Diversity & Inclusion

50 ways to list your lover

by Mark I. Schickman

Anyone who has filled out EEO-1 forms knows the challenge of fitting humans into demographic boxes. People’s backgrounds and orientations often defy ready definition, leaving you to your best guess under the circumstances. Facebook has the same problem since checking demographic boxes can be confusing or challenging for users. It has long had the “it’s complicated” box, which acts as shorthand for a relationship status with a difficult definition, but that isn’t specific enough to cover the broad scope of Facebook users’ relationships.  Gender Idenitity Chart

In terms of sexual identity, we started with the term “gay,” moved to “gay and lesbian,” and then to “LGBT,” which added bisexual and transgendered. Then came “Q” and “I.” (Ask different people, and you’ll get different answers about what those letters stand for.) Facebook has now opened the self-description gates wide with more than 50 terms that describe sexual identity. Among the heretofore less frequently used terms are androgynous, pangender, transperson, and gender-fluid.

In California, we have a legal obligation not to discriminate on the basis of gender identity, which expressly includes practical matters such as permitting employees to dress consistently with their identity. For example, if your top male salesperson comes to the office next week dressed professionally in a dress, heels, and hose announcing a sincerely held new gender identity, you have to accommodate that expression. That may seem odd today; it won’t in 20 years. But are there 50 other permutations to the accommodation obligation?

We’re not in Kansas anymore

California is clear in support of sexual orientation and gender expression rights. Thus, an employer that isn’t a religious organization can’t recruit for “Christian values,” an employee may not display antihomosexual clauses from the Bible at work, and a landlord may not refuse to rent to a gay or lesbian couple. That trend has moved east, and federal courts in several states have stricken same-sex marriage prohibitions and have expanded equal protection obligations to include sexual orientation. But state legislatures are pushing back against these federal court decisions.

The Kansas House of Representatives approved a bill allowing private businesses and government employees to refuse service to nonheterosexuals. The bill was clothed in antidiscrimination language protecting those who argue their religion precludes them from serving gays; it provides that anyone who refuses to serve someone based on their sexual orientation must try to find someone else who will. The Kansas Senate ultimately refused to pass the bill, so it remains on the drawing board.

Arizona went one step further when its legislature passed a similar bill in February. But the proposal died by veto once it reached the desk of Governor Jan Brewer, who wrote that the bill was “too broad” and had “the potential to create more problems than it purports to solve.” Aside from legal problems, Governor Brewer was certainly thinking about a possible economic boycott of Arizona, which began to gain traction the moment the bill was passed.

The popular truism is that trends begin in California and then move east. That’s true of overtime regulation, minimum wages, disability protections, healthcare rules, and discrimination law. California has more than made its mark culturally, too. Thus far, the gay rights revolution has moved across the country. The pendulum may be swinging back, however, as it is wont to do.

Law is a matter of social policy, and America usually decides that policy by 5-4 U.S. Supreme Court votes and 52 to 48 percent elections. “Right” isn’t an absolute concept but a product of majority political will. LGBTQI groups will continue to press for their legal protections, while more conservative organizations fight back on a wing and a prayer.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. He may be contacted at schickman@freelandlaw.com.