Publication Date
2014
Journal
Chicago-Kent Law Review
Abstract
A popular and intuitively plausible argument for the rights of lesbians, gay men and bisexuals (LGB people) focuses on the claim that sexual orientations are inborn and/or unchangeable. This argument draws on three sources: ethical, scientific, and legal. The scientific source is the widely held observation that people generally (and LGB people particularly) do not choose their sexual orientation. This observation is buttressed by claims about the causes and character of human sexuality. The ethical source is the general intuition that people should not be punished for something that they did not choose. Together, these ethical and scientific beliefs lead to the conclusion that LGB people should not be subject to discrimination, their sexual behaviors should not be criminalized, they should have the option for their relationships to be publicly sanctioned, and, more generally, they should not be treated differently from heterosexuals. Simply put, if a person is "born gay" or if his or her sexual orientation was not a choice, it is wrong to punish or discriminate against a person for this reason. The legal principle underlying this argument for LGB rights is the so-called immutability factor in equal protection jurisprudence. The idea is that this factor plays a significant role in justifying the legal protections afforded race and sex classifications and courts are especially protective of discrimination on the basis of race and sex because people do not chose these traits. The argument for LGB rights draws an analogy between these classifications and sexual orientations.
Volume
89
Issue
2
First Page
597
Last Page
640
Publisher
Chicago-Kent College of Law
Keywords
LGBTQ, LGBTQ Rights, Equal Protection, Amicus Brief, Sexuality and the Law, Discrimination, Social Group Issues
Disciplines
Civil Rights and Discrimination | Law | Sexuality and the Law
Recommended Citation
Edward Stein,
Immutability and Innateness Arguments About Lesbian, Gay, And Bisexual Rights,
89
Chi.-Kent L. Rev.
597
(2014).
https://larc.cardozo.yu.edu/faculty-articles/300
