In twenty-nine US states—a majority of the country—it is perfectly legal to fire someone just because she or he is lesbian, gay, or bisexual. The situation is even worse for transgender people. Only sixteen states provide legal workplace protections on the basis of both sexual orientation and gender identity. Five other states have laws forbidding discrimination on the basis of sexual orientation, but not gender identity, in employment, housing, and public accommodations.1 The bottom line: in thirty-four states, transgender people can lose their jobs, or never even be considered for a particular job, simply because of their gender identity or gender expression.
Workplace protections, when offered, cover a variety of discrimination: being harassed or intimidated by co-workers; being demoted or denied a promotion; being fired outright. Civil remedies vary from state to state but typically mandate that the employee first pursue an internal appeals process at the workplace. If no resolution is reached, the employee can file a complaint with state authorities. This may allow her to seek reinstatement, back pay, or restoration to membership in a union. Some states can levy penalties or fines against employers who have violated antidiscrimination statutes.
A few governors have issued executive orders offering some limited workplace protections to LGBT people. However, administrative policies are not permanent and can be revoked by a governor’s successor. This happened in Louisiana, in 2008, when in-coming Republican governor Bobby Jindal rescinded preceding Democratic governor Kathleen Babineaux Blanco’s executive order barring workplace discrimination against lesbian and gay state employees. Moreover, administrative policies do not have the same force as law. In the ten states where governors have used executive authority to add workplace protections for LGBT people, workers who believe they have been discriminated against can file a complaint with human resources at their company or agency. They cannot seek legal remedy, nor are employers in these states subject to civil penalties for violating the administrative order—which they would be under an antidiscrimination law.
These may seem like fine-grained distinctions, but the differences matter. LGBT people should be able to go about their lives with equal hopes, security, and opportunities as heterosexuals. Antidiscrimination law puts teeth into the evolving social norm that it is wrong, as a matter of basic fairness, to discriminate on the basis of sexual orientation and gender identity. In numerous national surveys, a clear majority of Americans have said they believe discrimination against LGBT people is wrong. Even people who say they are personally opposed to homosexuality or same-sex marriage support antidiscrimination laws.2 This support cuts across demographics of religion, generation, and race, finding majority approval among Catholics, senior citizens, and African American churchgoers. Americans, it seems, by a large majority, believe in the fair and equal treatment of LGBT people.
This may all sound very positive, but the situation is more complex. Many Americans also believe that LGBT people are already protected by existing antidiscrimination laws. They are surprised to find out that someone can be fired just for being gay (or appearing to be gay) or for being transgender or gender nonconforming. An unexpected finding in a 2011 survey of likely voters’ attitudes about workplace antidiscrimination protections noted that, while 73 percent supported such protections, almost 90 percent mistakenly believed federal law already protected LGBT people. Pollster Jeff Krehely writes, “These numbers show the huge disconnect between voter perceptions about workplace protections and the realities that gay and transgender people face on the job.”3
This disconnect has grave consequences. Not only does it mean that—despite many Americans believing in a basic precept of equality—LGBT people are, largely, not protected in the workplace. More important, it gives conservatives a pretext for arguing that civil equality for LGBT people—especially when enacted through antidiscrimination laws—is really a form of “special rights” or “special protections” (see myth 11, “Gay Rights Infringe on Religious Liberty”). If many Americans believe LGBT people are already protected from workplace discrimination then, clearly, LGBT people are asking for more than what every other American has.
The idea that LGBT people are demanding more than their fair share leads to outlandish assertions by conservatives. In 1993, former attorney general Edwin Meese appeared in an antigay video, Gay Rights, Special Rights, produced by the Traditional Values Coalition. In an attempt to reframe antidiscrimination laws as an encroachment on the civil rights of the general public, Meese dramatically stated, “As a white male I have no rights whatsoever, other than what is shared with everyone else.”4 Meese’s statement, in addition to its internal incoherence—in fact, he has all the rights everyone has, thus negating the argument that he has none as a white man—is a prime example of how conservative rhetoric uses emotion and a skewed sense of fairness to attack basic protections for LGBT people.
Civil rights are indeed what everyone has simply by being an American. In reality, though, many groups—people of color, women, religious minorities, the disabled—face discrimination in housing, job opportunities, and access to public accommodations. They are often also violently harassed and intimidated when they attempt to exercise basic rights of citizenship, such as voting. African Americans have faced this illegal harassment ever since African American men were granted the vote in 1870. This harassment continues today. Civil rights laws—such as the landmark Civil Rights Act of 1964, which forbids discrimination on the basis of race, color, religion, sex, or national origin, and the Americans with Disabilities Act of 1990—extend to disenfranchised groups the basic civil rights they should have had all along.
Civil rights protections are not special rights. They are laws and policies enacted to ensure that individuals are not denied, just because of who they are, fair and equal access to employment, housing, public accommodations, voting, jury service, and lines of credit. These civil rights laws have not ended discrimination; they have provided enforceable legal remedies when discrimination does occur.
As vital as they are, civil rights laws do not necessarily resolve discrimination and maltreatment. Many Americans would probably agree that people should not be harassed or intimidated on the basis of any of their identities. But they might disagree, profoundly, about when an off-color “joke,” or how many off-color jokes, about gay men or about women become intimidation and, thus, illegal. People in historically marginalized groups have been told for years, “It’s just a joke. It doesn’t mean anything. Get over it.” The reality is that these insults, often part of a larger cultural pattern of demeaning words and actions, are intricately connected to a longer history of discrimination and violence. People of color, LGBT people, women, Jews, Muslims, and other minorities are not being overly sensitive or humorless when they do not laugh at jokes told about them. Such jokes are part of a broad, ever-present context of overt threats, physical intimidation, violence, and denial of rights.
Clearly, not every racist, sexist, homophobic, or transphobic joke should be the basis of a lawsuit. And yet, particular words often resonate beyond the moment they were uttered—during a coffee break at the office, in an open dormitory space at a college—to invoke longer social histories and personal memories of real injury. Civil rights laws are designed to lessen the material injuries that can make a crude joke feel unbearable or threatening to the listener, as when that “joke” carries the implicit threat of a lost job if the hearer doesn’t find it funny.
Because antidiscrimination laws protecting LGBT people exist only at the state and local levels—and most states don’t have them— protection against discrimination depends on whether you are lucky enough to live in the right place. For every state where LGBT people are protected in the workplace, there is another where they can be denied a lease or refused service at a restaurant. This patchwork of state and local laws leaves far too many LGBT people unprotected. It can also result in dangerous legal predicaments as people move from one state to another. For example, a man legally married to his male partner in Massachusetts could be fired from his job for decorating his office cubicle with photos of his wedding if he moved to a state that does not have an antidiscrimination law. Equal rights should cross state lines with you. The long history of struggle for African American civil rights makes clear that a federal law is necessary to supplement state laws where they do exist—and put protections in place where they do not.
For LGBT people, a national remedy would be the proposed Employment Non-Discrimination Act (ENDA). This federal legislation would give LGBT people workplace protections in both public and private employment as long as a company has at least fifteen employees and is not a religious organization. The exclusion of religious organizations is part of the larger history of granting “religious exemptions” to churches and religiously affiliated organizations who object to a state or federal law on religious grounds (see myth 11, “Gay Rights Infringe on Religious Liberty”).
But what does it mean for concepts of fairness and equality that a law designed to end discrimination simultaneously allows some groups to discriminate on the grounds of religion—and then only against LGBT people? While religious organizations are no longer legally allowed to discriminate on the basis of race, they are granted considerable leeway to discriminate on the basis of sex and even more to do so on the basis of sexual orientation and gender identity.
If someone who objects, on religious grounds, to renting an apartment to a gay couple is forced to do so, is the landlord now the victim of discrimination? After all, religion is also protected under the 1964 Civil Rights Act.
A growing number of Christians—evangelicals, but some Catholics, as well—assert that they are the most persecuted group in America.5 This is an extraordinary assertion, given that Christians are by far the religious majority in the United States. Individuals and organizations making this claim have a long list of complaints that include judicial decisions banning prayer in public schools and the legalization of abortion and “homosexual sodomy.” Not surprisingly, the primary alleged perpetrators of these injuries are feminists, homosexuals, secularists, and the activist judges who take their sides in court.6 To many Americans, this argument about persecuted Christians sounds self-serving. But the people who make them really do feel aggrieved. What can these sentiments tell us about discrimination at the “gut level”?
The terms of this dispute show that the line between fair and unfair, just and unjust, equality and discrimination is not as neat and clean as it may first appear. Both Christian conservatives and LGBT people say they experience discrimination. Both groups sincerely believe this to be true. Both groups even produce evidence to prove their claims. Nonetheless, there is a crucial difference here. Christians are neither a minority nor are they persecuted in the United States as a group. LGBT people, on the other hand, are both a minority group and are frequently victims of discrimination because of it.
It is possible that an individual heterosexual, or white person, or Christian can be discriminated against because of sexual orientation, race, or religious belief. And there is recourse under the law to address that discrimination. But antidiscrimination laws are written to protect historically marginalized groups. So why do people in these majority groups feel oppressed? If you belong to a group that has traditionally enjoyed unquestioned social dominance, any expansion of fairness for other groups—such as people of color, LGBT people, and non-Christians—might feel like a loss when your taken-for-granted social privileges and legal position are suddenly challenged.7 Recall Meese’s complaint: “As a white male I have no rights whatsoever, other than what is shared with everyone else.” What he had was the privilege not to have to fight for the rights “everyone else” was already supposed to be sharing. The lack of national antidiscrimination protections for LGBT people shows how far we are from that reality.
A majority of Americans say they support LGBT antidiscrimination laws. Yet, this does not fully explain exactly what they are for or against in the treatment of people different from themselves. Often, people believe that fairness for everybody else is no less and no more than what feels fair for them.
ENDA will not resolve debates over what feels fair to opponents of homosexuality. These debates are worked out in the give-and-take of actual lives as people agree and disagree. ENDA would, however, make fairness the law of the land.
In its earliest incarnation, in 1974, ENDA covered only sexual orientation. Because of the persistence of trans activists and a struggle within the LGB movement to become inclusive, since 2009, the language of the legislation has included “gender identity.” This was not an easy fight. Achieving a trans-inclusive ENDA required overcoming the hostility of some of its congressional sponsors. Some of these women and men, who had already taken a bold leap to support LGB rights, framed their opposition to the inclusion of trans-identity as “pragmatic.” They argued that adding “gender identity” would sink the bill’s chances of passage. In 2013, a Senate committee voted by a large bipartisan margin, 15–7, to advance a trans-inclusive ENDA to the Senate floor for a vote. The bill has 53 official cosponsors in the Senate; the House version has 177. Regardless of the outcome of the vote by the full Senate, which will take place later in 2013, the legislation’s chances of passage in the Republican-controlled House are negligible at best. Previously, in 2012, the Equal Employment Opportunity Commission interpreted existing federal law—that portion of the 1964 Civil Rights Act that bans discrimination on the basis of sex—as also protecting workers on the basis of gender identity.8
In 1998, President Bill Clinton signed an executive order protecting civilian federal workers from discrimination based on sexual orientation. His action effectively overturned a forty-five-year-old executive order signed by President Dwight Eisenhower, in 1953, prohibiting the employment of gay men and lesbians in federal government. The Civil Services Commission stopped enforcing the Eisenhower-era policy in 1975, but President Clinton’s executive order made the reversal official, and it remains in force. As with the executive orders signed by governors, presidential directives can be overturned by successors and do not allow access to the courts for redress. Thus far, President Barack Obama has resisted calls to issue an executive order that would ban sexual orientation and gender identity discrimination by federal contractors. Such a policy would affect 20 percent of the US workforce. In January 2009, the Obama-Biden administration did, however, affirm a commitment to an equal employment opportunity policy that included both sexual orientation and gender identity. But this was an in-house policy affecting applicants for jobs in the new administration and did not reach the level of an executive order.
Meanwhile, congressional supporters of ENDA have promised to keep trying to make the bill federal law. Even if it passes, it will provide only workplace protections. LGBT people would still not be protected at the federal level from discrimination in public accommodations, housing, banking, medical care, and so many other vital areas of life.
The first statewide antidiscrimination statute protecting lesbians and gay men was passed in Wisconsin, in 1982. More than thirty years later, LGBT people are still struggling to gain basic equality under the law.