The greatest potential for changes in the social meaning of marriage will arise in three areas for which there is empirical evidence of significant differences between gay and straight couples: division of household labor, sexual exclusivity & childrearing. While the number of same-sex couples in the population is too small to produce significant change in overall patterns of behavior, the issue of gay marriage has generated so much attention and debate that a mixed process of gay assimilation to and effect on the social meaning of marriage is a reasonable expectation.

New analysis finds that a recent ruling from the U.S. Equal Employment Opportunity Commission (EEOC) that gender identity discrimination is unlawful will likely be extended to federal contractors. The EEOC opinion held that gender identity or expression discrimination violates the prohibition on sex discrimination under Title VII of the 1964 Civil Rights Act. By executive order (EO 11246), federal contractors are similarly prohibited from sex discrimination.

Sex discrimination complaints against federal contractors filed pursuant to the existing executive order are enforced by the Office of Federal Contract Compliance Programs (OFCCP), an agency within the Department of Labor. The OFCCP has an explicit policy of interpreting the executive order in a manner consistent with Title VII, and has followed the EEOC’s regulations and guidance in enforcing the order. Further, complaints filed with the OFCCP are either directly enforced by the EEOC or enforced by OFCCP officers acting as agents of the EEOC.

Employment discrimination complaints filed with state and local administrative agencies and non-governmental organizations (NGOs) also document a widespread and persistent pattern of sexual orientation and gender identity discrimination against LGBT state and local employees.

This chapter proceeds in five parts. The first part reviews academic scholarship analyzing the number and scope of administrative complaints that have been filed based on allegations of sexual orientation or gender identity discrimination. The second part presents original research by the Williams Institute conducted during 2008 and 2009 updating these studies. The Williams Institute study is based on administrative complaints filed by state and local employees alleging sexual orientation and gender identity discrimination from 18 states (Arizona, California, Connecticut, Florida, George, Kentucky, Maine, Minnesota, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Pennsylvania, Vermont, Washington, and Wisconsin). The third part provides additional research by the Williams Institute, which compares sexual orientation, race, and sex discrimination administrative complaints, and finds that the filing rates are comparable when the underlying populations are taken into account. The fourth part discusses additional academic research that indicates that the number of administrative complaints is almost certainly lower than the rate of actual employment discrimination experienced by LGBT people. The final part presents additional new research by the Williams Institute conducted during 2009 reporting the nature and number of complaints lodged with NGOs that provide legal representation to the LGBT community.

In considering versions of ENDA from 1994 to 2007, Congress has specifically considered unconstitutional discrimination by state, local, and federal employers against LGBT people. Direct victims of such discrimination have testified at Congressional hearings; legal scholars have presented specific cases as well as scholarship on the history and continuing legacy of such discrimination; social scientists have presented survey data and other studies documenting such discrimination; LGBT rights organizations have submitted reports and expert testimony documenting such discrimination; and members of Congress have shared specific examples and spoken more generally about such discrimination. In total, over 67 specific examples of employment discrimination against LGBT people by public employers have been presented to Congress in prior years, including discrimination involving 13 state employees, 14 teachers, 12 public safety officers, 2 other local employees, and 26 federal employees. Table 4-A briefly summarizes some of the testimony and other references to such discrimination that Congress has considered over the past fifteen years.

Equal protection analysis, as articulated by the United States Supreme Court1 and followed by most states in interpreting state constitutions, requires that a suspect class must historically have been subjected to discrimination. Every state and federal court that has substantively considered whether sexual orientation is a suspect class has held that LGBT people have faced a long history of discrimination. In addition, dozens of legal scholars have also concluded that LGBT people have suffered the requisite history of discrimination to qualify sexual orientation to be a suspect class. In making these determinations, many of these courts and scholars have explicitly considered employment and other forms of discrimination by public employers, including state, local, and federal government employers. These findings, unanimously agreed upon by state and federal courts, provide substantive evidence that LGBT people have experienced a widespread practice of unconstitutional discrimination by state governments. In at least one case, the court indicated that even the government party to the litigation did not dispute that this requirement is met. And in another, the court cited characterizations of LGBT people in the brief filed by the government as indicia of the history of discrimination suffered by LGBT people. This section describes the case law and scholarly literature that address the history of discrimination requirement of suspect class determination.

This chapter compares and analyzes the definitions, scope of coverage, required procedures, remedies, and implementation of ENDA and of each state's anti-discrimination statute that prohibits employment discrimination on the basis of sexual orientation and/or gender identity. The chapter concludes with a discussion of gubernatorial executive orders enunciating a policy against sexual orientation and/or gender identity discrimination in state employment where no such statutory protection exists.

Based on the reports on employment law and discrimination related to sexual orientation and gender identity for each of the 50 states (See Appendices), this chapter compiles more than 380 specific examples of workplace discrimination against state and local employees, almost all occurring within the last 20 years, and none occurring prior to 1980. The state reports collected examples of discrimination from court opinions, administrative complaints, academic journals, books, newspapers, and publications by and complaints made to community-based organizations.

Two recent studies have found similar wage gaps when looking at government employees. Together the studies find that gay men, lesbians, and bisexuals who aregovernment employees earn 8% to 29% less than their heterosexual counterparts. More specifically, one study finds that men in same-sex couples who are state employees earn 8% to 10% less than their married heterosexual male counterparts. These studies suggest that sexual orientation employment discrimination by state, local, and federal governments sector is no different than sexual orientation discrimination in the private sector.

Using data from the 2000 Census and the 2002 National Survey of Family Growth, in September 2009, the Williams Institute estimates that there are approximately 418,000 LGBT state government employees in the United States and 585,000 local government employees, totaling slightly more than 1 million state and local LGBT employees. There are just under 7 million LGBT private employees and just over 200,000 LGBT people working for the federal government.

Courts, individual judges, and legal scholars have repeatedly found that sexual orientation and gender identity are not related to a person‟s ability to contribute to society, or in the workplace. Courts and scholars have most frequently considered this question when determining whether sexual orientation is a suspect classification for purposes of equal protection analysis. In equal protection analysis, whether the classification at issue bears any relation to an individual‟s ability to contribute to society is one of the core factors used in determining whether such classification should be considered “suspect.”