As a long-time advocate for equal rights, I am pleased at how far we have come as a society on the issue of same-sex marriage. It is exciting to see public opinion become so accepting so quickly on this issue, and we will see if the Supreme Court strikes down both DOMA and California's Proposition 8.
However, I remain concerned that if same-sex marriage becomes legal nationwide, we will forget that LGBTQ individuals will still be subject to discrimination and will not have the ability to challenge this discrimination in court. This is the case because neither sexual orientation nor gender identity is covered by federal prohibitions on discrimination in housing or employment.
Some states offer protections against housing and employment discrimination to LGBTQ people, but this is not the case in Arizona. Considering the right-wing orientation of the Arizona Legislature, I have no illusion that we could get our state statutes amended to allow protection based on sexual orientation and gender identity; hopefully we would have better chances of bringing these protections into federal law.
Of course I understand that the Republicans in the House will likely oppose these changes, but considering the results of the last elections, perhaps the House Republicans might be willing to take these actions to reach out to the LGBTQ community.
Inevitably, when I bring this issue up, someone points out that Tucson has an anti-discrimination ordinance that makes it illegal to discriminate based on sexual orientation or gender identity in housing or employment. However, this ordinance provides limited redress to LGBTQ victims because an action for a violation by a landlord or employer can be brought only by the city attorney and provides only for the assessment of minor civil penalties.
The city ordinance does not provide a private right of action, meaning it does not give the victim of discrimination the ability to file suit for damages in court. Amending federal law to include sexual orientation and gender identity will allow victims of housing or employment discrimination to seek significantly higher monetary damages in federal court.
This is important because it allows the victim to seek damages for the discriminatory acts, and provides a potential deterrent for others who might be tempted to discriminate based on sexual orientation or gender.
Finally, it makes sense to amend federal law to extend protections to sexual orientation and gender identity not only because it is necessary, but also because there are no nondiscriminatory reasons for not doing so.
If religion is a protected classification under federal law, sexual orientation and gender identity also deserves to be covered. I am not arguing that religion should not be a protected classification, but the reality is that people change their religions all the time. People do not choose their sexual orientation or gender identity. They are born that way and deserve to be protected against discrimination because of who they are.
Paul Gattone is a Tucson attorney specializing in civil rights and criminal defense. Contact him at firstname.lastname@example.org