The Rights of Gay, Lesbian, Bisexual and Transgender People
This topic will briefly discuss employment, housing and public accommodation discrimination, other discrimination on the basis of sexual orientation or gender identity, or the impact of sexual orientation for criminal charges based on sexual activity.
Employment Discrimination Based on Sexual Orientation and Gender Identity
It is unlawful in the state of Oregon for an employer to discriminate against you because of your sexual orientation if you are 18 years of age or older. Sexual orientation is defined as: “an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s assigned sex at birth.” Although gender identity is not defined by statute, Oregon’s Bureau of Labor and Industries has interpreted “gender identity” to mean an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous and “gender expression” to mean the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner or speech, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth. “Sex” is defined by BOLI to mean the anatomical, physiological and genetic characteristics associated with being male or female.
The law applies to almost every Oregon employer, regardless of how many employees or how long the employee who is experiencing discrimination has worked for the employer.
The law provides a dress code or policy exception, so long as the dress code provides, on a case-by-case basis, reasonable accommodation based on the “health and safety needs of the individual.” The exception does not excuse a failure to provide all persons access to restrooms consistent with their expressed gender.
“Bona fide” churches or other religious institutions are exempt from the requirement of sexual orientation nondiscrimination. The exemption applies where an employment position is “directly related” to the operation of the religious institution or “closely connected with or related to” the primary purposes of the religious institution. It specifically includes a nonprofit religious school, camp, day care center, thrift store, bookstore, radio station or shelter.
To date this exemption has not been challenged, so there is no case law to shed light on its breadth, but it is likely that this exemption will be construed very broadly to permit sexual orientation discrimination by religious organizations in most employment circumstances.
Federal law does not expressly prohibit employment discrimination on the basis of sexual orientation or gender identity. However, there have been cases in lower federal courts finding that such discrimination is unlawful as “sex” discrimination.
Discrimination in Housing, Public Accommodations, Jury Service, Education and Real Estate Transactions.
State law prohibits discrimination based on sexual orientation in housing or places of public accommodation, such as hotels, restaurants or other businesses. In all but a few circumstances, landlords, businesses and education institutions may not refuse to serve you or sell or rent to you because of your sexual orientation or gender identity. Discrimination of on the basis of sexual orientation or gender identity is banned in U.S. Housing and Urban Development housing, which includes homes with Federal Housing Authority-backed loans and mortgages.
If you have a question about such discrimination, you should ask a lawyer about the current laws.
Oregon law recognizes hate crimes motivated by the victim's sexual orientation or gender identity.
Can I be Charged with a Crime Relating to my Sexual Orientation?
No. Sexual orientation is not a criminal offense, and neither is sexual conduct of any sort that occurs in private and between consenting adults. If you have been charged with a criminal offense and the prosecution is attempting to use your sexual orientation against you, it is extremely important to obtain competent and understanding legal assistance.
Gender Identity Documents
The statute requiring sex reassignment surgery to obtain a judgment of gender change (and, thus, a right to a changed birth certificate) has been amended to eliminate that requirement as the exclusive means to demonstrate the right to a gender change. Now, surgery or hormonal or other treatment appropriate for that individual for the individual and having completed that sexual reassignment will suffice. Gender change and name change can be requested in the same petition.
Insurance Coverage for Transgendered Persons
Oregon health insurance plans cannot discriminate against people on the basis that the treatment is for gender identity issues. Health insurers must cover medically necessary treatments related to gender identity disorder if those same treatments are covered for other conditions. An insurance company may not reject someone for coverage because of a gender identity disorder on the alleged basis that a gender identity disorder is a pre-existing condition.
The state of Oregon now provides to its employees insurance coverage for all operations, prescription drugs and other treatments related to medically necessary gender-reassignment surgeries. Oregon law does not require insurance companies to cover sexual reassignment surgery but it may require coverage of procedures that are part of a gender transition process if those procedures are covered for other policyholders for different reasons.
If sexual orientation or gender identity is an issue or potential issue in any legal matter with which you are concerned, you should promptly seek out competent, experienced and sympathetic legal assistance. Very short time limitations may apply, so do not delay in seeking assistance if you believe discrimination against you has occurred.
Legal editor: Andrew Teitelman, 2018