In a development that made front-page news across the country, Houston voters recently repealed the city's first-ever non-discrimination ordinance. The ordinance, known as HERO (the Houston Equal Rights Ordinance), prohibited discrimination in housing, public accommodation, and employment based on race, gender, and 24 other characteristics, most of which were already protected under state and federal law. But opponents focused on HERO's protections against discrimination based on sexual orientation and gender identity, claiming that the transgender access provisions would allow men to masquerade as women in order to harass girls in public restrooms. Fears about “the bathroom bill” trumped any discussion of the ordinance's broader employment-related protections, and HERO was defeated.

While the defeat of HERO eliminates one set of local rules related to employment of LGBT workers, federal statutes are increasingly being interpreted to provide similar benefits. The Houston vote notwithstanding, the clear trend appears to be one of expanding, rather than eliminating, such protections.

On its face, Title VII of the Civil Rights Act of 1964 bars employment discrimination on the basis of “sex” but says nothing about discrimination based on “sexual orientation.” As a result, cases alleging “sexual orientation discrimination” under Title VII were once routinely dismissed for failure to state a claim. Yet because some of the earliest Title VII sex discrimination cases also found that discrimination based on “sex” could include discrimination based on failure to conform to “gender stereotypes,” some plaintiffs have argued that being discriminated against for dating or marrying someone of the same sex is a form of gender nonconformity protected under federal law. As a result, some claims of “sexual orientation” discrimination have more recently been sustained as Title VII “sex” discrimination claims.