This Saturday Seminar explores how different types of regulation treat gender identity and sexual orientation.
Earlier this month, the U.S. Supreme Court grappled with oral arguments in two cases in one day dealing with discrimination against LGBTQ+ individuals. Bostock v. Clayton County raised the question of whether Title VII of the Civil Rights Act protects workers from discrimination based on sexual orientation. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission presented the issue of whether that same provision protects workers from discrimination based on gender identity.
Although these questions about the place of LGBTQ+ people in the workplace remain for the Supreme Court to decide later this term, LGBTQ+ individuals still must continue to navigate society and a range of varied regulated environments. This week’s Saturday Seminar provides a snapshot of how the LGBTQ+ population confronts different administrative structures and legal rules—and how different areas of the law have grappled with—or have neglected to grapple with—issues involving the LGBTQ+ individuals:
- In a recent Center for American Progress report, Emily London and Maggie Siddiqi argue that policymakers should ensure that religious liberty is not misused as a license to discriminate against the LGBTQ+ community or other vulnerable communities. According to the report, laws aimed at protecting freedom of religion are increasingly used to justify discrimination against the LGBTQ+ community and other vulnerable communities, especially after the S. Supreme Court broadened the scope of the Religious Freedom Restoration Act in the 2014 Burwell v. Hobby Lobby decision.
- In an analysis issued by the Associated Press, Russ Bynum and Angeliki Kastanis report that 28 states lack state laws prohibiting workplace discrimination against LGBTQ+ employees, leaving some LGBTQ+ workers with no job protection apart from federal Title VII claims. Nationwide, approximately 4 million LGBTQ+ employees reportedly live in places where the local and state laws do not protect them against sexual orientation and gender identity discrimination. The authors assert that LGBTQ+ workers are “particularly vulnerable in the South, home to an estimated 35% of LGBT adults.”
- The Safe Schools Improvement Act, a bill introduced in the U.S. House of Representatives in 2015 but never enacted into law, highlighted the negative effects of harassment against LGBTQ+ students and intended to make schools safer. Leah Roberts and Robert Marx, two scholars at Vanderbilt University’s Peabody College, assert that the bill did not provide actionable policy suggestions for schools aiming to reduce LGBTQ+ discrimination. They argue that laws must focus on improving school policies at a structural level rather than on surveilling and punishing individual bullies to make antidiscrimination laws effective.
Understanding the LGBTQ+ Community
- In a policy brief, the Haas Institute for a Fair and Inclusive Society at the University of California, Berkeley presented research that addresses the transgender and gender-nonconforming individuals face involving bathroom access. Some solutions, such as mandating transgender individuals use a separate single-user facility, “do little to address the indignities of unequal access.” The scholars advocate collecting data on gender identity and access needs to address the problem. Furthermore, they identify strategies to design and plan gender inclusive—rather than gender neutral—facilities.
- In an op-ed for Brookings Institution, two scholars argue that Chinese internet regulations have increasingly discriminated against the LGBTQ+ community. The China Netcasting Services Association’s 2017 online broadcasting regulation categorized homosexuality as an “abnormal sexual relationship” and banned depictions of homosexuality. The scholars argue that this action and other recent regulations which restrict homosexual topics in online news portals and television dramas conflict with existing protections for LGBTQ+ rights.
- In a 2018 article by the Journal of the American Academy of Psychiatry and the Law, Brian Barnett, Ariana Nesbit-Bartsch, and Renée Sorrentino argue that the debate around transgender bathroom bills extends beyond scientific concerns and into legal and ethical concerns. The authors conclude that although there is no evidence to show that transgender-inclusive bathrooms increase the number of sexual offenses, lawmakers should also consider legal and ethical justifications. Psychiatrists must play an important educational role in providing answers to the courts about possible psychiatric implications of transgender bathroom bills.
- A report by the Movement Advocacy Project examines the practice of conversion therapy on LGBTQ+ individuals in the United States. The report explains the practice of conversion therapy, lists the harms faced by those who undergo such treatment, and includes policy recommendations to address the issue–specifically calling for state legislation to “ban harmful conversion therapy practices when used on minors.”
Treatment in Health Care
- In a 2019 National Health Law Program publication, Abigail Coursolle and Rachel Holtzman argue that the Trump Administration’s rollbacks of certain health care protections could harm LGBTQ+ patients with behavioral health needs. Provisions in the Patient Protection and Affordable Care Act (ACA) that expanded Medicaid and prohibited health care discrimination based on sexual orientation were critical for improving LGBTQ+ behavioral health outcomes, they contend. Coursolle and Holtzman assert that the federal government needs to support rather than rescind these key protections.
- Writing in a 2016 edition of the American Society on Aging’s journal, Generations, Robert Espinoza suggests policy reforms to improve protections for the LGBTQ+ elder population. Espinoza surveys early advocacy efforts in this sector of the aging population, evaluates the state of long-term care, housing, and community services for elders, and suggests how to improve data and research on older LGBTQ+ adults.
- A recent report by the Fenway Institute explores the impact of a proposed rule from the U.S. Department of Health and Human Services that would remove explicit antidiscrimination protections for people based on sexual orientation and gender identity in health care. The authors of the report argue that altering these regulations—which would remove protections for LGBTQ+ individuals that are implemented in-state and federal insurance exchanges created through the ACA, Medicaid, and the Program of All-Inclusive Care for the Elderly—will undermine the efforts to address and reduce anti-LGBTQ+ discrimination in health care.
The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.