"sexual orientation is inherently a 'sex-based consideration'"

July 17, 2015 4:59 AM

The U.S. Equal Employment Opportunity Commission has ruled that federal law already bans discrimination based on sexual orientation (17-page PDF), because "Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. 'Sexual orientation' as a concept cannot be defined or understood without reference to sex."

The EEOC's ruling clarifies (or expands, depending mostly on which side you start from) the applicability of Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on sex (among other things). U.S. courts frequently defer to EEOC rulings, but this particular argument has already been rejected by several courts, so there will likely be a fight in the circuits.

posted by Etrigan (28 comments total)

Cautiously optimistic! Potentially… awesome?!
posted by DoctorFedora at 5:07 AM on July 17, 2015 [6 favorites]

Well, yeah. Lots of folks have been making this argument for ages. For example, regarding same-sex marriage, it was legal for a man to marry a woman, but illegal for a woman to marry that same woman. That's obvious gender-based discrimination, no matter how you slice it.

Good on the EEOC.
posted by Faint of Butt at 5:37 AM on July 17, 2015 [7 favorites]

While I agree with the ruling, I worry that, since it's an executive act, not a legislative one, it can and likely will be overturned by a future right-wing/Republican president. As much as I dislike our current legislative bodies, and think they wouldn't actually ever pass such a law, in the end, I think passing a law is probably the best way to ensure this.

In the meantime, I'll gladly take what we can get. Taking a small step, a precedent, helps for the future. So good for them for doing this. I don't want to be all davey downer!
posted by symbioid at 5:43 AM on July 17, 2015 [2 favorites]

So does this include gender identity or just sexual orientation? I've seen people on Twitter going "yay LGBT rights" but there's no direct indication that this includes the T.
posted by desjardins at 6:20 AM on July 17, 2015 [6 favorites]

The EEOC ruled that trans people are covered by Title VII a few years ago.
posted by Etrigan at 6:28 AM on July 17, 2015 [8 favorites]

So does this include gender identity or just sexual orientation? I've seen people on Twitter going "yay LGBT rights" but there's no direct indication that this includes the T.

This is such a great question and I'm so glad you asked it! I am especially glad that this kind of question is occurring to a lot of people now; I know it's something I wouldn't have considered even a few years ago and it was one of my first thoughts too.
posted by Mrs. Pterodactyl at 6:29 AM on July 17, 2015 [2 favorites]

I wouldn't read that much into it.

It seems this man's boss didn't lke gays, he was vocal about it, he harassed this employee on his job, and didn't give him a promotion he deserved and that all of this occured within an agency of the Federal government.

I don't know if the ruling in all cases equates sex with sexual orientation, but certainly in this case the cause and effect are inescapable.
posted by three blind mice at 6:31 AM on July 17, 2015

I would hope, given this statement, that gender identity would be also covered, given that in gender identity discrimination, you're evicting/firing someone because they are female/male, even though their birth certificate may have originally said otherwise, etc.
posted by Hactar at 6:35 AM on July 17, 2015

Speaking of Congress, we have the "First Amendment Defense Act," which as you can probably tell by the name does the exact opposite of that. It's basically attempting to undo the extant federal protections for LGBT people by allowing organizations that take federal money to discriminate against them, with the added shitty cherry on top of giving employers the ability to fire unmarried women who get pregnant. Naturally, it already has support from over half of the GOP caucus in both chambers.
posted by zombieflanders at 7:22 AM on July 17, 2015 [3 favorites]

Super happy to see this, because in michigan we've been struggling to maintain local ordinances on this topic
posted by rebent at 7:30 AM on July 17, 2015

I agree with this and this is good news but this does seem like overreaching on the part of the EEOC and imagine the more conservative circuits will not go along with this at all,

Probably, but my first reaction to this logic was to chuckle because it's a popular from a certain trolling conservative playbook. You know, when you say racism doesn't exist because if you imagine a white guy who likes rap and has baggy pants you wouldn't trust him to lock up the shop either, so how can you say I don't trust blacks? Well, here you have a case where if the person who liked dating men was a women you'd be fine, but you don't like them because they are a man.

I don't know the legal state of this law, but this may be one of those cases where drafters basically thought the law didn't protect gays because gays were icky and unwell so of course you treat them differently. Now you look at the wording again, not thinking gay is disorder or anything, and it may be clear that they should be protected. Certainly a conservative shouldn't be ignoring the plain text of the law because of the drafters' unstated assumptions.
posted by mark k at 7:36 AM on July 17, 2015 [1 favorite]

The EEOC and the Department of Education interpret existing civil rights law as covering sexual orientation and gender identity. I think it's a bit of a stretch myself and we need explicit sexual orientation and gender identity coverage in legislation, but for now I'm happy to roll with it. As stated above, a future administration will likely create a different interpretation.
posted by CBrachyrhynchos at 7:40 AM on July 17, 2015

Also, while I can buy the idea of anti-trans discrimination as just another form of gender discrimination, I'm not entirely comfortable with linking sexual orientation legally to gender discrimination. While the two are frequently linked they're not necessarily linked.
posted by CBrachyrhynchos at 7:49 AM on July 17, 2015 [2 favorites]

I am reminded of international human rights treaties which insert a provision that discrimination on the basis of sex "shall consist only of the two natural sexes, male and female." This kind of language was the result of lobbying by countries that violently oppress LGBT people, with the understanding that "sex discrimination" alone would embrace non-discrimination against LGBT people. Read in that light, in the light of human rights law, the EEOC's ruling makes perfect sense.
posted by 1adam12 at 8:00 AM on July 17, 2015

CBrachyrhynchos, of course they are. @gaywonk on Twitter: "Im not discriminating because you're a man, I'm discriminating because you're gay and men aren't supposed to kiss other me-OOOOOOOH SHIT."
posted by desjardins at 8:01 AM on July 17, 2015 [4 favorites]

The EEOC ruled that trans people are covered by Title VII a few years ago.

Ah, okay. More information. I don't know how this shakes out in practice though.
posted by desjardins at 8:03 AM on July 17, 2015 [1 favorite]

On the EEOC and transgender rights in the past and future, the wikipedia provides a tidy summary of the agency's current official position:

In 2012, the EEOC ruled that employment discrimination on the basis of gender identity or transgender status is prohibited under Title VII. The decision held that discrimination on the basis of gender identity qualified as discrimination on the basis of sex whether the discrimination was due to sex stereotyping, discomfort with the fact of an individual's transition, or discrimination due to a perceived change in the individual's sex.[46][47] In 2014, the EEOC initiated two lawsuits against private companies for discrimination on the basis of gender identity, with additional litigation under consideration.[48] As of November 2014, Commissioner Chai Feldblum is making an active effort to increase awareness of Title VII remedies for individuals discriminated on the basis of sexual orientation or gender identity.[49][50]

posted by joyceanmachine at 8:08 AM on July 17, 2015 [1 favorite]

To start with, not everyone is a man or woman. Then there are issues like situational homosexuality and that homosexuality has varying degrees of tolerance depending on culture and status. Just because the dominant views of sexual orientation consider it to be gendered doesn't mean that it's that way for everyone.
posted by CBrachyrhynchos at 8:23 AM on July 17, 2015 [1 favorite]

I am uncomfortable attributing bad outcomes in human rights treaties negotiations solely to illiberal foreign others. American religious groups, conservatives, anti-trans-women feminists, etc, have lobbied and continue to lobby at the the UN for homophobic and transmisogynist sex discrimination language. In many countries, the laws and morals that target trans and gay people were brought by the countries that colonized them and continue to benefit from global capitalism at their expense.
posted by thug unicorn at 8:51 AM on July 17, 2015 [2 favorites]

In many countries, the laws and morals that target trans and gay people were brought by the countries that colonized them and continue to benefit from global capitalism at their expense.

Or, you know, like Uganda, where the laws were brought by US evangelical preachers who flocked to the African country to preach anti-gay hatred in a country that would still listen to them. A few years later, presto! The "kill the gays" bill gets introduced, and is still trying to get passed. Meanwhile, gays are lynched in public due to the hate that has been sown.
posted by hippybear at 9:43 AM on July 17, 2015 [4 favorites]

Naturally, it already has support from over half of the GOP caucus in both chambers.

Hey, that's good news!

(I mean, you may see the GOP as half empty, but I prefer to be happy that it's half full).
posted by el io at 10:01 AM on July 17, 2015

"Then there are issues like situational homosexuality and that homosexuality has varying degrees of tolerance depending on culture and status. "

I am unfamiliar with any examples where this is not also tied up in norms of gender behavior. Likewise, objecting that not everyone is a man or a woman misses that the discrimination is against gender norms, which very much do operate on a binary.
posted by klangklangston at 3:20 PM on July 17, 2015 [1 favorite]

Practically every behavior in our culture is tied up in norms of gender behavior, including breakfast ridiculously enough. But the entirely gendered distinction where straight-passing guys can indulge in experimental sex as long as they keep it on the down-low is living memory, and more importantly the way in which sexuality is constructed cross-culturally. Meanwhile, we have yet another pop song celebrating the WSW summer fling. So it's not always the case that an MSM or WSW is going to be seen as gender-nonconforming and be a target for discrimination on that basis. It's complex, and shouldn't be simplified, even if the law gives us that hole to exploit.

The question is, should protections against discrimination on the basis of sexual orientation and preference (yes, I think preference should be protected) be based fundamentally on the idea that it's gender as opposed to the idea that there's no rational basis for discrimination on the basis of sexual orientation or preference?

My entire life has involved people wadding up sexuality and gender into a ball of hate and throwing it in my face. I've spent hours in front of classrooms trying to communicate to skeptical audiences that sexual orientation and gender identity are two entirely different things. I was not gender-nonconforming because I like men. I didn't like men because I was gender-nonconforming. Legal language making one dependent on the other is an interesting exploitation of a loophole, but I don't think it's in our best interest in the long run.
posted by CBrachyrhynchos at 6:29 PM on July 17, 2015 [1 favorite]

But the entirely gendered distinction where straight-passing guys can indulge in experimental sex as long as they keep it on the down-low is living memory, and more importantly the way in which sexuality is constructed cross-culturally."

What makes them straight passing? Generally, adherence to traditional gender norms. In cultures that distinguish between active and passive sex between men, what distinguishes the relative acceptability? Generally, adherence to traditional gender norms. Again, I am unaware of any example of a culture that discriminates against same-sex sexual orientations that does not root that in violation of gender norms.

I know that orientation and gender identity aren't the same thing, and I know that they are often conflated. That does not mean that anti-same-sex discrimination is not rooted in sex discrimination. This is especially true in the American legal framework. It's even fairly tautological that without a notion of sex (conflated with gender roles) that discrimination against same-sex relationships is impossible. It reduces to the absurd: Without knowing the sex (or gender presentation) of either party, how would you discriminate against them based on their orientation?
posted by klangklangston at 7:58 PM on July 17, 2015

The question is, should protections against discrimination on the basis of sexual orientation and preference (yes, I think preference should be protected) be based fundamentally on the idea that it's gender as opposed to the idea that there's no rational basis for discrimination on the basis of sexual orientation or preference?

No, but given that the latter will require the currently (and, frankly, for-the-foreseeable-future-ly) Republican-controlled Congress to pass a law that they have actively worked against forever. I'd rather have the thing that stands a chance of happening, and in fact has happened.
posted by Etrigan at 8:47 PM on July 17, 2015

What makes them straight passing? Generally, adherence to traditional gender norms.

By binding protection of sexual orientation to gender norms, you create a situation where someone could say, "Oh, we don't question their adherence to gender. Only whether their choice of sexual partners constitutes a security risk/moral hazard/unsuitability as a role model." All of which have been used as justification for discrimination on the basis for sexual orientation.

I know that orientation and gender identity aren't the same thing, and I know that they are often conflated.

Which is why it's baffling that you're insisting on conflating them as a matter of legal doctrine rather than looking to protect sexual orientation as it's own class.

That does not mean that anti-same-sex discrimination is not rooted in sex discrimination. This is especially true in the American legal framework.

The American legal framework protects against the creation of job standards and practices that by a reasonable person standard prevents or creates unreasonable hardship for members of a given class (in this case, gender, traditionally men and women). And the argument that sexual orientation discrimination is illegal because it's really discrimination against men and women as a class rather than LGB people as a class is really weak. The easy out is to say that since both men and women sign the same contract with the same morality clause, it's obviously not sex discrimination.

Note that just because an issue intersects with gender doesn't mean that gender is the primary axis where we need protection. Disability, age, religious, and racial discrimination are also affected by gender. Not to mention that it's entirely acceptable to demand conformance to some gendered norms and not others.
posted by CBrachyrhynchos at 8:52 PM on July 17, 2015

No, but given that the latter will require the currently (and, frankly, for-the-foreseeable-future-ly) Republican-controlled Congress to pass a law that they have actively worked against forever. I'd rather have the thing that stands a chance of happening, and in fact has happened.

Has happened, in that Obama administration has made a claim that may or may not be supported by the next administration, may or may not stand up against a court challenge, and may or may not be limited by statute in a variety of jurisdictions.

But, walk and chew gum. We can take this as far a we can under the current administration and work for eventually passage of a full ENDA.
posted by CBrachyrhynchos at 9:08 PM on July 17, 2015

I think the point is, if things get moved forward under a possibly contested claim from this administration, by the time the next administration gets into power, if they do decide to reverse things it will trigger legal challenges that will decide matters. It's sort of rolling the dice, but history is on the side of "we've had these rights, we will keep these rights".
posted by hippybear at 9:32 PM on July 17, 2015