The Institutionalized Othering of Sexual Minorities in Sex Discrimination Suits

26 Pages Posted: 18 Oct 2018

See all articles by Tyler Wolfe

Tyler Wolfe

University of California, Berkeley, School of Law, Students

Date Written: October 2018

Abstract

A majority of courts misinterpret Supreme Court precedent when analyzing sex discrimination claims brought by queer plaintiffs. Based on a fear of expanding Title VII to proscribe discrimination based on sexual orientation, these courts use a plaintiff’s queerness to discredit their claims of sex discrimination. This method of discrediting claims brought by queer plaintiffs institutionally “others” sexual minorities and prevents them from exercising their legal rights. However, a minority of courts have shown a commitment to applying the principles of Title VII equally among sexual minorities and cisgender, heterosexual plaintiffs. These courts correctly interpret Supreme Court precedent, and they work to ensure that all people are accepted in society. In line with this minority approach, this article will argue that discrimination based on sexual orientation is inherently discrimination based on sex because sexual minorities—merely by existing—depart from stereotypical notions of gender and sexuality.

Keywords: gender, sexuality, Title VII, sexual orientation, gender identity, gender expression, sex, sex discrimination, Price Waterhouse, Oncale, Winstead, Baldwin, Hively, Zarda, Franchina

JEL Classification: K19, K39

Suggested Citation

Wolfe, Tyler, The Institutionalized Othering of Sexual Minorities in Sex Discrimination Suits (October 2018). Berkeley Journal of Gender, Law & Justice, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3253358

Tyler Wolfe (Contact Author)

University of California, Berkeley, School of Law, Students ( email )

Berkeley, CA
United States

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