Ohio is home to an estimated 389,000 lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) adults, comprising roughly 4.3% of the state’s total population. 1 Kerith J. Conron & Shoshana K. Goldberg, Adult LGBT Population in the United States, UCLA Sch. of L. Williams Inst. (July 2020), https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Adult-US-Pop-Jul-2020.pdf [https://perma.cc/GH9M-AYHF]. For these individuals, Ohio law offers no protection from discrimination in employment, housing, or public accommodations. 2 Ohio Rev. Code Ann. § 4112.02. To many people – especially those in younger generations who have grown up unbothered by one’s sexual orientation or gender identity – the prospect of being singled out on the basis of such an entirely immutable trait is likely quite startling. 3 Paul Filipelli, LGBTQ+ People Need Equal Anti-Discrimination Rights, not ‘Second-Class’ Treatment, The Columbus Dispatch (June 24, 2022, 6:02 AM), https://www.dispatch.com/story/opinion/columns/guest/2022/06/24/opinion-fairness-act-would-protect-lgbtq-discrimination-ohio/7710329001/ [https://perma.cc/6HXR-ALWA]. The inconvenient truth, however, is that Ohio remains one of twenty-seven states where a person can be evicted from an apartment or refused seating at a restaurant merely based on their sexual or gender expression. 4 LGBTQ Americans Aren’t Fully Protected from Discrimination in 29 States, Freedom For All Ams., https://freedomforallamericans.org/states/ [https://perma.cc/2H2E-PMXK].
It is important to note that in 2020, the United States Supreme Court in Bostock v. Clayton County held that Title VII of the Civil Rights Act of 1964 protects LGBTQ individuals from employment discrimination. 5 Bostock v. Clayton County, 140 S. Ct. 1731 (2020). Still, Bostock is limited in scope; it provides protection to LGBTQ persons only in the workplace and only as a matter of federal law. 6 Id. Ohio Senate Bill 119, known colloquially as the Ohio Fairness Act, would go much further by extending a safeguard in employment, housing, and the public sphere. 7 S.B. 119, 134th Gen. Assemb., Reg. Sess. (Ohio 2021). The purpose of this article is to underscore the importance of passing the Fairness Act and to explore the consequences of not doing so. The article begins by providing a brief overview of Ohio’s current anti-discrimination statute, as well as an explanation of the relatively inconsequential impact of the Court’s decision in Bostock on LGBTQ Ohioans. Next, it will detail the Fairness Act and its proposed changes to Ohio law. Finally, the article will discuss the implications of passing the Fairness Act for the State of Ohio as a whole.
Presently, Ohio law forbids discrimination on the basis of race, color, religion, sex, military status, familial status, national origin, disability, age, or ancestry of any person in employment, housing, and public accommodations. 8 See Ohio Rev. Code § 4112.05 (2022). Notably absent from the foregoing list of covered characteristics is sexual orientation and gender identity. 9 Id. Moreover, the definitions section of Ohio’s anti-discrimination provision contains not only antiquated terminology associated with the LGBTQ community, but also appears to equate members of the LGBTQ population with certain types of criminals. 10 See Ohio Rev. Code § 4112.01(A)(16)(b)(ii) (2022) (referring to “transvestism” as a non-qualifying physical or mental impairment and further juxtaposing transsexualism with pedophilia and voyeurism). Taken together, the statute’s exclusion of these categories as well as the unseemly language used therein reflects a woefully outdated worldview that fails to protect a significant portion of the state’s citizenry from discrimination. 11 Id. But see Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/1-102 to -103 (2022) (“It is the public policy of this State . . . [t]o secure for all individuals within Illinois the freedom from discrimination against any individual because of . . . sexual orientation . . . .” and defining “sexual orientation” to encompass gender-related identity).
In Bostock, the Court broadened the interpretation of “sex” in Title VII of the Civil Rights Act of 1964 to encompass both sexual orientation and gender identity. 12 See Bostock v. Clayton County, 140 S. Ct. 1731, 1744 (2020). Justice Gorsuch, though himself a member of the Court’s conservative wing that otherwise dissented, wrote for the majority and offered a textualist conclusion: “When an employer fires an employee for being homosexual or transgender, it necessarily . . . . discriminates against that individual in part because of sex.” 13 Id. Undoubtedly, the Court’s decision represented a landmark victory for the LGBTQ community across the nation. 14 Steve Sanders, Bostock: A Textualist Trump Appointee Delivers a Landmark Victory for LGBTQ Equality, Am. Const. Soc’y (June 15, 2020), https://www.acslaw.org/expertforum/bostock-a-textualist-trump-appointee-delivers-a-landmark-victory-for-lgbt-equality/ [https://perma.cc/VF6Q-3PYT]. In addition to providing immediate protection for LGBTQ employees, the Court in Bostock applied a straightforward interpretation of sex-based discrimination that could potentially shape future challenges to federal statutes that prohibit discrimination on the basis of sex, such as the Fair Housing Act and Title IX. Bostock, 140 S. Ct. at 1744. Indeed, as a result of Bostock, every employer with at least fifteen employees is expressly prohibited from discriminating on the basis of sexual orientation or gender identity. 15 Jon W. Davidson, How the Impact of Bostock v. Clayton County on LGBTQ Rights Continues to Expand, ACLU (June 15, 2022), https://www.aclu.org/news/civil-liberties/how-the-impact-of-bostock-v-clayton-county-on-lgbtq-rights-continues-to-expand [https://perma.cc/VS7V-Y4HJ]. Even so, in the nearly two years since Bostock was decided, the federal protection for LGBTQ employees remains one of common law jurisprudence, not yet statutorily enshrined by Congress. 16 See The Equality Act, Hum. Rts. Campaign (May 23, 2022), https://www.hrc.org/resources/equality [https://perma.cc/ZQ6M-V7UD]. The Equality Act, which would amend the Civil Rights Act of 1964 to provide explicit non-discrimination protections for LGBTQ Americans in employment, housing, public services, education, etc., has passed the House of Representatives but is stalled in the Senate. Id. Accordingly, while a LGBTQ Ohioan could properly bring a discrimination claim under Title VII in federal court, they would have no equivalent cause of action in any Ohio state court. 17 See Sullivan v. Ikea, 12th Dist. Butler No. CA2019-09-150, 2020-Ohio-6661, ¶ 30 (Ohio Ct. App. 2020) (finding that a former IKEA employee failed to state a claim of retaliation under state law because the Ohio Revised Code does not list sexual orientation as a prohibited basis for discriminatory acts). And perhaps most importantly, to the extent that Bostock signaled state legislatures to adopt a similarly expansive interpretation of “sex” in their anti-discrimination laws, Ohio has not partaken. 18 See Ohio Rev. Code § 4112.01 (lacking any revised definition of “sex”).
The Fairness Act is nothing new to the Ohio legislature, as its first iteration was introduced in 2008 as Ohio House Bill 502, which aimed to outlaw discrimination based on sexual orientation. 19 Andy Chow, Ohio Lawmakers Once Again Push ‘Fairness Act’ for LGBTQ Protections, WOSU (Mar. 15, 2019, 7:58 AM), https://news.wosu.org/news/2019-03-15/ohio-lawmakers-once-again-push-fairness-act-for-lgbtq-protections [https://perma.cc/J8YD-CE5V]. And in the fourteen years since, the bill has been introduced – in both the Ohio House and Senate – another nine times. 20 Morgan Trau, Bipartisan Group of Ohio Lawmakers Attempt to Make LGBTQ Discrimination Illegal, Ohio Cap. J. (June 10, 2022, 3:45 AM), https://ohiocapitaljournal.com/2022/06/10/bipartisan-group-of-ohio-lawmakers-attempt-to-make-lgbtq-discrimination-illegal/ [https://perma.cc/MF3H-CRNK]. The current version, Ohio Senate Bill 119, was introduced in March 2021 and marks the tenth attempt by Ohio lawmakers to embed discrimination protections for LGBTQ individuals into law. 21 Id. Sponsored by a bipartisan pair of state senators – Nickie Antonio, a Democrat from Lakewood and Michael Rulli, a Republican from Salem – the Fairness Act takes a page out of the Bostock playbook and seeks to amend Ohio’s existing anti-discrimination statute to say that “any provision respecting sex discrimination includes discrimination because of a person’s sexual orientation or gender identity” 22 S.B. 119, 134th Gen. Assemb., Reg. Sess. at 7:181-183 (Ohio 2021). Additionally, the Fairness Act would empower the Ohio Civil Rights Commission to use mediation as an informal method to resolve allegations of unlawful discrimination 23 Id. at 8:194. as well as uphold existing religious exemptions under Ohio’s civil rights law. 24 See Ohio Rev. Code § 4112.02(O) (“[T]his section does not apply to a religious corporation, association, educational institution, or society with respect to the employment of an individual of a particular religion to perform work connected with the carrying on by that religious corporation, association, educational institution, or society of its activities”).
In 2015, the State of Ohio adopted a new official slogan: “Ohio. Find it here.” 25 Ohio Hopes New Slogan Lures Tourists to ‘Find it Here’, The Columbus Dispatch (Nov. 18, 2015, 12:38 PM), https://www.dispatch.com/story/lifestyle/travel/2015/11/17/ohio-hopes-new-slogan-lures/24168655007/ [https://perma.cc/CSP2-STRG]. Mary Cusick, the state tourism director, remarked, “There’s a lot of diversity here. How do we turn that into a competitive advantage?” 26 Id. While Cusick was correct to recognize Ohio’s rich diversity, the answer to her question is certainly not to leave hundreds of thousands of LGBTQ residents defenseless against possible prejudiced interactions in a host of spaces. 27 David Rees, Ohio’s Fight for LGBTQ+ Protections, Ohio Cap. J. (May 10, 2022, 4:00 AM), https://ohiocapitaljournal.com/2022/05/10/ohios-fight-for-lgbtq-protections/ [https://perma.cc/78TJ-AP5A]. Likewise, the consequences of allowing the Fairness Act to continue to languish in committee could be immense. 28 Id.
In January 2022, Intel, one of the world’s leading computer chip manufacturers, announced it would build a twenty-billion-dollar semiconductor plant in the suburbs of Columbus – the largest private-sector investment ever in Ohio. 29 Alana Semuels, Exclusive: Intel Reveals Plans for Massive New Ohio Factory, Fighting the Chip Shortage Stateside, Time Mag. (Jan. 20, 2022, 10:00 PM), https://time.com/6140476/intel-building-factory-ohio/ [https://perma.cc/ETK8-9KTN]. Pat Gelsinger, the company’s CEO, declared his expectation that the facility would become the largest chip factory on the planet and referred to the endeavor as working to establish the “Silicon Heartland.” 30 Id. With 20,000 new jobs expected to be generated, this project without question represents a gargantuan victory for Ohio’s economy and its workers. 31 Ian King, Intel’s $20 Billion Ohio Chip Hub Will be World’s Largest, Bloomberg (Jan. 21, 2022, 12:17 PM), https://www.bloomberg.com/news/articles/2022-01-21/intel-plans-to-spend-20-billion-on-ohio-chipmaking-hub [https://perma.cc/5FBB-THY5]. But despite this economic triumph, uncertainty lingers around Ohio’s long-term ability to attract – and retain – businesses in the state. 32 Rees, supra note 27. Senator Antonio, on the heels of the Intel announcement, underscored the economic implications of failing to pass the Fairness Act: “How [is Intel] going to [recruit employees] when Ohio still may discriminate against some of their employees and their families?” 33 Id. By widening the existing civil anti-discrimination statute’s coverage to reach LGBTQ residents, Ohio lawmakers can eliminate some of these questions. 34 S.B 119, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).
The tenuous position Ohio finds itself in is not just limited to the economy. 35 Haley BeMiller, Ohio LGBTQ Advocates Push for Non-Discrimination Law but Say Divisive Politics are Getting in the Way, The Columbus Dispatch (June 21, 2021, 2:17 PM), https://www.dispatch.com/story/news/2021/06/20/pride-month-ohio-lgbtq-advocates-push-anti-discrimination-law/7522299002/ [https://perma.cc/V4VW-4JGE]. Advocates for the Fairness Act point to Ohio’s reputation with respect to safeguarding its LGBTQ residents, noting the Human Rights Campaign’s classification of the State as having a “high priority to achieve basic equality.” Id. In addition, the State risks reputational damage by denying such fundamental civil liberty safeguards to its LGBTQ citizens. 36 Id. It is no secret that Ohio is often discarded by the national media as nothing more than flatland corn country that harbors painfully-traditional viewpoints. 37 See Jane Mayer, State Legislatures Are Torching Democracy, The New Yorker (Aug. 6, 2022) https://www.newyorker.com/magazine/2022/08/15/state-legislatures-are-torching-democracy [https://perma.cc/UV6G-GTT9] (“Ohio’s state legislature has become radically out of synch with its constituents . . . . [P]oliticians have been shocked by the state’s transformation into a center of extremist legislation . . . .”); see also David Dewitt, Ohio is Flat, Rural, Red and Boring, Except that it’s Not, Ohio Cap. J. (Feb. 10, 2020, 12:15 AM), https://ohiocapitaljournal.com/2020/02/10/purple-state-project-ohio-is-flat-rural-red-and-boring-except-that-its-not/ [https://perma.cc/P9GL-3ZEE]. To be sure, such sweeping generalities deserve fierce pushback. 38 Dewitt, supra note 37. (“[T]he massive generalizations . . . are wildly off base . . . [W]e have a lot going on in Ohio”). Those who dismiss Ohio in this way ignore much of what the Buckeye State has to offer – a low cost of living, multiple urban centers, beautiful lakeshores, leading educational institutions, and a plethora of rich cultural history. 39 See, e.g., Ohio It Is, Livability, https://livability.com/oh/ [https://perma.cc/F8TB-8PKQ]; Haadiza Ogwude, Cincinnati Named Best City for New College Graduates for the 4th Year in a Row, The Cincinnati Enquirer (July 8, 2022), https://www.cincinnati.com/story/news/2022/07/08/cincinnati-tops-list-best-cities-2022-college-grads/10012661002/ [https://perma.cc/ER58-BNLP] (discussing two Ohio cities – Cincinnati and Columbus – ranking in the top ten cities for new graduates based on job availability, affordability, and available recreation). But when Ohio lawmakers shun efforts to actually protect the LGBTQ constituents they represent and instead focus their time on enacting pieces of legislation like Ohio House Bill 616, modeled after Florida’s now-infamous “Don’t Say Gay” bill, 40 See Fla. Stat. § 1001.42 (2022) (originally introduced as the Parental Rights in Education Act in Jan. 2022, and signed into law by Florida Governor Ron DeSantis). Florida’s law prohibits “classroom instruction on sexual orientation or gender identity in grades K-3 or in a manner…not developmentally appropriate for students in accordance with state standards” Id. (emphasis added). Because the disjunctive nature of the statute indicates that beyond grade three, any mention of sexual orientation or gender expression must comport with state standards of “appropriateness”, many Florida educators fear a chilling effect and question whether things like basic family structure or Supreme Court decisions such as Obergefell v. Hodges may be discussed. See Mark Joseph Stern, The Biggest Lie About Florida’s “Don’t Say Gay” Bill Erases One Crucial Word, Slate (Mar. 15, 2022, 11:31 AM), https://slate.com/news-and-politics/2022/03/florida-dont-say-gay-censorship-republican-lies.html [https://perma.cc/ZNA8-MLL3]. perhaps the criticism carries some merit. 41 H.B. No. 616, 134th Gen. Assemb., Reg. Sess. at 3:60 (Ohio 2022) (barring teachers from instructing students in grades four through twelve on sexual orientation or gender identity in any way not compliant with “appropriate” (but undefined) state standards). Although discrimination and stigma against LGBTQ Ohioans unfortunately persists, the state legislature can pass the Fairness Act and supply these individuals with legitimate recourse so that they may fully insert themselves into the community without fear of any sort of hostile interaction. 42 Christy Mallory et al., The Impact of Stigma and Discrimination Against LGBT People in Ohio, UCLA Sch. of L. Williams Inst. (Nov. 2019), https://williamsinstitute.law.ucla.edu/publications/lgbt-stigma-discrim-oh/ [https://perma.cc/35NW-V79S].
Governor Mike DeWine in 2021 championed Ohio as a “welcoming place” and a “progressive state.” 43 Jesse Balmert, A ‘Progressive’ State: Gov. Mike DeWine Wants $50M to Encourage People to Move to Ohio, The Cincinnati Enquirer (Feb. 2, 2021, 6:57 AM), https://www.cincinnati.com/story/news/politics/2021/02/01/ohio-gov-mike-dewine-wants-50-million-market-progressive-state/4342873001/ [https://perma.cc/8Q7K-N72T]. Currently, many LGBTQ Ohioans would likely find those words to be largely empty and incompatible with their lived experiences. 44 One in Ten LGBT Workers Experienced Discrimination at Work in the Last Year, UCLA Sch. of L. Williams Inst. (Sept. 7, 2021), https://williamsinstitute.law.ucla.edu/press/workplace-discrim-press-release/ [https://perma.cc/UNL7-QNW8]. Ohio is a state full of beautiful landscapes, renowned corporate leaders, and tremendous, hardworking people. 45 Rees, supra note 27. But until Ohio chooses to recognize a basic level of equality for all its residents, the state’s future as a relevant, economic competitor will remain somewhat unclear. 46 Id. If the Governor and his peers in the Republican-controlled Statehouse truly want people to “find it here,” they will work to finally pass the Fairness Act and ensure all Ohioans – no matter who they love or how they identify – feel valued, secured, and free from unjust discrimination. 47 See supra Part III.
