Sexual Orientation & The Law
Prof. Miranda McGowan
FALL 2013
1. Varieties of Sexuality
a. Kinsey: Experiments on frequency/types of homosexual activity. Developed a spectrum of sexual orientation.
b. Laumann, “The Social Organization of Sexuality”:
i. Probs w/ Kinsey: He used volunteers, which skews your data, not ‘normal’ people. Kinsey used a broad def of “homosexuality” whereas today we focus on penetration.
ii. Tough to quantify homosexuals – people define it differently and their sexual self expression changes over time
iii. Proposes measuring same-gender activity into 3 dimensions – behavior, desire (how appealing or attractive the activity/person is), and identity
c. Frye, “Lesbian Sex”: Data on sex frequency for lesbians is skewed, they define sex differently than heteros. Sex is phallocentric to most, so lesbians may not report ‘having sex’
d. Boston Globe, “What Makes People Gay”: Looking at CGN in one of a pair of identical twins.
i. Bem’s theory on why people with CGN end up being gay: Exotic becomes erotic
1. Some say this puts nurture ahead of nature, but Bem says it’s the outcome of expressing biological traits, aka CGN
ii. Article considers prenatal biology, hormones in utero, ‘the big brother effect’
e. Gates, “How Many People are LGBT”: Argues that asking questions about sexuality on national population surveys is really important so we can make informed policy decisions about the size of the LGB population and their needs.
i. How to define trans pop? Best methodology?
ii. Argues large population-based samples are best to get accurate #s
f. Yoshino, “Epistemic Contract of Bisexual Erasure”: Argues bisexual erasure is due to gays and heterosexuals having a stake in the erasure. Both sides want to ‘stabilize sexual orientation categories’ and people are comforted by rigid social orderings. It makes us nervous that bisexuals seem nonmonogamous, bridge the gap from heterosexuals to AIDS, gays want to get rid of stereotype of being nonmonogamous…
g. Littleton v. Prange: Male to female gender reassignment surgery does not change your gender, so the couple’s marriage is technically same-sex and thus, not valid. Court says chromosomes indicate gender. Doctor can’t change it through surgery.
h. Kogan, “Transsexuals and Critical Gender Theory”:
i. When someone is uncomfortable w/ their maleness, the only alternative is femaleness, since our culture is so dimorphic: If you’re not one sex, you need to be the other, which is why trans people feel the need to ‘go all the way’ w/ surgery
ii. Looks at Rothblatt’s work with sexual continuism, how everyone is a mix of male hormones and female. Based on the continuum, Rothblatt argues that your biological sex shouldn’t have ties to the social, econ, or legal spheres of your life, genitals are irrelevant.
1. Transgenderism = manifestation of the contiuum
iii. Third Gender: mostly seen in cultures where genitals aren’t the most important aspect of sexuality
i. Greenberg, “Defining Male and Female: Intersexuality and the Collision between Law + Biology”:
i. Law has struggled w/ how to define M and F for legal purposes, ignored ppl with conditions that make their sex ambiguous. If its ambiguous, they decide based on sex-role stereotypes–adequate penis vs. inadequate.
1. Sex as a definition: chromosomes can vary (ex: the hurdler)
2. Gender: the social construct…fem vs. masc.
3. Binary assumptions: a third se is appropriate
ii. Intersexed Medical Conditions: factors that contribute to determining an individual’s sex are
1. Chromosomes
2. Testes vs. ovaries
3. Internal morphologic sex
4. External sex aka genitalia
5. Hormones
6. Secondary sex features
7. Assigned sex and gender of rearing
8. Sexual identity
j. McGowan, “Engendered Differences”: Human desire to categorize and give meaning to those categories plays a big role in psychobiosocial creation of sex differences
i. Why use sex to categorize, when using your job, for example, would give more info? Sex stereotypes are more easily and automatically activated.
ii. Ex of how experiment made race ‘disappear’ from identifying subjects of a test, but could not do the same for sex, probably because sex is a stronger visual classification cue
iii. It’d make sense to not be able to ‘forget’ a person’s se if sex differences made us innately different and we could tell a lot about a person from that, but men and women are very alike.
1. Cognitive differences and reproductive capabilities though
2. Defining Sexual Orientation
a. What is sexual orientation?
i. Laumann: Degrees/intersections of desire (what you’d like to do), behavior (what you do) attraction (what you might find appealing) and identity (what you consider yourself)
ii. Gates: Focused on identity
iii. Kinsey: Focus was on sexual encounters people have had, aka behavior, with secondary focus on desires and attraction, not asking about how people identify much
b. Why have measures of who is what SO changed over time?
i. People who identify as LGBT want/should be able to self define
ii. Greater understanding of spectrum of sexuality/gender
iii. LGBT are ‘out’ and wants to identify as such. Used to be dangerous. Now we have a population of LGBT who desire public/political visibility. The LGB “movement” created a community that’s more cohesive than in the past.
c. Artificial Categories and SO: Sexual categories are artificial in that they did not emerge until 19th century, the idea that there’s an identity around being engaged in activity with same-sex and desiring ppl of same sex didnt emerge until late 19th century, these are categories we have imposed on people
i. Essential Category vs. Constructed Category: Sex is biological and gender the practice of a male or female sex role, which are artificial and chosen.
1. On the other hand, women have babies and men don’t, so sex is ‘relevant’ in some circumstances. so there may be some ways sex is fixed but other things are chosen and thats gender.
ii. Essentialism: Says gays have always existed therefore it’s probably natural. whether or not its essential or socially constructed is important why? because a huge argument for gay rights was it’s not their fault, people are born this way and thats a big argument against discrim against them, whereas if its socially constructed then you can get into a q about social preference or osical contingencies determining whtehr youre LGB
1. Butler: Problem w/ social construction argument is it seems to say there’s no difference between heterosexuals and homosexuals, so the argument becomes “Treat gays like they’re normal because they are normal and what is ‘deviant’ is made up” when the message needs to be “We are different and you still should accept us, it’s ok.”
2. Boswell, “Revolutions, Universals, and Sexual Categories”:
a. The argument is that without people naming these categories, people would just be sexual, no labels
i. Opposite of essentialism (he calls it realism) is called “nominalist”
b. Boswell is essentialist, says gays have existed in all Western societies
c. If homosexuality is a social construct, it poses a problem for their history, since there’d be an argument that homosexuality would only “have a history” in societies and cultures where the citizens had decided to have it exist.
iii. Finnis, “Disintegrity”: Masturbation is bad because conscious self is slave to the experiencing self, which is the side seeking pleasure, and your conscious self if turning its body to an instrument of the conscious self. Marriage is good, unlike masturbation or sodomy, because it doesn’t involve the “instrumentalization.” You’re instead pursuing a common good that is actualized and experienced through heterosexualsexual sex.
iv. Nussbaum, “Integrity”: Finnis bases his argument against homosexuality on the “natural law” teachings of ancient Greeks, but those people actually celebrated homosexuality as the best way to combine sex and friendship, which Finnis says is only found in straight marriage. To the Greeks, gay love was the only love supportive of virtue and philosophical activity. Finally, Finnis’ argument is bad because it assumes the point of gay sex is solely pleasure, just using another person for your own gratification.
v. Katyal, “Exporting Identity”: The categories of sexuality can be bad because they may not reflect everyone’s sexuality neatly.
1. Sexual acts carry different meanings in different cultures and time periods, so it’s hard to universalize clear definitions of the relationship between identity and one’s sexual acts, so the link between actions and identity isn’t as clear as gay movement would suggest
2. The social constructs just regulate and silence all of the different ways you can ID yourself
3. Thus, queer theorists and gay rights activists butt heads because of the theorists’ challenges to categorization
3. Sexuality and Liberty
a. Equal Protection Clause: Look for laws that classify. The equal protection clause is not intended to provide “equality” among individuals or classes but only “equal application” of the laws. So the EPC is violated when the state gives a group of individuals a certain right but denies that right to others. “The right to be treated the same as others in the same situation.” So in the section below, “classifications” refers to EPC challenges.
i. Whether a Group Deserves RRB or Heightened Scrutiny:
1. Has this group historically been subject to discrimination based on the given classification, like race ?
2. Is it an immutable characteristic, or can you change it?
a. The immutability argument has been subject to debate (Halley says it divides pro-gay essentialists and pro-gay constructivists, so you should use different arguments instead of dividing the gay community)
3. Are the members of the group are represented in political process or, alternatively, disadvantaged politically?
4. Whether the classification itself relates to the person’s actual ability to participate in society
a. Arguably, LGBT fit into this analysis and would deserve heightened scrutiny.
b. Due Process Clause: Look for laws that go after acts. Substantive due process à creating rights that aren’t listed in the DPC. To make a DPC argument is to say “This law interferes w/ a FR or PLI that is implicitly guaranteed by DPC”
i. Is the argued right a fundamental right or a protected liberty interest?
1. History & Tradition Analysis
a. Is there a H&T of the government prohibiting/prosecuting what the law in question is going after? Look at the H&T of the sort of LAW at issue (not the right!)
i. Questions to ask for H&T:
1. Look at dynamic vs. static (Old or new area/idea? Are we looking at modern practice?) and make an argument for which side this right falls on.
2. How many states currently have a law like this?
3. You may seem some prohibition, but you don’t see much protection for the right or corrollory rights (so, some common law analysis comes in there—not necessarily constitutional common law, but looking at what the laws are protecting)
ii. If there’s no H&T of prohibition/prosecution à Protected liberty interest à RRB
iii. Use Lawrence (“Is there a H&T of prosecuting people for same-sex sodomy in the home?”)
b. Is there a H&T of the government protecting it / being immune from government / not being able to touch it? (Has it been on our radar a long time?
i. à Fundamental right
ii. Use Glucksberg (“Is there a H&T of a the right to suicide being protected?”)
2. Constitutional Common Law Analysis: Analogize current case to precedent to argue that it’s similar to other fundamental rights or protected liberty interests we’ve previously found.
c. Con Law:
i. Rational Basis Scrutiny: Lofton, Andersen, 1st Cir. DADT
1. Triggered by All other rights and classifications not mentioned in these other levels of scrutiny
2. Gov Interest + BOP: CHALLENGER must refute every possible LEGITIMATE state interest
a. State doesn’t need to show it was actually motivated by that claimed state interest when it passed the given law
b. Court will often imagine various rationales for the law too
3. Fit between the classifications and the means used: The challenger must show it’s an irrational, completely arbitrary law. The Government gets deference and can put forward ANY justification, even morality or the will of the majority.
ii. Rigorous Rational Basis Scrutiny/Rational Basis Plus: Goodridge (Mass. Marriage case), Perry (Prop 8), 1st Cr. DOMA, Windsor
1. Triggered By:
a. Classifications (EPC): SO, disability, undocumented alien kids
b. Fundamental Rights (DPC): “Protected Liberties” – “Rights that are implicit in our concept of ordered liberty.”
2. Gov Interest + BOP: STATE must prove a LEGITIMATE state interest
a. That interest cannot be morality alone
3. Fit between the classification and the means used: To show relation/fit between
enforced for sure, etc.
b. Not a very rational law, since LGB are allowed to foster, permanent guardian
iv. Weaknesses in Lawrence exposed by Lofton, sex toy cases, DADT:
1. Courts want to apply Glucksberg instead of Lawrence (held that we won’t say something is a ‘fundamental right,’ in that case it was assisted suicide, if there’s a long history of it not being a right—looking for a long history of government protection before they are willing to find a possible fundamental right)
2. Lawrence not saying what level of scrutiny it’s applying à poor application by lower courts
3. Lawrence uses the phrase ‘dignity of their intimate relationships,’ so it’s discussion of liberties has an element of equality, but the statute itself in Lawrence talks about acts, not the groups of people that engage in the acts. Nevertheless, the court looks at these sex acts as a huge part of that groups identity
v. Arguing Lawrence either way:
1. Could say it’s limited it to criminal prosecutions and people branded as criminals, so maybe it’s narrow
2. “Limited to third persons” – hard to apply to certain fact scenarios
3. Could say it’s about leaving people alone, freedom to conduct intimate relationships, the idea that people have a right to make that choice without the state not allowing it based on morality
4. Sexuality and Equality
a. The Equal Protection Clause
i. Levels of Scrutiny: Frontiero, Craig and Boren each apply “heightened” scrutiny (if not literally ‘intermediate’) when they see laws based on stereotypes/gender norms that place people (women) at a disadvantage
1. Frontiero v. Richardson (SCOTUS): Court applies heightened scrutiny, since laws like this have been used to enforce gender stereotypes and place women at a disadvantage
a. Facts: Female service members not automatically eligible for benefits for their dependants
b. Holding: Sex doesn’t have a lot to do w/ your capabilities. Congress has spoken to the artificiality of assumptions about differences in ability based on stereotypes. These kinds of laws are based on stereotypes that were used to disadvantage women, which we are suspicious of à heightened scrutiny
i. Administrative convenience = not important enough of a state interest
2. Craig v. Boren (SCOTUS): Drinking law says girls can drink earlier than boys – a sex classification, invoking EPC. Based on an overbroad generalization, so the law isn’t ok.
a. Holding: Court applies intermediate scrutiny
i. Overbroad generalizations/statistical generalizations not good enough to prove state interest (“boys are worse drivers”)
ii. Why no strict scrutiny? In 1980 when this was decided, SCOTUS didn’t want to say that some classifications, like women not allowed in combat, was unjustifiable, etc. There are certain circumstances where treating sexes differently is needed.
3. US v. Virginia (SCOTUS): VMI case. Intermediate Scrutiny applied.
a. Facts: prestigious Virginia school only allows boys
b. Holding: This is a sex-based classification. VMI is the precedent for a lot of sex classification cases. SCOTUS applies intermediate scrutiny with its 3-pronged “exceedingly persuasive justification” test, so a sex-based classification will receive the “exceedingly persuasive justification” test, which is a mix of fit analysis and state interest analysis:
i. Won’t allow state to put forth invented or post hoc justifications (aka look at the real reason VMI was established/the given rule was put forward)
1. Educational diversity offered by a single-sex school is an ad-hoc / invented justification – VMI was made single-sex because at the time nobody wanted women in the military
ii. Can’t offer justifications based on stereotypes
1. VMI says it can’t admit girls and bases reasons on stereotypes – girls can’t hack it, boys won’t haze them, etc.
iii. The state isn’t allowed to pursue interests for just one sex (this is the most fit-like prong of the analysis)
1. VWIL isn’t VMI, doesn’t have the network or teachers or the same requirements that give you a badge of honor in the eyes of other people.
ii. Sexual Equality – Romer and Post-Romer
1. Romer v. Evans (SCOTUS): Holds that 1) state laws can’t be based on bare desire to harm a group, 2) the measure was too overbroad to achieve its alleged end and 3) moral objections can’t justify a law, even though Kennedy claims to apply rational basis scrutiny (“If it bears a rational relationship to a legitimate end” we’ll uphold it”)
a. Facts: Colorado amendment to the state constitution says there can be no protections for LGB that would make it a “protected class.” Campaign ads about the amendment were homophobic. CO argued it wanted to protect religious freedom and prevent state resources from going toward fighting LGB discrimination claims.
b. Possible CO Argument: Gays should not get special rights, we’re making them equal
i. States can differentiate on any basis, as long as it’s rational and doesn’t involve a suspect class. LGBT not a suspect class (yet).
ii. Private persons can discriminate on any basis whatsoever, not even subject to rational basis review, since they’re not state actors.
iii. LGB want to become one of the groups “immune” from discrimination.