Anti-discrimination Protections Research Articles

A Counteroffensive Against Conversion Therapy in the Culture Wars

The civil rights of LGBTQ persons throughout the U.S. are currently under attack by conservative right-wing extremists who would roll back antidiscrimination protections and prohibit access to care for trans youth, among other things. The exercise of religious freedom is often used as the basis for these initiatives, but these efforts are tantamount to the imposition of religious beliefs on vulnerable communities. The solution for LGBTQ persons offered by the extreme right wing is often sexual orientation/gender identity change efforts, or SOGICE, commonly known as so-called “conversion therapy,” despite the lack of efficacy and adverse consequences of these methods. SOGICE bans have been instituted in many jurisdictions because of potential harm to the public. Strategies for protecting such bans are discussed.

A Global Analysis of Transgender Rights: Introducing the Trans Rights Indicator Project (TRIP)

To what extent do countries protect the rights of transgender people? How does this differ from legal protections countries offer sexual orientation minorities? What conditions are beneficial for advancing trans rights? Limitations in data availability and accessibility make answering these types of trans-specific questions difficult. To address this shortcoming, I introduce a new dataset. The Trans Rights Indicator Project (TRIP) provides insight into the legal situations transgender people faced in 173 countries from 2000 to 2021. The dataset currently includes 14 indicators that capture the presence or absence of laws related to criminalization, legal gender recognition, and anti-discrimination protections. I then use this data to discuss the global status of transgender rights throughout the period and compare these trends to sexual orientation rights. Finally, I conclude with a preliminary analysis of three institutional and cultural factors that may help explain variation in transgender rights throughout the world.

United States of hate: mapping backlash Bills against LGBTIQ+ youth

ABSTRACT Following the recent proliferation of anti-discrimination protections supporting LGBTIQ+ youth internationally, backlash periods have ensued. Whilst liberal-progressive rights models theorise ‘backlash’ as an expected consequence of rights recognitions progress, some post-colonial and Queer scholars frame backlash within enduring authoritarian anti-rights tendencies, and question assumptions of progress. To understand backlash more adequately, this paper explores state-level anti-LGBTIQ+ Bills potentially impacting youth proposed in the USA between 2018 and 2022. Critical discourse analysis is used to map the different types, locations, conceptual arrangements and outcomes of 543 anti-LGBTIQ+ rights US state-level proposed Bills. Bill attempts were mainly concentrated in Republican-governed states including Tennessee (48), Missouri (40), Iowa (39), Oklahoma (32) and Texas (32). Overly extended claims concerning girls/women’s religious and parental rights were advanced in opposition to LGBTIQ+ youth rights, and as part of wider rights attacks. Bills used anti-rights and pro-rights discourses to mask as ‘backlash’ the rights claims advanced by elite-led anti-rights mobilisations.

Glosa do Wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 12 stycznia 2023 r. w sprawie C-356/21, J.K. vs. TP S.A. – Osoba, która świadczy usługi na podstawie umowy o dzieło, również podlega antydyskryminacyjnej ochronie (warunki dostępu do prowadzenia działalności na własny rachunek – zakaz dyskryminacji ze względu na orientację seksualną – swoboda wyboru strony umowy)

The principle of equal rights for the same obligations is one of the core legal principles. A non-exhaustive catalogue of grounds for discrimination has been listed in the provisions of the constitutional as well as in the European law. This means that only certain grounds for discrimination are specified as examples in those provisions. These include sexual orientation. The commented judgement concerns the allegation of employment and labour discrimination (the so-called conditions for access to self-employment) and the anti-discrimination protection for self-employed persons, i.e. those providing services under a contract for specific work. The Court of Justice of the European Union found that the refusal, based on the sexual orientation of a person, to conclude or renew a contract with that person concerning the performance of specific work by that person in a self-employed activity is a potential factor of discrimination (to be examined by the national court) and cannot be justified by Article 5(3) of the Law on equal treatment. In particular, a position which accepts that freedom of contract allows a refusal to enter into a contract with a person on the basis of that person’s sexual orientation would be to deprive Article 3(1)(a) of Directive 2000/78 of its effectiveness (effet utile), in so far as that provision specifically prohibits any discrimination based on such a ground as regards access to self-employment.

The gay cake controversy in the United Kingdom and Italian inertia

In Lee v. United Kingdom, the European Court of Human Rights left gay people partially unprotected against discrimination in commercial transactions in the United Kingdom and, by analogy, in other legal systems, such as the Italian system, where such protection is absent. In this article, it will be argued that the lack of substantive engagement by the European Court of Human Rights should be considered a missed opportunity for the development of European legal systems that do not grant full anti-discrimination protection to gay people.

EXPERIÊNCIAS NO LOCAL DE TRABALHO DE INDIVÍDUOS LGBTQ+ EM PORTUGAL: UM ESTUDO PILOTO DE MÉTODO MISTO

Introduction: While Portugal is a world leader in LGBTQ+ workplace protections, with a Labor Code that forbids discrimination based on sexual orientation and gender identity, about 20% of LGBTQ+ workers report having experienced discrimination in the workplace. One potential explanation for this discrepancy is that existing non-discrimination policies do not protect LGBTQ+ workers from more covert types of discrimination, such as microaggressions. Objectives: The purpose of this pilot study was to explore and characterize workplace discrimination and support experienced by LGBTQ+ workers in Portugal. Methods: This mixed-method study used online surveys to capture workplace satisfaction, experiences of “coming out” at work, and experienced support and discrimination in the workplace. Preliminary quantitative results were computed using IBM SPSS Statistics for Windows, Version 27.0. Qualitative data were analyzed using a constructivist grounded theory approach. Results: The sample included 38 participants: 21 cisgender males, 10 cisgender females, 1 transgender male, 2 transgender females, and 2 fluid individuals, 1 agender individual, and 1 who did not respond. The age of participants ranged from 20 to 63 years (mean=37.13 years). Eighteen participants identified as gay, 5 as lesbian, 10 as bisexual, 2 as pansexual, 1 as queer, and 2 as straight. All participants were either a sexual or gender minority. Six participants were self-employed, 26 were employed by someone else, 3 were student workers, 1 was a student, and 2 were currently unemployed. Most participants were frequently (37.8%) or always (21.6%) satisfied with the quality of their professional life, with only 5.6% and 8.1% respectively reporting never or rarely feeling satisfied. Although only about 10% of participants reported that they felt some type of discrimination at work due to their sexual orientation or gender identity, only 47% of participants reported actually being out at work. Qualitative findings revealed three main themes around work life after coming out at work: acceptance, enacted discrimination, (e.g., victimization and bullying), and discrete discrimination (e.g., ignorance, rejection, and hetero- and cis-normative social expectations). Three main themes were also identified for participants’ vision of a truly inclusive and supportive workplace: instrumental changes (e.g., legal protections, training, and education), increased visibility (e.g., models and diversity in leadership), and values (e.g., inclusion, acceptance, equality). Conclusions: Discrimination attributable to sexual orientation and gender identity still exists in Portuguese workplaces despite anti-discrimination protections. LGBTQ+ workers identify a need for more legal, institutional, and social support at work to feel safer and more welcome at work. These findings indicate a need for stronger workplace protections, more education and training around LGBTQ+ issues and acceptance in the workplace, and more explicit communication regarding support and equality of marginalized people in the workplace.

State-level heterogeneity in associations between structural stigma and individual health care access: A multilevel analysis of transgender adults in the United States.

State-level variation in how restrictive policies affect health care access for transgender populations has not been widely studied. Therefore, we assessed the association between structural stigma and four measures of individual health care access among transgender people in the United States, and the extent to which structural stigma explains state-level variability. Data were drawn from the 2015-2019 Behavioral Risk Factor Surveillance System and the Human Rights Campaign's State Equality Index. We calculated weighted proportions and conducted multilevel logistic regression of individual heterogeneity and discriminatory accuracy. An increase in the structural stigma score by one standard deviation was associated with lower odds of health care coverage (OR = 0.80; 95% CI: 0.66, 0.96) after adjusting for individual-level confounders. Approximately 11% of the total variance for insurance coverage was attributable to the state level; however, only 18% of state-level variability was explained by structural stigma. Adding Medicaid expansion attenuated the structural stigma-insurance association and explained 22% of state-level variation in health insurance. For the remaining outcomes (usual source of care, routine medical check-up, and cost-related barriers), we found neither meaningful associations nor considerable between-state variability. Our findings support the importance of Medicaid expansion and transgender-inclusive antidiscrimination protections to enhance health care insurance coverage. From a measurement perspective, however, additional research is needed to develop and validate measures of transgender-specific structural stigma to guide future policy interventions.

Working Toward Break Point: Professional Tennis and the Growing Problem with Employee and Independent Contractor Misclassifications

An often overlooked yet extremely pressing issue in the U.S. economy is the misclassification of workers as independent contractors when they are actually employees. Because of such misclassifications, workers are denied their rights to federal antidiscrimination protections and the ability to collectively bargain through unions. Courts across the country utilize a variety of legal tests to determine if a worker is an employee or an independent contractor. The three most important legal tests are the right to control test, the economic realities test, and the ABC test. Using men’s professional tennis as a case study, this Comment argues for the uniform adoption of the ABC test. As a pertinent example, tennis players are incorrectly classified as independent contractors under current legal frameworks. The ABC test provides the best answer to the independent contractor problem because it is the most straightforward, adaptable, and beneficial for both employers and workers.

Neglected under the law: A typology of stigmatization and effective employment protections

Some groups more commonly experience negative effects from biases in the workplace than others, in part, from a lack of universal anti-discrimination protections. While strong protections exist for some groups, others are often left to rely on a patchwork of legal protections and corporate policies to guard against bias. This article draws from social identity, stigmatization, and intersectionality theories to bring attention to susceptible classes, or those individuals who are stigmatized by society but not effectively shielded against discrimination by workplace protections. This article advances the Employment Protections and Stigmatization Classification Model typology. This model provides categorization based on the level of stigmatization individuals face and the degree to which employment protections provided by various entities are effective in reducing workplace bias and discrimination. Further, it allows for consideration and comparison of stigmatized groups across time, jurisdictions, and organizations. Three stigmatized classes are offered as examples to advance further understanding of the model.

Disabled People’s Fight for Rights in South Korea and Japan

Long considered objects of pity and welfare assistance, people with disabilities in South Korea and Japan are increasingly treated as rights-bearers. Through activism, litigation, and involvement in international treaty negotiations, Koreans and Japanese with disabilities spurred reforms that created new anti-discrimination protections and obligations to provide reasonable accommodations, access, employment, and social supports. These policy changes also signal a notably more legalistic approach to governance, particularly in South Korea, because they include more detailed rules and formal rights, more enforcement mechanisms like fines, and better recourse to judicial or other dispute resolution bodies.

On the Importance of the Americans with Disabilities Act at 30

This article offers a glimpse of the Americans with Disabilities Act (“ADA”) of 1990, as amended by the ADA Amendments Act of 2008 (“ADAAA”), at its 30th anniversary. It considers current issues before the courts, primarily legal cases from 2020 and 2021, and new questions in light of the COVID-19 pandemic, such the latitude of the ADA’s antidiscrimination protections and its definition of disability. It provides a quick primer on the basics of the ADA: employment discrimination under Title I, antidiscrimination mandates for state and local governments under Title II, and commands to places of accommodation offering services to the public under Title III. The ADA at 30 remains a beacon for a future in which all people, regardless of individual difference, will be welcomed as full and equal members of society.

Behind the Scenes of Deliveroo’s Algorithm: in the Blindness of “Frank” its Discriminatory Potential

This article addresses some of the main topics arising from the order issued by the Court of Bologna on 31 December 2020 which has declared the potentially discriminatory nature of the work sessions’ “self-service booking” system of the platform “Deliveroo”. In the first part, the question of the applicability of anti-discrimination law to cases of discrimination on trade union grounds is positively resolved, on the basis of domestic, European and international legislation and case law. In addition, noting the strategic nature of the lawsuit proposed, the hypothesis that anti-discrimination protection could be a more effective means of protection for those workers with a debated legal classification is outlined. In the second part, starting from the description of the discriminatory nature of the digital platform’s algorithm system, it concludes with a broader reflection on Artificial Intelligence, stimulated by the Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on Artificial Intelligence (Artificial Intelligence Act).

Il diritto antidiscriminatorio al test di intelligenza artificiale

Moving from the analysis of the case concerning the algorithm Frank, as adjudicated by the Tribunal of Bologna, the essay points out the complex challenges that the application of antidiscrimination law faces when the systems of Artificial Intelligence are based on machine-learning approaches. In particular, the problems arising as a consequence of algorithmic opacity, namely the so called «black box» effect, are highlighted. First, the topic of transparency is examined as it is addressed by multiple regulatory fields, with regard to Data, Computer Programs and Trade Secrets Protection. Then, the investigation focuses on the reconstruction of possible solutions aimed at straightening and ensuring the antidiscrimination protection. The reflection builds on the assessment of the measures contained in the proposal for a Regulation on Artificial Intelligence and of the techniques than could be borrowed from the proposal of Directive on pay transparency in the context of gender equality, both presented by the European Commission in 2021.

Associations between workplace characteristics and ‘outness’ in LGBTI workers in Austria

ObjectivesLesbian, gay, bisexual, transgender and intersex (LGBTI) individuals are often subjected to negative attitudes in the workplace, which may lead to non-disclosure of their sexual orientation and/or gender identities. We...

The AB5 Experiment – Should States Adopt California’s Worker Classification Law?

A worker’s classification as either independent contractor or employee drives whether a worker is entitled to minimum wage, overtime, worker’s compensation, unemployment compensation, anti-discrimination protection, National Labor Relations Act protections, and many other safety-net protections. During the COVID-19 pandemic, unemployment protections were extended to independent contractors, but this is not the norm and likely will not continue post-pandemic. Classifying certain workers, particularly those who work in the app-based economy, is challenging, so states are looking for an answer — either through their own innovation or through that of other states. California’s answer was AB5. AB5’s goals were to correct misclassification issues for app-based drivers and other workers. A plethora of workers including court reporters, freelance writers and photographers, coaches, truckers, performing artists (mimes, magicians, comedians, etc.), and musicians rebuked AB5. AB5 is well known beyond California’s borders as it received, and continues to receive, nationwide attention predominantly because it reclassified app-based drivers (such as Uber, Lyft, DoorDash, etc.) as employees. As Justice Brandeis said, one of the benefits of federalism is that states can act as “laboratories of democracy.” Experimental federalism can provide for collective learning across the states if they are all experimenting, but often states look to one another for innovative solutions so that they can free-ride instead of experiment. Some states that are looking for an improved worker classification law seek to learn from, and potentially free-ride on, California’s AB5 “experiment.” In considering whether to adopt AB5 or a similar statute, states should consider, at a minimum, three factors: relevancy of the law to their state, ease in obtaining information about the law, and the costs to adopt, implement, and enforce the law. This Article assists policymakers and interest groups by providing a detailed look at the AB5 experiment. It applies the aforementioned three factors and determines that California’s law, while well-intentioned is likely not valuable for, or adoptable by, other states or the federal government partly because it contains 109 exemptions. Ultimately, this Article concludes that to maximize the benefits of experimental federalism, a group of states, both homogenous and heterogenous to California, should experiment with more novel approaches to reach an optimal solution to worker (mis)classification. Adopting California’s worker classification law will result in states following a sub-optimal law and in premature convergence delaying states from reaching a better solution. Workers need protections, but California’s worker classification law does not sufficiently satisfy this need. Further experimentation is required.

Conflict Preemption: A Remedy for the Disparate Impact of Crime-Free Nuisance Ordinances

Thousands of municipalities across the country have adopted crime-free nuisance ordinances—laws that sanction landlords for their tenants’ behaviors, coercing them to evict tenants for actions as innocuous as calling 9-1-1 in an emergency. These facially neutral ordinances give wide discretion to municipal officials, leading to discriminatory enforcement of evictions. As a result, these ordinances have a devastating impact on victims of domestic violence and are used as a tool to inhibit integration in majority-white municipalities. Many plaintiffs have brought lawsuits alleging violations of the U.S. Constitution and the Fair Housing Act. However, bringing lawsuits under various anti-discrimination protections presents many challenges. Less than five percent of all discrimination plaintiffs will achieve relief, and eighty-six percent of discrimination claims end in dismissals. Professor Katie Eyer, an anti-discrimination legal scholar, has advocated for increasing the use of “extra-discrimination remedies,” litigation-based approaches that are not rooted in anti-discrimination laws. This Note explores one potential extra-discrimination remedy that could be used to challenge crime-free nuisance ordinances: conflict preemption. Crime-free nuisance ordinances that are not tailored to state landlord-tenant laws’ grounds for eviction may be in conflict with, and preempted by, state law. This Note also recommends that fair housing advocates collaborate with landlord associations when challenging crime-free nuisance ordinances. Although the interests of landlords and tenants often conflict, both groups are harmed by municipalities that enact crime-free nuisance ordinances.

The Future of Labor Localism in an Age of Preemption

In recent years, labor and civil rights groups have successfully pushed for local regulation raising the minimum wage, creating new parenting and sick leave policies, and broadening anti-discrimination protections to address sexual orientation and gender identity discrimination. This article examines the viability of this worker-protective regulation at the local level in the face of current legal and political challenges. In particular, it considers the rise of state preemption laws that overturn local ordinances, which is the product of anti-regulatory mobilization at the state legislative level. The article provides case studies of state preemption and offers potential legal arguments for challenging preemption and safeguarding labor and civil rights localism. The author concludes, however, that given the uncertainty of whether these legal arguments will prevail in court, civil rights and labor advocates will need to engage politics at the state level to preserve and expand local innovations.

Supporting LGBT Communities in the COVID-19 Pandemic

LGBT individuals suffer disproportionately in the COVID-19 pandemic. They are likely to be exposed to COVID-19 in greater numbers and suffer to a greater degree if they contract the disease. They are more likely to lose access to essential medical services, including gender confirmation and HIV medications. They are likely to suffer economic harms to a greater degree, since they are more likely to work in industries with exposure to, and likely to close because of COVID-19. They also are more likely to experience mental and emotional harms arising from the isolation, or sheltering-in-place COVID-19 necessitates. Such isolation often occurs with hostile or violent family members, while LGBT safe-spaces, organizations, institutions, and events, such as LGBT pride and LGBT centers are shut down or go virtual. This can take a toll on physical, emotional, and mental health, especially for youth and elderly LGBT individuals. Finally, when LGBT individuals seek assistance from elsewhere, including through social services, homeless shelters, and welfare, they often suffer discrimination. All these harms fall even more dis-proportionally on LGBT people of color and transgender individuals. To combat these harms, policymakers must implement stringent anti-discrimination protections and policies that cover the needs of LGBT individuals such as access to certain medical services. But more importantly, they should ensure that the LGBT organizations providing these services in a safe space remain funded and open. They should also collect data on the LGBT community.

The Aftermath of Human Rights Protections: Gender Identity, Gender Expression, and the Socio-Legal Regulation of School Boards

AbstractBetween 2002 and 2017, Canadian lawmakers sought to redress the pervasive levels of discrimination, harassment, and violence experienced by transgender and/or non-binary people by adding the terms “gender identity” and/or “gender expression” to federal, provincial, and territorial human rights instruments. This paper tracks the complex, iterative ways in which antidiscrimination protections are brought to life outside courts and tribunals. Using Ontario’s publicly-funded English language secular school boards as a case study, we examine how the introduction of explicit human rights protections on the basis of “gender identity” and “gender expression” in 2012 worked to produce a series of responses across the education sector. Given that “gender identity” and “gender expression” remain legally undefined terms in the OntarioHuman Rights Code, and only provisionally defined by Ontario Human Rights Commission (OHRC) policy, we argue that school boards constitute important actors engaged in constructing the meanings of these terms in policy and practice. In decentering courts and tribunals in our analysis, we aim to uncover the everyday practices of parallel norm-making taking place in the education context. These everyday practices shape how we collectively understand the meaning of “gender identity” and “gender expression.” By carefully tracking these post-legislative developments, which rarely make their way into reported decisions, we suggest that human rights law reforms might open up space for the emergence of norms that allow people to do gender in a variety of ways.

La circunstancia de parentesco en la tutela antidiscriminatoria laboral

El presente trabajo estudia la naturaleza y configuración del parentesco como causa de discriminación en el ámbito laboral, y su trascendencia en materia de carga de la prueba y justificación de la medida. Asimismo, examina la repercu­sión del vínculo de parentesco en la empresa familiar, a efectos de la acredita­ción del móvil discriminatorio.En lo que concierne a las consecuencias resarcitorias de la discriminación por razón de parentesco, se plantea la cuantificación de la indemnización por daños morales a la vista de la doctrina constitucional y judicial que permite la aplica­ción referencial de las cuantías previstas por la LISOS, así como de la exigencia legal de aportar las bases y criterios para determinar la existencia y entidad de los daños morales.Por último, el estudio analiza el vínculo de parentesco como vehículo de dis­criminación “por asociación”, figura de construcción judicial que ha permitido ampliar subjetivamente la tutela antidiscriminatoria a sujetos en los que no concurre directamente la causa de la discriminación.