Policing the Painted and Powdered

Authors

Anthony Michael Kreis, Chicago-Kent College of Law

Abstract

Is homophobia also sexism?

This question was the focus ofpioneering scholarship nearly three decades ago and has been the subject ofreignited controversy because of litigation over marriage rights, employment discrimination, educational opportunities, fair housing, religious exemptions, and military service. Even though some courts, federal agencies, and state employment commissions have recognized that sexual orientation and gender identity discrimination are subsets ofsex discrimination, including the landmark Title VII decisions Hively v. Ivy Tech Community College and Zarda v. Altitude Express, academics, judges, andpublic administrators have been unable to articulate a plain theory ofsexual orientation discrimination as sexism. Without a straightforward theory to operationalize into law, some judges are unpersuaded that sexism and homophobia are linked. Appellate judges have struggled to find consensus even when they agree that sexual orientation discrimination is sex discrimination.

This Article's objective is to reconsider the relationship between sexism and homophobia, by reexamining prior scholarship with new historical evidence and an exploration of recent LGBTQ rights jurisprudence to provide a more complete, easily digestible analytical framework that explains how homophobia fits in the larger puzzle of American sexism. The Article argues that American law's historical and more contemporary maltreatment of sexual minorities is a product of a particular brand ofsexism-ambivalent sexism-which utilizes a carrot and stick approach to subjugate both women and sexual minorities simultaneously. Ambivalent sexism punitively targets visible gender nonconformity while patronizingly rewarding individuals compliant with traditionalgender expectations.

The Article contends that the development of sex stereotypes by Progressive Era lawmakers and the early administrative state in response to the LGBTQ community's amplified visibility in the nineteenth century and the reappropriation of paternalistic legal theories initially used to restrict women's rights, constitute the crux ofhomophobia in the law. The Article proffers that ambivalent sexism and its attendant sex stereotypes animate the homophobic state, and it urges courts and administrative actors to treat LGBTQ discrimination as a kind of sex discrimination.

Disciplines

Jurisprudence | Law | Law and Gender | Law and Society | Legal History | Sexuality and the Law

Recommended Citation

Anthony M. Kreis, Policing the Painted and Powdered, 41 Cardozo L. Rev. 399 (2019).
Available at: https://larc.cardozo.yu.edu/clr/vol41/iss2/2