Posted by Eugene Volokh: Sexual orientation discrimination and race discrimination:
(I've blogged about this a year or two ago, but it seems worth returning to.) Lots of people have argued that sexual orientation discrimination should be treated just like race discrimination. Sexual orientation and race, the argument goes, are both characteristics that are almost entirely irrelevant to a person's ability to do certain things, and are outside the person's control. The sexual orientation discrimination argument also has to take the next step, which is to explain why discrimination based on sexual conduct should be treated the same way, since obviously homosexuals are free not to engage in homosexual conduct. But there too the race discrimination analogy is helpful; race discrimination laws bars discrimination based on people's relationships with people of some race (so it's illegal to fire people because they're dating a black, or just dating outside their race). Now of course there are various responses to this. There are factual disagreements with the assumptions of the argument I outlined above -- for instance, some say that sexual orientation is within a person's control; others say that it is relevant more often than some might think. There are also other kinds of disagreement, too. But for now, I want to raise one point: There are multiple possible analogies to sexual orientation discrimination. 1. One, of course, is standard race and ethnicity discrimination, which is banned in many situations, and socially condemned even in many cases where it's legal. (For instance, if someone says "I'd like to have dinner tonight just with white people," many people would condemn this attitude even if they agree that the person should have the legal right to make that choice.) 2. But there's also sex discrimination. Sex is also outside a person's control (unless one goes through very onerous procedures), and also largely irrelevant to a person's abilities. Yet sex discrimination is banned in fewer situations, and socially condemned in fewer situations. (For instance, if someone says "I'd like to ahve dinner tonight just with the boys / the girls," many fewer people would condemn that.) 3. There's also height discrimination, and other aspects of appearance discrimination. Height is also pretty much outside a person's control, as are many (though of course not all) other aspects of appearance, and it's also largely irrelevant to a person's physical abilities, with a few exceptions. Yet height discrimination is legal almost everywhere and in almost all contexts (even when there's no reason other than the discriminator's or others' preference for it), and it's rarely socially condemned. (One might think that someone who discriminates based on height is shallow or is acting in an unfair way, but such people are rarely harshly condemned.) Note also that, to the best of my knowledge, height discrimination against short men is indeed pervasive, both in business and in social life, and quite substantial in magnitude. Likewise with discrimination against ugly people. One can of course add other categories, though some (such as age or disability) are fairly often relevant to a person's ability, and others (such as religion or marital status) are more easily changeable though the legal system's view is that people shouldn't be pressured into changing them. But these three categories are enough, I think, to show that there are several different ways in which the legal system treats discrimination based on immutable and largely irrelevant attributes. And this suggests that when people are arguing "sexual orientation discrimination should be treated like race discrimination," they should also explain why it shouldn't be treated like sex discrimination or height discrimination. (Of course, some might think that all these kinds of discrimination should be largely forbidden and socially condemned, but that's a different and more ambitious argument from the one I'm responding to. I'm dealing here just with the argument that it's wrong, on equality or logical consistency grounds, to treat sexual orientation discrimination differently from the way race discrimination is treated.) Of course, this point is especially apt as to the Boy Scouts controversy. They are, after all, the Boy Scouts -- a group that discriminates based on sex, that is legally allowed to discriminate based on sex, and that most people (I suspect) would not condemn for discriminating based on sex (either in choice of group leaders or in choice of scouts). Likewise for the Girl Scouts. So if one is trying to criticize the Boy Scouts' sexual orientation discrimination by analogy to race discrimination, one has to also explain why the sexual orientation discrimination can't be defended by analogy to sex discrimination. _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
