Sexual Orientation in the United States

Abstract

This article explores issues of discrimination and institutional social inequality as they pertain to sexual orientation and gender identity. Lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ) individuals face numerous social inequities that affect their employment, health, welfare, and families. Court challenges and legislative action over the past twenty-five years have radically expanded the rights of LGBTQ individuals.

Keywords Androphilia; Civil Union; Codified; Domestic Partnership; Don't Ask, Don't Tell; Gynephilia; Homophobia; Polysexual; Protected Class

Sex, Gender, & Sexuality > Sexual Orientation in the United States

Overview

Margaret was married to a man for seventeen years and has three grown children. She is employed as a radiologist, makes a reasonable salary, and worries about her retirement funds. Mark is a former Navy officer who now writes articles for national newspapers. He is happily married and is thinking of buying a summer home with his spouse. Jodie adopted a daughter late in life and faces the joys and challenges of raising a child as an older parent. If these individuals sound fairly normal, it is because most LGBTQ individuals do not define themselves solely on the basis of their sexual orientation. However, to a large degree, society does define them as such. Each of these individuals has faced job losses, threats to child custody, the inability to marry their partners, acts of hostility from family and strangers, and the loss of financial entitlements, which their heterosexual counterparts take for granted. Sometimes the prejudice and discrimination is deadly.

On February 12, 2008, fifteen-year-old Lawrence King was shot twice in the head as he sat in his Oxnard, California, junior high school computer lab working on a paper. King had been teased by his peers since he had started elementary school because of his effeminate mannerisms. By the age of ten, he had confirmed their accusations, stating that he was gay and sometimes dressing in women's clothing. In 2008, with Valentine's Day approaching and his female friends asking male classmates to be their valentines, King approached a fourteen-year-old male student to be his Valentine. The next day that student brought a handgun to school and killed him (Setoodeh, 2008). According to Katherine Newman's study on school shootings, youth reported that being called "gay" was a "catastrophic" epithet that would destroy their standing with their peers (Newman, 2004, p.38). Throughout Newman's analyses of school shootings nationwide, anxiety about sexual orientation played a major role in some of these murderous confrontations. Thus, despite the profound nationwide advancements made in social equality in terms of sexual orientation, real risks and threats still confront LGBTQ individuals every day. For example, in 2022, a mass shooting in Colorado Springs, Colorado, killed five people at a gay bar and injured many others.

Sexual orientation can be defined in many ways, but the most familiar definitions are heterosexuality, homosexuality, and bisexuality. Heterosexuality is a physical, romantic, and/or emotional attraction to individuals of the opposite gender, while homosexuality is an attraction to individuals of the same gender. Bisexuality is an attraction to both men and women, although some individuals choose to use the word "polysexual" to avoid the assumption that only two genders exist. Transgender is an umbrella term for people whose gender identity (a person's internal, deeply held sense of their gender) or gender expression (external manifestations of gender, such as clothing, haircut, or body characteristics) is different from what is typically associated with the sex they were assigned at birth. Some transgender individuals choose to alter their birth sex through hormone therapy and sex reassignment surgery. In addition to the medical procedures of hormone therapy and surgery, this transition also involves personal and legal steps such as changing one's name and sex on legal documents and telling one's friends, family members, and coworkers.

Whatever the developmental or physiological processes that play a role in sexual orientation, it is individuals' self-knowledge, self-acceptance, and identity that ultimately defines their sexual orientation. In fact, a person need not have engaged in genital sex, either heterosexual or homosexual, to define his or her sexual orientation. Similarly, some individuals identify with a specific sexual orientation at various times in their lives, depending upon their relationships. Conversely, some individuals adhere to a heterosexual identity even in the face of numerous homosexual encounters. Homophobia, or hostility towards LGBTQ individuals, has been codified in English, French, and Spanish law for centuries, so it is not surprising that since the founding of the American colonies, US laws have contained sanctions against same-sex relationships. Changes in contemporary attitudes toward privacy, self-expression, and individual and minority rights have led to many changes in the laws governing the lives of LGBTQ individuals. The balance of this article will look at those institutional and legislative changes and the continuing discrimination faced by LGBTQ individuals in American society.

Viewpoints

One of the most contentious issues surrounding sexual orientation in the United States has been sodomy laws. Sodomy is legally defined as any anal or oral contact during a sexual act with another person or any sexual act that does not lead to procreation. Although it is likely that most heterosexual individuals have violated sodomy laws, in reality the majority of individuals prosecuted under sodomy laws have been LGBTQ. The laws were still in place in fourteen states until 2003 when the Supreme Court, in Lawrence v. Texas, struck down the selective application of sodomy laws to LGBTQ individuals, ruling that the due process clause protects adults' freedom to engage in private, consensual sexual acts. In the majority opinion, Justice Anthony M. Kennedy wrote that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Thus, LGBTQ individuals, like heterosexual individuals, are now free to engage in sexual activity without fear of being arrested or labeled sex offenders for engaging in same-sex intercourse. However, more than ten years after Lawrence v. Texas, only two states that had sodomy laws prior to the ruling—Montana and Virginia—repealed their sodomy laws. In 2023, sodomy laws remained on the books in fourteen states, including Alabama, Florida, Idaho, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, Minnesota, North Carolina, Oklahoma, South Carolina, Texas, and Utah ("Sodomy laws by state," 2023).

The inclusion of LGBTQ individuals in the military has also been a significant issue throughout recent decades. Hundreds of thousands of LGBTQ individuals have served in the US military over the centuries, but their service became a major issue during the 1940s and 1950s as Senator Joseph McCarthy led a campaign to blacklist and dishonorably discharge known homosexual service members from the military (Harbeck, 1997). After the Clinton administration, the official government policy toward LGBTQ individuals serving in the military was "Don't Ask, Don't Tell" (DADT). A significant number of current and former service members supported the policy, but advocates for the policy's repeal claimed that it left LGBTQ military personnel exposed to blackmail, resulted in the dismissal of thousands of otherwise qualified servicemen and servicewomen, and stood as an example of state-sanctioned discrimination. The Don't Ask, Don't Tell Repeal Act was enacted in 2010, and the DADT policy officially ended on September 20, 2011, after receiving certification from President Barack Obama, Secretary of Defense Leon Panetta, and Chair of the Joint Chiefs of Staff Admiral Mike Mullen.

Like the DADT policy, many LGBTQ civilians have faced job loss when their sexual orientation was discovered. This began to change in 1982 when Wisconsin became the first state to prohibit sexual orientation discrimination in employment, including hiring, promotions, job assignments, termination, compensation, and harassment. As of 2016, only nineteen states have employment nondiscrimination laws that cover sexual orientation and gender identity; an additional three states have laws that bar employment discrimination based on sexual orientation but not gender identity. Some states offer protection against discrimination in public employment. In 1998, President Bill Clinton signed Executive Order 13087 to prohibit sexual orientation discrimination in the competitive service of the federal civilian workforce. The administration of President Obama began to include gender identity as a class protected against discrimination as part of the Equal Employment Opportunity Commission (EEOC) in 2010. Two years later, in April 2012, the EEOC added gender identity as a protected class under the ban on sex discrimination in the Civil Rights Act. In 2015, the EEOC concluded that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an individual's sexual orientation because it is a form of sex discrimination; however, this ruling may not be legally binding in court.

Federal and state legislators have worked to expand hate crime laws to include sexual orientation and gender identity. The Hate Crimes Statistics Act was passed in 1990 and required the Justice Department to collect data on "crimes that manifest evidence of prejudice based on race, religion, disability, sexual orientation, or ethnicity," but sexual orientation is not listed as a protected class in the 1969 federal hate crime law (Federal Bureau of Investigation, 2004, ¶ 2). However, Public Law 103-322A, which was enacted in 1994 to provide stiffer penalties for hate crimes, does list sexual orientation as a class against which a hate crime can be committed. In 2009 the Hate Crimes Statistics Act was modified by the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act.

The Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act (known more commonly as the Matthew Shepard Act or the Hate Crime Prevention Act) was introduced in Congress in honor of a gay college student, Matthew Shepard, who was murdered in Laramie, Wyoming, in 1998. The act was signed into law in October 2009 and amended the 1969 United States federal hate crimes law to include crimes motivated by a victim’s real or perceived sexual orientation, gender identity, or disability. Among other aspects, the bill also expands the scope and funding for investigations and prosecutions. It also extended protection for transgender individuals.

One of the major milestones in the fight for LGBTQ civil rights has been same-sex marriage. Opponents of same-sex marriage argued that, if legalized, it would undermine the stability of the family and society by radically redefining marriage and give legal precedent for the legalization of other prohibited marital practices such as polygamy. Advocates, on the other hand, argued that state and federal constitutions should be amended to ban discrimination on the basis of gender. One major factor behind this demand for recognition was that over two hundred entitlements granted to married, heterosexual couples were denied to LGBTQ couples who were not allowed to marry. Many of those entitlements pertain to employment issues, including but not limited to "medical, dental, and vision insurance, disability and life insurance, pension benefits, family and bereavement leave, adoption assistance, education and tuition assistance, credit union membership, relocation and travel expenses and inclusion of parties at company events" (Human Rights Campaign, 2008, ¶ 5). Reductions in taxes, increases in deductions and entitlements, probate protections, child custody, health care assurances, and medical authority over one's partner are just a few of the additional entitlements granted to married couples.

The 1996 Defense of Marriage Act (DOMA) prohibited the federal government from recognizing same-sex marriages, civil unions, and domestic partnerships and allowed states to refuse to recognize them as well, even if the marriages, unions, and partnerships were recognized in other states. In the landmark case United States v. Windsor (2013), the Supreme Court deemed that DOMA was unconstitutional because it violated the due process clause of the Fifth Amendment. The ruling allowed LGBTQ couples who were legally married in their own states to receive federal benefits and protections that they had previously been denied. In Obergefell v. Hodges, another landmark case, the Supreme Court ruled on June 26, 2015, that the right to marry is a fundamental liberty protected by the due process clause of the Fourteenth Amendment, thereby making same-sex marriage legal in all fifty states. However, the early 2020s proved to be legally troubling concerning LGBTQ rights. In 2020, the court ruled that the civil rights law of 1964—which protect individuals in the workplace from sexual harassment and discrimination—protects all people and applies to discrimination based on sexual orientation. In 2022, the Supreme Court's decision to overturn Roe v. Wade raised concerns that it would lead to setbacks in marriage equality laws. Justice Clarence Thomas stated that the court must overrule Obergefell v. Hodges because the decision was made in error ("Marriage equality," 2022).

Worldwide, same-sex marriage was legal in thirty countries by 2023. The Netherlands (2001), Belgium (2003), Canada (2005), Spain (2005), South Africa (2006), Norway (2009), Sweden (2009), Argentina (2010), Iceland (2010), Portugal (2010), Denmark (2012), Brazil (2013), England and Wales (2013), France (2013), New Zealand (2013), Uruguay (2013), Luxembourg (2014), Scotland (2014), The United Kingdom (2014), Ireland (2015), Luxembourg (2015), The United States (2015), Colombia (2016), Australia (2017), Finland (2017), Germany (2017), Malta (2017), Austria (2019), Ecuador (2019), Taiwan (2019), Costa Rica (2020), Chile (2022), Cuba (2022), Mexico (2022), Slovenia (2022), Switzerland (2022), and Andorra (2023), all recognized same-sex marriages under their national laws. Slovenia's adoption of same-sex marriage laws in 2022 marked the first former Yugoslavian nation to adopt such laws. However, LGBTQ couples still face barriers in adoption in several states in the United States and in most countries worldwide ("Same-sex marriage," 2023).

Thus, while LGBTQ individuals are not so different from their heterosexual counterparts, the legal and social reality is that many do not enjoy the same opportunities, protections, and benefits as heterosexual individuals. While many advances have been made, it also is the case that LGBTQ individuals are still subject to violence, discrimination, prejudice, and prohibitions because of their sexual orientation.

Terms and Concepts

Civil Union: A form of legal union which allows same-sex couples to receive the state rights and benefits conferred upon heterosexual couples. Same-sex couples in civil unions are not eligible for the federal benefits conferred upon heterosexual couples, and states are not required to recognize civil unions that are recognized in other states.

Codified: To arrange things, especially laws and principles, into an organized system.

Domestic Partnership: A form of legal union similar to civil unions in that it grants same-sex couples the state rights and benefits conferred upon heterosexual couples. However, same-sex couples in domestic partnerships generally receive fewer rights and benefits than same-sex couples in civil unions. Same-sex couples in domestic partnerships are not eligible for federal benefits conferred upon heterosexual couples, and states are not required to recognize domestic partnerships that are recognized in other states.

Don't Ask, Don't Tell: A federal policy toward the question of LGBTQ individuals serving in the military that was in effect from 1994 to 2011. In it, the government did not ask recruits about their sexual orientation or gender identity, and LGBTQ military personnel were obliged to keep their orientations and identities private if they wished to serve.

Homophobia: An indiscriminate fear, condemnation, or hatred of homosexual individuals or homosexual culture.

Polysexual: A term used by individuals who are attracted to both men and women, but who chose not to use the term bisexual because they do not believe that there are only two genders, biologically speaking.

Protected Class: Groups of people defined within anti-discrimination law as being protected from discrimination and harassment. At the federal level, race, religion, color, national origin, age, sex, disability status, and veteran status are all protected classes. Some states have also chosen to include sexual orientation as a protected class within their anti-discrimination laws.

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