Sexual orientation discrimination as sex discrimination:
Answering the objections
Andrew Koppelman
Associate Professor of Law
Northwestern University
Discrimination against gay people is a kind of sex discrimination. If Lucy may marry Fred, but Ricky may not marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is suffering legal disadvantage because of his sex. If a business fires Ricky, or if the state prosecutes him, because of his sexual activities with Fred, while these actions would not be taken against Lucy if she did exactly the same things with Fred, then Ricky is suffering legal disadvantage because of his sex.
The argument is not a merely formal one. Most Americans learn no later than high school that one of the nastier sanctions that one will suffer if one deviates from the behavior traditionally deemed appropriate to one’s sex is the imputation of homosexuality. The stigmatization of homosexuality is closely linked to homosexuals' supposed deviation from the roles traditionally deemed appropriate to persons of their sex. Moreover, both stigmas have gender-specific forms that imply that men ought to have power over women. Gay men are stigmatized as effeminate, which means, insufficiently aggressive and dominant. Lesbians are stigmatized as too aggressive and dominant; they appear to be guilty of some kind of insubordination. The two stigmas, sex-inappropriateness and homosexuality, are virtually interchangeable, and each is readily used as a metaphor for the other.
These claims, which I have been making for some years, have elicited a number of criticisms, from both the left and the right. In this paper, I describe and attempt to answer the objections. Some of these objections rest on conceptual confusion. Others depend on a mistaken view of sex discrimination law. The strongest of the objections rests on a valid concern about marginalizing the distinct moral claims of gay people. However, this concern is not sufficiently powerful to defeat the argument’s considerable strengths.