What We Now Know About Sex Discrimination

In a landmark decision, the 7th Circuit Court of Appeals has concluded that discrimination on basis of sexual orientation is a form of sex discrimination, prohibited by Title VII of the Civil Rights Act. Judge Diane Wood (my former civil procedure professor) wrote the lead opinion -- and it looks very shrewd.

I've long been convinced that sexual orientation discrimination simply is sex stereotyping -- namely, the stereotype that men should date women and women should date men. This opinion lays that argument out in meticulous detail and, importantly, situates it within Supreme Court precedents which have clearly demonstrated the importance of sex stereotyping to the statutory sex discrimination inquiry and how it can be applied to same-sex interactions.

One further thing I'd add is this: It is almost certainly true that the drafters of the Civil Rights Act did not have discrimination against gay and lesbian persons in mind when they drafted the law. Judge Posner's concurrence -- wholly unnecessary and unhelpful, in my view -- takes from this that what judges are doing when they interpret the law to encompass sexual orientation is "updating" the law for the modern era.

But -- whether or not that's a legitimate judicial practice -- such a view is wholly unnecessary in this case. We pass anti-discrimination laws because there is significant discrimination in society, and discriminatory impulses exist -- in greater and lesser degrees -- across the whole of society. So it shouldn't surprise us that even the drafters of the prohibition against sex discrimination might not recognize certain ways that they behaved in a sexist manner or supported sexist discrimination. Indeed, it might not even surprise the authors themselves. When one commits to saying "I oppose sex discrimination" or "I oppose race discrimination," one need not be implicitly saying "and nothing I do or believe right now qualifies as such discrimination." To the contrary, we might pass these laws precisely because we suspect that we as much as anyone else sometimes behave in such a manner, and are fully willing to submit to legal correction when we do so.