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Policing, Prisons, & Criminal Justice | Discriminatory Treatment | Vermont

Vermont Discriminatory Treatment Q&A

Do protections exist for LGBT people under state anti-discrimination laws?

Yes.  Vermont was among the first states to pass a comprehensive statewide law prohibiting sexual orientation discrimination in 1992 (See, e.g., 21 V.S.A. § 495 (employment)). “Sexual orientation” is defined as “female or male homosexuality, heterosexuality or bisexuality (1 V.S.A. § 143).

In May, 2007, Vermont became the third state in New England to explicitly prohibit discrimination on the basis of gender identity (Public Act 41, An Act Relating to Prohibiting Discrimination on the Basis of Gender Identity, 2007-2008 Leg., Reg. Sess. (Vt. 2007)). The law defines gender identity as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth” (1 V.S.A § 144).

Does it also protect people perceived of as LGBT?

As to sexual orientation, maybe.  Although the anti-discrimination laws themselves do not distinguish between actual and perceived sexual orientation, the questionnaire used by the Civil Rights Unit of the Attorney General’s Office allows people to complain of discrimination on account of both sexual orientation and perceived sexual orientation.  However, the Human Rights Commission does not make this distinction in its employment complaint form.  There is no case law on this.  (Note:  The school harassment law, which is discussed below in the Students’ Rights section, does explicitly provide protection for students and their family members who are or are perceived of as gay, lesbian or bisexual.  The hate crime law, discussed below, also applies to actual or perceived sexual orientation and gender identity.)

As to gender identity, and as noted above, gender identity is defined as wither “actual or perceived gender identity.” This language includes discrimination based upon perception.

I have been told by police to “move along” from public areas. Is that legal?

Not necessarily.  If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are not engaged in unlawful activity.  Public places belong to everyone.  They are also likely to be places of public accommodation to which anti-discrimination laws apply.  Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct (see Kent v. Dulles, 357 U.S. 116, 126 (1958)).

What should LGBT people expect from interactions with police?

The presence of individuals who appear to be LGBT—whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason—should not trigger any special scrutiny by a police officer.

Police may, of course, approach a person, and make inquiries, but even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, that alone does not constitute grounds for the person to be arrested.  A police officer may generally only stop a person briefly for purposes of investigation if they have “reasonable suspicion” that a crime has been committed or is about to be committed (State v. Schmitt, 150 Vt. 503, 507 (1988); State v. Phillips, 140 Vt. 210, 215 (1981) (police can make brief investigatory stop based on reasonable suspicion to ask a few questions, but further detention must be based on consent or probable cause); Terry v. Ohio, 392 U.S. 1, 16 (1968)). In addition, in some circumstances, police officers without reasonable suspicion of criminal activity are permitted to intrude on a person’s privacy to carry out “community care-taking” functions, such as aiding people in need of assistance (State v. Marcello, 157 Vt. 657, 658 (1991)). These intrusions must be objectively reasonable and based on specific articulable facts (State v. Burgess, 163 Vt. 259, 262 (1995)).

An arrest can only occur upon “probable cause” that a crime has been committed (Vt. R. Crim. P. 3(a)). When an encounter with the police becomes too intrusive to qualify as an investigatory stop, as described above, the encounter may be deemed a full scale arrest and must be justified by probable cause (State v. Chapman, 800 A.2d 446, 449 (Vt. 2002)).

What can I do if I believe the police have treated me improperly?

Complaints may be made to any individual police department for matters concerning its officers.  Many departments have their own Internal Affairs Divisions that receive and investigate civilian complaints against police officers.

For information on how to submit complaints to the Vermont State Police, visit: http://vsp.vermont.gov/headquarters/internalaffairs. You may submit a complain online, by email or to any Station Commander of the Vermont State Police.

In some cases, you may decide to pursue a lawsuit either because of injuries, improper detainment, or for some other reason.  These matters are highly specialized, and GLAD can make attorney referrals.