LGBT Discrimination as Sex Discrimination: How Existing Doctrine Can Provide the Most Expansive Protection for LGBT Rights
37 Pages Posted: 8 Sep 2015 Last revised: 10 Apr 2017
Date Written: August 31, 2015
This article argues that the current sex discrimination doctrine provides the best option for litigation at the moment, and, if applied correctly, actually present greater protection for LGBT individuals than elevating sexual orientation to the list of suspect classes under the equal protection clause and employment law. This in line with the decisions of the Equal Employment Opportunity Commission (EEOC) and some circuits. The article attempts to fill a void in the legal scholarship in this area by addressing how looking at sexual orientation and gender identity discrimination through a sex discrimination lens allows for legal recognition of all identities within the LGBT rainbow. It also considers the limitations of an ad hoc or heightened scrutiny approach for sexual orientation and gender identity discrimination and argues that placing sexual orientation and gender identity discrimination within existing sex discrimination doctrine provides greater protection.
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