal developments for the LGBTQ community, including those that US and OUS employers should know about.
After winning the decades-long battle for marriage equality in 2015 via the Supreme Court decision Obergefell v. Hodges, momentum for other areas of civic equality have increased:
- The Equality Act: This May, the US House of Representatives passed the Equality Act. It proposes adding sexual orientation and gender identity to the list of federally protected classes. The Senate has not scheduled a vote. If passed in its current form, the Equality Act would prohibit discrimination against the LGBTQ community in employment, housing, and other places of public accommodation, thereby expanding the reach of several federal laws, such as the 1964 Civil Rights Act, the Fair Housing Act, and the Equal Credit Opportunity Act.
While there are already federal laws protecting people from discrimination based on race, religion, sex, and disability, there are no such federal laws explicitly protecting LGBTQ people from discrimination. This means, where there isn’t state law protection, an individual can be fired from a job, evicted from a home, or excluded from a business just because an employer, landlord, or business owner doesn’t approve of the individual’s sexual orientation or gender identity. In addition, today, religious healthcare providers may deny certain services to LGBTQ patients if it conflicts with their religious beliefs. However, if passed, the Equality Act would prohibit hospitals from refusing care because of religious exemptions.
There is a circuit split on whether LGBTQ people are included under current sex-based protections and a minority of states have passed their own LGBTQ anti-discrimination laws. If passed, the Equality Act would provide consistency to employers and institutions acting across state lines.
- SCOTUS: In its upcoming term, the US Supreme Court will decide a trio of LGBTQ cases:
- A 2nd Circuit decision in favor of a skydiving instructor who was fired because he is gay;
- A conflicting 11th Circuit ruling that Title VII does not protect a lesbian employee fired because of her sexual orientation; and
- A 6th Circuit ruling applying Title VII protection to a transgender funeral director who was fired after informing her boss of her intent to fully transition.
Though the facts vary, the central question of each case turns on protected class. Does “sex” include gender identity, sexual orientation, and gender performance, or is “sex” limited to the traditional, biological markers that designate male and female? If the Equality Act fails to become law, these rulings will resolve the longstanding circuit split that has left employers and other cross-state actors seeking clarity on compliance.
- Local / Municipal Legislation: In January, New York enacted a law prohibiting discrimination based on “gender identity” and made gender identity a recognized basis for a hate crime. There are currently eight state-level bills (in Alaska, Idaho, Indiana, Kentucky, Missouri, New York and South Carolina) pending that are substantively similar to the Equality Act. Twenty states and the District of Columbia already have full LGBTQ protections on par with those in the Equality Act.
Outside the US
While parts of Western Europe have been at the forefront of LGBTQ rights, the legal landscape for the LGBTQ community is changing at various speeds throughout the rest of the world.
Certain regions and jurisdictions remain steadfast in outlawing homosexuality and what is perceived as non-conformist behavior. However, many countries have made significant changes in passing inclusive legislation, or repealing what many view as outdated prohibitions on certain activities:
- Africa: While much of Africa lags behind Western Europe and North America in terms of inclusiveness for the LGBTQ community, Botswana recently legalized gay sex. The ruling, coming from the highest court, unanimously struck down two colonial laws in favor of the right to privacy and freedom from discrimination. Many South African countries circumvent the issue altogether by either ignoring outdated colonial-era laws which prohibit gay sex, or by rewriting their penal codes to avoid mention of the topic altogether. While the topic remains taboo on much of the continent, Botswana has made a bold statement.
- Asia: After nearly 16 years of legislative starts and stops, Taiwan recently became one of the first countries in Asia (outside of New Zealand and Australia) to legalize same-sex marriage. While it is hard to say for sure, Taiwan’s actions could spill over into other neighboring jurisdictions. In fact, a few short weeks after Taiwan legalized same-sex marriage, Hong Kong’s Court of Final Appeal ruled that employers can’t deny spousal benefits to same-sex couples. Many view this as one step closer to legalizing same-sex marriage. Even socially conservative Bhutan surprised the world by decriminalizing homosexuality earlier this year.
- Latin America: Some Latin American countries, such as Argentina, are at the forefront of progressive LGBT rights. However, other countries have taken longer to catch up, particularly in Central America and the Caribbean. Brazil’s Supreme Court recently declared homophobia and transphobia to be crimes, despite strong resistance from the current administration and religious conservatives. Ecuador also recently joined the ranks of countries where same sex-marriage is permissible.
Despite forward momentum, legislation limiting LGBTQ rights still exists and new legislation pops up from time to time (think various bathroom laws in the US).
Employers should be aware of the cultural and legal nuances surrounding this area as they continue to build inclusive and welcoming workplaces globally. Your Baker McKenzie employment lawyers are ready to assist in navigating this complex landscape.