Several federal, state and local laws can be used to challenge discrimination or harassment on the basis of sexual orientation or gender identity/expression. In addition, several legal advocacy groups focus specifically on this type of case and have successfully assisted coaches and athletes. The purpose of this chalk talk is to provide an introductory summary of these laws and resources and provide some suggestions for what to do if you believe you have been discriminated against.
Federal ProtectionsCurrently, no federal laws specifically prohibit discrimination on the basis of sexual orientation or gender identity. The Employment Non-Discrimination Act (ENDA) is a proposed federal law that, if passed, would prohibit discrimination against employees by their employers on the basis of sexual orientation or gender identity. As currently written, ENDA would exempt small businesses, certain religious organizations and the military, and does not require benefits to the same-sex partners of employees. Changes in federal hate crimes laws to include sexual orientation and gender identity have been proposed, but have not yet become law.
In the absence of specific federal law specifically prohibiting this kind of discrimination, two other federal laws have been used successfully to challenge discrimination based on sexual orientation or gender identity: The Equal Protection clause of the 14th Amendment to the United States Constitution and Title IX of the Education Act of 1972.
The Equal Protection clause states that "no state shall… deny to any person within its jurisdiction the equal protection of the laws." Several cases involving allegations of harassment and discrimination against lesbian, gay, bisexual and transgender students and staff in public schools have been based on the Equal Protection clause including the recent Harris v. Penn State/Portland case. In this case, Jennifer Harris, a player on the Penn State women's basketball team claimed that she was discriminated against because her coach, Rene Portland, perceived her to be a lesbian.
Title IX is a federal law prohibiting discrimination in education on the basis of sex. Though Title IX applies to all aspects of education, it has been used most successfully in athletics to decrease the disparity in funding, staffing and programming between women's and men's programs. Title IX has been interpreted to apply also when students are discriminated against on the basis of gender stereotypes. For example, when male students are harassed because they are perceived as “feminine” or female students are harassed because they are perceived as “masculine.” Often these students are assumed to be gay or lesbian because of their gender nonconformity. Title IX has been used successfully in several cases to challenge this kind of harassment or discrimination affecting boys and girls.
State Non-Discrimination LawsIn addition to these two federal laws, many states have passed laws prohibiting discrimination based on sexual orientation or gender identity. Most of these laws address discrimination in employment, public accommodations and housing. State employment discrimination laws can be used to challenge discrimination against coaches or other staff members in athletics.
- States prohibiting employment discrimination based on sexual orientation and gender identity: Minnesota. Rhode Island, New Mexico, California, Hawaii, Illinois, Maine, Washington, New Jersey, District of Columbia (and Oregon, effective January, 2008)
[note: Although the Iowa & Colorado legislatures recently passed this law and the governors have pledged to sign them, the governors have not yet done so, so they aren't actually laws yet. Vermont has the same situation with a bill to add gender identity. If signed, the Iowa and Vermont bills will be effective July 1, 2007, and Colorado's would be effective August 2007]
- States prohibiting employment discrimination based on sexual orientation only: Wisconsin, Massachusetts, Connecticut, Vermont, New Hampshire, Nevada, Maryland, and New York
[note: Hawaii prohibits gender identity discrimination in housing & public accommodations, but only sexual orientation for employment]
State Student Rights LawsIn addition to these state non-discrimination laws, some states have enacted “student rights laws” that specifically protect students in schools from discrimination or harassment based on sexual orientation or gender identity. There are also policies and regulations in many states prohibiting discrimination and harassment in primary and secondary schools based on sexual orientation, and a few have policies that include gender identity.
- States with student rights laws prohibiting discrimination or harassment based on sexual orientation and gender identity/expression: California, Maryland, Minnesota, New Jersey, Maine, Iowa, Oregon (Beginning January, 2008) and the District of Columbia
[note: The Iowa legislature passed this law, the governor has pledged to sign it, but has not yet done so as of May, 2007
- States with student rights laws prohibiting discrimination or harassment based on sexual orientation only: Connecticut, Massachusetts, Vermont, Washington, Wisconsin
Other State or Local Laws and Policies That Might ApplySome states have ruled that discrimination based on gender identity/expression is covered under sex discrimination laws. For example, Massachusetts has interpreted the state student rights law prohibiting discrimination on the basis of gender to also include discrimination against transgender students. For states that do not have laws specifically prohibiting discrimination based on sexual orientation or gender identity/expression, the state constitution equal protection clause can used to challenge discriminatory treatment.
Many municipal non-discrimination laws include sexual orientation or gender identity/expression that can also be used to challenge unfair treatment. In addition, many universities and local school districts have adopted inclusive non-discrimination policies that protect students and staff from discrimination based on sexual orientation or gender identity.
Legal ResourcesIn addition to legal resources readily available in any community, several national and regional legal advocacy organizations can provide advice, informal assistance or legal representation for students or staff who believe they have been discriminated against in athletics because of their perceived or actual sexual orientation or gender identity. The
National Center for Lesbian Rights (NCLR) sponsors a Sports Project that focuses on discrimination in athletics and sport settings.
If you think you have been discriminated against or harassed on the basis of actual or perceived sexual orientation or gender identity/expression, see “
What to Do If You Think You Have Been Discriminated Against on the Basis of Sexual Orientation or Gender Identity/Expression” for specific action tips.