LGBT People Could Gain Additional Protections from Discrimination After Bostock

Author: The Williams Institute at UCLA School of Law
Published: Friday 31st July 2020 - Updated: Sunday 2nd August 2020
Summary: LGBT people could gain additional non-discrimination protections if U.S. courts interpret state laws consistent with Supreme Court ruling in Bostock v. Clayton County.

A new report by the Williams Institute at UCLA School of Law finds that millions of LGBT people could gain additional non-discrimination protections if courts interpret state laws consistent with the Supreme Court's ruling in Bostock v. Clayton County.

In Bostock, the Court held that employment discrimination based on sexual orientation and gender identity is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. Courts have often looked to Title VII case law when interpreting similar provisions in other federal and state laws that apply to housing, public accommodations, education, and other settings.

In the current study, researchers analyzed state sex non-discrimination laws in states without statutes that expressly bar discrimination based on sexual orientation and gender identity. They also estimated the number of LGBT people in each state who stand to gain protections under these laws.

"State laws remain an important source of protection for LGBT people even though Bostock guarantees federal protections in employment," said lead author Christy Mallory, the Legal Director at the Williams Institute. "Many state non-discrimination laws are broader in scope than Title VII, and many of them protect people from discrimination based on sex in settings where federal law does not, such as public accommodations."

Key Findings

Employment:

27 states have laws that prohibit employment discrimination based on sex, but do not expressly cover both sexual orientation and gender identity.

An additional 3.6 million LGBT employees would gain protections from employment discrimination under state laws if they are interpreted consistent with Bostock.
Eighteen of these states' laws apply to smaller employers than Title VII does. LGBT employees for these small employers, who are not covered under Title VII, will gain legal protections from discrimination if these laws are interpreted consistent with Bostock.
Four states' laws offer more robust remedies than Title VII, potentially allowing employees to recover higher monetary damages than they could through a suit brought under federal law.

Housing:

26 states have laws that prohibit housing discrimination based on sex, but do not expressly cover both sexual orientation and gender identity.

An additional 5.2 million LGBT adults would gain protections from housing discrimination under state laws if they are interpreted consistent with Bostock.

Public Accommodations:

23 states have laws that prohibit public accommodations discrimination based on sex, but not based on both sexual orientation and gender identity. These laws are particularly important because federal law does not prohibit sex discrimination in public accommodations.

An additional 4.3 million LGBT people age 13 and older would gain protections from public accommodations discrimination under these state laws if they are interpreted consistent with Bostock.

Education:

14 states have laws that prohibit education discrimination based on sex, but do not expressly cover both sexual orientation and gender identity.

An additional 790,000 LGBT students age 15 and older could gain protections from education discrimination under these state laws if they are interpreted consistent with Bostock.

Credit:

15 states have laws that prohibit credit discrimination based on sex, but do not expressly cover either sexual orientation or gender identity.

An additional 2.5 million LGBT adults could gain protections from credit discrimination under these state laws if they are interpreted consistent with Bostock.

"There are six states in the country where LGBT people stand to gain comprehensive state-level protections, as these states already have laws that expressly prohibit discrimination based on sex, but not sexual orientation and gender identity, in all five of the settings we analyzed," said co-author Luis A. Vasquez, the Renberg Law Fellow at the Williams Institute. "These states include Alaska, Indiana, Kentucky, Montana, North Dakota, and Wisconsin."

Report: https://williamsinstitute.law.ucla.edu/publications/state-nd-laws-after-bostock/