When You Can Sue For Discriminatory Practices

Although it has little chance of passing through the Senate in its current state, the United States House of Representatives recently passed the Equality Act, which would amend the Civil Rights Act of 1964 to include discrimination protections based on sexual orientation and gender identity. These protections are technically in place already due to a recent Supreme Court ruling, but — realistically they’ll be flimsy and under constant legal scrutiny until a real law is passed in Congress to add support.

The protections will basically bar employers and landlords from firing someone, refusing to hire someone, and refusing to accept a lessor depending on sexual orientation or gender identity. But let’s face it: members of the LGBTQ community face discrimination from plenty of other people for plenty of other reasons. Can we sue for those moments of discrimination?

In general, people have the First Amendment right to free speech. You already know that. This right gives people protection from the federal government based on what they say. There are exceptions to the rule, of course (like, say, when someone promotes insurrection against the United States of America). But in general, a person can’t be held liable for anything they say. For example, you can’t sue a guy for calling you a faggot when he drives by. 

But there are situations in which you can sue someone for this type of discrimination — especially when it’s tied into other laws that provide everyone with legal options. It’s a lot tougher to discriminate against gay people when those laws already exist. Take libel and slander laws, for example. If someone accuses an LGBTQ person of something without proof, and that slander costs the LGBTQ person money…well, then the LGBTQ person has a beautiful foundation for a case.

Southern California Injury Lawyers see cases like these all the time, because slander and libel are forms of personal injury.

The biggest problem with slander and libel laws is that in order to build a successful case, you need to prove that you were subject to financial damages — and most of us can’t do that. For example, if someone were to make an accusation that results in quantifiable business losses month after month, then you can prove damages in or out of court. These are the easiest cases for a personal injury lawyer to win.

There are other types of discrimination that an LGBTQ person might face, regardless of the law. For example, you might run into problems cementing your same-sex marriage, adoption, foster parent status, or obstacles related to employment and housing discrimination, hate crimes, fair education, etc. If you think any of these apply to you, any personal injury or discrimination lawyer can provide a consult for free. It’s worth asking.

Are LGBTQ Individuals More Likely To Go Bankrupt?

Anyone who visits our website will know that LGBTQ individuals face a number of obstacles not shared by our straight counterparts. We are more likely to suffer from depression, alcoholism, or drug use. We are more likely to attempt suicide. Young people are especially vulnerable to anti-LGBTQ sentiment. What about money? Are LGBTQ people more likely to go bankrupt — especially during this economic downturn as the result of the coronavirus pandemic?

Madonna called COVID-19 a “great equalizer,” and was nearly canceled as a result. She had failed to adequately articulate how the virus is far more likely to infect people of color or homeless individuals or anyone else in a minority community. These groups are often more likely to die of serious complications as well. It stands to reason that these groups — which already suffer financially — will be more burdened by these realities as well.

Although LGBTQ people aren’t necessarily at increased danger from infection, their financial situation might be. 

A 2019 poll discovered that more than half of members of the LGBTQ community are “anxious” about their financial situation. Only 41 percent of heterosexuals feel the same way. Of course, the poll didn’t actually look at specific finances — only feelings toward — and so the results could simply be indicative of character traits rather than financial stability or instability.

The Fullman Firm (https://www.fullmanfirm.com/) acknowledged that many clients come from LGBTQ homes or are in same-sex relationships, but admitted that they hadn’t compiled any relevant statistics.

Here’s what else the 2019 survey divulged: 42 percent of LGBTQ individuals are depressed because of money compared to 31 percent of straight people. LGBTQ people were both more pessimistic and more likely to feel something akin to shame than their straight counterparts. Straight people routinely felt more confident about their financial situations — and more in control. This survey was conducted with more than 6,600 participants by the WNYC podcast “Nancy.”

President Biden has already taken several steps to support LGBTQ equality, but none of these occurred within the context of economic relief passed for COVID-19. In one of his first acts during the first day in office, Biden signed Executive Order “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which forces federal agencies to ensure that the recent Supreme Court decision of Bostock v. Clayton is upheld. It guarantees that the Civil Rights Act of 1964 includes both gender identity and sexual orientation as part of its discrimination protections.

Biden’s nominations have also bolstered the LGBTQ community’s participation in National politics. Former presidential candidate Pete Buttigieg was nominated (and later confirmed) as Biden’s Transportation Secretary. Biden also nominated Dr. Rachel Levine as his assistant secretary of health, who has extensive experience leading during the coronavirus pandemic and writing about important issues like LGBTQ medicine, the opioid crisis, medical marijuana — and hey, guess what? She is openly transgender!

What Health Care Laws Protect The LGBTQ Community From Discrimination?

Generally, victims of medical malpractice have a lot to worry about: Maybe a delayed diagnosis resulted in a terrible prognosis or a bigger bill. Maybe a surgeon left an instrument in a body cavity or accidentally damaged important tissues. Or maybe they simply overbilled for no reason. But sadly these events are more common for the LGBTQ community — which is why there are actually lawyers who specialize in LGBTQ medical malpractice law.

A medical malpractice attorney knows that one of the biggest complaints from LGBTQ clients is that a doctor or nurse is trying to refuse treatment on the basis of religious liberty. But hey, guess what: that’s why we have important federal legislation to protect our rights as American citizens.

The American Medical Association (AMA) has a specific set of ethics-based rules that members must follow to practice medicine. One of these rules includes protections for LGBTQ patients, whose doctors and nurses cannot refuse treatment due to their sexual orientation.

According to the AMA: “Physicians who offer their services to the public may not decline to accept patients because of race, color, religion, national origin, sexual orientation, gender identity or any other basis that would constitute invidious discrimination.”

Keep in mind that doctors and nurses do enjoy the right to deny certain types of treatments — like abortion — to patients. But that’s different from denying treatments to one type of person over another. The AMA added that it will continue to “work to reduce the health disparities suffered because of unequal treatment of minor children and same sex parents in same sex households.”

Do you believe that you have been discriminated against based on sexual orientation? These states outright ban it: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

Do you believe that you have been discriminated against based on gender identity? These states outright ban it: California, Colorado, District of Columbia, Hawaii, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Many states have organizations built to offer support to LGBTQ patients. For example, California-based “Legal Pride” is a network of professional attorneys and other professionals who offer advice and build lawsuits based on medical malpractice. They serve Los Angeles, San Diego, and Orange County. 

Sadly, there are a number of healthcare organizations that believe the rules do not apply to them. For example, a California-based fertility clinic denied service to Lupita Benitex because she is gay. She filed a lawsuit. The clinic’s argument that it did not have to abide with the state laws based on its religious views was overruled by unanimous decision by the Supreme Court of California.

LGBTQ Community Rejoices As Biden Presidency Certified (Kind Of)

Biden certainly made a large number of promises to the LGBTQ community. We expect him to move fast to pass an Equality Act. He’s also expected to focus on the worldwide community as well, which has undeniably faltered under President Trump’s leadership (or lack thereof). Although a Biden presidency is certainly cause for the community to rejoice, some LGBTQ groups are more skeptical than not. 

Biden supported a repeal of “Don’t Ask, Don’t Tell” in the military. He did not support Trump’s ban of trans folk serving, nor did he support Trump’s dozens of other rollbacks and Obama-era policy reversals. 

Pittsburgh Equality Center Acting Chair Patrick Zabasnik said, “There’s a lot of happiness, obviously, a celebration, but I think there are some reservations.”

Those reservations are based on pragmatism. Overturning Trump’s policies is not as simple as waving a wand and having it done. This is especially true when the hope is to utilize federal law to supersede those more relaxed laws at the state level — which is more difficult to do with Republicans in positions of power. Now that Democrats have won control of the Senate, Biden supporters hope the transition to fair laws will be more rapid.

Zabasnik added, “ Part of that Equality Act entails looking at mental health and health care resources and rural areas and housing for seniors. But also even I think for people who are who identify as transgender or non-binary having identification documents that are matching how they present and who they are specifically.”

The Equality Act actually already passed through the Democrat-controlled House last year. The Senate has yet to take it up, more than likely because Bill-Killer McConnell hasn’t allowed a vote (which is a matter of his purview as Majority Leader, a position he is set to lose when the new administration comes to power on January 20).

Others admit that any president’s power might be considered great but it is limited all the same.

Executive Director of Hugh Lane Wellness Foundation Sarah Rosso said, “Biden’s reach is going to be somewhat limited in the executive branch. We hope that we don’t see any rollback of marriage protections or other equity pieces that we’ve won.”

What A Joe Biden Presidency Means For The LGBTQ Community

It’s no secret that President Donald Trump has rolled back protections for the LGBTQ community — especially federal employees. In fact, simply having Trump in office has resulted in statistically relevant increases in crime against members of the community (in addition to other minority groups like those of Islamic faith). We have every reason to believe that the community outlook will improve greatly under soon-to-be President Joe Biden.

Biden previously promised to pass LGBTQ protections in his first 100 days. That job will become more difficult now that we know that there is a strong likelihood that the Senate will continue to be controlled by Republicans. Biden could use executive orders to keep his promises, though, and we expect him to do exactly that.

Biden team LGBTQ engagement director Reggie Greer described the incoming administration’s goals to NBC news only a week after Biden won the election: “The president-elect and the vice president-elect put together the most comprehensive plan to advance equality here at home and abroad ever put forth by a presidential ticket, and as a result it lays out a pretty strong blueprint on what the incoming administration can do.”

This involves the Equality Act, which would essentially reimpose all of the Obama-era legislation that Trump stripped away during his four years in office (hint: there was a lot of it). One of the most controversial aspects of discrimination law is religious freedom, which many suggest is simply another way to excuse overt hate. We expect Biden’s Equality Act to limit so-called religious freedoms more permanently. 

The legislation would also seek to reduce LGBTQ homelessness, especially for youth members of the community. It would also remove the transgender ban in the military, which was a Trump-era imposition. 

Greer said, “President-elect Biden and the vice president-elect have spent their entire careers forging bipartisan coalitions to get bills through the Congress.”

Why Do Lawyers Target Injured LGBT Workers When Searching For New Clients?

If you perform a quick Google search for LGBTQ workers compensation attorneys, you’ll find more than one direct match — which might be surprising since workers compensation is all about providing workers with free healthcare when they are injured on the job. What does being a member of the LGBTQ community have to do with it? Well, it turns out that businesses have been creating distrust between management and LGBTQ employees forever.

The problem isn’t obvious, but it exists. You might assume that anyone with an LGBTQ employee isn’t necessarily homophobic. The workplace is inclusive, after all. Sometimes this is a legal thing, but oftentime not. But employers are somewhat more likely to contest an LGBTQ person’s right to workers compensation than they are to contest anyone else’s. 

Earlier this year the Supreme Court ruled that LGBTQ workers are legally protected from certain actions like termination or workplace discrimination. But the ruling has further implications. 

Epstein Becker & Green attorney David Garland said, “An employer may not discriminate with respect to benefits provided to any group of similarly situated workers that includes members of a protected class. That would be particularly true with respect to health care coverage, parental leave and similar emoluments.”

In our case, it means protection from undue contestation of workers comp benefits. It doesn’t guarantee an LGBTQ employee’s right to workers comp in every case, it simply guarantees free judgment. If you hurt yourself at work, you have the right to apply. And if the workers comp would normally be granted to an employee who was similarly injured, then you have the right to receive it. When an LGBTQ individual believes discrimination might be a factor in whether or not they receive this universal benefit, they should contact a lawyer to file a claim immediately.

Greensfelder, Hemker & Gale attorney Amy Blaisdell said, “The Supreme Court’s decision not only prohibits an employer from refusing to hire or discharging an employee based on LGBTQ status, but also prohibits treating employees differently in the spectrum of compensation, terms or conditions of employment because of the individual’s LGBTQ status.”

One of the reasons LGBTQ individuals worry about workers compensation is because HIPAA privacy rules are different for this benefit — meaning that a person who chooses to remain in the closet at work might risk having their sexual orientation disclosed to an employer, who might then choose to deny the benefit altogether retroactively. This is an unlikely scenario, but it’s important for employers, employees, and lawyers to understand what’s at stake.

Many people have wondered whether or not the future of the law is at stake with a now conservative-dominated Supreme Court. It’s too early to tell for sure, but the Constitution doesn’t necessarily guarantee protections for one class of people in particular. It simply says that we’re all created equal. Justices have interpreted the Constitution in different ways. The newest, Amy Coney Barrett, believes in a strictly literal interpretation — which means she might be willing to overturn the law if a case ever presented itself.

Can The Supreme Court Overturn Its Previous Ruling On Marriage Equality?

One of the most problematic consequences of the Trump administration is the lack of safety and security for minority groups, including the LGBTQ community. Trump has been allowed to seat dozens of judges, all of whom hold conservative values — which means many of them don’t necessarily believe in the rights of the LGBTQ community over, say, religious freedom rights (and, let’s face it, religious freedom is an excuse to hate on everyone who doesn’t agree with what they say or do).

When Ruth Bader Ginsberg passed away last month, it provided Trump to nominate a third Supreme Court justice during his first (and hopefully last) presidential term. Her likely replacement is Amy Coney Barrett and will give the Supreme Court a conservative leaning of two-thirds. The LGBTQ community is rightly fearful of the future.

Acting Executive Director for Equality New Mexico, Marshall Martinez, said, “Given the history of Barrett, if she is confirmed, this ruling could be very bad for services and for folks seeking services across the country. But here in New Mexico, where the majority believes in equal access and equal opportunity, one organization could determine what is best to do with taxpayer money based on its own religious beliefs.”

Marriage equality is important for the LGBTQ community. Alcoholism, depression, and teen suicide and fallen ever since the Supreme Court ruling that legalized it through federal law. But overturning the previous ruling would kick the decision back to the states, which could even provide more conservative leaning areas the opportunity to nullify marriages already on the books. Activists are scared that the conservative majority’s potential rulings could embolden anti-LGBTQ groups to enact more discriminatory laws. 

Martinez said, “Two very conservative justices took the first opportunity they can to attack marriage equality under the guise of freedom of religion. I think this is a reminder to the LGBTQ community and their allies that there are still folks who are going to use every opportunity they can take away the rights we fought for.”

South Carolina Sex Education Under Suit For Excluding LGBTQ Relationships

Sex education in the south has always been under a great deal of scrutiny by those who live in the north. And that’s no surprise. Unwanted teenage pregnancies are a much bigger problem for those who live in southern states, in part due to stricter abortion laws and relaxed sex education standards. One of those relaxed standards involves the concept of homosexual sexual relationships — which are banned in the classroom by South Carolina law.

Oh, with one exception: Talking about sexually transmitted diseases in the context of homosexuality is perfectly okay.

Basically, teachers can only talk about heterosexual relationships — and even talking about that is restricted by South Carolina law. Now, a federal lawsuit aims to challenge the state law.

The National Center for Lesbian Rights and Lambda Legal have combined their resources to sue South Carolina’s Comprehensive Health Education Act of 1988, which they say violates the 14th Amendment’s equal protection clause.

The lawsuit said, “The law singles out LGBTQ students for negative treatment. It prevents LGBTQ students from receiving any health education about their relationships except in the context of sexually transmitted diseases, without imposing any comparable restriction on health education about heterosexual people.”

The 1988 law goes even further by specifically stating that teachers can be fired simply for discussing homosexual relationships or “alternative lifestyles.”

Defendant Molly Spearman, State Superintendent of Education, actually agrees with the plaintiff. When the lawsuit first arose, she went straight to Alan Wilson, the South Carolina Attorney General. She asked him to provide a legal opinion on whether or not the old state law remained constitutional under state and federal laws. He said that courts would likely overturn the law. 

Spearman said, “I agree with the arguments and evidence presented in the opinion. I also believe that parents should continue to have the final say in whether or not their child participates in health education curriculum.”

Like in many other parts of the country, parents can choose to remove their children from sex education courses.

When asked about the law, Senior Staff Attorney for the National Center for Lesbian Rights, Julie Wilensky, said, “This stigmatizes LGBTQ kids. It sends a message to all students that LGBTQ kids and people are associated with diseases.”

Wilson said, “This office has consistently supported and will continue to support the protection of religious liberties in every context. Important free exercise of religion rights must be protected, while at the same time, ensuring that anti-gay discrimination which violates the Constitution is not present in the classroom.”

What Is The “Gay Panic” Defense For Violent Hate Crimes?

Although LGBTQ rights have taken a hit under the Trump administration, overall they continue to improve year by year, at both the state and federal level. Recently, LGBTQ activists have called on governments to slam the door to the “gay panic” defense shut. This common courtroom strategy asks juries to blame a victim’s sexual orientation or gender identity in order to justify violent crimes — and indeed, often murder. 

The panic defense isn’t an explanation for what happened or why during the commission of a violent crime. It’s an excuse. This is another way that judicial authority — and a jury of our peers — sometimes successfully reduce LGBTQ individuals to second class citizens. 

The panic defense was used during the nationally recognized Matthew Shepard case, which followed the criminal defense of two men who brutally beat and murdered a 21-year-old student in 1998.

LGBTQ advocates are sick and tired of this legal strategy. 

New Jersey Garden State Equality Executive Director Christian Fuscarino said, “Make no mistake, the gay and trans ‘panic’ defense is flat-out legal malpractice and it’s time for New Jersey to outlaw this horrific and discriminatory legal strategy.”

A new bill to ban the “gay panic” defense is scheduled for a vote early next week in the New Jersey state Assembly. Should the bill be signed into law, perpetrators of violent crimes against members of the LGBTQ community would be banned from being granted lesser charges by arguing they became upset in the heat of the moment when learning of a person’s sexual orientation or gender identity.

Dean Dafis is a gay Maplewood committee member and supporter of the new bill. “It’s affirmation that we matter,” Dafis said. “That we will not be erased because when the violence against you is legitimized and excused, then you are erased as a victim and what’s happened to you — it’s like it doesn’t matter to anyone.”

Eight other states have already banned the panic defense.

The defense is usually used to complement one of several other legal strategies: insanity, diminished capacity, provocation, or self-defense. All of these defenses are outrageously illogical and only serve to do additional harm to the LGBTQ community, which is already struggling with increased violent crimes during the dogmatic years of the Trump presidency.

If the New Jersey state assembly approves the bill, it will be forwarded to the Senate for another vote. Should it pass through the Senate successfully, Governor Phil Murphy will hopefully then sign it into law.

Is America Over The Fight For LGBTQ Rights?

A recent story published in The Atlantic characterized the state of LGBTQ rights about half a decade after the Supreme Court ruled to allow same-sex marriage as a matter of federal law. For a lot of people, the fight for LGBTQ rights — at least from straight alliance members — ended there. 

But for the rest of us, the fight rages on, at least in part because legislators still haven’t figured out what they’re doing, and the Trump administration continues to gut equal rights regulations put into place under Obama.

Federal law does not ban discrimination of the LGBTQ community, but about half of the country thinks it does. That explains a great deal of resentment derived from right-wing free speech advocates and conservative Christian business owners who would prefer to post signs banning gay people from their establishments or simply deny them service when they come inside. 

Questions like whether or not LGBTQ should be protected from discrimination in the same way that people are protected based on skin color, gender, age, etc., are still being asked by lawmakers. For many of us, it’s not a question at all. How can anyone justify allowing lessors to deny a lease to someone based on sexual orientation? And yet they do.

The House of Representatives passed a bill that would prevent such acts of discrimination early this year. The Equality Act would guarantee equal rights for LGBTQ people — and more importantly, no one would have the option of shouting “religious freedom!” as a loophole for not following the law. Of course the only way it will ever be passed into law is if Democrats win back control of Congress in 2020, retain control of the House of Representatives, and put a Democratic president in Trump’s still-warm seat. 

In other words, it’s a long road ahead for LGBTQ equality.

An upcoming Supreme Court case will determine whether or not an employee had the right to terminate the employment of a transgender employee after the employee came out. Judging from the conservative leaning of the current justices, no one’s all that optimistic.

Many conservative groups are still trying to relax LGBTQ protections — aided by the president, who is trying to do the same — while others are trying to find some sort of compromise to protect the community while also granting private businesses and organizations to continue functioning on par with their religious beliefs. 

Is compromise important in these struggles? Not really. Either discrimination is legal or it isn’t. How can there be any middle ground?