Dukeminier Awards Journal
Recognizing the Best Sexual Orientation and Gender Identity Law Review Articles of 2014
Current Issue: Volume 14 (2015)
Under Title VII, actionable sexual harassment is a subset of sex discrimination. When a man sexually harasses a woman, he is deemed to discriminate based on sex because he harasses women and not men. Same-sex sexual harassment is actionable under Title VII, including when, according to the Supreme Court, there is “credible evidence that the harasser was homosexual.” Accordingly, courts often draw conclusions about the harasser’s sexual orientation and same-sex desire. To understand how courts go about making these determinations, Clarke analyzes federal sexual harassment decisions over a fifteen-year period. She finds that courts fail to find desire, even in the face of sexually charged interactions, when the harasser is in a different-sex marriage. Yet courts find desire in much more ambiguous circumstances when the harasser identifies as lesbian, gay, or bisexual. Ultimately, Clarke argues that courts’ treatment of sexual orientation and their preoccupation with sexual desire undermine sexual harassment law’s purpose to eliminate invidious discrimination based on sex.
It is generally thought that in order to receive protection under Title VII’s prohibition on sex discrimination in employment, lesbian and gay employees must ground their discrimination claims in sex stereotyping, not sexual orientation. By exhaustively analyzing Title VII sex stereotyping cases, Soucek shows that the relevant dichotomy is not between sex stereotyping and sexual orientation but between two different ways to perceive noncompliance with sex stereotypes—as something literally observed or cognitively understood. Plaintiffs who visibly defy stereotypes and so “look gay” frequently obtain relief, while those merely thought to violate gender norms—by, for instance, having a same-sex partner—rarely do. Soucek shows how these cases run against courts’ usual hostility to claims based on appearance. More broadly, he argues that these cases complicate leading accounts of antidiscrimination law, which prioritize blindness and assimilation.
Doctoring Discrimination in the Same-sex Marriage Debates by Elizabeth Sepper, Associate Professor, Washington University School of Law, published in 89 Ind. L.J. 703 (2014), also awarded the Ezekiel Webber Prize
The onset of marriage equality has intensified the conflict between religious liberty and sexual orientation equality. Those supporting broad exemptions for religious objectors draw on medical conscience legislation, which allows doctors and nurses to refuse to perform abortions. Business owners with objections to same-sex marriage are compared to healthcare providers, and same-sex marriage itself is compared to the objectionable healthcare procedure. Challenging this move, Sepper shows that objections in the marriage context lack the features that have justified conscience exemptions in the medical context. Marriage does not involve issues of life and death; the relationship between the objector and the objectionable act is more attenuated; and professional ethics are not implicated. As importantly, Sepper shows that the U.S. experience with medical conscience laws should provide a warning, not a model. Rather than settle conflict over abortion, expansive conscience laws have allowed conflict to continue and grow.
The Dukeminier Awards also recognizes this year’s winner of the Williams Institute’s annual student writing competition:
“A Sincerely Held Sexual Belief”: What LGBT Refugee and Asylum Law Can Learn From Free Exercise Claims and Post-DOMA Immigration Benefits for Same-Sex Couples by Andrew Karp, Cornell Law School, also awarded the Jeffrey S. Haber Prize for student scholarship
Karp’s comment urges a more coherent approach to sexual orientation across matters pertaining to immigration and asylum. Karp shows that in reviewing petitions for marriage-based immigration, decision makers recognize the fluid nature of sexuality and do not allow past different-sex relationships to undermine the legitimacy of the applicant’s current same-sex marriage. Indeed, Karp draws a comparison between reasoning about sexuality in the marriage-based immigration context and reasoning about the sincerity of religious belief in constitutional Free Exercise law. In the asylum context, however, Karp observes a relatively rigid view of sexuality and notes that decision makers have used past different-sex relationships to question the applicant’s sexual orientation. Accordingly, Karp urges an approach to sexuality in refugee and asylum law that approximates that used for marriage-based immigration.
The Williams Institute would like to thank Jeffrey S. Haber, Brondi Borer, Stu Walter, Chuck Williams, and the family and friends of Ezekiel “Zeke” Webber for their endowment gifts to fund individual prizes recognizing outstanding scholarship related to sexual orientation and gender identity law.