Same Sex Marriage Discrimination Guide Identify & Prevent Direct and Indirect Discrimination
As a result of the United States Supreme Court ruling of 2015 in the Obergefell v. Hodges case, same sex individuals can now get married anywhere across the United States. On 26th June 2015, The Supreme Court also ruled that the 14th Amendment demands states to allow marriage between same sex couples to take place and recognize same sex marriages carried out in other states. This also means married couples, including same sex ones have to be treated with respect, equally and married by the federal government in all U.S. states and territories except in American Samoa. The married couple is eligible for responsibilities and protections given to all other different sex married individuals.
Same sex marriage discrimination refers to singling out, distinguishing or making a distinction of same sex couples when it comes to marriage. It's also the unequal treatment of same sex individuals in marriage and other related areas. It's however worth noting that not all unequal treatment amounts to discrimination in marriage among same sex couples or illegal as indicated below.
Same Sex marriage discrimination also involves direct discrimination where a person is treated worse for being in a civil partnership or marriage to another of the same gender. Indirect discrimination also exists where employers for instance might have a policy that puts same sex partners who are married at a disadvantage.
Discrimination is also observable when same sex married individuals are treated badly for raising complaints about marriage discrimination or supporting another person for going through the same.
Common Discriminatory Behavior
There are many forms of discriminatory behaviors against same sex people seeking marriage or discrimination in various areas due to their union. From being physically assaulted in the street, denied emergency medical care, fired from employment, refutation of parental rights among others. Here are different forms common in the society today.
Chapels/Places of Worship
Most of the largest religious institutions in the U.S. still stand against same sex marriage such as Southern Baptist Convention, Mormon/Church of Jesus Christ of Latter-day Saints, Orthodox Jewish, Assemblies of God and the National Baptist Convention prohibit clergies from officiating same-sex marriages. The government cannot discriminate same sex individuals from going through civil marriage; it's a legal institution regulated and established by the same government. However, clergy members and religious institutions are free to refuse or decline performing marriage rituals and rites on anybody they want. This is where same sex couples might be denied the permit to marry by some churches or faiths although a huge number of churches officiate same sex church or faith based marriages.
In diverse states same sex couples and others wishing to get married can choose to get married within a welcoming church or place of worship or by civil servants such as authorized deputies or judges. While the constitution protects the right of the places of worship to do what they want according to their beliefs, such cannot be imposed on others or religion cannot be used to harm people, discriminate and break the law.
It’s the reasons why business owners and government officials cannot assert religious belief to discriminate by refusing to follow a clear set law such as offering marriage licenses to same sex couples. Rather than a religious freedom it’s discriminatory and unlawful.
Many States in the greater United States including localities but not all have prohibited bias in compensation, hiring, termination, promotion, harassment and assignment of jobs due to the sexual orientation of a person. Nonetheless, if a prospective employer or current employer happens to be a faith based or religious association/corporation discrimination might be hard to prove due to the right that such associations have under the same law. On the other hand, if an employer refuses to offer same sex couples the same kind of employment benefits as other different sex couples or individuals or simply refusal to accept or recognize same sex validity it’s construed as a form of discrimination.
The law does forbid discrimination based on gender identity or sexual orientation when it comes to providing employment benefits. Employment laws on the federal level also stops employers from offering employees unequal benefits due to sexual orientation or just gender. In July 2015, the U.S. Equal Employment Opportunity Commission ruled that discrimination by employers against same sex and LGBT workers as a whole was a violation of the Title VII of the Civil Right Acts of 1964, which essentially doesn't allow employment discrimination of any form in terms of national origin, sex, religion, color or race.
Same Sex Blood and Donation
The controversy on men who have sex with men (MSM) and their prohibition from donating organ transplant tissues and blood has ranged on, which has barred and discriminated men who had intercourse with other men, whether they identify as same sex couple, gay, bisexual or not. LGBT organizations see it as discriminatory and the restriction as homophobic in nature and hardly based on any valid medical or scientific concern. They argue that donations from everyone are tested rigorously in the process ruling out infected donors with Hepatitis C, Hepatitis B, HIV and other complications.
The Food and Drugs Administration continues to hold that MSM seeking to donate tissues and blood have to wait for one year after their last sexual intercourse to donate due to scientific evidence they claim to have. Even so, FDA announced in December 2015 a vacation of the lifetime ban on MSM blood donation. While the expanded opportunity was welcomed by many, still the one-year period continue to discriminate and stigmatize homosexual men yet the medical reason for it is still unjustifiable.
LGBT couples sometimes confront discrimination when they seek to rent or buy homes that different sex couples hardly face. Housing discrimination indicates a situation where tenants or potential tenants are discriminated upon by home owners and landlords. The United States doesn't have any federal law that seeks to address such discrimination on housing that exists against same sex couples. However, about 22 states including lots of cities and localities have laws enacted that prohibit this form of discrimination. In these states landlords cannot refuse to rent apartments or houses to a same sex couple based on their gender expression, sexual orientation, marital status and gender identity.
Only four states in the US allow prisoners a right to enjoy conjugal rights, namely Washington, New York, Connecticut and California, which are also a part of the states that had legalized marriage among same sex individuals by June 2015. California was the first to offer same-sex couples conjugal rights in 2005 but only if the domestic partnership or same-sex marriage was complete before the incarceration. New York completely allowed the visits to go state wide by 2011 while Mississippi and New Mexico banned the right across the board.
Medical Care Rights
LGBT spouses have always reported discrimination over the years in accessing health related facilities and services, including being turned away from receiving needed emergency medical help. In 14th April 2010, an Executive Order issued by President Barack Obama was relayed to the US Department of Health and Human Services to have new rules in place for Medicaid funds and Medicare accepting hospitals. The facilities had to begin granting medical and visitation rights to same sex couples, including widowers and widows, rights ignored by most states.
After DOMA Section 3 was struck down by the Supreme Court and the court legalized same-sex marriage across the country more protections were extended to same sex married couples. For instance, a same sex married partner covered by the health plan of the employer means that both partners in the union are eligible for different federal protections for the married but not same sex individuals who are just registered domestic partners.
Gay or lesbians were not allowed to serve in the United States before 1993 and allowed to do so only if they didn't disclose it under the DADT (Don't ask, Don't Tell) policy, which was seen as discriminatory policy that refused gay and lesbians the right to be themselves and enjoy their sexual orientation even in their military service. However in 2010 the policy was repealed and gay men and women can now openly serve in the U.S. armed forces. As a result Bisexuals, lesbians and gays have been serving openly since 20th September, 2011.
Discrimination against same sex couples in the adoption of children is illegal across the United States. This is due to the legalization of the adoption right among same sex couples who are legally married from June 2015. However, it's worth noting policies on same sex married couple adoption does vary from one jurisdiction to the next. Once same sex individuals get married, foster and adoption agencies cannot discriminate them on their desire to adopt children.
In May 16th, 2013 the congress introduced an act known as Every Child Deserves a Family stating that organizations dealing with adoptive and foster children care and receive funds one way or the other from the Federal government cannot discriminate against same sex married couples. They cannot refuse any of the partners even if they identify themselves as LGBT the right to adopt or foster a child. However, since this is mostly applying to federally funded institutions same sex partners are hugely refused the right to adopt by private institutions.
While the law in the U.S. generally allow married gay couples to adopt, those seeking to adopt from other countries might be denied by foreign laws.
It is advisable that same sex couples should avoid custody or parentage battles in a court of law virtually in every state of the nation due to the harm it does on a child. It leaves behind a lot of agony yet what should be agreed upon on legal custody issues is the physical custody or the place the child stays, child support and visitation in the process saving each of the parties involved lots of distress. In case you decide the legal system is the way to go there’re things you need to remember.
Both same sex partners have legal rights to the custody of the child if:
- The child was born in their civil union, registered domestic partnership or marriage in a locality or state where parental rights are conferred on non-biological parents.
- The child was adopted by non-adoptive or non-biological parent via a stepparent or second parent adoption arrangement or through parentage action established a relationship with the child.
- Both same sex partners had adopted the child jointly.
Things are however different if only one of the partners is the legal parent considering in lots of states the second parent has zero rights and cannot seek visitation rights, physical or legal custody of any kind.
Hate crime is considered an enmity motivated feeling against a specific group, person or protected class. Since same sex married couples and LGBT individuals as a whole have faced serious hate crimes in the past to date, the Mathew Sheppard Act was passed to expand the hate crimes definition to cover disability, gender identity, sexual orientation and gender. The Supreme Court in 1993 held unanimously that hate crime enhancement laws in states were constitutional and hardly violated the freedom to expression and thought in the First Amendment. In other words, same sex individuals, in marriage union or not are protected against hate crimes.
Prevention And Protection Against Same Sex Discrimination
According to UN Secretary-General Ban Ki-Moon, as people of conscience we must continue to reject and prevent discrimination in any manifestation, particularly discrimination founded on gender identity and sexual orientation. He reiterated that where tension manifests between universal human rights and cultural attitudes rights should always reign supreme. In actual fact, to prevent discrimination of same sex people from enjoying their rights and lifestyle as they deem fit States (countries under the UN) have different critical legal obligations aimed at protecting LGBT people's human rights. This includes:
- Protection from all forms of transphobic and homophobic acts of violence
- Prevention from degrading, inhuman, cruel and torturous treatment
- Repealing of laws that criminalize LGBT people
- Prohibiting any discrimination based on gender identity and sexual orientation
- Safeguarding the freedom of peaceful assembly, association and expression
Stopping and Preventing Workplace Discrimination
Regardless of the work authorization or citizenship status of an LGBT individual, he/she is still protected by the law. This is according to the Equal Employment Opportunity Commission (EEOC), the legal federal agency enforcing employment relations, harassment and discrimination with offices across the county. EEOC takes discrimination very seriously and any that's leveled towards same sex individuals should be reported to them right away.
The commission actually promises to seek remedies for an individual for free, including stopping the discrimination. Complaints on work related discrimination, whether the individual is a job applicant, temporary, seasonal, part-time or full-time employee or even previous worker should be launched with the commission for immediate resolution. Same sex couples or LGBT individuals can actually file complaints in person or mail to any of the EEOC offices nearby. Eeoc.gov also has all the different laws in place against discrimination at the workplace or related to employment. To remedy and stop unlawful discrimination at your place of employment you can call EEOC through 1-800-669-4000.
Private Sector Headache
Federal laws are very clear about protection of people at the workplace on the basis of their sex, nationality, religion, disability, age, national origin and race. However, a federal law outlawing sexual orientation related workplace discrimination in the private sector doesn't exist. Federal government employees are however protected from sexual orientation discrimination.
At the state level sexual orientation and related discrimination protection exists somewhat. About half of the U.S. states including District of Columbia prevent discrimination based on sexual orientation in private and public workplaces. These includes Wisconsin, California, Washington, Colorado, Vermont, Connecticut, Rhode Island, Hawaii, Oregon, Illinois, New York, Iowa, New Mexico, Maine, New Jersey, Maryland, New Hampshire, Massachusetts, Nevada, and Minnesota. Generally, prevention against discrimination of same sex couples at the workplace is much better at the state level than at the wider federal level. Public workplaces are easier to prevent sexual orientation related discrimination and a couple of states have enacted laws to this effect.
Another level of prevention that comes in handy if federal and state law hasn’t protected same sex couples and the LGBT as a whole are local laws. County and city ordinances come in handy to help deal with discrimination, particularly at the workplace. This is because lots of counties and cities prohibit sexual orientation discrimination at least in a number of places of work.
You can actually find out the kind of state, county or city protection that exist where you live in relation with sexual orientation and same sex relations at Lambda Legal where lists of anti-discrimination laws from one state to the other are maintained affecting lesbians and gays specifically. Lambda offices within your locality also have more localized information you might find specific to your case; you can also be connected to volunteer attorneys or intake volunteers for more help.
It's also important to understand your company's policies before you start working there to understand whether you'll be discriminated upon. For instance, faith-based employers can make benefits and employment decisions founded on their religious beliefs and refuse to comply with a ruling such as Supreme Court’s on same sex marriages. Since they're in the private sector, they might not be breaking any law. You can prevent heartache and discrimination by seeking a job elsewhere.
Most companies are enlightened and have adopted antidiscrimination policies of their own with sexual orientation being one of them. It's possible to find disciplinary guidelines in place to deal with employees, team managers and others who discriminate, sometimes even termination of employment for the discriminating party.
Even in private companies or different areas where same sex couples or LGBT discrimination takes place there's still hope of preventing it from happening and legal redress where it has taken place. The important thing is noting the discrimination and its exact manifestation. This information is critical and can be used to sue coworkers and companies among others under different areas such as defamation, wrongful termination, invading privacy, assault, employment contract interference, and harassment, negligent or intentional cause of emotional distress, among others.
The situation still remains that same sex couples can be married basically in any state but still be evicted from their house or refused a loan for a home. LGBT rights activist are working towards preventing this by urging most state lawmakers to change their anti-discrimination laws that already protect discrimination based on disability, religion, age or race to include sexual orientation.
Before you get married as a same sex couple, understand your rights within your state. For instance, in the case of Melisa and Jennifer McCarthy the appeals court in New York State recognized the refusal by the farm owner to allow same sex marriages from taking place in their farm as discriminatory since the farm was promoted as a unique location for weddings all year round. It was seen as a violation of the law of the state that any business open to the wider public has to be open for anyone and same sex individuals aren’t an exception.
By understanding the law of your state or locality on various areas where same sex discrimination manifests itself you'll be in a better place to prevent it from occurring in your case. You’ll also know how to deal with any discrimination that glares its head.
What do you do if you feel you’re a victim of discrimination?
If you feel you've been discriminated upon due to your same sex marriage or just being an LGBT member there're a number of things you can do. First is finding an institution that deals specifically with LGBT issues. You can also talk to a discriminatory attorney considering the complexity of a civil right violation case, the laws that need to be applied, harm suffered and the individual, group or association responsible.
Places to find help if you feel you're a victim of LGBT directed discrimination include:
- Lambda Legal
- National Center for Lesbian Rights