Galois: Sex and Sexual Orientation Discrimination

February 23, 2005

Sex and Sexual Orientation Discrimination

(UPDATED BELOW 2/27/05)

Justin Katz claims that the arguments for same-sex marriage are "internally inconsistent." Why? Well, Professor Jack Balkin presented five possible theories for why prohibiting same-sex marriage is unconstitutional. In his post Katz explains why he disagrees with one of the theories Balkin presented, but never why any two of them are mutually incompatible. It seemed to me that Katz believed it was inherently inconsistent to have more than one reason for some view. Fortunately, in the comments we got some clarification on Katz's view. Michael, who writes the blog thirdofthemonth, asked Katz to clarify what it was he found to be inconsistent and Katz responded that it was the sex discrimination argument and the sexual orientation argument that were incompatible because...

...if marriage is an individual right, it is not group right. Approach the "orientation" discrimination question from the perspective of an individual: the individual homosexual is not being discriminated against because he or she has the same exact range of options for entering into the institution of marriage as a heterosexual of the same sex has.

There is still nothing inconsistent here, though. Katz claims that marriage is either an individual right or a group right, but it can't be both. Why not? As an individual one is establishing another person as one's spouse. As a couple a pair is seeking legal recognition of their relationship. Thus one could certainly view it as sex discrimination from the approach of the individual and sexual orientation discrimination from the approach of the couple. From this viewpoint sexual orientation refers to traits of couples and not individuals. That is there are heterosexual couples and homosexual couples but one's sexual orientation as an individual is defined solely by one's membership in a couple.

Such a view would be entirely consistent, but I dislike its focus on the group over the individual. I do not believe the above definition is a good one for sexual orientation. So let us suppose that we define sexual orientation as an individual characteristic. That is one could be a homosexual and seek to marry a person of the opposite sex, or a heterosexual who seeks to marry a person of the same sex. Is Katz correct that in this case, with the focus on the individual, one cannot make a sexual orientation discrimination argument because a homosexual and a heterosexual of the same sex have the same options in spouses? Not necessarily. Although the prohibition facially discriminates on the basis of sex and does not do so on the basis of sexual orientation, one could argue that while facially neutral it has a disparate impact on the homosexual population. That is one could claim that while both heterosexuals and homosexuals must marry a spouse of the opposite sex, homosexuals have greater difficulty finding such a spouse who will marry them. Now aside from the legal difficulties of disparate impact claims, I have trouble with this argument in that it forces one to consider whether homosexuals could find opposite sex spouses if they wanted to do so, when I believe they should not have to do so.

The reason there is no inconsistency, though, is more basic. The fact is all sexual orientation discrimination is inherently a matter of sex discrimination because one cannot define sexual orientation without reference to one's sex. Suppose you know a person is attracted to women or in a sexual relationship with a woman. You cannot possibly decide whether to classify that person as homosexual or heterosexual unless you also know whether the person is male or female. All sexual orientation discrimination concerns deviation from one's traditional gender roles. A man is traditionally supposed to form an intimate relationship with a woman but instead does so with a man. A woman is traditionally supposed to form an intimate relationship with a man but instead does so with a woman. It is no coincidence that homosexual epithets get attached to individuals of either sex who deviate from their traditional roles in other ways (how they dress, how they behave, what interests they pursue, etc.) So sexual orientation discrimination is not inconsistent with sex discrimination, on the contrary it is a particular form of sex discrimination. For example, suppose the law stated that only men could become doctors and only women could become nurses. Certainly one could argue that is sex discrimination (even though both men and women are restricted in their career choices). Yet one could also say that it discriminates specifically against women who wish to be doctors and men who wish to be nurses. That it does so makes it no less a matter of sex discrimination.

Andrew Koppelman, in his book The Gay Rights Question in Contemporary American Law, points out another problem in treating sexual orientation discrimination as something distinct and even inconsistent with sex discrimination. He writes (pp. 61-62):

Francisco Valdes's extensive study of the caselaw [83 Cal. L. Rev. 1, 119-207, 308-14 (1995)] finds that, in cases involving straightforward sex discrimination, defendants have often succeeded by imputing homosexuality to the plaintiff on the basis of the plaintiff's purported gender atypical behavior. Gender stereotyping is supposedly forbidden by sex discrimination law, but the decision to permit sexual-orientation discrimination has created a huge loophole that has been deployed even against heterosexual plaintiffs.

For these reasons I generally don't refer to sexual orientation discrimination on this blog. It is not because it is inconsistent with my firm belief that prohibiting same-sex marriage is a matter of sex discrimination. Rather it is not really distinct from that belief.

Update (2/27/05): For more on the sexual orientation discrimination as sex discrimination see this denial of summary judgement (pdf) from the District of Massachusetts in 2002 in a harrasment suit Centola v. Potter. The defendants argued that the harassment was on the basis of sexual orientation and not sex. The court noted, however

But the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear. Sex stereotyping is central to all discrimination: Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that mayor may not be true.:..

Stated in a gender neutral way, the rule is: If an employer acts upon stereotypes about sexual roles in making employment decisions, or allows the use of these stereotypes in the creation of a hostile or abusive work environment, then the employer opens itself up to liability under Title VII’s prohibition of discrimination on the basis of sex.
This is the nub of Centola's complaint: Co-workers and supervisors, he claims, discriminated against him because he failed to meet their gender stereotypes of what a man should look like, or act like. In so doing, they created an objectively hostile and abusive work environment in violation of Title VII....

Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women. While one paradigmatic form of stereotyping occurs when co-workers single out an effeminate man for scorn, in fact, the issue is far more complex. The harasser may discriminate against an openly gay coworker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, "real men don't date men." The gender stereotype at work here is that "real" men should date women, and not other men.

12:45 PM in SSM and Sex Discrimination | Permalink

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Galois

A mathematician's thoughts on same-sex marriage, election methods, politics, and more and little else of late.

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February 23, 2005

Sex and Sexual Orientation Discrimination

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