Legislative Memo: Sexual Orientation Non-Discrimination

AN ACT to amend the executive law, the civil rights law and the education law, in relation to prohibiting discrimination based on sexual orientation.

Position: Support

This bill would extend the reach of New York State’s civil rights and human rights protections to more than one million New Yorkers who are gay, lesbian or bisexual. The New York Civil Liberties Union strongly supports equal protection under the law for gays, lesbians and bisexuals. Consequently, we strongly urge the passage of this bill. The bill would bar discrimination on the basis of sexual orientation in employment, education, public accommodations, credit applications and housing. In essence, it would establish the principle that one cannot be denied the basic necessities of life — whether it be a job or an apartment or service in a restaurant — because one is believed to be gay, lesbian, or bisexual.

Federal law barring workplace discrimination does not include sexual orientation in the list of protected categories. Although former Governor Mario Cuomo signed an executive order in 1987 barring discrimination based on sexual orientation by state agencies and departments, no state law protects New York’s gay and lesbian community from such discrimination in private employment, housing, and public accommodations. As discrimination against gays and lesbians is a continuing reality, legal protection is imperative. Equal opportunity to fulfill one’s potential is one of the basic principles on which American society was founded, enriching society as a whole. Gays and lesbians have not been guaranteed this opportunity. Employees should be judged according to their job performance, not upon opinions about the morality of their private lives. During the McCarthy era, at least 1,700 people lost their federal employment after allegations of homosexuality. Fortunately, today roughly half of the Fortune 500 companies have policies that offer protection against discrimination based on sexual orientation. Universally extending protection against this recognized danger is vital.

The right to legal equality for gays, lesbians and bisexuals rests upon several fundamental constitutional principles. The fundamental right to privacy is guaranteed by the Fourth, Fifth, Ninth, and Fourteenth Amendments. Several Supreme Court decisions have underscored the principle that decisions about intimate relationships are personal and should be left up to the individual, including Griswold v. Connecticut, Loving v. Virginia, Einsenstadt v. Baird, and Roe v. Wade. Accordingly, the equality principle or the Fourteenth Amendment should be understood as protecting individuals against discrimination of the basis of sexual preference or orientation.

The basic concept of this bill is neither radical nor novel. Eleven states (California, Connecticut, Hawaii, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont, and Wisconsin), and the District of Columbia, and over 100 municipalities, (including Albany, New York City and Syracuse), have enacted laws which protect gays and lesbians from discrimination in private employment. However, in most locales of New York State such discrimination is not illegal.

Legal protections against discrimination are necessary for all minority groups in a diverse society. It does not matter whether the defining factors of the minority group are race, ethnicity, national origin, disability, religious or political beliefs, or sexual orientation. Gays, lesbians and bisexuals suffer from discrimination and deserve the same basic legal protections allotted other minority groups. This bill would promote the most basic values underlying our political system — those of personal liberty, tolerance of diverse backgrounds and points of view, and respect for privacy. We strongly recommend its approval.