The Williams Institute

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.