Web Feature

Lambda Legal Executive Director Kevin Cathcart made the following statement on the confirmation of John Roberts as Chief Justice of the U.S. Supreme Court:

“We firmly believe that a clear commitment to fairness and equality for all Americans is one important qualification for a lifetime appointment to the Supreme Court, and we are disappointed that John Roberts was confirmed as chief justice without being required to demonstrate that he has that commitment. Judge Roberts was given every opportunity to do so at his confirmation hearings. Nonetheless, looking to the future, we sincerely hope that lesbians, gay men, bisexuals, transgender people and people with HIV will have a fair hearing before the court that he now leads.

“What was remarkable about the Roberts hearing was how prominently LGBT civil rights questions figured into the proceedings overall — it was unprecedented. And it sets a great standard looking forward to the next nominee.

In late August, in anticipation of John Roberts’s confirmation hearings, Lambda Legal delivered 30 questions to the Senate Judiciary Committee; the questions were designed to determine whether Roberts had a commitment to fairness and equality for all Americans, including LGBT people and people with HIV. The substance of many of those questions were posed to Roberts during the hearings.

Read further Lambda Legal commentary on Roberts’s confirmation hearings.

Find out more about John Roberts on our coalition partners’ websites.

By Executive Director Kevin M. Cathcart

One of my favorite headlines coming out of this primary season was on a Seattle Times editorial: "'Change' Leads Early in the Race." And it's true that change is on the tip of everyone's tongue — from voters to candidates of all political stripes, each trying to prove that he or she is the one who will offer a new vision for America, the one who will bring about real change.

But what exactly does change mean? That often depends on who is speaking the word, but one fact is undeniable: The next chief executive will have the opportunity to preside over, and hopefully champion, big changes for LGBT people and those with HIV. In this spirit, I thought I would begin the New Year by outlining a few examples of what real change might look like for our communities in the years ahead.

• We would have an inclusive Employment Nondiscrimination law. Last year's big disappointment was Congress's failure to enact an employment nondiscrimination law. Adding insult to injury, the House removed protections for transgender people in the bill it eventually passed. Real change would give us a law that Lambda Legal could use to protect all LGBT people across the country from workplace discrimination.
• "Don't Ask, Don't Tell" would end. With lawsuits currently challenging the policy and more gay and lesbian servicemembers speaking out against it every day, there is no question that "Don't Ask, Don't Tell" is losing ground, even in Congress. I recently talked to Col. Grethe Cammermeyer — Lambda Legal had challenged the military's previous antigay policy on her behalf and won — and she talked about the tragedy of making people choose between living honestly and serving their country. This is a choice no one should have to make.
• We would change the government's discriminatory HIV policies. More than four years ago, Lambda Legal filed a case on behalf of Lorenzo Taylor who, though he was more than qualified, was denied employment by the U.S. Foreign Service because he has HIV. The State Department under the current administration has stubbornly refused to change this discriminatory policy, and we are set to go to trial later this winter. Federal law prohibits the government from discriminating against people with disabilities, including HIV — and the government, if anyone, must comply with federal law. Similarly, discriminatory immigration policies targeting people with HIV must end.
• Hate crimes protections would give young people across America safer schools and shield all of us from antigay violence. The defeat of last year's hate crimes bill — named after Matthew Shepherd, the gay Wyoming college student who was beaten to death in 1998 — marked another Congressional failure. While the bill was not directly aimed at students, it would have strengthened protections for them by making discrimination based on sexual orientation, gender and disabilities a federal crime. We are currently litigating two cases (in New Jersey and California) on behalf of gay students who were harassed in school. Students deserve to attend school without fearing violence and harassment because they are gay — real change would bring protections to help make this happen.
• Marriage equality would be a reality. I've said it before and I'll say it again: LGBT people will not be truly equal until those same-sex couples who want to have the right to marry. This is beyond marriage. It is simply about being treated fairly under law. Real change would pave the way for marriage equality in every state.

When people speak about change, they often quote Gandhi, who said, "You must be the change you wish to see in the world." I like this because it gives each of us the chance to do our own small part to change the world we live in. And this is something we can hold on to regardless of who wins the next presidential election.

Lambda Legal works to fight discrimination and broaden the laws under which we live, bringing more fairness into every aspect of life for lesbian, gay, bisexual and transgender (LGBT) people and people with HIV or AIDS. Through litigation, policy and education work nationwide, we tackle the issues that matter most -- every day equality in the workplace, respect for our relationships with our partners and children, access to medical care without discrimination, safe and supportive schools for our young people, fair treatment by the police and the government, and protection from violence on the streets.

Lambda Legal's Proyecto Igualdad aims to inform LGBT Latinos about their legal rights and how to enforce them, and to work with LGBT Latinos to expand their legal protections. We provide bilingual educational materials, host community events and trainings, and offer legal assistance through our Help Desks around the country.

Protecting Our Families

Lambda Legal fights in the courts and in our communities to protect LGBT families. We work on behalf of LGBT parents so that they are not denied custody or visitation with their own children, or the right to adopt, just because of who they are. We use the courts, advocacy and education to win legal protections for our relationships, including the right to marry and domestic partner benefits.

Our work to win legal protections for gay parents helps to keep families like that of Lita Ramos together. Although her biological mother, Linda, and her mother's partner, Lydia, raised Lita since birth, when tragedy struck Lita was vulnerable because her family wasn't legally protected. When Linda was killed in a car accident, Lita was separated from her family by Linda's relatives, who denied Lydia any visitation and refused to reveal where Lita was. Fortunately, Lambda Legal was able to help Lydia gain full custody of Lita -- creating a permanent legal relationship between mother and daughter.

Defending Our Youth

Because LGBT youth often face tremendous hostility and isolation, we work to ensure that they are safe and respected at school, that gay student clubs have the same rights as other student groups, and that school administrators are educated about their legal obligations. In addition, we work to make foster care safe, more inclusive and respectful of LGBT youth.

We defend the younger members of our community, like Anthony Colín, whose application to form a gay student group at his school was denied by school officials. Lambda Legal sued. Today the GSA meets on school grounds, uses the school public address system to announce meetings and is featured in the school yearbook, just like other clubs.

While LGBT student clubs are thriving in schools across the country, lots of LGBT youth are still forced to fight for their safety. Like many gay high school students, Derek Henkle regularly confronted violence and harassment at school. When he reported the abuse, school officials ridiculed him for "acting like a fag." Eventually, Derek was forced to drop out of school. Thanks to Lambda Legal's successful lawsuit on Derek's behalf, the school district gave Derek the money he needed to complete his education, and agreed to respect and protect all other gay students.

Fighting HIV/AIDS Discrimination

Whether it's the blatant discrimination that has occurred since the AIDS epidemic began more than two decades ago or the more subtle bias we sometimes see today, Lambda Legal fights for and wins fair treatment where it matters most -- at work, in our communities, and in medical care.

We stand-up for people like Joey Saavedra, an auto glass installer who disclosed that he has HIV on his first day at a new job. Although he almost always worked alone, and never put anyone in danger, Joey was still fired because, according to his employer, he posed a threat to other employees. Because Joey's firing was wrong, and based on ignorance about how HIV is spread, Lambda Legal has taken on Joey's case and will fight to win justice for him.

Securing Immigrant Rights

Current immigration law does not recognize same-sex relationships, almost always excludes immigrants with HIV from entering the United States, and makes it very difficult for people fleeing persecution in their homeland based on sexual orientation, gender identity or HIV status to get asylum in the U.S. Lambda Legal continues to advocate for change in our immigration laws and to help LGBT immigrants who face discrimination.

For example, when a young gay man who fled violence and persecution in Mexico faced deportation from the U.S., we helped. Throughout his childhood, Geovanni Hernandez-Montiel was harassed and victimized by school officials and the police because he was considered effeminate. After fleeing Mexico, Geovanni was denied asylum in the U.S. Lambda Legal intervened and helped win a court decision in Geovanni's favor.

On March 3, Washington, D.C. made history by making applications for marriage licenses available to same-sex couples for the first time in the district. Routinely, marriages can begin after a waiting period of three business days. The first marriages are anticipated to take place March 9.

"Those who live in Washington, D.C. now will have the chance to wonder what all the fuss was about," says Lambda Legal Marriage Project Director Jennifer C. Pizer. "Allowing same-sex couples to marry doesn't endanger or harm anyone else. Instead, all of society is strengthened when every family is accorded the same equal respect under law."

City council member David Catania introduced D.C.’s marriage-equality bill last October. After emotional hearings, the council approved the measure overwhelmingly on two successive votes. Mayor Adrian Fenty signed the bill four days after the final vote in December. Congress, which had thirty legislative days to review the law, did not act to obstruct the new measure, and the U.S. Supreme Court refused an emergency request by antigay forces to halt the law.

"To the world, today an era of struggle ends for thousands of residents of Washington, D.C. who have been denied the fundamental right to marry the person of their choosing," Fenty told the hundreds gathered at All Souls Unitarian Church, where he signed the bill. "I say to all those residents who watch the nation’s capital today that our city is taking a leap forward in ensuring freedom and equality to all residents."

At the signing, Fenty drew a parallel between discrimination against same-sex couples and anti-miscegenation laws. He said his parents, an interracial couple (who were present at the signing) struggled with prejudice in the 1960s. "My parents know a little something about marriage equality," he said.

The bill’s passage followed quickly on the milestone the district achieved in April 2009, when council members voted unanimously to honor same-sex couples' marriages performed outside the capital. Progress in Washington, D.C. also reflects the momentum for marriage equality around the country following Lambda Legal's historic legal victory in Iowa in April and subsequent legislative victories in Vermont, New Hampshire and Maine (although Maine voters derailed marriage equality in that state through a voter referendum in November). With Massachusetts and Connecticut also having opened marriage to same-sex couples, six United States jurisdictions now permit lesbian and gay couples to marry and various others (such as New York and Maryland) respect married same-sex couples’ legal status conferred by other American and foreign governments.

"We call on elected and community leaders coast-to-coast to follow the principled example of the D.C. City Council and work to end the exclusion of same-sex couples from marriage in their states," Pizer says.

This fact sheet covers the rights of LGBT employees who work for the government. 

Updated 01/10/2006

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibits the government from purposefully discriminating against someone without adequate justification on the ground that he or she belongs to an identifiable class of people. A public employee can establish a violation of his or her rights to equal protection if the employee can show that he or she was subjected to adverse treatment when compared with other similarly situated employees and that that treatment was motivated by an intention to discriminate on the basis of improper considerations. Many courts have held that a public employee has a claim under federal Equal Protection guarantees if he or she is discriminated against because of sexual orientation.¹

First Amendment

Public employees also have invoked the First Amendment to protect a right to “come out” publicly. It has been held that a public school violates the First Amendment in ordering a teacher not to make comments about her sexual orientation.² Lambda Legal has successfully defended the right of teachers to discuss gay issues in the classroom.³ This area of the law is a little more complicated because the courts engage in a balancing of the public employee’s expressive rights against the interests of the government employer “in promoting the efficiency of the public service it performs through its employees.”⁴ Lambda Legal also has vindicated the First Amendment rights of public employees to associate with gay men and lesbians.⁵

Federal Statutory Law

Federal law prohibits discrimination based on sex in public employment.⁶ This law prohibits discrimination based on sex stereotypes.⁷ Thus, if an LGBT person is discriminated against for failure to conform to the stereotypes about his or her gender, the employee should have a viable claim under federal law.

Protections for Federal Employees

Executive Order 13087 expressly bans sexual orientation discrimination in the federal workplace. The Office of Special Counsel has the authority to investigate “Prohibited Personnel Practices,” which include taking action against employees based on conduct that does not adversely affect workplace performance, acting in a way that violates merit system principles, or giving a preference not authorized by law.⁸ Each of these provisions should apply to sexual orientation discrimination.

State Law Protections

The following states have specifically listed sexual orientation in their law prohibiting discrimination against public employees: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, Nevada, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin. Most of these provisions cover “sexual orientation” generally, prohibiting discrimination against heterosexual, bisexual, gay and lesbian employees. Many provisions cover perceived sexual orientation, so that someone discriminated against because he or she is perceived to be gay can state a claim, even if he or she is not gay or is not “out.” Additionally, some states and municipalities prohibit marital status discrimination, which may assist gay and lesbian public employees. There also may be state or local laws that protect political activity or expression, including “coming out.”⁹ Discrimination can take a variety of forms; Lambda Legal has won victories against school districts that tried to transfer students out of the classrooms of gay teachers.¹⁰ Additionally, Lambda Legal prevailed on behalf of a teacher’s right to bring a claim of pervasive sexual orientation harassment at her school.¹¹

It also may violate the constitution of the state to discriminate against public employees based on their sexual orientation, or to take action against them for being openly gay.¹²

Transgender Employees

The following states prohibit gender identity discrimination against public employees: California, Illinois, Kentucky, Maine, Minnesota, New Mexico, Pennsylvania and Rhode Island (and by court or administrative rulings in Connecticut, Florida, Hawaii, Massachusetts, New Jersey, New York and Vermont). Also, transgender employees who suffer discrimination often may invoke laws against sex discrimination in employment.

Union Protections

Union contracts that include sexual orientation and gender identity in their non-discrimination clause provide expanded protections for LGBT employees. If a contract lacks these protections, LGBT members and allies should try to get involved in the negotiations process and advocate for these additions in the next contract.

¹Miguel v. Guess, 112 Wn. App. 536, 51 P.3d 89 (2002) (lesbian nurse had equal protection claim under federal and state constitutions against public hospital and individual physician for adverse job actions taken due to her sexual orientation); Quinn v. Nassau County Police Dept. 53 F. Supp. 2d 347, 350 (E.D.N.Y. 1999) (gay police officer had equal protection claim against department and staff for condoning anti-gay harassment by coworkers and supervisors); Emblen v. Port Authority of New York, 2002 U.S. Dist. LEXIS 5537 at *22-25 (S.D.N.Y. 2002) (non-gay police officer stated equal protection claim based on persistent anti-gay harassment by coworkers who mis-perceived him as gay); Lovell v. Comsewogue School Dist., 214 F. Supp. 2d 319 (E.D.N.Y. 2002) (lesbian teacher stated equal protection claim against school district and principal for failing to take action against anti-gay harassment of teacher by students); Glover v. Williamsburg Local School Bd., 20 F. Supp. 2d 1160 (S.D. Ohio 1998) (school district violated teacher’s equal protection rights when it fired him after he was seen holding hands with male partner at school holiday party).

² Weaver v. Nebo School Dist., 29 F. Supp. 2d 1279 (D. Utah 1998).

³ See Plymouth County Education Association v. Plymouth-Canton Board of Education (American Arbitration Association) (school district violated academic and First Amendment freedoms when it ordered two gay teachers to dismantle displays commemorating Gay and Lesbian History Month) (described at http://www.lambdalegal.org/cases/brief.html=928). For information concerning a public school teacher’s right to be out at work, see: http://www.lambdalegal.org/cases/brief.html=382.

⁴ Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

⁵See Ramos Padro v. Commonwealth of Puerto Rico, 100 F.Supp.2d 99, 101 (D.P.R. 2000).

⁶42 U.S.C. § 2000e-16; 42 U.S.C. § 2000e(f); Fitzpatrick v. Bitzer, 427 U.S. 445, 449 n.2 (1976).

⁷ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

⁸ 5 U.S.C. § 1212; 5 U.S.C. § 2302(b)(6), (10), (12).

⁹ See e.g., Cal. Labor Code §§ 1101-02.

¹⁰ See http://www.lambdalegal.org/news/press.html=647; http://www.lambdalegal.org/news/press.html=386.

¹¹ Murray v. Oceanside Unified School Dist., 79 Cal.App.4th 1338, 1357 (2000).

¹² E.g. Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 467, 595 P.2d 592, 597 (1979).

If your home state refuses to marry same-sex couples, you may be wondering whether you should visit another state or country to get married. Here are some important things to consider before making this decision.

1. Where do we start?

You should start where people in different-sex couples have always started, by asking yourself and your partner some essential questions. Are you ready for this legal commitment? Do you want to bind your lives together with significant financial and other consequences? Marriage is a serious commitment with big responsibilities, and only you and your partner can answer these very personal questions for yourselves.

2. What are the extra concerns same-sex couples have in choosing whether or not to marry?

Same-sex couples — especially those who can’t marry in their home state — face a host of unique questions because they can face discrimination in all parts of their lives. For instance, some state laws give protections to same-sex couples, while others deny same-sex couples those protections — the landscape is laid out in Lambda Legal’s Safety Scale. Then you have to add federal law, which is hostile to same-sex couples as a result of the so-called Defense of Marriage Act. All these laws may affect your marriage wherever you live, so your decision about whether to marry needs to take this landscape into account.

3. What are some specific reasons we might decide not to get married?

If one of you is in the military or is in the United States on an immigration visa, getting married could be harmful under federal laws, such as “Don’t Ask, Don’t Tell,” which require discrimination based on sexual orientation. (For more information about issues for binational couples, consult Immigration Equality). If you or your partner is receiving needs-based government benefits like public assistance, getting married might cost you the benefits because spousal income and assets may be counted as part of determining your eligibility. Or if you are in the process of adopting a child or planning to do so, some states and countries allow adoptions by single parents but not by same-sex-couples, so a marriage could complicate matters. Lastly, there are states like Wisconsin and Delaware that impose criminal penalties on their residents if they enter a marriage outside the state that would have been prohibited in the state, and these may be interpreted to apply to marriages of same-sex couples who live in those states. (For Wisconsin, the penalty is stiff – up to $10,000 or 9 months imprisonment, or both.)

For more information on these situations, call one of Lambda Legal’s Help Desks.

4. What else should we consider if we’re thinking of marrying in another state or country?

The uncertainty, if nothing else. Many states have passed laws denying recognition to marriages of same-sex couples. In those states, state and local governments likely will not respect your marriage. The good news is that when you return home married, you will have a unique chance every day to serve as role models for what married same-sex couples look like and to show that your marriage strengthens your relationship, and harms no one. Your personal example of love and commitment will be an important contribution to our civil rights work. But if you choose to get married, remember that you are married. You cannot say you’re married only when it helps but not when it hurts. That means, for example, you will identify yourself as married on applications and forms for jobs, apartments, credit, mortgages, insurance, medical treatment and, where advisable, on state or federal returns (for more on taxes, see Tax Tips). You will be doing this even as other people — and the law — may not see you as married and discriminate against you. You will be doing this even when you may get all the burdens of marriage but few of the benefits.

Then there’s divorce. Half of all different-sex couples’ marriages end in divorce, and we shouldn’t expect our relationships to be more immune to problems. Your home state may not permit you to dissolve your marriage, and all states have some type of residency requirement to get a divorce. We’ve already had a handful of heart-wrenching calls from individuals married to a person of the same sex who wanted to get out of the marriage but couldn’t. They experience difficulty moving on because of what that existing marriage may mean for entering a new relationship. Further, as either individual in the failed marriage travels or moves from one state to another, the light switch goes on and off with regard to whether or not they have the responsibilities of the marriage that still exists. That has to be considered in your decision. For some background on how some couples with out-of-state marriages have been faring, see Legal Recognition of Same-Sex Couples’ Marriages, Civil Unions, and Domestic Partnerships.

5. Can we sue if we experience discrimination against our marriage?

Well-planned lawsuits can occasionally advance the battle for marriage equality. But it’s a big decision to file a marriage lawsuit, whether you want respect for your marriage or you want to get out of it, and it’s a mistake to go into court without consulting experts. If you lose — and unfortunately many marriage-related lawsuits have failed — you may establish a legal barrier, not just for you and your partner but for many other same-sex couples as well. Besides the high risk of losing, lawsuits take a long time, can cost a lot of money and can result in terrible invasions of your privacy and other burdens that aren’t always apparent at the outset. We encourage you to decide whether to get married based on what is right for your relationship and your family, and not with the goal of changing the law in a court action, or the belief that a lawsuit can solve any problems you encounter. If you do confront discrimination, please contact Lambda Legal so we can help you figure out whether a lawsuit or other action makes sense.

6. What can we do to protect ourselves, whether or not we decide not to get married?

Although marriage provides a vast set of protections, there are other important steps you can take to protect yourself, your relationship and your family as much as possible. First, investigate what protections your state may already offer by way of civil unions, domestic partnerships or other means like designating individuals to have authority to make medical or other decisions for you if you can’t. See Lambda Legal’s “Protecting Same-Sex Relationships: Marriages, Civil Unions and Domestic Partnerships” for the background materials you will need; to begin a search for a friendly attorney in your area, contact one of Lambda Legal’s Help Desks.

You should also protect yourself and your family with some basic life-planning tools. This is true even for married different-sex couples, but if you’re in a same-sex couple — married or not — life planning is even more important because you may face discrimination. For help, see Lambda Legal’s life-planning toolkit, Take The Power: Tools for Life and Financial Planning.

7. If we decide to get married in another state or country, where can we go?

The list of your options is growing. For an updated list of U.S. states that marry same-sex couples, see Lambda Legal’s Safety Scale. Or feel free to call one of the Lambda Legal Help Desks.

For updated lists of the countries that marry same-sex couples, including Canada and Spain, visit

* Status of Marriage Equality Worldwide

To find the requirements you have to meet for a marriage in another country, begin as you would if you wished to marry in another state, with an online search to find the appropriate website — for instance, Toronto’s marriage license page. Many couples (same or different sex) get married abroad, but different-sex couples have few if any worries about whether their marriages will be respected at home. The state of New York has set one of the best examples in terms of respecting the Canadian marriages of same-sex couples. For more information, see Lambda Legal’s publication “Update: Marriage Recognition for Same-Sex Couples in New York.”

8. What else can we do to help achieve equality for same-sex relationships?

No matter where you live, you and your partner can do a lot to help us make the case for equality for same-sex relationships. Some states will inevitably move more quickly than others, but working together we will pull all states forward. Here are a few ideas:

• Join the growing movement to advocate that employers or organizations that choose sites for a convention or meeting avoid locales that require or promote discrimination against same-sex relationships. See Lambda Legal’s Safety Scale to see which states rank best and worst.
• If there are no statewide domestic partner benefits in your state, get in touch with your state LGBT political group or state legislator to help get the ball rolling. One big first step in some states has been to advocate for benefits for state employees. See “Examples of States that Provide Benefits to Same-Sex Partners of State Employees” to find out whether your state already has these protections and, if not, to have what you need to help persuade your state to catch up.
• If you live in a state that has a constitutional amendment banning marriage and some other forms of recognition for same-sex couples' committed relationships, and everyone agrees it is not currently possible to protect same-sex relationships directly, there is still some hope. See Lambda Legal’s publication “Selected State Laws Permitting Designation of Individuals to Make Decisions or Receive Benefits, Without Recognition of a Relationship" to explore existing laws that provide some basic protections like the right to visit in the hospital.
• Support the fight against the proposed constitutional revision in California by visiting www.equalityforall.com.

PLEASE NOTE: This document offers general information only and is not intended to provide guidance or legal advice regarding anyone's specific situation. This is an evolving area of law in which there is bound to be uncertainty. If you have additional questions or are looking for contact information for private attorneys to advise you, contact Lambda Legal's Help Desk at 212-809-8585 (toll-free: 866-542-8336) or legalhelpdesk@lambdalegal.org.

Medical professionals generally agree that patients receive better medical care when they are able to be honest and open with their healthcare providers. In both quality and quantity, a patient’s description of his or her medical history can be far more important than any physical exam, laboratory tests, or other diagnostic tools in helping determine the patient’s health status. Information about sexual orientation and gender identity is an essential part of any medical history. Comfortable dialogue about a patient’s identity and relationships can help to focus a provider’s inquiries, personalize professional advice and assistance, and generate an overall higher quality of care.

Despite the value of such frank discussions, studies have shown that many gay, lesbian, bisexual, and transgendered (LGBT) persons are reluctant to discuss their sexual orientation or gender identity with their health care providers out of fear of ridicule, abandonment of care, or improper disclosure of their sexual orientation or health status to third parties. New federal regulations that went into effect in April 2003 help to clarify the rights of LGBT persons and the responsibilities of health care providers regarding the confidentiality of medical information.

These new regulations, issued by the U.S. Department of Health and Human Services under the Health Insurance Portability and Accountability Act (known as “HIPAA”), create a federal standard dictating how medical providers and health plans can use and disclose patients’ private information. The rules tell health plans and healthcare providers when they can and cannot disclose private information about a patient, and, in some cases, when they must disclose that information. This fact sheet summarizes the new federal privacy rules and discusses how they regulate the communication of information regarding a patient’s sexual orientation or gender identity.

What kind of information is covered by the privacy rules?

The new privacy rules regulate disclosure of a wide range of information about patients. Specifically, the rules create limited safeguards for all “protected health information,” which includes any information that relates to (1) a patient’s past, present or future physical or mental health or condition, (2) the provision of healthcare to the patient, or (3) payment for the patient’s healthcare. As long as the information is collected from the patient, can be used to identify the patient, and is transmitted or maintained in some form by the healthcare provider or health plan, it is protected under the federal privacy rules.

The privacy rules protect diagnostic information like a patient’s HIV status, information related to medical treatment like a patient’s family history, and other identifying information like a patient’s name, address or social security number. Because information about a patient’s sexual orientation and gender identity is often very relevant – and sometimes absolutely crucial – to the provision of healthcare, it is protected by the federal privacy rules as well.

When can a healthcare provider use or disclose information regarding her patient’s health condition, sexual orientation or gender identity?

The federal privacy rules create certain protections against the disclosure of private information about patients, but those protections are not absolute. The rules describe three different classes of information: (1) information that cannot be disclosed without written permission, (2) information that cannot be disclosed without informal verbal permission, and (3) information that can be disclosed without any permission.

• Written permission required: In certain limited circumstances, a provider must obtain written authorization before disclosing a patient’s private information. Specifically, a provider must obtain an authorization in order to disclose psychotherapy notes or to use a patient’s protected information for marketing purposes.

  Informal verbal permission required: In other circumstances, a provider must give the patient an informal opportunity to object before sharing private information about the patient. For instance, such verbal agreement is usually required before disclosing information to a patient’s friends or family.

  No permission required:> In a variety of other circumstances, a healthcare provider may disclose information about a patient without the patient’s consent. For example, a provider may disclose information about a patient for the following purposes:

   

  • To provide treatment to the patient or to facilitate payment for that treatment
  • To share information with business associates who work with the provider
  • To report certain information, such as a diagnosis of AIDS or an incident of domestic violence, to relevant public health authorities when the law requires or permits such reporting
  • To assist a law enforcement investigation or to provide eligibility information to a public benefits program
  • For any purpose, as long as the information revealed by the provider does not identify the individual patient

  This list is not exhaustive; the federal rules list several other situations when a provider may disclose a patient’s private information without consent. In other words, there are many situations where a patient’s disclosures to a doctor may not remain confidential. However, when a provider discloses information about a patient, the provider usually must try to reveal as little private information as possible. In most cases, this should mean that the provider cannot disclose a patient’s sexual orientation or gender identity without the patient’s consent.

Are there any other ways that private information about a patient’s health condition, sexual orientation or gender identity can be protected against disclosure by a healthcare provider?

In addition to the federal rules, information about patients may be protected in two other ways.

• Private agreements between patients and providers: First, a patient may request that a provider agree to additional protections, and if the provider agrees, the provider generally must keep that promise. For example, if a patient elicits an agreement from a doctor that the doctor will not disclose the patient’s sexual orientation without the patient’s prior written consent, then the doctor generally must comply with the agreement.

  Additional protections afforded by state laws: Second, some states have laws that provide additional protections for patients. For example, many states broadly prohibit healthcare providers and laboratories from disclosing patients’ HIV test results except in certain circumstances. The federal rules do not free providers from their legal duties to comply with those more protective state laws.

What rights do the new privacy rules grant to patients?

Aside from the confidentiality and disclosure of health information, the new federal rules describe a few related rights that patients may exercise:

• Right to inspect and copy medical records: With some exceptions, a patient has the right to inspect and obtain copies of all private records that a provider maintains. A patient who requests copies of medical records may have to pay for the cost of copying.
• Right to amend records: A patient may request that a provider change information in medical records if the patient believes the information is inaccurate or incomplete. Although the provider need not necessarily make the change, the provider must respond to the request and permit the patient to include a statement in the records explaining the disagreement.

   

• Right to accounting of disclosures: With some limitations, a patient may request that a provider furnish a list of everyone to whom the provider has disclosed the patient’s protected information within the past six years. The provider may not charge the patient for this service unless the patient requests more than one accounting in a 12-month period.
• Right to receive communications from provider in a confidential manner: If a patient asks a provider to communicate with him in a confidential way, the provider must usually comply with the request. For instance, if a patient lives with his parents and does not want them to know he is gay, he can ask his doctor to send all private information to him at his work address and to call him at his work phone number.

How can a patient complain if a provider has violated the privacy rules?

If a patient believes that a healthcare provider has violated the privacy rules, the patient may either (1) file a written complaint with the Department of Health and Human Services (HHS) within 180 days of the violation, or (2) file a complaint with the provider. If the patient files a complaint with HHS, and HHS agrees that the rules have been violated, HHS may impose a fine on the provider or, in rare cases, pursue criminal charges.

When do medical providers have to tell patients about their privacy rights?

Most health care providers in the U.S., including private physicians’ offices and hospitals, must provide each patient with a description of the patient’s privacy rights during the patient’s first doctor’s visit after the rules became effective in mid-April 2003. Patients should keep these documents in their files for future reference, particularly if they have questions about the release of sensitive information by their healthcare providers.

For More Information:

This fact sheet includes some basic information about the federal privacy regulations, but the information is not comprehensive. For more information about the regulations, we encourage you to visit any of these web sites:

www.hhs.gov/ocr/
www.hipaadvisory.com
www.healthprivacy.org

Allies find supportive ways to interact with lesbian, gay, bisexual and transgender (LGBT) and HIV positive co-workers.

• Earn trust and be a friend. Recognize the individuality of all of your co-workers. Make people feel comfortable being out and open to you about their relationships and families. Wear LGBT-friendly buttons or post stickers in your work area. Never "out" somebody or treat a person with HIV as if they are "contagious." If you learn that one of your coworkers is HIV positive, don't disclose his or her HIV status to anyone else without the person's permission. Be respectful of issues of privacy, comfort and safety.
• Educate yourself about the forms of discrimination that your LGBT co-workers and co-workers with HIV face, as well as facts about HIV infection. Ignorance about how HIV is transmitted contributes to HIV stigma and discrimination. Read the works of LGBT authors; watch films and documentaries by and about LGBT people and people with HIV. Pay attention to media stories about HIV and LGBT issues.
• Expand your perceptions. Do not make assumptions about people's sexual orientation or gender identity based on feminine and masculine stereotypes. Practice challenging the ideas you form about whether or not someone is straight, male or female.
• Pay attention to the language you use. Don't be afraid to say "lesbian," "gay," "bisexual," and "transgender" or "LGBT" when it is appropriate. Instead of referring to a "wife" or "husband," try "partner," or "significant other." If you work with transgender people, find out what pronoun they choose to describe themselves — and use it! Don't use the phrase "AIDS victim," which implies defeat, and remember that HIV positive people are only occasionally "patients." When you refer to someone as a "person living with HIV," you show respect.

Allies take steps to change discriminatory practices and policies and encourage others to be allies.

• Demand a respectful work culture for all of your co-workers from all of your co-workers. Train yourself to "interrupt" homophobic, racist, and sexist statements and actions. Similarly, don't participate in or condone speculation or comments about co-workers HIV status or negative comments about people living with HIV. Look people in the eye and make simple statements such as "Please don't use that language around me" or "I don't agree with that." If you do not feel comfortable interrupting bad behavior as it is happening, you can talk to participants afterwards to tell them how you feel.
• Get it in "writing." Learn the mechanism for changing employee policies and find a way to participate. Ask your employer to add language about respectful workplaces, sexual orientation, gender identification and HIV status to their employee handbooks, including reasonable dress code and restroom accommodations for transgender people. If you are in a union, mobilize to add protections for LGBT people and people with HIV to any contract you negotiate with your employer. Demand that the partners and families of LGBT people be given the same benefits as the rest of the staff.
• Monitor hiring, promotion, termination and disciplinary practices at your workplace. If you witness discrimination against a co-worker, report it to the appropriate person. If you consider candidates for jobs or promotions, scrutinize any bias you or others may have against LGBT people or people with HIV. Recognize that some people living with HIV need (and are legally entitled to) a reasonable accommodation to perform their work. If a co-worker is being accommodated — for instance, being allowed to take time off to visit a doctor — be sensitive to that person's needs.
• Encourage your employer to present workshops on sexual orientation, gender identification and HIV status. Participate in the planning of these workshops to make sure that they are practical, respectful and effective.
• Support your co-workers' right to form an LGBT employee group. Stay informed about any workplace concerns this group identifies. If they have a newsletter, read it. Attend events or meetings that are open to allies. Recruit other allies to participate.
• Invite the partners and families of LGBT people to all social events (company picnics, holiday parties, etc.) Make a conscious effort to welcome and engage everyone, without making them feel conspicuous or uncomfortable.

Allies understand that the fight for civil rights goes far beyond the workplace. They are visible, public and comprehensive in their support of LGBT and HIV positive co-workers.

• Advocate for change. Some states have employment protections for LGBT people. If yours doesn't, work with national and statewide LGBT organizations to advocate to your legislators for these protections. Fight any legislation, such as an anti-gay Defense of Marriage Act, that discriminates against the LGBT community and people with HIV. Write letters to your newspapers' editors.
• Join Lambda Legal's "Out at Work" campaign.
• Volunteer with groups that work on behalf of equal rights for LGBT people and people with HIV. Help to connect LGBT and HIV civil rights to the broader fight for civil and economic rights and a just society. Participate in Pride events and educational forums featuring LGBT and HIV rights. Introduce this issue to groups (i.e. churches, parent teacher associations) that may not yet incorporate it into their work.

In October 2005, 25-year-old Izza Lopez was offered a position with River Oaks Imaging and Diagnostic, a medical imaging company in Houston. Less than a week later a human resources representative called Lopez to rescind the offer, telling her she had "misrepresented" herself as a woman. Lopez could not return to her previous job and remained unemployed for several months as a result.

Now the case may be on its way to trial. Both Lambda Legal and River Oaks attorneys had asked the court for summary judgment, a ruling issued without trial based on undisputed facts, and were denied. Despite disappointment over the court's decision, Transgender Rights Attorney Cole Thaler is optimistic. "The court agreed that Izza never misrepresented herself in any sense, and rejected River Oaks' claim that transgender people have a duty to disclose their biological sex to employers," he said.

Furthermore, Judge Nancy Atlas' 31-page decision rejected River Oaks' claim that "any person who dresses in a manner inconsistent with traditional gender stereotypes is necessarily deceptive," adding that, "although Lopez listed only her adopted name on her resume, she listed both her adopted and legal names on her job application."

Transgender people are disproportionately vulnerable to discrimination because of widespread misunderstanding and misconceptions about them.  A growing number of employers prohibit discrimination based on gender identity and expression, and many transgender employees like Lopez have successfully advanced claims under existing sex discrimination laws.

Lambda Legal's lawsuit claims that River Oaks violated Lopez's rights under Title VII of the Civil Rights Act of 1964, the federal law prohibiting sex discrimination in employment. The next phase for the case is mediation. If no resolution is reached, it will move to trial.