States Advance Protections Against Gender Identity Discrimination

As the Nevada legislative session draws to a close, two bills protecting transgender individuals passed the Senate and now head to a favorable vote in the Assembly. Senate Bills 368 and 331 passed 13-8 and 11-10 respectively, both outlawing transgender discrimination in housing and public accommodations. A third bill, Senate Bill 180, failed 10-11, and would have designated violence based on gender identify or expression a hate crime.

State Senate Majority Leader Steven Horsford, D-Las Vegas stated, "I view this bill as not being about creating special rights… It is about explicitly extending equal protection of law to those who are often the target of discrimination."

While happy about the passage of the two bills protecting against discrimination in housing and public accommodation, activists were frustrated at the failure of SB180, which lost by one vote and had support from Republican Gov. Brian Sandoval. The other two bills now go to the Assembly, which recently voted 29-13 in favor of Assembly Bill 211, which would outlaw employment discrimination against transgender people.

Existing state law prohibits employers from singling out individuals based on race, religion, sexual orientation and other attributes – but leaving out real or perceived gender discrimination has put transgender people in a vulnerable place, often subject to higher unemployment rates than the general population.

Should the transgender nondiscrimination bills pass, Nevada will join 12 other states and DC as having laws on the books to protect against discrimination based on sexual orientation and gender identity. (In addition to the 12 states, Nevada and 8 other states offer statutory protection based on sexual orientation, but not based on gender identity.)

Source: Human Rights Campaign

Creating Protections in Your State
States with existing laws protecting sexual orientation as a category may add gender identity to their statute. Others that have neither category protected can pass legislation that includes both sexual orientation and gender identity, using the following definitions:

  • The term “sexual orientation” means heterosexuality, homosexuality, or bisexuality.
  • “Gender identity” means gender-related identity, appearance, mannerisms, or other characteristics of an individual, with or without regard to the individual’s assigned sex at birth.

According to the ACLU, for those situations in which it isn’t politically feasible to pass the legislation as written above, a recommendation would be to roll gender identity into sexual orientation, defining it as either:

  • the term “sexual orientation” means heterosexuality, bisexuality, homosexuality or gender identity; or
  • the term “sexual orientation or gender identity” means heterosexuality, homosexuality, bisexuality or a gender-related identity, appearance, mannerisms, or other characteristics of an individual, with or without regard to the individual’s assigned sex at birth.

(The second version listed above is preferable, as it is a much more comprehensive definition of gender identity.)

In terms of best practices for model policy, legal experts at the ACLU argue that “any policy should apply to ‘actual or perceived’ sexual orientation or gender identity. You can do this either in the definition of sexual orientation and gender identity, or in the provision of the law that prohibits discrimination based on sexual orientation or gender identity.” The best way to include ‘actual or perceived’ is in front of all the characteristics protected by the law; for example:

  • It shall be unlawful to discriminate on the basis of actual or perceived race, religion, national origin, sexual orientation, gender identity, age or disability.”

Messaging Around Fairness
Few reading this article would disagree that individuals should be judged on their skills and capabilities in the workforce. More and more individuals – including elected officials – are coming to terms with the fact that firing an individual because they are gay or do not meet stereotypical norms for gender identity or expression is wrong and goes against American values of fairness and job performance. Some talking points from the ACLU’s Lesbian Gay Rights Project:

  • Hardworking, high-performing employees shouldn't be fired just because they're gay or transgender. Americans almost universally believe that workers should be judged by their job performance-and that this principle also applies to gay people in the workplace. Gay and transgender people can and do lose their jobs just for being gay or transgender-and Americans believe that's wrong.
  • Emphasize values like hard work, earning a living, and providing for our families. Research shows that it's effective to use messages such as, "If you work hard and do your job, you shouldn't be fired just because you're gay." When talking about employment protections, talk about the importance of hard work, productivity, and contributing to the economic health of the nation. Remember, it's about having the ability to earn a living (not about being "entitled" to work). And, it's about work as a way to provide for and be responsible for our families.
  • Make it clear that America (and corporate America) supports employment protections.Employment protections are a mainstream issue. Since Gallup started measuring public opinion on workplace protections for gay people, support has risen from 56% in the 1970s to 89% today.


Full Resources from this Article

States Advance Protections Against Gender Identity Discrimination

ACLU – Getting State and Local Non-Discrimination Laws
Human Rights Campaign – State Laws Affecting LGBT People

This article is part of PSN's email newsletter, The Stateside Dispatch.
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