View Full Version : The Civil Rights Act, Homophobia, and Sexism.
09-23-2004, 03:21 PM
I've had this idea ruminating in my head for a while. The debate, I'll admit, seems a bit flimsy and I'm not sure how well I'm going to be at defending it. But here goes...
The term sexism is defined as prejudice or discrimination based on sex. US Citizens are protected against that type of discrimination by Title VII of the Civil Rights Act of 1964 (http://www.eeoc.gov/policy/vii.html) which includes sex amongst race, color, religion, and national origin. The act begins:
To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.
Homosexuality is defined as: of, relating to, or characterized by a tendency to direct sexual desire toward another of the same sex. (Heterosexuality having the same definition except for "opposite sex" replacing "same sex".) The only difference between these two distinctions is the sex of the other person. Since the sex of the other person is the defining part of what makes the difference, how could this not be sexism? And since it's against the Civil Rights Act of 1964 to discriminate on the basis of sex, shouldn't that make it de facto illegal to discriminate against homosexuals?
I do see the problems inherent in the proposal however. The discrimination is only in correlation with the secondary person and as such, is not direct discrimination.
09-23-2004, 07:19 PM
I've wondered the same thing, but I think you hit on the "problem" with the proposal in your OP. The first attack against it will be that you're not being discriminated against because of your sex. Opponents will claim that you and your boyfriend are still perfectly entitled to get married -- just not to each other.
That's why the people opposing gay rights are careful to say that they're not opposing gay people, they're simply clarifying the definition of "marriage." So they say that they're not keeping you from getting married because you're a homosexual, only that marriage belongs to a man and a woman only. Because that way, it's not offensive, apparently.
09-23-2004, 07:46 PM
I'm sorry, stpauler -- I didn't read your original post carefully enough. I've got same-sex marriage discussions on the brain and acted as if everything boiled down to that one thing. You weren't talking about SSM, but about discrimination in general.
My mistake, and I'm afraid I don't have anything to add. Ignore my post.
09-23-2004, 08:11 PM
As comes up in every discussion of transsexuality, sexual identity and sexuality/sexual orientation are not identical concepts. And the issue of "sex" in the Civil Rights act is focusing on sexual identity -- that Jane cannot get the same job and pay as John, despite having identical qualifications, by virtue of the fact that she does not have a penis or a Y chromosome. The only job, I think, for which that is a legitimate qualification is professional sperm donor.
If someone will not hire you, will fire you, will not rent or sell a home to you because you are a gay man, that certainly deserves to be a protected class under which he can be prosecuted. But you cannot claim "sex" as used in the Civil Rights Act, because he is not discriminating against you for being male, but simply for being a male attracted to males. (JFTR, I think a case could be made if a gay couple were discriminated against, in favor of a mixed-sex couple -- but I would not want to be a lawyer tasked with briefing that claim!)
Which is not to throw cold water on the idea of fighting discrimination -- it's merely saying that this particular argument is one that will not hold water, as the law is written and interpreted.
09-23-2004, 10:42 PM
SolGrundy, marriage by two people of the same sex does fall under the large umbrella of my OP. Take for example the Defense of Marriage Act: (http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3396.ENR:)
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
(yadda yadda yadda)
"...the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
The definition of the law is making it applicable to the sex(es) of its participants.
The 1964 Civil Rights Act was to make accessible governmental protection based on sex (et al) for education, employment, housing, and the ambiguous but applicable "and for other purposes".
Polycarp, the debate I'm proffering here is completely independent of sexuality, gender, sexual identity (for the sake of simplicity). I'm basing it solely on sex. Sex, going by the probable intentions and definitions of 1964, were based on the sexual organs of the person at birth. (I can't verify that claim but I'd assume it to be true.)
My opinion that DOMA (et al) is indeed against the Civil Rights Act of 1964 is further proved by a SCOTUS ruling back in 1988. Here's the Supreme Court Ruling of ONCALE v. SUNDOWNER OFFSHORE (http://supct.law.cornell.edu/supct/html/96-568.ZS.html) (bolding mine)
Held: Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. Title VII’s prohibition of discrimination “because of … sex” protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, and in the related context of racial discrimination in the workplace this Court has rejected any conclusive presumption that an employer will not discriminate against members of his own race, Castaneda v. Partida, 430 U.S. 482, 499. There is no justification in Title VII’s language or the Court’s precedents for a categorical rule barring a claim of discrimination “because of … sex” merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Recognizing liability for same-sex harassment will not transform Title VII into a general civility code for the American workplace, since Title VII is directed at discrimination because of sex, not merely conduct tinged with offensive sexual connotations; since the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same, and the opposite, sex; and since the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances. Pp. 2—7.
Furthermore: (http://www.4lawschool.com/oncale.htm)The court stated that even though the Congress did not originally intend Title VII to cover male-on-male sexual harassment, it is "ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." The court was ultimately boiling down their arguments based on the previous ruling based on race which was a protected class, as well as the fact that the sex of the participants shouldn't be a factor in justice.
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