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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition
Civil Rights 101 - Leadership Conference on Civil Rights Education Fund - 2001

Gays and Lesbians

Unlike race, gender, age, ethnicity or religion, sexual orientation is not a protected characteristic under current federal civil rights law. But following the 1969 Stonewall riots of gays in Greenwich Village, a key goal of the gay and lesbian political movement has been to win civil rights protection against discrimination in employment, housing, and elsewhere. Too often, gay men and lesbians face hostility, discrimination -- and sometimes deadly violence -- solely because of their sexual orientation.

Hate crimes committed against gays, lesbians, bisexuals, and/or transgendered individuals constitute the third-highest category of hate crimes reported to the FBI -- 14% of all hate crimes reported nationally, according to the Human Rights Campaign. And while violent crime rates have been declining generally, the National Coalition of Anti-Violence Programs reports that the number of actual or suspected anti-gay murders is on the rise: from 14 in 1997 to 33 in 1998 and 28 in 1999.

Earlier studies by the National Gay and Lesbian Task Force Policy Institute, including an analysis of 21 different local surveys between 1980 and 1991, found widespread discrimination across the country against gay men and lesbians. According to the report, as many as 44 percent of respondents in some cities reported employment discrimination as a result of their sexual orientation. Thirty-two percent reported discrimination in renting a housing unit. The study also said that gay men and lesbians reported discrimination in public restaurants and in receiving health services, obtaining insurance and in education.

Legislative attempts to enact anti-bias laws protecting gay men and lesbians have occurred at the federal, state and local level. In Congress, the effort to enact equal protection laws, including coverage for gay men and lesbians, has been underway since 1975, when Rep. Bella Abzug, D-N.Y., introduced the first lesbian and gay civil rights bill.

Since then, 12 states and the District of Columbia have enacted laws barring job discrimination on the basis of sexual orientation. The Human Rights Campaign also reports that 23 states and the District of Columbia have enacted state hate crime laws that include protections against violence motivated by sexual orientation bias.

The gay rights struggle opened another front during the 1992 presidential election when then-nominee Bill Clinton promised to lift the ban on gays in the military. When Clinton renewed his promise after winning the election, he was met by a storm of protest from both Congress and the military, especially the Joint Chiefs of Staff.

In the end the president settled for a compromise that pleased virtually no one. On July 19, 1993, President Clinton announced what he called an "honorable compromise," a "don't ask, don't tell" policy, under which potential recruits would not be asked their sexual orientation, would have to keep that orientation private and not engage in any homosexual conduct and would require the military to curtail its investigation of suspected homosexuals and lesbians. Gay men or lesbians who let their identity be known or who act on their sexuality would still be discharged from the Armed Forces. Similarly, President Clinton's support for Congress' enactment of the Defense of Marriage Act ("DOMA"), which enables states to refuse to recognize same-sex marriages performed in other states, also drew fire from civil rights advocates.

On the other hand, the Clinton Administration made several important regulatory changes, including issuing an executive order banning discrimination based on sexual orientation in all civilian federal workplaces, as well as an executive order prohibiting sexual orientation and other forms of discrimination by federally conducted education programs; and granting asylum for gay men and lesbians facing persecution in other countries.

To date, the supreme court has decided relatively few cases directly involving gay issues. In Bowers v. Hardwick (1986), the Court upheld Georgia's state law making sodomy a crime. The Court said that constitutional rights to privacy did not encompass what it called "homosexual sodomy," and that the law served a legitimate state interest, namely promoting what the court defined as "majority sentiments about ... morality."

Ten years later in Romer v. Evans, on the other hand, the Court struck down as unconstitutional a Colorado state referendum approving an amendment to the state constitution that would have overturned local anti-bias laws. The Court held that the referendum was motivated by irrational bias against gays and lesbians and served no legitimate government interest, thus violating basic federal constitutional guarantees of equal protection.

But in Boy Scouts of America v. Dale (2000), the Court dealt civil rights advocates another setback, ruling that the Boy Scouts' First Amendment rights of free expression and association would be violated by enforcement of New Jersey's state law barring sexual orientation discrimination to prohibit them from dismissing a gay Scoutmaster.

Current legislative efforts to protect the civil rights of gay, lesbian, bisexual, and transgendered individuals include the Employment Nondiscrimination Act (ENDA), which would prohibit job discrimination on the basis of sexual orientation. The Local Law Enforcement Enhancement Act (formerly known as the Hate Crimes Prevention Act) has been another priority; this legislation would extend federal hate crimes jurisdiction to reach, for the first time, certain violent hate crimes committed because of the victim's sexual orientation, gender, or disability, as well as expand current federal jurisdiction over hate crimes committed on the basis of race, national origin, and religion.

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