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Sexual Orientation/Gender Identity Questions

Q. Does the Washington Law Against Discrimination include protections for people based on their sexual orientation or gender identity?

A. Yes, the Washington Law Against Discrimination prohibits discrimination on the basis of sexual orientation and gender identity in the areas of employment, housing, public accommodation, credit, and insurance.  That prohibition became part of the Washington State Law Against Discrimination (RCW 49.60) on June 8, 2006.


Q. What does sexual orientation mean? 

A. As defined in the law, "sexual orientation" means heterosexuality, homosexuality, bisexuality, and gender expression or identity.


Q. What does gender expression or identity mean?

A. As defined in the law, "gender expression or identity" means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.
A common term is “transgender.”  This term covers a broad range of people who experience and/or express their gender differently from what most people expect.  They may express themselves as the gender that does not match the sex listed on their original birth certificate, or they may physically change their sex through medical treatment.  This is sometimes called transsexual. The term "transgender" also includes people who are cross-dressers or otherwise gender non-conforming.  Gender identity and expression also includes males and females who do not express their gender in stereotypically masculine or feminine ways, such as through their appearance or mannerisms.
A person does not need to have had surgery or otherwise have undergone medical treatment in order to be considered transgendered, or to be protected under the Law Against Discrimination. 


Q. If a covered entity (such as an employer) believes or assumes a person's sexual orientation is different from what it really is, and acts in a discriminatory manner based on that perception, is the person protected?

A. No.  A Washington Appeals Court decision, Davis v. Fred's Appliance, Inc., 287 P.3d 51 (2012) determined that the definition of sexual orientation does not cover "perceived" sexual orientation.  So, for example, if someone is not hired because an employer believes that they are gay, but they really are not gay, that person is not protected under the law. 

Q. Does the law just protect gay people?

A. The law protects all people, because everyone has a sexual orientation and a gender identity. Although persons who are gay, lesbian, or transgendered experience discrimination most frequently, heterosexual individuals may also be discriminated against based on sexual orientation.  For example, if a heterosexual person who is not hired for a job because the business believes a gay person will better fit customers' expectations for the position, then that person may have a claim of sexual orientation discrimination. 


Q. How does gay marriage affect the rights people have under RCW 49.60?

A. In an employment situation, if benefits or privileges of employment are given to heterosexual persons who are married (insurance coverage for a spouse, for example, or an invitation for the family to join a company function), then the employer may be required under non-discrimination law to provide the same benefit or privilege to a person who is married to a same sex partner. 
In places of public accommodation, same sex spouses must be treated equally to opposite sex spouses.  For example, if a family membership to a business is offered to opposite sex spouses, the same family membership must be offered to same sex couples.  This extends to visitation rights at hospitals; if a hospital allows an opposite sex spouse to visit an ill person, then the hospital must allow a same sex spouse to visit with the same terms.