by Luke A. Boso
What does it mean to discriminate because of sexual orientation? This legal question will increasingly arise as many states and municipalities enact laws that include sexual orientation as a protected trait. Without evidence of overt hostility towards or moral disapproval of gays as a group, plaintiffs may introduce evidence of sexual orientation stereotyping to make their case: i.e., evidence that an actor relied on group-based sexual orientation stereotypes in deciding to discriminate against an individual plaintiff. But how should courts determine whether the stereotyping relates to sexual orientation? It is important to answer this question for the litigants and judges who must address it in legal disputes, as well as for those who are working on the greater project of creating an intersectional and anti-essentialist approach to discrimination.
To classify evidence as sexual orientation stereotyping in some ways defines categories like “gay” or “straight.” When the law defines identity categories, it risks reinforcing regressive and narrow ideas about identities. Yet, like gender expression, sexual orientation expression can be highly individualistic. How courts approach stereotyping evidence thus determines both the contours of the protected trait and who is protected from discrimination.
In determining when discrimination is “because of” sexual orientation, then, courts should avoid a one-size-fits-all approach. To illustrate the individualistic and expansive potential of sexual orientation as a protected trait, this Article discusses how lesbian, gay, and bisexual (“LGB”) expression is contested and policed even within the queer community. It focuses on several tangible examples of LGB norm enforcement: masculine gay men who discriminate against effeminate gay men; discrimination stemming from respectability politics regarding how LGB people organize and structure their romantic and sexual lives; and discrimination at the intersections of sexual orientation and class, race, and geography. These internal divisions demonstrate not only the diverse meanings that attach to sexual orientation categories, but also which LGB people remain most susceptible to discrimination by straight and LGB people alike in an era of increasing tolerance and acceptance.
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