Legal Pride Month: When Can Businesses and Service Providers Discriminate Against LGBT People?

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By Christopher Coble, Esq. on June 18, 2019 5:04 AM

June is Pride Month, so every Monday this month FindLaw will be looking at the unique legal issues faced by LGBT members of our community -- what the laws are currently, and what they may be in the near future. We'll be rounding up our coverage of family law and employment rights, and looking at upcoming legislation and court decisions. This week? It's services and accommodation discrimination.

Just as in the employment context, the Civil Rights Act prohibits discrimination in access to businesses, public accommodations, and federal services. But also like employment protections, the law applies to discrimination based on race, color, religion, sex, or national origin -- notably lacking specific protections for gay, lesbian, transgender, or non-binary persons. Additionally, some business owners and service providers have attempted to use religious freedom laws to deny service to LGBT people.

Courts thus far have been divided on this issue. Some have applied prohibitions on sex discrimination to discrimination based on gender identity and sexual orientation, finding discrimination against LGBT people to be illegal. Here's a look at issues facing LGBT people when it comes to services and accommodation discrimination.

1. Supreme Court Rules in Favor of Baker Who Denied Service to Same-Sex Couple

Most recently, the Supreme Court ruled: "The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression." While the Court found that Colorado had misapplied a state anti-discrimination law against the baker, it failed to address the underlying issue of whether the baker's discrimination against a same-sex couple was legal or not.

2. Can You Refuse Service Based on Sexual Orientation or Gender Identity?

Absent a clear federal mandate on LGBT service discrimination, many states and cities have enacted their own anti-discrimination laws. And, for the most part, those laws and cases have not been overturned by the Supreme Court. So, the level of protection for LGBT people may depend on where you live.

3. No Religious Right to Discriminate Against LGBT Foster and Adoptive Parents, Court Says

While a U.S. District Court in Philadelphia ruled that state-approved, taxpayer funded foster care placement services could not refuse to place children with same-sex couples because of religious objections to LGBT lifestyles, the court was applying a local anti-discrimination law. At the federal level, the Trump administration has planned to roll back Obama-era policies prohibiting taxpayer-funded adoption agencies from discriminating against same-sex couples on religious grounds. So, adoption rights for LGBT people remain in flux.

4. Fair Housing Act Protects LGBT Couples

Another federal court in Denver ruled that illegal sex discrimination under the Fair Housing Act also includes discrimination based on gender identity and sexual orientation. including discrimination motivated by outdated stereotypes about how men and women should act and with whom they should romantically partner. It was the first time a property owner had been found liable for discrimination based on outdated stereotypes about how men and women should act and with whom they should romantically partner.

5. The Rise of Anti-Anti-Discrimination Laws

In response to expanding protections for LGBT people, some states have passed religious exemption laws that allow religion to be used to discriminate against gay and transgender people. Other states have enacted bills that prevent cities and other local government entities from passing nondiscrimination protections that exceed protections offered at the state level.

The level of legal protection afforded to LGBT people when it comes to services and accommodation discrimination will largely depend on local laws and court rulings. If you believe you've been illegally discriminated against based on your gender identity or sexual orientation, contact a local civil rights attorney for help.

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