With the relatively recent decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission, sexuality has of late been a hot-button issue for the Supreme Court. However, the subject is not new ground. The debate over what protections, if any, the Constitution and statutory law afford LGBT persons has carried on through the legal system for decades. I propose that sexuality and sexual orientation discrimination should be viewed as akin to race and racial discrimination. In my view, sexuality deserves the same legal protections that race receives, specifically in the areas of suspect class categorization under the Equal Protection Clause and sex discrimination under Titles VI and IX.
The Supreme Court has devised tiers of scrutiny to assess laws that discriminate between different groups of people. When a law targets certain types of people (so-called “suspect classes”), a court must review it with strict scrutiny. Quasi-suspect classes—such as gender—form the next tier. Laws affecting a class not included in either tier are subjected to rational basis review, solely requiring that the law in question “bears a rational relation to some legitimate end.”
Race is the archetype suspect class. The courts have determined that a suspect class must, like race, be 1) on the receiving end of “social stigmatization and/or historical discrimination;” 2) united by “an immutable characteristic” that can neither be controlled nor affects “a person’s ability to contribute to society;” and 3) a “discrete and insular minority” which wields little to no political power. However, both the immutability aspect and the lack of political power are “not dispositive if other factors for heightened scrutiny exist.”
Where courts think that sexuality fits into these tiers is not clear. As of yet, the Supreme Court has not definitively named homosexuality as a suspect or even quasi-suspect classification. However, laws discriminating against LGBT persons have often been subjected to a standard of review that seems to lie between rational basis and intermediate scrutiny. Lawrence v. Texas provides an example of this standard of review, which has been called “rational basis with a bite.” The Court’s move away from basic rational basis review for laws targeting homosexuality lends credence to the idea that homosexuality should be considered a suspect class along with race. This notion is supported by evidence and logic as well, as homosexuality meets all three requirements for a suspect class: LGBT persons are stigmatized and form a discrete and insular minority, and homosexuality is immutable.
LGBT persons have unambiguously been on the receiving end of stigmatization and discrimination throughout the history of the United States. They have dealt with homophobia, violent hate crimes, and the spread of untrue, injurious stereotypes. They also constitute the necessary discrete and insular minority having weak political power, as “minority” in this context refers to a lack of “representation and influence of members of the class in the relevant decisionmaking processes.” The plethora of laws passed in the U.S. discriminating against gay people and the low LGBT representation in the government point to the group’s lack of political power. Further, the constant negative stereotyping of the LGBT community stymie political action in favor of them, as the idea that homosexuals are “inherently bad” throws a wrench in the “give-and-take of the legislative process.” While the discrimination faced by the LGBT community might not be equally as extensive as that faced by racial minorities, it seems widespread enough to call for stronger protections than are currently offered, especially considering the lack of LGBT representation in government.
The factors described above are alone sufficient to qualify LGBT status as a suspect classification, but evidence also suggests that non-heterosexuality satisfies the last criterion as well: it is immutable and does not interfere with an individual’s contribution to society. Research points to the notion that sexuality, like race, is “not subject to change and [is] most likely determined at birth.” As for homosexuality interfering with the ability to contribute to society, nothing save stereotypes supports that notion. These stereotypes—that gay people are child molesters, or have a so-called agenda composed of “converting” as many people to their sexuality as possible, are unfounded.
Overall, LGBT persons constitute a politically weak, discriminated-against minority that undoubtedly qualifies for the same protection as racial minorities receive and, in the case of Equal Protection, designation as a suspect class. With this protection, gay Americans suffering from discrimination would be able to seek justice in the court system when they cannot, due to animus and lack of representation, find it within their legislative bodies. For example, state governments would find it much more difficult to allow adoption organizations to discriminate against gay couples. The protection of stricter scrutiny has allowed racial minorities, along with women (who, though not granted suspect class status, are considered quasi-suspect and allowed more protection than the LGBT community), to make great strides towards equality in a way that LGBT people cannot.
Employment and Educational Discrimination
Beyond Equal Protection Clause classifications, the realm of employment and educational discrimination provides another forum in which homosexuality should have access to the broader protections afforded to race. Title VII “prohibits employment discrimination based on race, color, religion, sex and national origin” while Title IX prohibits educational discrimination “on the basis of sex.” In general, courts have not interpreted either of these statutes as including sexuality. But there is a strong argument that “sex” should cover homosexual relationships just as “race” typically covers interracial relationships.
The root of harassment of LGBTQ people at work or in school lies in sex-based discrimination just as discrimination against those dating, marrying, or having sexual relations with a person of a different race is rooted in racism. When a woman loves another woman, for example, she would not be discriminated against to the same extent if, holding everything else constant, she were a man. Discrimination on the basis of her homosexuality is thus discrimination on the basis of her sex, as but-for her gender she would not be discriminated against. The same goes for a black man who loves a white woman; if he were white, he would not experience discrimination targeting interracial relationships. Therefore, discrimination on the basis of homosexuality qualifies as sex-discrimination, and should be treated by the courts as illegal in the areas of employment and education.
The Seventh Circuit’s decision Hively v. Ivy Tech relied heavily on this point, which they called “associational theory,” as did the Second Circuit in Zarda v. Altitude Express, and the Supreme Court ought to follow in their stead. In Hively, the majority found that Loving v. Virginia set the precedent for viewing sexual orientation discrimination as sex discrimination. They reiterated that “it is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.” The court in Zarda ruled similarly, plainly stating that “the prohibition on associational discrimination applies with equal force to all the classes protected by Title VII, including sex.”
Not everyone agrees with this view, however. The dissent in Hively vehemently objected to the comparison to Loving, claiming that “[m]iscegenation laws plainly employ invidious racial classifications; they are inherently racially discriminatory,” while homophobic discrimination is not inherently sexist. Arguably, though, sexual orientation discrimination is, at its core, about sexism, just as anti-miscegenation laws are about racism. When one discriminates against, for example, a man for being gay, one does so because that man is defying the central norm of their gender, of masculinity: attraction to women. This constitutes sex-stereotyping, which is considered allowable as evidence of sex discrimination.
Critics also claim that homophobia affects men and women equally, negating any sex discrimination issue. But while gay men and lesbian women are discriminated against, and therefore treated, in the same manner, this does not mean that, as claimed, no actual sex discrimination occurs within sexual orientation discrimination. That framework in terms of race— that anti-miscegenation laws do not discriminate as they “bar members of each race, equally, from marrying a partner of the opposite race”— was “explicitly rejected” in Loving. If discriminating equally against all races due to interracial partners, then, still constitutes race discrimination, the same applies to discriminating equally against the sexes due to same-sex partners.
Another argument to the contrary, which the Hively dissent also raised, is that the creators of Title VII and Title IX obviously did not intend to include sexual orientation discrimination under sex discrimination, and that the plain meaning of “sex” confirms this. It is true that, in all likelihood, legislators did not intend for sex discrimination to include anti-LGBT discrimination. At the time of the both Title VII and IX’s passage, many anti-LGBT laws were in place, and remained in place. But it is equally true that anti-miscegenation laws had a similar history up until Loving; indeed, as detailed in the majority opinion in Hively, they “were long defended and understood as non-discriminatory because the legal obstacle affected both partners,” just as anti-LGBT laws and actions are considered today.
Under the current administration, which has already made strides to weaken LGBT protections, it is ever more important to clarify and solidify through the judicial system the rights guaranteed to the LGBT community. While the battle for racial equality still rages on, racial minorities at least have a concrete, “comprehensive doctrinal framework” of protections to work with. In order to combat their own historical discrimination, LGBT persons need a comparable framework of their own. Rightfully considering them a suspect class within Equal Protection jurisprudence and recognizing sexual orientation discrimination as ultimately sex-based will help secure this framework.
Jordan Goodson is a first-year student at Harvard Law School. She is a member of the Harvard Prison Legal Assistance Project and the Women’s Law Association.