Saturday, April 14, 2012

Sexual Disorientation

Andrew Koppelman

Elizabeth Glazer’s article Sexual Reorientation, newly published in the Georgetown Law Journal, claims that antidiscrimination law ought to distinguish between an individual’s general orientation (the sex toward which an individual is attracted most of the time) and specific orientation (the sex of one’s actual partner).  When only general orientation is protected, then those whose general orientation is ambiguous, such as bisexuals, are unjustly denied legal protection.  Law ought to protect those whose status and conduct are not identical.  Discrimination on the basis of specific orientation should be recognized to be a kind of sexual orientation discrimination.

Glazer is right about the pathologies of existing law, and her article deserves the attention that it has already gotten.  The introduction of her proposed distinction into the set of operative legal categories would indeed patch a hole in the law’s protection of sexual orientation. 

I comment on her piece in the same issue.  I have one reservation.  I think that the law ought to be spending less rather than more time figuring out what anyone’s sexual orientation is.  It could do that by focusing its attention elsewhere.  Specifically: it could notice that discrimination against gay people, bisexuals, and anyone else who fails to make the approved gender-specific choices of sexual partners is sex discrimination, which is already barred by the Fourteenth Amendment and the Civil Rights Act of 1964.

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