UCLA Journal of Gender and Law

The United States Supreme Court recently heard oral arguments in Altitude Express v. Zarda, a case that addresses whether Title VII’s prohibition of discrimination “on the basis of sex” prohibits sexual orientation discrimination.  Relying on three related lines of reasoning, the United States Court of Appeals for the Second Circuit had held that it did.  First, sexual orientation discrimination would not have occurred “but for” the employee’s sex; second, sexual orientation discrimination relies on the sex-stereotype that individuals should be attracted to individuals of the opposite sex; and third, sexual orientation discrimination is a form of prohibited associational discrimination.  This Article opines that the strongest and most compelling of these three arguments is sex stereotyping since gays and lesbians fail to conform to the ultimate stereotype that real men are sexually attracted to women and real women are sexually attracted to men.  This stereotype is a means of maintaining anachronistic and outdated gender roles for men and women.

Breast cancer awareness campaigns—widespread, largescale efforts focusing on general “awareness” of the breast cancer, rather than the dissemination of information on detection and treatment—are common sights in the American public and private spheres.  From NFL players donning pink socks to crafters selling “I love boobies!” t-shirts online, breast cancer-branded events and products have become an essential marketing tool to reach women, signal corporate virtue in a palatable, nonaggressive manner.  Even the federal government is party to the trend: in 1998, the U.S. Congress authorized the sale of the Breast Cancer Research Stamp (BCRS) by the U.S. Postal Service to raise awareness and research funds for breast cancer.  The BCRS has been available ever since.

This Article posits that the BCRS is more an attempt by the federal government to capitalize on the goodwill and consumer engagement generated by breast cancer awareness marketing in the private sector, and less a good-faith attempt to treat, cure, or prevent breast cancer among Americans.  The Article addresses three questions: (1) how does the BCRS reflect a private sector trend of embracing breast cancer cause marketing?; (2) why does Congress continually reauthorize the BCRS, even as other semipostal stamps lapse?; and (3) why has Congress chosen to raise money for breast cancer research through the BCRS?  In answering these questions, I argue that the true legislative motivations behind the BCRS are to generate goodwill amongst voters, promote small-government values, and align with breast cancer awareness causes without compromising other political positions.  I conclude that the BCRS exemplifies how Congress has eschewed expert opinion and instead adopted private sector marketing strategies when passing legislation.

In Obergefell v. Hodges, the Supreme Court recognized the right of same-sex couples to be married.[1] In doing so, the Court remedied the demeaning exclusion of a historically disadvantaged minority group from a nationally cherished institution, noting the stigma and injury the exclusion caused.  The sweeping language of the majority opinion in Obergefell and its focus on exclusionary harm suggested a new era of inclusion for lesbian, gay, bisexual, and transgender Americans.[2] This Article argues that the exclusion of transgender persons from military service constitutes the type of harm Obergefell and the Equal Protection Clause prohibit.

This Article first provides background on the pre-Obergefell landscape for constitutional challenges to military service exclusion.  Second, the Article assesses Obergefell’s jurisprudential expansions of substantive due process and equal protection doctrines through its recognition of the exclusionary harm done to gay people by excluding them from the institution of marriage.  The Article uses the Court’s exclusionary harm analysis to assess the exclusion of a historically disadvantaged minority group from another nationally cherished institution: the Trump Administration’s ban on transgender persons serving in the military.  Third, the Article argues that Obergefell advanced a new equal protection doctrine: the government may not demean a group by excluding it from an important positive right resulting in dignitary harm.  The Article concludes that the transgender military ban constitutes the type of dignitary harm that Obergefell and the Equal Protection Clause prohibit.

[1].       Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015).

[2].       While the opinion did not explicitly address transgender rights, the Court wrote, “[t]he Constitution promises liberty to all within its reach, [including the right] to define and express their identity.”  Id. at 2593.  Some commentators observed this extended protections to transgender people.  See, e.g., Scott Skinner-Thompson, How Obergefell Could Help Transgender Rights, Slate (June 26, 2015), https://slate.com/human-interest/2015/06/obergefell-and-trans-rights-the-supreme-courts-endorsement-of-identity-expression-could-help-trans-activism.html [https://perma.cc/ZF3W-PVWP]; J. Courtney Sullivan, What Marriage Equality Means for Transgender Rights, N.Y. Times (July 16, 2015), https://www.nytimes.com/2015/07/16/opinion/what-marriage-equality-means-for-transgender-rights.html [https://perma.cc/23M3-T2NV].

Editors’ Note

This essay reviews the Congressional debate surrounding the addition of the term “sex” to Title VII of the Civil Rights Act of 1964.  We included this essay because it serves as a reminder that the narratives we construct regarding legal and legislative history are often at risk of oversimplification.  As the Justices of the Supreme Court deliberate and consider recent oral arguments regarding whether the term “sex” extends legal protections to persons on the basis of sexual orientation or gender identity, the Congressional Record from February 8, 1964 suggests one lesson: There are limits to relying on historical dialogues that exclude or mock marginalized voices.  That is, if many of the proclaimed supporters of an amendment advancing women’s equality supported it solely to undermine the passage of civil rights legislation, how instructive can it be to speculate about what they intended by the term “sex”?  While this essay does not answer this question, it suggests that the sincere supporters of the amendment—and even those opposed to it on the grounds it would impede passage of the legislation—were fundamentally concerned with advancing equality for any and all groups who had faced discrimination.

The following short story is in dedication to all the women who have been denied an education because of their gender.