Lack of sexual orientation protections

Sexual orientation discrimination is really sex discrimination.
April 22, 2013

Last Friday, Ann Tweedy, a law professor at Hamline University School of Law, presented her study on bisexual discrimination and the law. In this study, Tweedy and her co-author used electronic survey methods to gauge bisexual-identifying people’s experiences with discrimination in the work place. Specifically, the research­ers sought to find out why it seems that bisexuals are not seeking relief through litigation or other venues.

What the study makes sa­lient is state and federal protec­tion of non-heterosexuals in the workplace. Currently, there is no statutorily enacted federal protection, but about half the states in the U.S. and the Dis­trict of Columbia have laws that seek to deter discrimination based on sexual orientation. But these laws don’t make any sense, nor are they necessary.

Lesbian, gay, bisexual and transgender people, typically, are discriminated against not because of sexual orientation, but as a result of their gender non-conforming behavior. For example, a transsexual em­ployee who is fired after that person transitions from one sex to another or a lesbian who is harassed or denied promotions because she is “too masculine.” These are behaviors, not sexual desires. They are behaviors re­lated to ideas about how men and women should act (i.e. gen­der roles).

Even for those LGBT who are perfectly gender-conform­ing but identify as LGBT and are discriminated against based solely on that identification, that discrimination is still based on gender. When a man identifies as gay, for instance, regardless of how masculine that man is, the automatic assumption is that he desires to engage in gender non-conforming behav­ior or that he engages in sex with men, perhaps in submis­sive positions, which is a gen­dered act that is associated with typical female behavior.

Moreover, sexual orienta­tion isn’t something employ­ers are reasonably capable of knowing. Sexual orientation refers to one’s sexual fantasies, urges and desires, and is typi­cally discussed in the context of desire for a particular sex or gender. Sexual orientation can be measured in few ways. For sex researchers, a popular way to measure sexual orienta­tion is by measuring a person’s arousal levels with a penile ple­thysmograph or vaginal pho­toplethysmograph, tools used to measure genital blood flow while the participant is shown erotic stimuli. Obviously, people are not ever asked or required to do this for a job. If sexual orientation can’t be known by an employer, then it can’t be a thing by which a person is dis­criminated at work.

So what relief do LGBTs have, then? Some courts have ruled that “sex” discrimination includes discrimination based on gender, particularly gender non-conforming behavior. The Equal Opportunity Employ­ment Commission’s stance is that transgender discrimination is discrimination based on sex under Title VII, and non-hetero­sexuals may bring sex discrimi­nation claims under this act as well. This is the appropriate direction for advancing protec­tions for sexual identity groups, at least in the employment con­text.

Rather than trying to add “sexual orientation” to various non-discrimination policies, the appropriate direction should be to work to extend the defi­nitions of sex discrimination to apply to sexual identity groups and to be congruent with con­temporary theories of gender. The fact that a person could be fired based on sexual orienta­tion raises major conceptual issues, such as if one can some­how “see” sexual orientation or if LGB people can be identified based on their appearances or behaviors. Sexual orientation discrimination doesn’t make any sense conceptually nor is it congruent to the goal of shattering the all-too-common misconception that gender per­formance directly represents a person’s embedded internal sexual desires.

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