Sexual Orientation and Gender Identity Discrimination

Sexual Orientation and Gender Identity Discrimination: A Distinct Legal History

If you’ve been treated unfairly at work because you’re gay, lesbian, bisexual, or transgender, you’re protected under federal, DC, and Maryland law. But unlike most topics on this site, sexual orientation and gender identity discrimination has a genuinely distinctive legal history — the theory that protects you differs depending on whether you’re relying on federal law or Maryland state law, and DC has protected LGBTQ+ workers directly, by name, since before almost anywhere else in the country. This page focuses on what makes this history and legal framework distinctive. For filing deadlines, employer coverage thresholds, and damages, see our Sex Discrimination pages for DC, Maryland, and federal employees since sexual orientation and gender identity claims generally follow the same process as sex discrimination claims in each jurisdiction. Federal Law: Bostock v. Clayton County (2020)

Federal Law: Bostock v. Clayton County (2020)

For decades, it was unclear whether Title VII’s ban on sex discrimination protected LGBTQ+ employees. The Supreme Court resolved that question in 2020 in Bostock v. Clayton County, holding 6-3 that firing someone for being gay or transgender is necessarily sex discrimination — reasoning that it’s impossible to discriminate against someone for being gay or transgender without taking their sex into account.

DC: Direct Protection Since 1977

DC took a different approach entirely, and did so decades before Bostock. The DC Human Rights Act has protected sexual orientation as its own distinct, explicitly named trait since the law’s original 1977 enactment. Gender identity or expression was added as its own separate protected trait in 2006, with specific implementing regulations addressing the right of transgender individuals to use restrooms, dressing rooms, and other facilities consistent with their gender identity.

Maryland: A Separate Category, Not a Form of "Sex"

Maryland’s legal framework is the most nuanced of the three. Maryland added sexual orientation as its own protected category in 2001, and gender identity in 2014 through the Fairness for All Marylanders Act — both are protected, but as separate, explicitly listed categories under the Fair Employment Practices Act (FEPA), not as a form of sex discrimination.

In 2023, Maryland’s Supreme Court addressed this directly in Doe v. Catholic Relief Services, ruling that Maryland’s statutory definition of “sex” does not include sexual orientation — the opposite conclusion from Bostock’s interpretation of federal law. The Court pointed to the legislative history of the 2001 amendment, which added sexual orientation as its own distinct category rather than folding it into the existing sex discrimination provision, as evidence that Maryland lawmakers understood the two as legally separate.

One narrower consequence

Maryland’s Equal Pay for Equal Work Act covers sex and, since 2016, gender identity — but the 2023 ruling confirmed it does not extend to sexual orientation. A pay discrimination claim based on sexual orientation in Maryland would need to rely on FEPA’s separate sexual orientation protection, or on federal law, rather than the state Equal Pay Act specifically.

Why the Legal Theory Matters

For most workers, the practical protection is the same regardless of which legal theory applies — DC, Maryland, and federal law all prohibit this kind of discrimination. But the specific theory can matter in real ways:

A DC or Maryland worker generally doesn’t need to invoke Bostock at all, since both jurisdictions name sexual orientation and gender identity directly.
A claim brought under a law that only mentions “sex” — without separately naming sexual orientation — depends on whether that jurisdiction’s courts read “sex” the way Bostock did, or the way Maryland’s Supreme Court did.
Religious exemptions and other statutory carve-outs are sometimes written differently depending on whether the underlying protection is framed as “sex” or as its own named category.

What Counts as Discrimination Based on Sexual Orientation or Gender Identity?

This can include:

Being passed over for hiring, promotion, or a raise because you’re LGBTQ+
Being denied the ability to use facilities, or being addressed in a manner, consistent with your gender identity
Harassment or a hostile work environment based on sexual orientation or gender identity
Retaliation against an employee who reports this kind of discrimination

Talk to an Attorney

Because the legal theory and history differ by jurisdiction, getting the framing right from the start can matter. If you believe you’ve experienced discrimination at work because of your sexual orientation or gender identity — in DC, Maryland, or as a federal employee — Wilkenfeld Law Office can help you understand your strongest options.

Or call 301.245.3035 · Intake@WilkenfeldLO.com

This article provides general information and is not legal advice. Contacting us does not create an attorney-client relationship.

Reviewed by Ari Wilkenfeld, Esq. (DC Bar No. 461063; MD Bar No. 9806240300). Ari has over 27 years of experience litigating in federal and state courts, and before the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Merit Systems Protection Board (MSPB), and various arbitration panels. Ari has been recognized by Esquire Magazine as “a famously determined Civil Rights lawyer” and by the New York Post as “a high powered DC Lawyer.” Last updated: August 28, 2026.