In 22 states, gay couples can be legally booted from restaurants. How often that happens is unclear

Kick-starting the celebrations for Pride month, President Joe Biden depicted what he characterized as an unpleasant truth about what it means to be LGBTQ+ in the United States.

"When a person can be married in the morning and thrown out of a restaurant for being gay in the afternoon, something is still very wrong in America," he said June 10 at an annual Pride celebration on the White House’s South Lawn, while promoting The Equality Act, which would strengthen federal anti-discrimination law for LGBTQ+ people.

Biden made a similar statement in December when celebrating the passage of the Respect for Marriage Act. 

Although it drew criticism, Biden’s illustration is not without factual backing. Same-sex marriage is federally protected, but dining in a restaurant with your same-sex spouse is not.

Some states have passed anti-discrimination laws, but in 22 states, it is legal under state law for proprietors to refuse service to customers based on their sexual orientation or gender identity. Local areas may have anti-discrimination ordinances, but it varies.

However, it is hard to tell how often this sort of discrimination actually occurs and where. We found news reports of same-sex couples being refused service as recently as 2021, but one expert said these instances are on the decline. There’s not good data on how often LGBTQ+ people are still discriminated against in public places, but Biden is accurate that it can happen in America, and is legally allowed in nearly half of the states in the U.S.

In 2015, the U.S. Supreme Court ruled in the landmark case Obergefell v. Hodges that same-sex couples have the federally protected right to marry.   

According to legal experts, there are no federal anti-discrimination laws that protect people from being kicked out of public accommodations such as restaurants, movie theaters, libraries and shops based on their sexual orientation or gender identity. 

The Civil Rights Act of 1964 was focused primarily on addressing racial discrimination in various aspects of public life. Public accommodations like hotels and restaurants were barred from discriminating on the basis of race, color, religion, and national origin — not sex, sexual orientation or gender identity.  

Absent federal legislation, 22 states and Washington, D.C., have passed their own explicit protections against sexual orientation and gender identity discrimination in public accommodations and businesses, according to the Human Rights Campaign, an LGBTQ+ advocacy organization. A 23rd state, Wisconsin, protects only against sexual orientation discrimination. 

Five more states offer protection via legal precedent from a 2020 Supreme Court decision.  Bostock v. Clayton County held that the term "sex" in Title VII of the 1964 Civil Rights Act included discrimination based on sexual orientation and gender identity. This expanded the understanding of sex discrimination in employment, but didn’t apply to public accommodations, because sex was never a protected characteristic in Title II of the Civil Rights Act. 

"There's just no hook to provide protections for LGBTQ people under federal public accommodations laws," said Sarah Warbelow, the Human Rights Campaign’s vice president of legal policy.

Still, according to the Human Rights Campaign, five states with their own laws prohibiting sex-based discrimination employ that Bostock interpretation when they receive complaints of discrimination based on sexual orientation or gender identity. They are Alaska, Kansas, North Dakota, Pennsylvania and Florida. 

This leaves 22 states with no legal protection for LGBTQ+ people in public accommodations. 

Several legal experts and leading LGBTQ+ organizations told PolitiFact that in those states, people could be thrown out of a restaurant for their sexual orientation or gender identity and have no legal recourse.

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Protections can also vary from city to city and town to town. In states that lack protections, some local municipalities, such as Raleigh, North Carolina, and Columbus, Ohio, have passed their own anti-discrimination ordinances that cover LGBTQ+ discrimination. 

"But those local city ordinances are very weak," said Ohio State University law professor Ruth Colker. The penalty is often a fine, she said. 

It’s unclear how commonly people are asked to leave businesses because of their sexual orientation or gender identity. But PolitiFact found several news reports of LGBTQ+ people saying they were kicked out of restaurants over the past decade, in states with and without anti-discrimination laws.

In 2019, a lesbian couple said a local restaurant in Missouri refused to host the couple’s rehearsal dinner after learning of the couple’s sexual orientation. Missouri does not have anti-discrimination protections for LGBTQ+ people in public accommodations. 

In early 2021, NBC News reported that a gay couple said they were told to leave a New York City restaurant because of their sexual orientation. New York has anti-discriminatory laws that protect against such discrimination. 

"I think overall, there has been a decline in discrimination against same-sex couples," said Warbelow, "but it's not an elimination."

A 2022 poll by the progressive policy advocacy group Center for American Progress found in a survey of 1,828 LGBTQI+ that over one-third of LGBTQI+ respondents said they faced some kind of discrimination in the past year. Twenty-eight percent reported they had experienced discrimination in a public place. 

In written testimony to the Senate Judiciary Committee in favor of The Equality Act, Lambda Legal, a civil rights organization focused on LGBTQ+ issues, reported that between 2014 and 2020, "our Legal Help Desk received 1,165 calls for help concerning discrimination in places of public accommodation." The testimony also described 17 unique incidents across the country in states like Georgia, Illinois, Ohio and New Jersey.

The Supreme Court in recent years has taken up two lawsuits regarding state laws against LGBTQ+-based discrimination.

In 2018, the court ruled in favor of Colorado baker Jack Phillips, who refused on religious grounds to bake a wedding cake for a same-sex couple. But the court’s decision did not address whether the baker was exempted from the state’s anti-discrimination law; rather, it determined that the Colorado Civil Rights Commission had acted with anti-religious bias when it enforced the anti-discrimination law against Phillips.

The court has another opportunity to address the larger question, however. It is expected to issue an opinion soon in another Colorado case, 303 Creative LLC v. Elenis, in which an evangelical Christian graphic artist who does not want to create wedding websites for same-sex couples is seeking protection from the same anti-discrimination law.

If the court determines that the constitutional right to free speech supersedes Colorado’s anti-discrimination law, legal experts said it could weaken the enforcement of existing state laws elsewhere. 

Legal experts told PolitiFact that federal anti-discrimination protection for LGBTQ+ people would require legislation by Congress. The Equality Act, introduced in 2021, would expand the scope of public accommodations and add sexual orientation and gender identity to anti-discrimination laws, Warbelow said. The House passed the bill in 2021, but it never came to a vote in the Senate. In the current divided Congress, it is unlikely to become law. 

The White House did not respond to a request for comment. 

Biden said that in the U.S., "a person can be married in the morning and thrown out of a restaurant for being gay in the afternoon."

Same-sex marriage has been federally protected in the U.S. since 2015, and many states have passed laws preventing discrimination in public spaces based on sexual orientation or gender identity. But not all of them.

Without a federal law offering those protections, it is still possible in 22 states to get married in the morning and thrown out of a restaurant without legal recourse. Some cities in those states have their own anti-discrimination laws. 

It’s not clear how often people are "thrown out" of restaurants for their sexual orientation. Incidents like this are difficult to track, but news reports and testimony from legal advocacy groups show that it does happen, including in states that have legal protections. 

Biden is accurate in that this can happen, but his remarks need clarification. Some states do provide some legal protection against discrimination and it’s unclear how commonly this occurs. We rate his claim Mostly True.