Sexual Orientation and Gender Identity Gaining Ground in State Laws

The Colorado legislature ended its session on June 8, 2021, ushering in some laws a few days early. On September 7, 2021, employers in Colorado will need to understand some new terminology and update their legal understanding of sexual orientation. As it states in the amended anti-discrimination act: 

  • Gender expression means an individual’s way of reflecting and expressing the individual’s gender to the outside world, typically demonstrated through appearance, dress, and behavior. 
  • Gender identity means an individual’s innate sense of the individual’s own gender, which may or may not correspond with the individual’s sex assigned at birth. 
  • Sexual orientation means an individual’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another individual’s perception thereof identity, or another individual’s perception thereof, in relation to the gender or genders to which the individual is sexually or emotionally attracted and the behavior or social affiliation that may result from the attraction. 

As of September 7th, in Colorado discrimination will include disability, race, creed, color, religion, sex, sexual orientation, gender identity, gender expression, marital status, familial status, national origin, or ancestry. 

In Arizona, Idaho, and Wyoming, there has been no language change regarding sex or gender. Utah changed its language to add sexual orientation and gender identity five years ago in 2016, and New Mexico added sexual orientation and gender identity in 2019. 

Even if a statute does not indicate that employment discrimination based on gender identity or sexual orientation is illegal, the U.S. Supreme Court’s decision in Bostock v. Clayton County, decided in 2020, would mean that courts would interpret the illegality of sex discrimination to include gender identity and sexual orientation. 

If you have questions about your written policies as the result of these changing laws, call us. We can help.