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Homosexuality as a protected class

Timeline of legislation making
sexual orientation a protected class.

Sponsored link.


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: http://www.hrc.org/

A few significant milestones are described below.

bullet1977: 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]

bullet1993: 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." 3

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

"...treated differently 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 discrimination equally.

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 orientation. 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."

bullet1995: 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."

In 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
 

bullet1996: Canada: The term "sexual orientation" was added to the Federal Human Rights Act as a protected class. 5
 
bullet2002: 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
 
bullet2003-DEC: USA: Human Rights Campaign (HRC) reported on human rights laws across the U.S.:
bulletTwenty-four states have no anti-discrimination laws or policies which include sexual orientation
bulletEleven states have some protection of public employees on the basis of sexual orientation. However, the public has no protection
bulletTen states include sexual orientation in their human rights legislation which protects everyone.
bulletFour states and the District of Columbia include sexual orientation and gender identity in their human rights legislation. 8
 
bullet2004-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. 9 More details.
 
bullet2004-OCT-1: USA: By this date, Human Rights Campaign reports on hate crime legislation across the U.S. By this date:
bulletFour states -- AR, IN, SC, WY -- have no hate-crime legislation.
bulletTwo states - GA & UT -- have legislation which does not define categories.
bulletFifteen 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.
bulletTwenty-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.
bulletEight 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. 10

References used to prepare this essay:

  1. "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:
  2. "Sexual Orientation and the Minnesota Human Rights Act," Minnesota web site, at: http://www.humanrights.state.mn.us/
  3. Chapter 363A.03 Subd 44 of the Minnesota Human Rights Act.
  4. Text of the decision: "Egan v. Canada, [1995] 2 S.C. R., Pages 567 & 568. at: http://www.lexum.umontreal.ca/
  5. "1999 Annual Report: Sexual Orientation," Canadian Human Rights Commission, at: http://www.chrc-ccdp.ca/
  6. "Statement from Governor George E Pataki," New York State Division of Human Rights, 2002-DEC, at: http://www.nysdhr.com/
  7. "Executive Law, Article 15: Human Rights Law," New York State, at: http://www.nysdhr.com/
  8. "Statewide anti-discrimination laws & policies," Human Rights Campaign? at: http://www.hrc.org/
  9. Lornet Turnbull, "Gays are a protected class, state judge rules." Seattle Times, 2004-SEP-9, at: http://seattletimes.nwsource.com/
  10. "Statewide Hate Crimes Laws," Human Rights Campaign? at: http://www.hrc.org/

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Copyright © 2004 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUN-28
Author: B.A. Robinson

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