Toward a New Age of Consumer Access Rights: Creating Space in the Public Accommodation for the LGBT Community

Abstract

Consumer protection laws do not serve the LGBT community despite the fact it is an identifiable class experiencing out of proportion discrimination and alienation. This article directs sexual orientation advocates down the most important paths of creating real consumer protection for the LGBT community by focusing on two large issues. First, laws prohibiting discrimination, particularly the federal Fair Housing Act and the Civil Rights Act of 1964, must be amended to protect sexual orientation, and can be amended with little constitutional cost to property owners and religious constituents. Second, state and federal public accommodation laws must adopt the modern interpretation of the public accommodation, which expands public accommodation antidiscrimination laws to include any establishment open to the public, in order to protect the LGBT community in its unique context of discrimination. The majority of jurisdictions either fail to recognize sexual orientation as a protected class in its laws or define the public accommodation too narrowly, based on a nineteenth century interpretation of the public accommodation that limits its protections to essential services. Sexual orientation discrimination largely occurs, not in essential services, but in transactions that involve cultural elements or personal values, and is therefore largely unprotected. Elane Photography v. Vanessa Willock is a successful case for sexual orientation advocates that demonstrates the good policy behind the modern interpretation of the public accommodation. When read in context of New Mexico antidiscrimination law, it is an example of how the modern interpretation has struggled to be recognized by courts, but that a new age of the public accommodation is upon us.

Keywords: gay rights, public accommodation, consumer, consumer Access, federal fair housing, equal credit opportunity, civil rights act, sexual orientation, essential services, discrimination, consumer protection