今天有同僚做了title VII sex discrimination的presentation
在结尾的时候 她提到说 无论从orginalism的角度与否 incorporate Transgender和LGB的人们都是非常自然的
我当下有很多想法 但整理不出清楚的头绪 刚刚自己整理了一番 （特别刚刚写了点区分gender identity和sexual orientation)的问题 希望明天可以和她聊一下
I think I would probably be the last person in this room who will be accused of being discriminatory against LGBTQ+ community, because of my own sexual orientation, I will be given the most benefits of doubt in this context. 【我本来想好的开场哈哈】
I do not agree that Title VII could be so naturally extended to LGB people because I think there is a difference between Gender Identity and Sexual Orientation.
Title VII is about sex, so it could be naturally extended to incorporate gender and thus Transgender, Non-binary, Gender Non Conforming (GNC) or what have you. But the same logic does not apply to sexual orientation.
I admit that Transgender, GNC etc. and LGB have many same or similar issues, but in the end, they are not the same thing.
The logic does not extend to LGB people simply because sexual orientation is not a sub-category of gender.
One could argue that because the court has read “gender stereotype” into the definition of “sex”, sexual orientation is just another type of gender stereotype, i.e. women should love men and men should love women. However, unlike the classic example for “gender stereotype” (Women should stay at home, men should go out for work), this thought “women should love men and men should love women” was not generated on the basis of gender, rather, it is both applicable to men and women. [I need to apologize for this binary distinction but it is necessary to illustrate my point.] In other words, the rule is not “women should love men and men should love women”, it is “an individual should love another individual of an opposite sex”.
Admittedly, there is some interrelated issue between Gender Identity and Sexual Orientation on this point, that is also the reason I draw the binary distinction and use the word of “sex” instead of “gender” in the last sentence of the last paragraph. However, the predominant issue is still that LGB people are not discriminated against on the basis of sex.
One could further argue that the point I just illustrated is just because my way of generalization, we could do the same to the classic gender stereotype examples: “One should always conform to the gender social norm.” However, generalization is always an issue of what is the right level of generalization, and I think it is fair to say that my way of generalizing the sex orientation part is on the sweet spot of generalization and this argument is not. This argument is too abstract and loses most of its meanings because of the lack of specifics.
Thus, I argue, Title VII is not the right way to protect LGB people.
I have another reason that I do not want to add LGB under the definition of sex (I want to do the same thing to the transgender, but it is more complicated and I haven’t figured it all out yet.) That is, I want LGB people to get strict scrutiny, not the intermediate one.
Although it is hard to figure out why the Justices made the distinction, I think there is some legitimacy in giving strict scrutiny to racial discrimination and only intermediate scrutiny to gender discrimination. After all, there are some undeniable differences between females and males. For instance, generally, the male is stronger than female. [How the society gives the weight to this trait is another topic.] But there is no such difference between different races (one could argue there is, like African Americans are faster than Caucasians [I hope this does not come out wrong, but Melody Hobson taught me to be racial-brave], but one should acknowledge that at least there is no such huge difference as to the one between the two genders). Thus, protection against racial discrimination is naturally more sweeping than protections against gender discrimination. The same is to sexual orientation, there is no such difference between a woman who is straight and a woman who is not straight (Well, you could argue lesbians eat more veggies than straight women… I am using my privileges again). Thus, I do not see why we could not ask for strict scrutiny for LGB group. (And that is exactly what they did in transgender military ban cases, they argued as a sub-group of gender for intermediate scrutiny and also as a separate category for strict scrutiny.)
I acknowledge the current ruling does not make a lot of sense. Take two lesbians as an example, A is butcher and B is more feminine. A gets the protection of Title VII because of gender stereotype is applicable in all jurisdictions, while B does not. And I do think this issue is urgent.
I also understand that it is probably hopeless in the short term to expect the Congress to act on this issue, thus, reading sexual orientation into Title VII by the court might be our best chance to protect LGB people in the context of employment. However, the urgency of this issue does not justify this to be the right way to go. My best hope is that the court would read this into Title VII and later Congress would adopt a new law giving LGB our own protection. [This probably would be the most optimal solution/prediction in a practical way… whatever]
I tried hard to make sense throughout the rambling and I hope I did.
