Why anti-gay discrimination is gender discrimination

Arguments at the United States Supreme Court for Same-Sex Marriage on April 28, 2015

A person who is attracted to men is only gay if that person is male. Therefore, being gay is all about gender.

The Case

So says a federal appeals court (the Second Circuit)—a court one step below the Supreme Court—which has ruled, in a 10-3 decision, that sexual-orientation discrimination is also gender discrimination. In so doing, the court employed an intellectually unassailable methodology with a precision usually associated with scientists, not lawyers.

The case involves a now-deceased skydiving instructor who alleged that he was fired from his job as a tandem jumper because he was gay. Under a federal statute lawyers call “Title VII,” an employer is not allowed to fire an employee “because of . . . sex.” (Note that this statute uses the word sex to mean gender.)

The employer, of course, argued that the employee was not fired because he was a man, so he wasn’t fired because of his sex. The issue, then, was whether sexual-orientation discrimination and gender discrimination are conceptually indistinguishable. The court said that they are.

The Science

Saying that, for legal purposes, sexual orientation and gender are essentially interchangeable might seem like a sleight of hand. It isn’t; it is, rather, the necessary result if we approach the question objectively and fairly, as a scientist would. In a scientific experiment, there are typically three variables: 1) a controlled variable, 2) an independent variable, and 3) a dependent variable.

Suppose that we’re trying to figure out why some matches that have been struck turn out to be lit while others that have also been struck turn out to remain unlit.

We control for the matches being struck; this variable can’t change if the experiment is to yield a reliable, valid result. If some matches are struck and some aren’t, then we’ll never discover why matches all of which have been struck don’t all turn out to be lit.

The dependent variable is being lit (or unlit). It seems that because two different results are observable, the results must depend on some other condition or variable.

And that is what we’re focusing on: the independent variable, because that variable is the one that really causes the result. Were we to observe that damp matches that have been struck tend to remain unlit while dry matches that have been struck tend to become lit, then the independent variable–the condition that seems to cause the different results–is the property of relative wetness (or dryness).

In Title VII cases, courts focus on whether the independent variable (the real cause of an adverse employment outcome) is gender. If an employee’s gender was the real–one might say scientific–cause of a firing, for example, then Title VII has been violated.

Being gay, or homosexual, means being attracted to one’s own sex. In the case about the skydiver, the employer argued that a man being fired because he is gay is therefore not a function of his being a man, but a function both of his being a man and his being attracted to other men. So, the employer argued, neither the gender of the employee nor the gender of the people the employee is attracted to should remain constant in our experiment.

As the court noted, however, this approach breaks the rules of good science–because it requires that we mess around not only with the independent variable, gender (which is fine), but that we also mess around with the controlled variable, gender of the people to whom the employee is attracted (which is not fine, because it renders the test unfair and unreliable).

It’s helpful to think about it this way: The skydiver was not fired because he was attracted to men (any more than a match remains unlit because it was struck). Some skydivers who were attracted to men were fired, while others were not fired (just as some matches that were struck became lit, and some didn’t). So being attracted to men is the control variable (just like matches being struck), and if this test is to yield a valid result, that variable must remain constant. We can’t be flipping the controlled variable between male and female (or struck and un-struck) or we’ll never find an answer to the question why some employees who are attracted to men are fired while others are retained (or why some matches become lit while others remain unlit).

Why is sexual-orientation discrimination really gender discrimination? Because when we control for which gender employees are attracted to and observe that only some of those employees get fired, we discover that the independent variable is gender–an employee who is attracted to men is fired only if he is a man, and not if she is a woman. An adverse employment decision taken against a gay employee is therefore based on the employee’s gender.

Of course, anti-gay activists don’t want to conduct the test this way because it yields a valid result, and ideologues are not big fans of valid results that cut against their prejudged–and decidedly unscientific–preferred outcomes.

In the skydiver case, the court got it right: “The trait is the control, sex is the independent variable, and employee treatment is the dependent variable.” So in a Title VII case, we always ask, what event or condition (what the court calls trait) was cited for the adverse treatment? That’s the controlled variable. We then look at the different employment outcomes (fired, demoted, not hired, etc.). That’s the dependent variable. Then we plug in male or female (gender) as the independent variable to see whether that property–gender–does, in fact, reliably predict the outcome. If it does, then again, Title VII has (at least arguably) been violated.

More Practice

I

An employer fires an employee, Patricia, and Patricia alleges gender discrimination. So we ask what it was about Patricia that was cited as the basis for her firing (that’s the trait). We discover that Patricia was fired after she refused to take down a photo of her wife that she had displayed on her desk. So the control variable is having a photo of a wife on one’s desk. Because this is the control variable, we can’t mess around with it; it must remain constant–the spouse in the photo is a female, a wife.

But it’s clear that the firing isn’t really about the photo, because Patrick also has a photo of his wife on his desk, and he was not fired. Since we have disparate outcomes, the dependent variable is fired or retained.

We’re testing whether the independent variable is gender, and we see that it is. You’re fired for having a photo of your wife on your desk if you’re a woman, but not if you’re a man.

Title VII has been violated.

II

The court in the skydiver case pointed out that the same legal analysis yields the same legal results with regard to other types of cases, too–cases not just about sexual orientation, but also gender stereotypes or gender nonconformity.

Suppose that an employer fires an employee, Patrick, and Patrick alleges gender discrimination. So we ask what it was about Patrick that was cited as the basis for his firing (that’s the trait). We discover that Patrick was fired for wearing makeup. So the control variable is wearing makeup. Because this is the control variable, we can’t mess around with it; it must remain constant.

But it’s clear that the firing isn’t really about wearing makeup, because Patricia also wears makeup, and she was not fired. We have disparate outcomes, and the dependent variable is fired or retained.

We’re testing whether the independent variable is gender, and we see that it is. You’re fired for wearing makeup if you’re a man, but not if you’re a woman.

The employment decision was based on sex. (There may be other issues involved, like whether gender conformity is a legitimate requirement for doing a certain job, but the employer would now be on the defensive, having to justify what a court would clearly regard as gender discrimination under Title VII.)

Conclusion

These are undoubtedly results that drive right-wing dogmatists to distraction. But that is because reality drives them to distraction, as does science. It is illegal to target an employee because of the employee’s sex, and when an employer does target an employee for being gay or bisexual or gender-nonconforming, the employer is targeting an employee because of his or her sex.

As controversial as the Second Circuit’s decision will undoubtedly be, the court constructed its analysis in such a way as to render its judgment inescapable. When law and science collide, they make a beautiful glow.

-bb

 

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