States extend anti-discrimination protections to include sexual orientation and gender identity

Thanks to recent news reports featuring Chaz Bono talking about going through gender reassignment, issues of sexual orientation and gender identity have a more public face and some hope that means more attention. While federal anti-discrimination protections have not been expanded to include sexual orientation and gender identity, despite repeated attempts, states have continued to take on the issue.

In the past year, several states have extended anti-discrimination protections for sexual orientation, gender identity, and/or transgender status. Colorado, for example, has adopted rules to eliminate discrimination on the basis of sexual orientation, including transgender status, in employment as well as other areas. Also, employers may prescribe standards of dress or grooming that serve a reasonable business or institutional purpose, provided that individuals are not required to dress or groom in a manner inconsistent with that individual’s gender identity. Those rules became effective November 30, 2009.

Other laws regarding sexual orientation/gender identity issues passed this year include legislation in California requiring the state Department of Public Health to develop a training program for nurses, nurse assistants and physicians (working in skilled nursing facilities or congregate living health facilities) that focuses on preventing and eliminating discrimination based on sexual orientation and gender identity. Connecticut enacted a law that implemented the guarantee of equal protection under the constitution of the state for same-sex couples and the decision of the Connecticut Supreme Court, Kerrigan v Commissioner of Public Health, ConnSCt, released October 10, 2008. In addition, the law repealed a provision in its sexual orientation law specifying the construction of statute.

Delaware enacted a law prohibiting discrimination based on sexual orientation in areas including employment, public works contracting and public accommodations. Under the law, “sexual orientation” is defined exclusively to mean heterosexuality, homosexuality, or bisexuality. Religious employers are exempt, except where the duties of employment or employment opportunity pertain solely to activities of the organization that generate unrelated business taxable income subject to taxation under the Internal Revenue Code. Also in Delaware, Governor Jack Markell issued an executive order extending anti-discrimination safeguards for state employees and applicants for state jobs to all military veterans and to protect against discrimination based on gender identity or expression.

Other states, such as Michigan, have legislation working through the state legislature that would extend state anti-discrimination protections for sexual orientation, gender identity and/or transgender status. H.B. 4192 would amend the state’s civil rights act to provide anti-discrimination protections for sexual orientation, gender identity or expression. State Representative Rebekah Warren, primary sponsor of H.B. 4192, says the bill is not about special rights or special interests but about protecting "citizens and their families from being fired from a job or being denied housing because of who they are or who they love." According to a statement on her website, Warren also sees this as a way of making Michigan more competitive in the global economy. "This policy not only protects Michigan families, but also works to reverse brain drain and attract businesses worldwide without spending a dime. We simply can't afford not to do it."