A New Face on the Same Problem: The State of Alabama Fifty Years Later By Julie Gafnea

A New Face on the Same Problem: The State of Alabama Fifty Years Later

By Julie Gafnea

Thursday, October 30th, Apple CEO Tim Cook announced in Businessweek that he is proud to be gay.[1] This followed just two days after his controversial speech at the State Capitol on behalf of the Alabama Academy of Honor Class of 2014 inductees.[2] He focused his remarks on the state of Alabama fifty years after the signing of the Civil Rights Act of 1964.[3] In his speech, Cook, a native Alabamian, criticized his home state for being slow to grant equal rights to everyone, including the LGBT community. [4] “As a state we took too long to take steps toward equality and once we began, our progress was too slow.” He went on to proclaim that “we can’t change the past, but we can learn from it, and we can create a different future.”[5]

You don’t have to grow up in Alabama to know about the great struggles that were endured in the South during the Civil Rights Era. It was a tragic but glorious time of blood, sweat, and tears. It was also an era that gave birth to one of the most important pieces of legislation since the Constitution–the Civil Rights Act of 1964. This landmark piece of legislation outlawed discrimination based on race, color, religion, sex, and national origin in various contexts such as public accommodations engaged in interstate commerce, public facilities, and covered employers. [6] In addition, it also barred unequal application of voter registration requirements and encouraged the desegregation of public schools.[7]

This year, fifty years since the Act’s passage, there has been much reflection on the progress made and the victories yet to come. Here in Alabama, there is a clear attitude of celebration toward the Civil Rights Movement and everything it represents. However, there is a strange tolerance for the dearth of protections afforded to the LGBT community. The same types of discrimination faced by the African American community fifty years ago, now seeming so foreign and outrageous, continue to be legally accepted when directed at the LGBT community.

Using Alabama’s lack of protection from employment discrimination as an example, Cook stated that “in the state of Alabama, a person can still be fired based on their sexual orientation.”[8] Title VII of the Civil Rights Act of 1964 prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. [9] Despite attempts to persuade courts to include gender identity and sexual orientation under the category of sex, federal courts and the EEOC agree that Title VII does not protect individuals from employment discrimination on the basis of their sexual orientation.”[10] However, a hand full of recent decisions as well as the EEOC have found that workplace discrimination against transsexuals and gender nonconforming  individuals is sex discrimination under Title VII.[11] Many attempts have been made by Congress to end employment discrimination by passing the Employment Non-discrimination Act (ENDA).[12] Closely modeling existing civil rights laws, the Act would provide basic protections against workplace discrimination on the basis of sexual orientation or gender identity.[13] However, repeated failure has left the LGBT community largely at the mercy of state and local legislatures to pass similar laws.[14]

Alabama’s lack of protection for the LGBT community extends beyond the work place. Title II of the Civil Right Act of 1964 prohibits discrimination by places of public accommodation.[15] Public accommodations refers to both governmental entities and private businesses that provide services to the general public such as restaurants, movie theaters, libraries and shops.[16] However, it only prevents discrimination based on race, color, religion, or national origin. [17] Federal law does not prevent businesses from refusing service to customers based on sexual orientation or gender identity. Again, state and local laws must be relied upon to protect the LGBT community. [18] Thus, communities within hostile political climates like Alabama are largely left exposed and unprotected.

In addition to a lack of protection under the Civil Rights Act of 1964, the LGBT community lacks basic protection from housing discrimination. Section 1982 of Title 42 of the United States Code provides that all citizens of the United States shall have the same right in every state and territory as is enjoyed by white citizens of such state and territory to inherit, purchase, lease, sell, hold, and convey real and personal property.[19] Thus, it applies only to racial discrimination. The Fair Housing Act or Title VIII of the Civil Rights Act of 1968[20] prohibits discrimination in the sale, rental, financing of or other housing-related transactions based on race, color, national origin, religion, sex, family status or disability. [21] It also does not protect people against discrimination based on sexual orientation or gender identity.[22] However, the Department of Housing and Urban Development (HUD) recently enacted rules providing housing protections to LGBT individuals and families.[23] The rule adds additional nondiscrimination requirements to existing HUD programs as well as Federal Housing Administration programs such as mortgage insurance programs, community development programs, and public and assisted housing programs.[24] Thus, in a state like Alabama that has not passed any additional protection guarantee to the LGBT community, it is completely legal to deny someone housing based entirely on their sexual orientation or gender identity, if not subject to the newly enacted HUD requirements.[25]

State and local laws are also depended upon to enact hate crime laws protecting the LGBT community. Currently, Alabama’s  law only protects against offenses motivated “by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability.”[26] Alabama lacks any law addressing hate crimes based on sexual orientation or gender identity.[27] In 2009, Alvin Holmes sponsored House Bill 533 in his latest attempt to amend Alabama’s hate crime law to include crimes motivated by the victim’s sexual orientation.[28] Unfortunately, the full Senate did not take action on it before the legislature adjourned.[29] Thus, in Alabama there is still no hate crime law under which to charge someone for a hate or bias motivated crime against a member of the LGBT community.

As many know, in Alabama there is still no legal recognition of same-sex marital relationships. Among the harshest in the country, Alabama has passed the Alabama Marriage Protection Act [30] as well as the Sanctity of Marri of age Amendment to the Alabama Constitution.[31] Fortunately, on November 7, 2014, the Sixth Circuit issued a decision that upheld Michigan’s same-sex marriage ban. [32] This decision marks the first time a circuit court of appeals has upheld a state’s ban since the landmark Windsor decision. What initially looks like a step in the wrong direction is actually a large step forward, because it will likely produce the circuit split needed to compel the Supreme Court to take up the issue.[33] Therefore, Alabama will most likely, again, be forced unwillingly to recognize the constitutional rights of a minority group. Unfortunately, the Alabama LGBT community will simply have to wait until such a decision is made.

These are just a few of the examples of vulnerability Alabama’s LGBT community faces. Though the Civil Rights Act of 1964 is being celebrated for its fiftieth anniversary, here in Alabama the same types of discrimination continue to persist. Tim Cook was absolutely right to point out that Alabama has always been one of the last states to be dragged kicking and screaming through each social movement, especially when the movement has involved equal legal protection under the law for minority groups. Despite numerous achievements won during the Civil Rights Era and over the past fifty years, until the LGBT community in Alabama is given equal protections afforded to similar minority groups, the Movement will continue on without a satisfactory conclusion.

[1]Tim Cook, Tim Cook Speaks Up, Bloomberg Businessweek (October 30, 2014 ), http://www.businessweek.com/articles/2014-10-30/tim-cook-im-proud-to-be-gay.

[2] Erin Edgemon, Apple CEO Tim Cook Criticizes Alabama for not Offering Equality to LGBT Community, AL.com (last updated October 27, 2014, 4:35 PM),  http://www.al.com/news/montgomery/index.ssf/2014/10/apple_ceo_tim_cook_criticizes.html.

[3] Id.

[4] Id.

[5] Id.

[6] Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2 U.S.C., 28 U.S.C., and 42 U.S.C.).

[7] Id.

[8] Erin Edgemon, Apple CEO Tim Cook Criticizes Alabama for not Offering Equality to LGBT Community, AL.com (last updated October 27, 2014, 4:35 PM),  http://www.al.com/news/montgomery/index.ssf/2014/10/apple_ceo_tim_cook_criticizes.html.

[9] 42 U.S.C. § 2000e-2 (1964).

[10] Dianne Avery et al., Statutory Supplement to Employment Discrimination Law 453 (8th ed. The Labor Law Grp. 2010).

[11] Id.; Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012), http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt; Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011), http://www.eeoc.gov/decisions/0120110873.txt; Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011), http://www.eeoc.gov/decisions/0520110649.txt.

[12] Id.

[13] Resources: Employment Non-Discrimination Act, Human Rights Campaign (last visited Nov. 8, 2014),

http://www.hrc.org/resources/entry/employment-non-discrimination-act.

[14] As of October 9, 2014, 18 states and D.C. prohibit employment discrimination based on sexual orientation and gender identity: California (1992, 2003), Colorado (2007), Connecticut (1991, 2011), Delaware (2009, 2013), Hawaii (1991, 2011), Illinois (2006), Iowa (2007), Maine (2005), Maryland (2001, 2014), Massachusetts (1989, 2012), Minnesota (1993), New Jersey (1992, 2007), New Mexico (2003), Nevada (1999, 2011), Oregon (2008), Rhode Island (1995, 2001), Vermont (1991, 2007) and Washington (2006). Three states prohibit discrimination based on sexual orientation only: New Hampshire (1998), New York (2003) and Wisconsin (1982). Statewide Employment Laws And Policies, Human Rights Campaign (last updated October 9, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/statewide_employment_10-2014.pdf.

[15] 42 U.S.C. § 2000a (1964).

[16] Public Accommodations Laws And Policies, Human Rights Campaign (last updated October 9, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/public_accommodations_10-2014.pdf.

[17] Id.

[18] As of October 9, 2014, only 17 states and D.C. prohibit discrimination based on sexual orientation and gender identity by providers of public accommodations: California (2005, 2011), Colorado (2008), Connecticut (1991, 2011), Delaware (2009, 2013), Hawaii (2006), Illinois (2006), Iowa (2007), Maine (2005), Maryland (2009, 2014), Minnesota (1993), Nevada (2009, 2011), New Jersey (1992, 2006), New Mexico (2004), Oregon (2007), Rhode Island (1995), Vermont (1992, 2007) and Washington (2006). Four states prohibit only sexual orientation discrimination: Massachusetts (1989), New Hampshire (1998), New York (2002) and Wisconsin (2009). Public Accommodations Laws And Policies, Human Rights Campaign (last updated October 9, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/public_accommodations_10-2014.pdf.

[19] 42 U.S.C. § 1982 (1982).

[20] 42 U.S.C. § 3604(a) (1968); 42 U.S.C. § 3605 (1968).

[21] Housing for LGBT People: What You Need to Know About Property Ownership and Discrimination, Human Rights Campaign (last visited Nov. 08, 2014), http://www.hrc.org/resources/entry/housing-for-lgbt-people-what-you-need-to-know-about-property-ownership-and.

[22] Id.

[23] Ensuring LGBT Access to HUD Housing Programs, ACLU (last visited Nov. 8, 2014), http://www.lgbtagingcenter.org/resources/pdfs/HUDfactsheet.pdf.

[24] Id.

[25] As of October 9, 2014, 18 states and D.C. prohibit housing discrimination based on sexual orientation and gender identity: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Three states prohibit housing discrimination based on sexual orientation only: New Hampshire, New York and Wisconsin. Statewide Housing Laws & Policies, Human Rights Campaign (last updated October 9, 2014),

http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/statewide_housing_10-2014.pdf.

[26] Ala. Code 1975 § 13A-5-13 (1994).

[27] As of June 19, 2013, fourteen states lack laws addressing LGBT inclusion into existing hate or bias crimes: Alabama, Alaska, Idaho, Mississippi, Montana, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Utah, Virginia and West Virginia. State Hate Crimes Laws, Human Rights Campaign (last updated June 19, 2013), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/hate_crimes_laws_022014.pdf.

[28] 2009 Ala. Legis. Serv. (West); HB 533 – Hate Crime Law Expansion – Key Vote, Vote Smart (last visited Nov. 8, 2014), http://votesmart.org/bill/9338/25453/hate-crime-law-expansion#.VF_Vh8nYcjJ.

[29] HB 533 – Hate Crime Law Expansion – Key Vote, Vote Smart (last visited Nov. 8, 2014), http://votesmart.org/bill/9338/25453/hate-crime-law-expansion#.VF_Vh8nYcjJ.

[30] Ala. Code 1975 § 30-1-19 (1998).

[31]Ala. Const. art. I, § 36.03. As of October 22, 2014, Alabama joins eighteen other states with constitutional amendments restricting marriage to one man and one woman: Alabama (2006), Arkansas (2004), Georgia (2004), Kansas (2005), Kentucky (2004), Louisiana (2004), Michigan (2004), Mississippi (2004), Missouri (2004), Montana (2004), Nebraska (2000), North Dakota (2004), Ohio (2004), South Carolina (2006), Tennessee (2006) and Texas (2005). Only five of these states’ law or amendment have language that does not affect other legal relationships such as civil unions or domestic partnerships: Florida, Kansas, Nebraska, Missouri and Tennessee. Statewide Marriage Prohibitions, Human Rights Campaign (last updated October 22, 2014), http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/marriage-equality.pdf.

[32] DeBoer v. Snyder, Nos. 14–1341, 3057, 3464, 5291, 5297, 5818, 2014 WL 5748990 (6th Cir. Nov. 6, 2014).

[33] Since Windsor, state same-sex marriage bans have been ruled unconstitutional in the Tenth Circuit, Fourth Circuit, Seventh Circuit, and Ninth Circuit. Marriage Litigation, Freedom to Marry (last visited Nov. 8, 2014), http://www.freedomtomarry.org/litigation.

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