A handful of courts in the United States3 and in other jurisdictions4 have granted legal claims to lesbians, gay men, and bisexuals based on the sex discrimination argument. I show that, as an argument for lesbian and gay rights, the sex discrimination argument is sociologically, theoretically, and morally flawed.
L ESBIAN AND G AY R IGHTS
These pitfalls, combined with the principled flaws of the sex discrimination argument, suggest that this argument does not provide a strong legal strategy for obtaining rights for lesbians and gays and that it should be used with caution. I conclude with a brief outline of what I believe are more promising directions for advocating for lesbian and gay rights; approaches that will certainly not lead to the immediate realization of lesbian and gay rights in most legal contexts, but which avoid the problems that the sexes face. discrimination argument.
Three Types of Claims for Lesbian and Gay Rights
Lesbians and gay men argue that just as the state protects against discrimination based on race and other characteristics, the state should also act as a “civil shield”15 against discrimination based on sexual orientation.16. It is precisely the intensity and extent of prejudice against homosexuality that justify the claims of lesbian and gay citizens for protection against discrimination.
Two Types of Arguments for Lesbian and Gay Rights
The Formal Sex Discrimination Argument
If sex discrimination is interpreted expansively to include sex discrimination (as I believe it should be), then we could try to develop a sex discrimination version of the sex discrimination argument. Second, consider Hawaii's marriage law, which limits marriage to couples consisting of one man and one woman.76 According to the sex discrimination argument, this law discriminates on the basis of sex because it allows a man to marry a woman while a woman forbids marrying a woman. These two examples show how laws that discriminate on the basis of sexual orientation can be viewed through the lens of gender discrimination.
However, this article casts doubt on whether the gender discrimination argument will succeed in gaining increased scrutiny for laws that discriminate on the basis of sexual orientation.
Is There Really Sex Discrimination?
The SWT defended itself by saying that, firstly, there is nothing in the EC Treaty that prohibits discrimination on the grounds of sexual orientation and, secondly, that it was not guilty of sex discrimination because its policy was gender neutral: no one, regardless of gender, was eligible for travel expenses reimbursement for a partner of the same sex. This same response to the sex discrimination argument can be used to defend Missouri's sodomy law. This is exactly how the Missouri Supreme Court ruled on a sex discrimination challenge to the state's sodomy law in State v.
Walsh:86 It ruled that the sodomy law does not discriminate on the basis of sex because it prohibits men and women from having sex with a person of the same sex, but allows men and women to have sex with a person of the opposite sex. .87 The Washington State Court of Appeals adopted the same approach to a sex discrimination challenge to its statutory law in Singer v.
The Loving Analogy
The court ruled that the law violated the Equal Protection Clause because the state did not provide such a justification for using racial classifications. 102. Love stands, in part, for the principle that the mere equal application of a statute using a suspect classification is not enough to bring the statute under the Equal Protection Clause. Rather, to the extent that a statute uses a suspect classification, to satisfy the Equal Protection Clause, the state must show that there is a compelling justification for using that classification.
These lawyers point out that simply showing that a law that uses sex classification applies equally to men and women is not enough to prove that law is constitutional under the Equal Protection Clause.
The Cultural Claim of the Sex Discrimination Argument
T HREE O BJECTIONS TO THE S EX D ISCRIMINATION A RGUMENT
To clarify the problems with the sex discrimination argument, consider a hypothetical argument that might be made against anti-mismixture laws. In light of this fact, one could make a sex discrimination argument against anti-miscegenation laws,117 by pointing out that they disadvantaged women. This would have been historically unlikely because the sex discrimination doctrine was not as well developed as the racial discrimination doctrine when Loving and McLaughlin were decided.
The function of this analogy in my argument is to use the problematic aspects of the argument against gender discrimination.
A Hypothetical Sex Discrimination Argument for Racial Equality
The gender discrimination argument against anti-differential laws overemphasizes the way these laws disadvantage women compared to the way they disadvantage people of color. Second, the sexism argument against anti-miscegenation laws misidentifies the belief system that justifies anti-miscegenation laws. The three flaws in the gender discrimination argument against anti-miscegenation laws - the sociological, the theoretical and the moral -.
I will now turn to these parallel problems with the gender discrimination argument for lesbian and gay rights.
The Sociological and Theoretical Mistakes of the Sex
Looking back at Table 2 above, the sociological flaw in the sexism argument is that "women" should not appear in the third cell of the last row.125 Laws like Missouri's sodomy law disadvantage lesbians, gay men, and bisexuals. Similarly, the theoretical flaw in the sexism argument is that "homophobia" - not "sexism" - should appear in the last cell of the last row. For discussion of the centrality of the closet in the lives of lesbians, gay men, and bisexuals, see, for example, SEDGWICK, supra note 118, and Janet E.
These theoretical and sociological problems lead to moral problems for the sexism argument of the type discussed with respect to the sexism argument.
The Moral Mistake of the Sex Discrimination Argument
The gender discrimination argument is not the only argument for lesbian and gay rights that avoids addressing the actual wrong of discrimination based on sexual orientation. Like the gender discrimination argument, biological and privacy-based arguments for lesbian and gay rights miss the factual wrong of discrimination based on sexual orientation. Arguments for lesbian and gay rights that avoid involving the relevant moral issues effectively provide the moral arguments against opponents of lesbian and gay rights.144.
For further discussion of moral arguments regarding lesbian and gay rights, see RICHARDS, supra note 24, Carlos A.
Summary
A P RAGMATIC E VALUATION OF THE S EX D ISCRIMINATION A RGUMENT
A defender of the gender discrimination argument for lesbian and gay rights could agree with everything I've said so far, while still arguing that this argument is a viable litigation strategy. Such an advocate might concede that the gender discrimination argument may not be a strong principled argument for lesbian and gay rights, but at the same time insist that it is a strong practical argument. Given the limited success that lesbian and gay rights arguments have had with judges, legislators, and executive agencies, the gender discrimination argument should be used as a practical judicial strategy in courts and other contexts.
The Virtues of the Sex Discrimination Argument
For these practical reasons, some defenders of the rights of lesbians and homosexuals continue to present the argument of gender discrimination. 151. However, there are several practical problems with the gender discrimination argument, each of which is related to the principle problems with the argument discussed in the previous section. The Problem of "Actual Differences" Between Men and Women Some courts that have considered the gender discrimination argument.
The Problem of “Actual Differences” Between Men and Women
The Problem of "Real Differences" Between Men and Women Several courts have considered the gender discrimination argument. evident from the courts' failure to construe Title VII's ban on sex discrimination156 as prohibiting discrimination on the basis of sexual orientation.157 The Ninth Circuit's discussion in DeSantis v. women in the same position as men. We conclude that Title VII's prohibition on “sex” discrimination applies only to discrimination on the basis of sex, and.
Every court that has considered a gender discrimination argument under Title VII has held that discrimination based on sexual orientation is not sex discrimination.
Some Antigay Laws Do Not Make Use of Sex Classifications
Only lesbians, gays and bisexuals will be fired for same-sex sexual relations, as only they are prone to such acts due to their sexual orientation. In light of this exception, military policy is a Type 1 law: it does not discriminate on the basis of sex, but it does discriminate on the basis of sexual orientation. Although the sex discrimination argument could be applied to both type 1 and type 3 laws, the sex discrimination argument has the greatest potential for type 2 laws, that is, laws that discriminate on the basis of sex.
The gender discrimination argument will be much more difficult for judges to accept when applied to type-1 laws or to type-3 laws, that is, laws that discriminate on the basis of sexual orientation that do not make use of gender classifications.
Immunizing Antigay Laws Against the Sex
Lewin can be understood to argue that bans on same-sex marriage require a strong justification because they discriminate on the basis of sex, while bans on gay marriage do not require such a strong justification. The moral of this hypothetical marriage law is that it is possible for a legislature to draft a law (or for a court to interpret a law) in such a way as to discriminate on the basis of sexual orientation, but not on the basis of sex. The hypothetical shows how a law that discriminates on the basis of sexual orientation through the use of gender classifications can easily be reworked to discriminate on the basis of sexual orientation without using sex classification.
If the gender discrimination argument is used, we can expect to see more laws like the "don't ask, don't tell" policy, that is, laws that discriminate on the basis of sexual orientation without discriminating on the basis of gender.
The Risk of Backlash
The 1999 state Supreme Court decision interpreted the 1998 constitutional amendment as an act that took Hawaii's marriage law “outside the scope of the Equal Protection Clause of the Hawaii Constitution,” thereby overturning Hawaii's sex discrimination case law weakened.176 In summary, the sex discrimination argument for lesbian and gay rights has the potential to persuade courts on only one of the three types of laws that discriminate on the basis of sexual orientation.177 It is unlikely that this will convince judges, even those who are sympathetic to it. rights of lesbians and gays,178 especially because judges can rely on factual differences between men and women. Furthermore, any victories won by the sex discrimination argument are likely to be short-lived and could have damaging consequences for sex discrimination jurisprudence.
In light of these practical problems and the sociological, theoretical and moral problems discussed in the previous section, lesbian and gay rights defenders should avoid relying on the argument of gender discrimination. 179.
Sex Discrimination as an Argument in the Alternative
However, I have not argued that the gender discrimination argument for lesbian and gay rights should never be made. However, there are other arguments for lesbian and gay rights that have greater potential than the gender discrimination argument. Further, privacy-based arguments for lesbian and gay rights have even greater potential when made in conjunction with equality-based arguments.187.
In addition to the sexism argument, I also have in mind the immutability argument for lesbian and gay rights, another specifically equality-based argument that does not hold much promise.
