America is currently in the middle of a very intense debate about whether transgender people should be allowed to use the bathroom that aligns with their gender identity — a battle that has involved governors, Congress, schools, and even the president.
Meanwhile, in Canada, Prime Minister Justin Trudeau is preparing to introduce a bill that would add trans people to groups protected by Canada's legal and human rights policies.
It's a startling contrast. But it's also a reminder that, as it stands, the US doesn't include LGBTQ people in its own legal and civil rights protections. The federal government and most states do not explicitly ban discrimination on the basis of sexual orientation or gender identity in the workplace, housing, education, or public accommodations (hotels, restaurants, and other places that serve the public).
In the US, LGBTQ advocates have tried to get around the lack of explicit protections by arguing that federal civil rights laws that prohibit sex discrimination also protect LGBTQ people, because discrimination based on sexual orientation and gender identity is fundamentally based on expectations of what people of certain sexes should be like.
But courts have not validated this interpretation. Until they do, it's legal — or at least not explicitly illegal — to fire an employee because he's gay, evict a tenant because she's a lesbian, or refuse someone service at a restaurant because he's trans. And even if courts sided with advocates, sex discrimination is not illegal in public accommodations under federal law — so anti-LGBTQ discrimination in those settings would remain legal.
Some lawmakers, particularly on the Democratic side, want this to change. In fact, it was lawmakers in Charlotte, North Carolina, trying to add protections for LGBTQ people that set off the current national debate over trans people and bathrooms.
After Charlotte passed a nondiscrimination ordinance that included sexual orientation and gender identity, state officials focused on the bathroom aspect — the law allowed trans people to use the bathroom for their gender identity — to criticize the law. They then banned all local nondiscrimination ordinances that include sexual orientation and gender identity from the state, on top of prohibiting trans people from using the bathroom for their gender identity in schools and other state government buildings.
So Canada may be ready to add sweeping protections for trans people into its national law, but the US is going to have to get over its bathroom debate before it does the same.
