HIV and Confidentiality
Almost all States now have laws protecting information about individuals’ HIV status. The laws vary widely in the strength of the protection they offer. All allow for disclosure of HIV related information in certain circumstances. Administrators should educate themselves about the HIV confidentiality protections offered by their individual States.
Discrimination Against LGBT Individuals
In much of the United States, discrimination against individuals because of their sexual orientation is legal. Although some States have extended their laws against racial and gender discrimination to cover discrimination on the basis of sexual orientation, in most places LGBT individuals can be denied employment or fired, barred from housing, and excluded from health and social services.
LGBT individuals are disadvantaged legally in other areas as well. In most States, same-sex couples in a committed relationship are prohibited from marrying. This means that same-sex partners must make special arrangements if they wish to bequeath their assets to each other after death. Few jurisdictions provide unmarried partners of employees the health insurance benefits married partners take for granted; even fewer require private employers to offer unmarried partners these benefits. Partners may have difficulty visiting their loved ones in hospitals that have “family only” policies. LGBT individuals are often denied the right to adopt children.
Because of the lack of protection under the law, LGBT individuals may suffer severe or painful consequences if their sexual orientation becomes known. They risk losing custody of their own children in disputes with former spouses or families of origin because of their sexual orientation. (A diagnosis of substance abuse can be yet another strike against them in such cases.) In addition, LGBT individuals can be discharged from the military if their sexual orientation becomes known.
Thus far, only one State has enacted legislation that recognizes what it terms “civil union” between two individuals of the same sex. The statute was passed in response to a decision of the Supreme Court of Vermont (Baker v. State of Vermont) finding that the State’s denial of marriage licenses to same-sex couples “effectively excludes them from abroad array of legal benefits and protections incident to the marital relation, including access to a spouse’s medical, life, and disability insurance, hospital visitation and other medical decision making privileges, spousal support, intestate succession, homestead protections, and many other statutory protections.” The court held that “the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law.”
The Vermont Supreme Court did not order the State to offer marriage licenses to same-sex couples. Rather it required the State legislature to “craft an appropriate means of addressing this constitutional mandate [through any one] potentially constitutional statutory scheme from other jurisdictions [that provide] an alternative legal status to marriage for same- sex couples, impose similar formal requirements and limitations, create a parallel licensing or registration scheme, and extend all or most of the same rights and obligations provided by the law to married partners.” Ultimately, the State legislature chose to enact a “civil union” (cu) statute, and same-sex couples in Vermont have already been “cu’ed.” (It remains unclear whether other States will recognize such unions between individuals who travel to Vermont for the purpose of being cu’ed.)
The Vermont Supreme Court based its decision squarely on the common benefits clause of the Vermont constitution, a provision it interpreted as offering stronger protection to Vermont citizens than the Federal equal protection clause. The advantage of the court’s resting its decision on the Vermont constitution is that the U.S. Supreme Court cannot review or overturn the decision. The disadvantage is that other States lacking a similar clause are less likely to adopt the court’s reasoning.
For up-to-date information on the laws regarding discrimination against LGBT individuals, see www.lambdalegal.org.