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Existing policies are important for two reasons. First, they often play an important role in the debate about your proposal. Opponents are fond of making misleading claims about the extent to which LGBT people are protected by existing policy. Moreover, boards usually want to know the extent to which gay and trans people already have civil rights protection and how it compares to the protections given other groups.
Second, existing policies will significantly shape your options on the kind of policy you want to propose and the kind of campaign you will run. They will have an impact both on what you decide your proposal should cover.
This is a short description of federal and state law at the time this was written. It is very general, and the idea is to give you a first look and help you get used to thinking about different laws and comparing them. Don't try to use it as a substitute for finding out what state and federal policy is when you begin your campaign.
There are many federal laws on discrimination. In general, they tend to prohibit discrimination based on race (and color), religion, gender, national origin, ancestry, age and disability. Federal laws are the most comprehensive in terms of who is told not to discriminate. The federal government has rules for itself, for its contractors, for people who receive federal funding (aid, grants and similar money), for state and local governments and for private businesses and institutions as well.
The federal laws which cover people who get federal funds are very broad; they tend to prohibit discrimination in anything the organization which gets the money does. The other federal laws usually prohibit discrimination in specific activities, like employment and housing, and, somewhat less extensively, in education and services by businesses. The laws often overlap; for example, the employment practices of a county which gets federal aid will be covered by federal laws on people who take federal funds and by laws on employment discrimination.
At the time this was written, a few federal agencies had policies which said that the agency would not discriminate against its own employees because of sexual orientation. With the exception of these policies, federal law generally did not apply to discrimination based on sexual orientation.
While there are no federal laws against gender identity discrimination, civil rights lawyers say laws against sex discrimination should apply. The U.S. Supreme Court has said that sex discrimination laws cover discrimination against men and women who, either in dress or behavior, don't conform to stereotypes about gender. But while some courts have reasoned that their rule protects trans people under state and local laws, the federal courts have been pretty resistant.
Most federal laws say that if you have been discriminated against by the federal government itself, you must complain to a federal agency, often the one that did it. If you have been discriminated against by someone who gets federal funds, you may usually complain to the agency which gave out the funds, although it may only have the power to cut off the money and not to order that you get your job or lost pay. You can usually go to court instead if you want to. In most other cases, you must file a complaint with a federal agency (or a state agency authorized to take the complaint by the federal government), but you can later go to court if you want to.
While the laws against discrimination by those who get federal funds usually don't have many exceptions, the other laws do. Most federal laws on employment discrimination only apply to employers with 15 or more workers.
State laws often protect groups which are not protected by federal law. For example, many states prohibit discrimination based on marital status, and at the time this was written, fourteen states had laws against discrimination based on sexual orientation and three of these also included discrimination based on gender identity. Most state laws apply to private employers, landlords, home sellers, businesses, etc. Some have laws which apply to themselves and their contractors as well. Most state laws cover specific activities. They typically cover services by businesses and education more comprehensively than federal law does.
State laws usually set up agencies to investigate complaints of discrimination, and most require that you file a complaint with the agency. Some permit you to go to court instead after you have filed with the agency.
State laws often have fewer or smaller exemptions than federal law does. So, for example, state laws often apply to employers with 5 or more workers. On the other hand, some state laws completely exempt religious groups.
You need to get the big picture. You need to know what policies the institution you are working on has. You also need to know what policies superior institutions--institutions which either regulate yours or which regulate some of the same areas but are higher on the ladder of power--have.
Most of the time, the important superior institutions are the federal government, the state government (if that isn't the institution you are aiming at) and, if you are working on a business or university policy, the local government. If you are working on the policies of a local branch of a regional or national organization, the regional or national is a superior institution as well.
Find out as much as you can about existing policies, but pay particular attention to these five things. First, what characteristics are protected by each policy; what are the things, like race, gender, etc., which the policy says can not be used to discriminate. Pay particular attention to whether any of the policies cover sexual orientation or gender identity and whether any of them cover characteristics which are not usually thought of as inborn, like marital status and religious beliefs.
Second, who may not discriminate under each policy. Most policies cover one or more of three broad groups. Some policies apply just to the institution itself; the city or the business, etc. promises that it will not discriminate. Some policies apply to people who do business with the institution; the city or the school insists that those who do some types or any type of business with it promise that they will not discriminate. Some policies apply to people who are governed by the institution; the city or the district says that all those who live in it may not discriminate. Governments are usually the only institutions which have the power to adopt this last kind of policy.
Third, what acts does the policy cover; what does it say may not be done. Some policies only apply to one aspect of how an institution operates. For example, the policy may say that the city or the school won't discriminate in employment. Some are much broader, and say that the institution will not discriminate at all.
Fourth, how is the policy enforced. Some policies are enforced internally; the institution says that if anyone has a complaint about discrimination, he or she should bring it to a certain office. The institution will investigate itself and correct the problem if it finds one. Some policies are enforced in court; you can sue if you are discriminated against. Some policies are enforced by special commissions, like human rights commissions. These last two types are usually only passed by governments. Often, policies do not say anything about enforcement at all. Sometimes, if the promise not to discriminate is in a personnel policy, it can be enforced in court even if it doesn't say anything about enforcement.
Fifth, what are the exceptions and exemptions from the policy; what are the circumstances in which people are allowed to discriminate; what persons or institutions are let out of the policy completely. Many employment laws let some small business out of the law; some housing laws let small rental units out. Some policies let religious groups discriminate on the basis of religion in some jobs or admissions; a few let religious groups out completely.
First, a word about terminology. The way existing policy affects your proposals will have a lot to do with whether you view the policies of your institution as "better" or "worse" than the policies of superior institutions (like the state and federal governments), and whether or not you want to "improve" your institution's policy. Your opinion about whether the policy is "better" or "worse" than another should be based on a comparison of who is told not to discriminate, what they are told not to do, how the policy is enforced and who is exempt (the second, third, fourth and fifth of the factors described in the section above).
Often, deciding whether one policy could be "improved" or is "better" than another is an easy call. Policies which protect more people are usually better than those which protect fewer. So, for example, city laws which cover all employers in the city are usually thought of as "better" than those which just apply to employment by city government itself.
The basic premise of this section is that you should always propose policies which provide protection as good as that which covers other groups protected by civil rights policies, but that as a practical matter, you usually can't shoot for better. Trying to get a policy better than those which cover other groups will often draw you into odious arguments about what kind of discrimination is worse and may create a lot of hostility among other groups which rely on civil rights protections.
The basic premise means that if your institution has a nondiscrimination policy which does not cover sexual orientation or gender identity, you have two campaign/drafting options. First, you can focus on sexual orientation and gender identity and add them to the existing policy. That will probably lead you to use the "drop in" or the "piggy back" option in the model laws/policies.
Second, you could try to improve your institution's policy while adding sexual orientation and gender identity -- for example, by covering more activities, or telling more people not to discriminate, etc. If you want to do that, you should usually do it with the whole policy. This may not always be legally possible. You shouldn't try to change the whole policy unless you are working in coalition with the other groups covered by it. That may or may not be possible or desirable.
If your institution's policy already covers sexual orientation and gender identity, improving the whole policy is usually your only option. However, there is another option if your institution's policy is not as good as one of the policies of a superior institution, and sexual orientation and gender identity are not included in best superior institution policy. For example, you may be interested in a city with a policy which applies only to employment discrimination by the city itself. Both state and federal law cover employment discrimination based on race or gender by most employers and they also cover housing and business discrimination. At the time this was written, no federal laws covered any type of sexual orientation or gender identity discrimination. Only fourteen states have laws that protect against sexual orientation discrimination, and of these, only three include gender identity discrimination. In addition to either of the options described above, you could propose a local policy which would bring local protection against discrimination based on sexual orientation and gender identity alone up to the level of state or federal law, whichever is strongest.
This kind of proposal usually won't upset other covered groups, because you really are going for "big picture" parity -- essentially the same protection they already have from the superior institution. If you do this, you'll usually want to use one of the "stand alone" options in the model laws/policies, taking care to make sure you tailor it to the best superior policy covering other groups.
If your institution has no discrimination policy at all, you can either propose a comprehensive policy, or a policy which just applies to sexual orientation and gender identity and brings protection to the level of either state or federal law, whichever is stronger. Again, people are not likely to object to a sexual orientation and gender identity only policy which is aimed at "big picture" parity.
>> Next: 6. Gender Identity
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