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Thursday, April 25, 2002

PALM SPRINGS, CA -- At the "2002 Appellate Justices Institute," Williams Project Faculty Chair, Professor Williams Rubenstein, presents "Is Sexual Orientation Discrimination (Just) Sex Discrimination?" as part of a panel with Professor Jody Armour (USC School of Law) on "What's Happening in Legal Education: Cutting-Edge Issues Coming Our Way."

Organized by the Judicial Council of California, Administrative Office of the Court, Education Division - California Center for Judicial Education and Research (CJER).

IS SEXUAL ORIENTATION DISCRIMINATION (JUST) SEX DISCRIMINATION?
Presentation of Prof. William B. Rubenstein, UCLA School of Law
(ABSTRACT)

DISCRIMINATION AGAINST INDIVIDUAL LESBIANS AND GAY MEN
Employment

Sexual orientation discrimination and sex discrimination in the workplace are generally perceived as two distinct forms of bias. Both are explicitly prohibited by California law. Only sex discrimination is prohibited by federal law (Title VII); sexual orientation discrimination is not. Because sexual orientation discrimination is not barred by federal law, lawyers for gay men and lesbians in the 38 states without gay rights laws have had strategic incentives to argue that sexual orientation discrimination is a form of sex discrimination -- to convince a court of that is to bring an otherwise non-prohibited form of discrimination within the coverage of federal law. My goal here, though, is to ask you to consider the question on a slightly more conceptual level. Is sexual orientation actually (not just strategically) simply one form of sex discrimination? Consider how many of the following examples of sexual orientation discrimination in the workplace are actually analogous to forms of bias encompassed in the current federal regime of sex discrimination.

	SEX DISCRIMINATION	SEX/O DISCRIMINATION
Discrimination *Simpliciter*	"We don't hire women here" violates Title VII and California law	"We don't hire lesbians here" does not violate Title VII; violates California law
Gender Role Deviation	Accounting firm denies partnership to woman because she is not feminine enough; the Supreme Court finds sex discrimination, holding that employers cannot "evaluate employees by assuming or insisting that they match[] the stereotype associated with their group." Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).	In a series of similar cases involving effeminate men who were constructively discharged, courts have not found Title VII violations, on the grounds that sexual orientation discrimination was the animating factor and is not covered by Title VII. See, e.g., Rene v. MGM Grand Hotel, 243 F.3d 1206 (9th Cir. 2001); Dillon v. Frank, 952 F.2d 403 (6th Cir. 1992)
Hostile Work Environment Sexual Harassment	Sexual harassment is defined as "verbal or physical conduct of a sexual nature . . . [that has] the purpose or effect of unreasonably interfering with an individual's work performance or [that creates] an intimidating, hostile, or offensive working environment." EEOC Regs, 29 C.F.R.  1604.11(a) (1998). Prohibited by federal and state law.	A man working on an oil rig among male co-workers is "forcibly subjected to sex-related, humiliating actions" including being picked on, assaulted, and called names "suggesting homosexuality." In Oncale v. Sundowner Offshore Serv. 523 U.S. 75 (1998), the Supreme Court ruled that this "same-sex sexual harassment" is actionable under Title VII.

DISCRIMINATION AGAINST SAME-SEX COUPLES
Sodomy Restrictions and Marriage Laws

Laws that prohibit same-sex sexuality, generally called "sodomy" laws, and laws that restrict the privilege of marriage to opposite-sex couples both are generally perceived as discrimination on the basis of sexual orientation. The question is: what happens if we re-conceptualize these as instances of sex discrimination, not sexual orientation discrimination? (Because California no longer has a sodomy statute outlawing same-sex sexuality, I will focus here on the opposite-sex marriage requirement.)

Laws requiring opposite-sex marriages do not literally discriminate against gay people: they, too, are able to marry people of the opposite sex. Generally, though, it is easy to see the disparate impact that such laws have on gay people. The status of sexual orientation discrimination as a matter of federal equal protection law is not settled. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court used rational basis review to strike down a Colorado constitutional amendment that discriminated against gay people; the Court did not, however, state that rational basis was generally applicable to laws which disadvantage gay people. Nonetheless, there are few decisions (state or federal) applying stricter review. But see, Watkins v. U.S. Army, 847 F.2d 1329 (9th Cir. 1988), different results reached on reh'g, 875 F.2d 699 (9th Cir. 1989) (en banc), cert. denied, 498 U.S. 957 (1990). Under a rational basis test, it is conventionally assumed that state laws will be upheld. Sex discrimination, of course, triggers higher levels of constitutional review, perhaps, under the federal constitution, strict judicial scrutiny. See United States v. Virginia, 518 U.S. 515 (1996). Advocates of same-sex marriage therefore have strategic reasons for conceptualizing the ban on same-sex marriages as sex discrimination.

My goal here, though, is to ask you to consider the question on a slightly more conceptual level. Is sexual orientation actually (not just strategically) simply one form of sex discrimination? Consider what is referred to as "the Loving analogy" -- the relationship between laws prohibiting inter-racial marriages and laws prohibiting same-sex marriages.

	RACE DISCRIMINATION	SEX DISCRIMINATION
The Law	Miscegenation whites must marry whites; blacks, blacks -- whites and blacks cannot marry one another	Marriage women must marry men; men, women -- two men or two women cannot marry one another
Equal Application Defense	whites and blacks are treated equally; neither can marry people of the other race Cf. Pace v. Alabama, 106 U.S. 583 (1993)	men and women are treated equally; neither can marry people of the same sex
Beyond Formal Discrimination: The Supremacy Argument	racial classification, even if equally applied, cannot be extracted from its social meaning -- anti-miscegenation laws are embedded in a set of social practices that further white supremacy See Loving v. Virginia, 388 U.S. 1 (1967); Perez v. Sharp, 198 P.2d 17 (Cal. 1948)	gender classification, even if equally applied, cannot be extracted from its social meaning -- compulsory heterosexuality is embedded in a set of social practices that further male supremacy, patriarchy

For further reading, compare Edward Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 U.C.L.A. L. REV. 471 (2001) with Andrew Koppelman, Defending The Sex Discrimination Argument for Lesbian and Gay Rights: A Reply to Edward Stein, 49 U.C.L.A. L. REV. 539 (2001).

Click here for Word document of this abstract.