Homosexuality as a protected class
Timeline of legislation making
sexual orientation a protected class.
Achieving protected status, 1 law & 1 jurisdiction at a time:
For the current status of hate-crime and human rights laws in all U.S.
states, see the Human Rights Campaign data base at:
A few significant milestones are described below.
1977: Quebec, Canada: Eight years after homosexual behavior
was decriminalized across Canada, Quebec became the first
jurisdiction in North America to add sexual orientation to its Human
Rights Act, R.S.Q.C-12. Chapter I.1 titled "Right to equal recognition and exercise of
rights and freedoms" begins: |
"10. Every person has a right to full
and equal recognition and exercise of his human rights and freedoms,
without distinction, exclusion or preference based on race, colour, sex,
pregnancy, sexual orientation, civil status, age except as provided by
law, religion, political convictions, language, ethnic or national
origin, social condition, a handicap or the use of any means to palliate
a handicap." 1 [Emphasis ours]
1993: Minnesota: The state's Department of Human Rights
supervisor Elaine Hanson said: "Minnesota
is regarded as having the broadest coverage for sexual orientation of
any state in the nation, as well as the best definition."|
Sexual orientation was added as an
additional protected class to Minnesota's existing Human Rights Act
in 1993. 2 The applicable section states:
"sexual orientation means
having or being perceived as having an emotional, physical or sexual
attachment to another person without regard to the sex of that person or
having or being perceived as having an orientation for such
attachment..." In addition, the act protects transsexuals as:
"...having or being perceived as having a self image or identity not
traditionally associated with one's biological maleness or femaleness."
Heterosexuals, homosexuals and bisexuals are protected regardless of
whether they are celibate or sexually active.
Department of Human Rights supervisor Gary Gorman said that both
disability and sexual orientation are
in the Act [from other protected classes]...The Act's sexual orientation provision covers not only
those who are gay or lesbian, for example, but also, those who are
perceived to be so. 'We've had a number of cases in which a male was
perceived as being gay, but the guy was married and had kids and said he
wasn't gay,' says 'But if someone is harassed because someone [else]
thinks they are gay, or treats them as if they were, if it interferes
with their employment, that's discrimination,' Gorman says."
As in many other jurisdictions, religious organizations are allowed
limited exemption from this act. They can discriminate on the basis of
sexual orientation in hiring clergy and other religious staff, in
including people as members of the
church, and in selecting students for education in church-run facilities .
So, for example, they could expel a student who had attended their parochial
school for some time and who just revealed that they were gay. But religious
groups are not allowed to discriminate in hiring bookkeepers, janitors,
and employees for other assignments where the job does not involve religion.
Like all other human rights acts of which we are aware, Minnesota's law
does not give gays, lesbians and bisexuals any special privileges. Elaine
Hanson commented that many people misunderstand the scope of the law and
believe that it "extends some special or extra rights to gay people.
That is absolutely not true." It protects persons of all sexual
orientations -- heterosexual, homosexual or bisexual -- from
The state's Department of Human Rights'
web site states:
"It surprises some that the department has accepted charges from -- and
obtained justice for --- men who have charged gender discrimination,
conservative Christians who have been victims of religious harassment,
and heterosexuals who have alleged discrimination based on sexual
In one such case, a male employee who worked as an entertainer in a gay
bar was fired, allegedly because he was spending time off duty in the
company of females. 'It was presumed, therefore, that he must be
heterosexual,' Hanson recalls. The department found probable cause to
believe the presumed heterosexual employee was a victim of
discrimination based on his sexual orientation."
1995: Canada: The Supreme Court of Canada ruled in
Egan v. Canada that the exclusion of a gay couple from the Old Age Security
Act was a violation of Section 15 of the Charter of Rights and Freedoms
-- Canada's federal constitution. This affects the section that deals with
equality rights. The ruling stated, in part: |
"Blending my analysis of the
nature of the interest together with my conclusions regarding the nature of
the group affected by the impugned distinction, I am convinced that this
distinction is reasonably capable of exacting a discriminatory toll upon the
group affected. I would therefore find the impugned distinction to be
discriminatory within the meaning of s. 15(1) of the Charter."
effect, the Court ruled that the term "sexual orientation" was to be "read
in" to the Charter. That is, the term was not originally in the
Charter. However, after 1995, the Charter is to be interpreted as if the term
is in place. 4
1996: Canada: The term "sexual orientation" was added
to the Federal Human Rights Act as a protected class.
2002: New York:
The Sexual Orientation Non-Discrimination Act (SONDA) was passed
by the Senate of New York in 2002-DEC, and was signed into law shortly
thereafter. It added "sexual orientation" to an existing list of
protected classes in the state's Human Rights law.|
The Human Rights Law, Article 15, Section 291.1 states: "The
opportunity to obtain employment without discrimination because of age,
race, creed, color, national origin, sexual orientation, military
status, sex or marital status is hereby recognized as and declared to be
a civil right." [Emphasis ours]. Subsection 2 similarly
prohibits discrimination in education, public accommodation and housing.
The New York human rights law has a
broad and precise definition of "sexual orientation. "Section 292.27 states that: "The term 'sexual orientation' means
heterosexuality, homosexuality, bisexuality or asexuality, whether
actual or perceived. However, nothing contained herein shall be
construed to protect conduct otherwise proscribed by law." 6,7
||2003-DEC: USA: Human Rights Campaign (HRC) reported on human
rights laws across the U.S.:
||Twenty-four states have no anti-discrimination laws or policies
which include sexual orientation
||Eleven states have some protection of public employees on the
basis of sexual orientation. However, the public has no protection
||Ten states include sexual orientation in their human rights
legislation which protects everyone.
Four states and the District of Columbia include sexual
orientation and gender identity in their human rights legislation.
2004-SEP-9: WA: Washington state Superior Court Judge, Richard
Hicks, ruled that gays and lesbians are part of a protected, minority
class. He also ruled that the state Defense of Marriage Act
(DOMA) that denies them the right to marry is unconstitutional. Judge
Hicks wrote: "The clear intent of the Legislature to limit government
approved contracts of marriage to opposite-sex couples is in direct
conflict with the constitutional intent to not allow a privilege to one
class of a community that is not allowed to the entire community."
He also stated that the DOMA law places same-sex families and their
children at risk. He wrote: "Same-sex couples can have children
through artificial insemination and same-sex couples can adopt children
all with government approval. Where is the protection for these
children?" Paul Lawrence, the plaintiffs' lawyer from the
American Civil Liberties Union (ACLU) said that the judge's ruling
was "well-grounded in state constitutional-law principles. He makes a
very clear finding that the state Constitution requires equal treatment
of all citizens and that state marriage laws don't provide equal
treatment and are therefore unconstitutional....this is exactly the type of case that the state Supreme Court
will take directly on review." -- i.e. it might bypass the Court of Appeals.
||2004-OCT-1: USA:By this date, Human Rights Campaign
reports on hate crime legislation across the U.S. By this date:
||Four states -- AR, IN, SC, WY -- have no hate-crime legislation.
||Two states - GA & UT -- have legislation which does not define
||Fifteen states -- AL, AK, CO, ID, MD, MI, MS, MT, NC, ND, OH,
OK, SD, VA, WV -- have a hate-crime law, but it does not include
criminal acts motivated by a hatred of persons becuase of their
sexual orientation or gender identity.
||Twenty-one states -- AX, DE, FL, IL, IO, KS, KY, LA, ME, MA, NE,
NV, NH, NJ, NY, OR, RI, TN, TX, WA, & WI have a law which includes
sexual orientation as a protected class.
Eight states -- CA, CT, HI, NM, MN, MO, PA, & VT -- and the
District of Columbia have hate crime laws that include both sexual
orientation and gender identity as protected classes.
References used to prepare this essay:
"The Quebec Charter of Human Rights and Freedoms," at:
http://www.cdpdj.qc.ca/ You may need software to read this file. It can be obtained free from:
"Sexual Orientation and the Minnesota Human Rights Act," Minnesota web
Chapter 363A.03 Subd 44 of the Minnesota Human Rights Act.
Text of the decision: "Egan v. Canada,  2 S.C. R., Pages
567 & 568. at:
"1999 Annual Report: Sexual Orientation," Canadian Human Rights
"Statement from Governor George E Pataki," New York State Division of
Human Rights, 2002-DEC, at:
"Executive Law, Article 15: Human Rights Law," New York State,
"Statewide anti-discrimination laws & policies," Human Rights
Lornet Turnbull, "Gays are a protected class, state judge rules."
Seattle Times, 2004-SEP-9, at:
"Statewide Hate Crimes Laws," Human Rights Campaign?
Copyright © 2004 to 2009 by Ontario Consultants on
Latest update: 2009-JUN-28
Author: B.A. Robinson