Many LGBT legal scholars argue that discrimination against gay, lesbian, and bisexual people is sex discrimination. Though some say that gay men and women are treated the same, and therefore are not discriminated against based on gender, these scholars disagree, and point out a fundamental misunderstanding.
Faulty Comparisons of Gay Men to Lesbians
Those who reject the sex discrimination argument tend to say that discrimination based on sexual orientation is not sex discrimination because gay men and lesbians are treated equally. To understand this argument, compare the rights of a gay man to the rights of a similarly situated lesbian.
Jack, a gay man, cannot legally marry his partner, John, in his state. Jill, a lesbian, cannot marry her partner, Jane, in the same state. At first glance, it seems obvious that the state is not discriminating against Jack or Jill because they are both treated the same, though one is male and the other is female.
Arguing Against Discrimination Based on Sexual Orientation
Another option, one that some LGBT scholars embrace, is to ignore the sex discrimination argument altogether and focus instead entirely on orientation. In this approach, the person being discriminated against claims that the reason for discrimination is his or her orientation. In the above example, Jack and Jill would both argue that they cannot marry because they are gay or lesbian, and therefore they are being discriminated against.
A Successful Approach to Sex Discrimination
In his 1997 article in the Modern Law Review, "Recognising New Kinds of Sex Discrimination: Transsexualism, Sexual Orientation, and Dress Codes," Robert Wintemute exposes a flaw in the argument that orientation-based discrimination is not sex discrimination. He chooses this strategy because the law in many countries, including the United States, does not recognize orientation as a protected basis for discrimination claims. Also, someone who does not identify as "gay" or "lesbian," but is discriminated against based on his or her partner or sexual practices would have trouble making an orientation-based claim.
Instead, Wintemute tackles the sex discrimination argument. He explains that his opponents have confused the issue by comparing the injured party to the wrong type of individual. Instead of comparing gay men to lesbians, or gay men to straight men, he compares gay men to straight women.
Again, Jack wants to marry John, his male partner. Julia, a straight woman, also wants to marry her male partner. Both want to marry a man, but only Julia can - because she is a woman. Using this sort of comparison, it is easy to see that discrimination based on orientation can also be viewed as discrimination based on sex. This model has the added advantages of being legally viable - sex discrimination is recognized as impermissible by international law and many countries - and not requiring individuals to identify using labels with which they do not identify.
