Coming Out and Positive Images

Do the courts protect "coming out" speech?

Sometimes. The law is still very much in a developing state. As more and more lesbian and gay Americans choose to be open about their lives and seek not only tolerance but support for the relationships they form with partners, there will inevitably be more "coming out" speech to employers, coworkers, landlords, neighbors, and others. When the employer, landlord, or other party is a government agency, the Constitution should forbid imposing any penalty as a result of coming out. But because the law is not settled as to this important principle, it is imperative that, if possible, a lawyer's advice be sought in advance if there is reason to believe that honesty will lead to any form of government reprisal.

Is "coming out" speech considered political speech?

Sometimes. In 1979 the California Supreme Court suggested that a person's affirmation of homosexuality was analogous to the expression of a political point of view and could be protected by a California state labor law that prohibited all employers from interfering with the political activities of employees. 35 Since then, the California state attorney general has formally adopted that interpretation of the state labor code.36 Thus, coming out speech probably cannot be the basis of a firing in the state of California.

Federal court cases, however, have yielded mixed results. One federal appeals court invalidated the firing of a county employee based on his Gayinforming his boss that he was gay and that he intended to speak as a citizen to the county commissioners on the subject of civil rights for lesbians and gay men. The court found that the speech was protected and that firing the employee because of his speech was unconstitutional.37 In the Acanfora case discussed above, the press interviews, which included avowals of the teacher's own homosexuality, were found not to justify firing him (although his firing was permitted on other grounds).38 A third, more recent case, reached the opposite conclusion. This case involved a school guidance counselor who was fired after she told her supervisor she was bisexual; the court ruled that such information is purely personal and thus not analogous to political speech and not protected under the Constitution.39 The differing results of these cases may be reconciled by treating the first two as involving what is more traditionally thought of as political speechi.e., addressing the county commissioners or speaking to the pressin addition to the coming out statement. The third case, on the other hand, involves coming out in a one-on-one conversation with a supervisor. Regardless, coming out speech ought to be recognized by the courts as political expression.

What are agency officials likely to claim in an attempt to fire a person who publicly affirms her or his homosexuality?

Several of the most disturbing cases have turned on the question of whether a lesbian or gay employee's actions amounted to "flaunting" homosexuality. A federal court of appeals decision in 1971 upheld the refusal of the University of Minnesota to employ a gay man as head of the university library's cataloging division on the ground that his "personal conduct, as represented in the public and University news media, [wa]s not consistent with the best interest of the university." 40 The applicant had sought a marriage license to marry another man, and the event had received much publicity. A strikingly similar case also involved a person who had tried to obtain legal recognition of gay marriage. Here, a gay activist who worked as a clerk typist for a federal agency was also fired after a highly publicized attempt to reform the marriage laws of the state of Washington. A federal appeals court (including Judge, now Supreme Court Justice, Anthony Kennedy) upheld the firing on the ground that government's interest in maintaining public confidence in the agency outweighed the employee's interest in "publicly flaunting and broadcasting his homosexual activities."41 The federal government changed its policy after the case was decided, but the degree of the court's hostility to the gay plaintiff indicates the difficulty that even seemingly clear constitutional claims may face. Although these cases now seem dated, they have not yet been clearly overruled.

In anticipation of such an argument by an employer, it is extremely important to document that advocacy of lesbian.and gay rights has no adverse impact on how a person functions on the job or on how the agency functions.

Can public transit and other state entities that accept advertising dealing with social or political issues refuse to accept advertising from gay rights organizations?

No. When a public transportation authority accepts other advertisements espousing political and social concerns, it creates a public forum, and access to such a public forum could be limited only by precise, clear regulations concerning time, place, and manner of speech. Access to such a forum may not he barred because gay rights views may be unpopular.42