Gay Writers, Stereotypes, & The Developing Law

In From a Whisper to a Riot: The Gay Writers Who Crafted an American Literary Tradition (2019), Adam Burgess, Ph.D., examines the history of gay American literature from 1903 to 1968, focusing on texts written by gay men.

My lack of familiarity with the texts Burgess analyzes didn’t hinder my ability to appreciate his arguments about how writers explored gay identity at a time when social norms and laws were extremely oppressive. Burgess’s analysis of stereotypes about gender and sexuality in these early-to-mid 20th Century works was particularly interesting.

Burgess writes:

Despite obvious inaccuracies, there is historical precedent for stereotyping gay men as essentially feminine… This practice of feminizing homosexual men, especially the passive/receptive or submissive partner, ever-present in political, imperial, and social discourse, has become a persistent theme in early American gay literature… My analysis of the literature, however, will reveal that there is in fact a surprising range of masculinity represented in the fictive male-male relationships.

While some early texts reinforced the stereotype of gay men as feminine, other texts challenged it, “present[ing] a wide range of possibilities for same-sex sexual and romantic relationships.”

As a lawyer, I found myself thinking about how the cultural norms affecting the literature discussed in From a Whisper to a Riot have impacted the development of the law regarding sexual orientation discrimination.

On April 22, 2019, shortly after I’d finished reading From a Whisper to a Riot, I saw the news that the United States Supreme Court has agreed to hear cases that will define the workplace rights of LGBT employees. The Court will soon decide whether Title VII of the Civil Rights Act of 1964–our federal anti-discrimination law in the employment sphere–protects workers from discrimination on the basis of sexual orientation.

The scope of Title VII and how it applies to discrimination on the basis of sexual orientation is a murky area. Title VII states:

It shall be an unlawful employment practice for an employer… to fail or to refuse to hire or to discharge… or otherwise to discriminate against any individual with respect to his [or her or their] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin… 24 U.S.C. 2000e-2(a)(1).

The terms “sexual orientation,” “gender identity,” and “gender expression” are missing from the text of the statute. But “sex” is there, and after decades of narrow judicial interpretation, the Supreme Court welcomed a somewhat broader interpretation of the term in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

In Price Waterhouse, the Supreme Court proclaimed:

As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “ ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’ ” … An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind. (internal citations omitted).

As a result of this decision, as well as Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) (recognizing same-sex sexual harassment), courts began to permit sexual orientation discrimination claims when plaintiffs fashioned them into sex stereotyping claims.

A gay man who is perceived by his supervisor and co-workers as effeminate–someone with mannerisms like Emory from Mart Crowley’s The Boys in the Band (a 1968 play discussed in From a Whisper to a Riot)–could have a claim against his employer if he was fired because he did not conform to masculine stereotypes.

But what about other gay men who, like the characters in Edward Prime-Stevenson’s Imre: A Memorandum (1906), are not effeminate? Or lesbians who are not masculine?

In some jurisdictions, Title VII does not protect them.* See Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 AM. U. L. REV. 715 (2014).

In one of the cases the Supreme Court has agreed to hear, Bostock v. Clayton County, the magistrate judge decided: “Bostock does not allege, nor can an inference be properly drawn, that he was perceived by his supervisor and his co-workers as being feminine rather than masculine.” 2016 WL 9753356 at *6 (internal quote/citation omitted). So, he could not successfully claim discrimination on the basis of sex stereotyping when his employer fired him shortly after he joined a gay softball league.

The district court adopted the magistrate’s recommendations, and the case went on appeal to the 11th Circuit (which hears appeals from federal district courts in Georgia, Florida, and Alabama). The 11th Circuit refused to hear the case en banc, which means by all the judges instead of a panel of three. Two judges, Rosenbaum and J. Pryor, dissented from this refusal, saying:

“The issue this case raises–whether Title VII protects gay and lesbian individuals from discrimination because their sexual preferences do not conform to their employers’ views of whom individuals in their respective genders should love–is indisputably en-banc-worthy.” 894 F.3d 1335 (2018)

The framing of this question by these dissenting judges acknowledges a connection between sexual orientation and gender/sex stereotyping, and it doesn’t matter whether the employer and/or co-workers perceive the plaintiff as masculine or feminine. The stereotype the plaintiff does not “meet” relates to expectations about “whom individuals in their respective genders should love.”

But these two judges were not among the three to decide the case. Those three, Judges Tjoflat, Wilson, and Newsom, affirmed the lower court’s dismissal of the plaintiff’s case, allowing the discrimination against him to go unremedied. In a short opinion, they said that (1) Title VII does not protect workers from sexual orientation discrimination and (2) the plaintiff did not allege facts sufficient for gender stereotyping. 723 Fed. Appx. 964 (2018).

The Supreme Court could change this outcome. The Bostock case is consolidated with  Zarda v. Altitude Express, Inc., in which an en banc 2nd Circuit came to the right conclusion that Title VII protects workers from discrimination on the basis of sexual orientation. In this case, the 2nd Circuit, which hears appeals from federal district courts in Connecticut, New York, and Vermont, based its decision on the fact that discrimination on the basis of sexual orientation is clearly “because of… sex.”

According to the Court, in an opinion by Chief Judge Katzmann:

Because one cannot fully define a person’s sexual orientation without identifying his or her [or their] sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she [or they] is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

In this case, the plaintiff was a man who dated/married men. If he were a woman, would his employer have fired him? When sexual orientation is a motivating factor in an employment decision, then sex is too.**

So, the 2nd Circuit and the 11th Circuit have come to different conclusions about whether Title VII prohibits discrimination on the basis of sexual orientation, and they aren’t the only courts that have either looked at this issue or are about to look at it. See Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (holding that sexual orientation discrimination is a form of sex discrimination actionable under Title VII); Doe v. Parx Casino, No. 18-5289 (E.D. Pa. April 11, 2019) (holding that Title VII does not protect employees from discrimination on the basis of sexual orientation) (PDF available).

By accepting Bostock and Zarda for review, the Supreme Court will resolve this circuit split.

On April 22, 2019, the Supreme Court also accepted a case about transgender rights in the workplace. In R.G. v. G.R. Harris Funeral Homes, a transgender woman who was assigned male at birth was terminated from her employment as a funeral director after she informed her boss that she was transitioning and would dress in clothes associated with women at work. A panel of the Sixth Circuit (which hears appeals from Kentucky, Michigan, Ohio, and Tennessee), in an opinion by Judge Karen Nelson Moore, concluded that: “Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII.”

We’ll see what the Supreme Court does in R.G. as well as in Bostock/Zarda. In the meantime, read From A Whisper to a Riot to learn more about how some of the stereotypes at issue in these current cases were perpetuated or challenged in early 20th Century gay literature.

_________________

*However, many state and local laws do protect workers from discrimination on the basis of sexual orientation. Unfortunately, though, my state, Pennsylvania, does not explicitly provide this protection. Philadelphia and many other municipalities do. There have been efforts in Congress to pass Employment Nondiscrimination Act (ENDA) and the Equality Act (recently introduced) to explicitly prohibit discrimination on the basis of sexual orientation or gender identity.

**See also Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641, at *10 (July 15, 2015) (“An employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex”).

***I read this book as part of the 2019 Nonfiction Reading Challenge (hosted by Katie at Doing Dewey).

14 comments

  1. Awesome review! I wasn’t aware that there was dissension over whether employers could discriminate on the basis of gender, so I really appreciate you giving the highlights of how the law works now and the upcoming cases.

  2. Sounds like a good book! Also I loved your analysis of the Title VII cases going before the Supreme Court. I hope the Court makes the rights decision though I am really worried because of Kavanaugh.

    1. Yeah, the Supreme Court makes me nervous. I’m especially concerned because I think they are more politically inclined to treat transgender workers even worse than lesbian and gay workers, and they’ll be deciding both issues at the same time (and really, they require the same analysis).

    1. Thank you! I’m glad it was an informative post. I’ve been watching (and involved in) the development of this law for a long time, and I’m glad I had an opportunity to blog about some of it. Adam’s book was quite thought-provoking.

      1. I think it’s interesting how the law can change just based on an interpretation of a word, “sex.” It’s both reassuring that we aren’t locked in stone, but also scary in that people can twist words to make them mean whatever fits an agenda.

        1. I like to think of the law as evolving. I don’t want to be bound by an interpretation of words that is decades or centuries old. There are many people who disagree with me, though. They think that we should be limited to the original intent of the people who passed the law. As for the issue discussed in the post, even if we stick to what “sex” meant in 1964, discrimination on the basis of sexual orientation is sex discrimination. Congress determined that sex shouldn’t be a factor in employment decisions. If an employer treats an employee badly because the employee is dating or married to someone of a certain sex, then that employer is using sex as a factor. It’s pretty clear cut, in my opinion, but judges have a long history of doing whatever suits their political goals. That’s the ugly reality, and I don’t think we can pretend otherwise after decisions like Bush v. Gore.

  3. A non-discrimination law should apply to everyone (and sadly, I do see the need for such a law, given how minorities have and are being treated in this country). I suppose that’s a simplistic way to look at it, but it seems eminently sensible to me to simply accept people as they are and stop punishing those who are different.

    1. A lot of people think the laws already do apply broadly, and that’s a problem. I can’t tell you how many times I hear from potential clients who assume that the laws are better than they actually are. Many people don’t realize how much their rights vary based on the federal circuit, state, or municipality in which they live/work. If they did, maybe they would demand better laws from their legislators. I work in a city that has passed many progressive workplace laws, but this city happens to be in a state that is trying to take those laws away (through preemption bills). Instead of raising the standards for everyone, our state lawmakers want to make sure no one has any rights.

  4. What a wonderful connection you draw from the book to The law. I love how you bring your two interests together in this amazing way. It was enlightening to read this post (to say the least) and definitely makes me want to read this book as well as do more research on the cases you sight. Thanks so much for such a rich post . I’m also particularly interested as I’m following a local story in Richmond VA (where I live): https://www.google.com/amp/s/www.richmond.com/news/local/chesterfield/former-chesterfield-county-teacher-sues-district-over-discrimination/article_a9cead74-1ae2-53e3-a174-e0910a01594e.amp.html

    I feel so lucky that your dad (my mentor in grad school) introduced me to your blog. While I don’t post responses often, I do read your posts and absolutely love them.

    Thanks so much for this post in particular. I can’t wait to share it with one of my students who too would love this research.

    Sonali Gulati

    1. Hi Sonali- I’m glad you found the post informative and interesting. I’ve been following (and been involved with) the development of this law for a long time. It was nice to have an opportunity to write about it on this blog.

      Thanks for the link to the case in the Eastern District of Virginia. I took a quick look at the complaint. The plaintiff’s charges with the EEOC (disability and sex discrimination) were dismissed by the agency, but the allegations in the complaint are very serious. I hope that the court will see that an unexpected transfer to a school that is farther away and in a more homophobic area IS an adverse employment action. I can understand why the plaintiff would take a leave of absence from the hostile conditions at work. The complaint cites several cases, including Zarda, Hively, and Price Waterhouse. I am hoping the Supreme Court will agree with the Second Circuit (Zarda), but we’ll see. From a text-based approach (and several of these Justices claim to be textualists), discrimination on the basis of sexual orientation is a clear-cut example of sex discrimination (as explained in the post). However, we have a long history of judges picking and choosing whatever interpretation method best meets their political goals.

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