LEGAL RIGHTS OF LESBIANS

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The following article, “Lesbian Rights," is excerpted from the 1979 Women's Legal Rights Handbook. It was compiled by the Women's Law Caucus of Cleveland-Marshall College of Law for the Women's Legal Rights Workshop.

History

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During the 400 years of American history, accused homosexuals were prosecuted under state sodomy statutes which had their basis in biblical interpretation. Generally defined, sodomy is the anal or oral copulation between same sex members or any copulation with an animal. No lesbians have ever been convicted or punished for the crime of sodomy /since historically, the status of homosexuality was seen as a crime between two men. This does not mean that lesbians are immune from sodomy prosecutions. Rather, the relative lack of cases punishing lesbians is largely due to two factors: first, it is possible that there were many lower court convictions in which lesbians agreed to plea bargain to a lesser offense, thereby sparing themselves the notoriety which accompanies appeals; and second, and more importantly, the discrimination focused on lesbians is the result of institutionalized sexism. The judicial system, formerly composed entirely of men, has not only encouraged but also perpetuated women's inferior status. As a result, lesbians were not seen as a threat to the male power structure and until recently have been largely ignored. With the advent of the women's liberation movement, lesbians have become more visible. In turn, this visibility has brought an increasing number of lesbians and gay men to the courts to challenge the validity of discriminatory laws.

Employment

A. Private:

Discrimination means treating one person differently from another. Without specific municipal ordinances, private employers can discriminate as they choose in the hiring, training, promotion, and firing of lesbian employees.

Title VII of the 1964 Civil Rights Act does prohibit private employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. The courts have refused to interpret Title VII as prohibiting discrimination in employment on the basis of "affectional or sexual preference". However, several municipalities have adopted ordinances prohibiting such discrimination. Yellow Springs is the only place in Ohio to offer governmental protection to lesbians in the area of private employment.

In 1976, Representative Bella Abzug introduced the "Abzug Bill" in Congress to amend Title VII to add affectional and sexual preference as a protected group. This Bill was never voted upon and has been reintroduced as House Bill 2074, with 45 pledged cosponsors. Rep. Louis Stokes is the only Ohio representative formally sponsoring this Bill. Write to your Congressional Representative urging her/him to formally co-sponsor H.B. 2074.

B. Public Employment (Excluding Teachers): To some extent, both federal and state courts have held that a public employer (local, state, or federal) cannot fire an employee merely because she is a lesbian. Usually, public employers must show that the employee's homosexuality adversely affects her ability to perform her job. The U.S. Civil Service Commission has to a large extent standardized the government's position on employment practices, i.e., to hire those individuals that best promote the efficiency of the Service.

Unfortunately, some courts have held that the public employer may deny, gays a security clearance where national security is involved. Furthermore,

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courts have upheld the right of public employers to fire employees who "flaunt" their homosexuality, and also those gay employees who openly discuss their sexuality while identifying themselves as members of a federal agency.

Whereas discrimination in public employment is still a tricky business, unlike private employment, there is a foundation for arguing that lesbians have a constitutional right to be free from public employment discrimination.

C. Public School Teachers:

Whereas lesbian teachers in private schools have almost no protection from discrimination based on their sexual preferences, the outlook for lesbians in public schools is slightly brighter. The following cases clearly demonstrate the wide range of outcomes possible for gay school teachers.

In 1969, the California Supreme Court overturned the dismissal of a public school teacher which was based on the teacher's homosexuality. The court held that the school board failed to show that the gay teacher's conduct in any manner affected his performance as a teacher. But in the same case, the court emphasized that the law neither prohibits the employment of all gay teachers nor forbids schoolt boards from considering the possible implications of homosexuality in order to determine a teacher's fitness.

In 1970, a federal district court, using the logic of the 1969 California decision, prohibited the University of Minnesota from refusing to hire a gay librarian solely on the grounds that he was an activist homosexual. One year later, the Eighth Circuit Court of Appeals reversed the lower court's decision, emphasizing that the University's Board of Regents had broad discretion in hiring matters. Further, unless there was a "clear and affirmative" showing of arbitrariness, the board's decision to refuse to hire this gay librarian had to stand.

In 1974 the Fourth Circuit Court of Appeals did a quick two-step in regard to a case involving a gay teacher. The teacher, upon receiving notice that he had finally won his public school teaching certificate, became the source of much publicity and news media interviews because of his homosexuality. The school board which hired the teacher transferred him from a

teaching job to an administrative post when they learned of his homosexuality through the publicity, The teacher then sued the school board, arguing that his comments to the press concerning his certification battle were protected by his First Amendment right to free speech. The appeals court agreed with the teacher's argument, but nevertheless, upheld his transfer to a non-teaching position upon learning that he had, failed to list his membership in a gay rights organization under the "Activities" section on

the public school's employment application.

Housing and Public Accommodations

Although housing is one of the basic essentials of human life, lesbians are afforded no protection from discrimination in housing or public accommodations (restaurants, bars, motels, etc.). As in the area of employment, none of the statutes enacted by Congress and the various states include affectional preference as one of the protected classes. The Abzug Bill, now House Bill 2074, would protect lesbians and gay men from discrimination in housing and public accommodations.

Several municipal governments, including Columbus and Yellow Springs in Ohio, have passed ordinances which prohibit discrimination in housing and public accommodations on the basis of affectional or sexual preference.

Tenants may have other rights which serve as aids for self-protection. The most obvious source of protection in housing is a lease, which each unrelated mcmber of the household unit should sign. Another source of protection may stem from areas protected by rent control laws which generally govern both rent levels and eviction. In any case, tenants may not be evicted for any reason, unless the landlord complies with formal eviction proceedings which include prior notice to the tenant. If you are being evicted because you are a lesbian, immediately contact an attorney, the ACLU, Legal Aid, or the landlord-tenant organization nearest you.

Lesbians and the Criminal Law

Since the sodomy laws in Ohio were repealed by the Ohio Legislature in 1974, lesbians and gay men can no longer be prosecuted for having sexual relations in private with other consenting adults. However, Ohio is one of only 22 states that have repealed their sodomy laws. As recently as 1976, the U.S. Supreme Court upheld Virginia's sodomy law in Doe v. Commonwealth's Attorney. The Court based its reasoning on a state's right to punish homosexual acts even when committed in the home, if the state believes it is promoting the morality and decency of its citizens. The moral of this story is if you intend to move to another state, check that state's laws first! In Ohio, lesbians can still be prosecuted for certain sexual acts. The following statutes are still used to harass and arrest gays:

Ohio Revised Code Sec. 2907.06-Sexual Imposition. Note: There can be no conviction under this section based solely upon the victim's testimony if unsupported by other evidence.

Ohio Rev. Code Sec. 2907.07(B)—Importuning. Note: The Ohio Supreme Court recently heard oral arguments in Ohio v. Phipps, where a gay man challenged the wording of the section as infringing on his First Amendment right to free speech. The court will issue an opinion in the very near future, so stay tuned for this important decision.

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Ohio Rev. Code Scc. 2907.09-Public Indecency.

Ohio Rev. Code Sec. 2907.24-Soliciting. Note: This covers any professional or casual solicitation of sexual activity for pay.

Ohio Rev. Code Sec. 2917.11-Disorderly Conduct. Note: An arresting officer has great discretion in determining what language and conduct is abusive and amounts to an offense.

Ohio Rev. Code Sec. 2950.01-Habitual Sex Offenders. Note: This section applies to any person convicted two or more times of sex offenses.

If you are charged with any of these crimes, call an attorney immediately.