Why Discrimination Against Gay People Should Be a Matter of Legal Concern

William N．Eskridge，Jr．

Lesbians and gay men（or“homosexuals，”women and men attracted to persons of the same rather than different sex）have been a prominent social presence in Europe and North America since the 1970s.Many Westerners have feelings of hatred or prejudice against homosexuals.Certain religions teach that homosexuality is immoral，and some Western religions teach anti-homosexual hatred.Other citizens harbor beliefs about homosexuals that are based upon unreasonable stereotypes.For example，American parents sometimes assume that homosexuals are sexcrazed and molest children.Anti-gay prejudice and stereotyping have been the basis for a great deal of social discrimination against homosexuals，even today.

Gay people are becoming a noticeable social presence in parts of the People’s Republic of China.This phenomenon has yielded a certain amountof social anxiety.Parents are anxious that their one child will not produce grandchildren；prejudiced people are disgusted that two men or two women would become intimate with one another；citizens of all sorts find homosexuality mysterious and therefore a little frightening.There are reports of private as well as public“discrimination”against these homosexuals.Assuming this to be true，should anti-gay discrimination be a matter for social or legal concern？If so，does experience in other parts of the world suggest measures that might be taken by the state？

1．What is“discrimination”as applied to lesbians and gay men？

An important preliminary question is：What counts as discrimination against lesbians and gay men？“Discrimination”is treating similar things differently-or treating different things the same.For example，homosexual intercourse can not produce children；therefore，the state’s population-control program is properly limited to heterosexual married or cohabiting couples.Leaving out gay male couples is not“discrimination”against them.Other exclusions do constitute discrimination，as do persecutions（the targeting of a class of persons for special penalties），and sometimes even a failure to protect.Consider some examples.

（a）Targeted Anti-Gay Persecutions and Violence．These are state policies vilifying homosexuals as a social threat and seeking to identify，detain，and purge these people from society.Many civilized countries today wonder whether this is worth serious discussion，but gay people have been subject to such persecutions throughout human history，especially in the West.Between 1945 and 1970，most governments in North America and Europe actively persecuted lesbians and gay menarresting them for consensual homosexual activities，confining them to mental institutions and prisons，subjecting these people to torture and experimental medical“treatments”，and seizing their private correspondence and their literature（Eskridge，1999）.This is not only an example of discrimination，but also of the way in which discrimination can be part of a larger program of social control.

In the United States，some provincial jurisdictions have made it a crime for consenting adults of the same sex to have sexual relations in the home，even when the same relations would be legal if engaged in by persons of different sexes（Eskridge，1999，app.A1）.This epitomizes anti-gay discrimination：the same physical activities（typically，oral sex）are criminal if two women do it but perfectly legal if the woman does it with a man.Although the woman-woman couple is different than the woman-man couple，the difference is not materially related to the purpose of the criminal law，to protect persons against unconsented sexual assault.The United States Supreme Court originally suggested that states could adopt such discriminatory laws，but in 2003 the Court ruled that these laws violated the U.S.Constitution（Lawrence v.Texas，2003）.

（b）Targeted Exclusions of Gay People．The foregoing examples are discriminatory policies that single out lesbians and gay men for special penalties.Other discriminatory policies single out lesbians and gay men for special exclusion or segregation（The classic example of discriminatory exclusion is the apartheid policy followed in South Africa and several American provinces during the twentieth century）.In the United States and parts of Europe，governments in the 1950s had policies that theoretically excluded homosexuals from service in the armed forces，public employment，professional licenses，immigration and citizenship， voting，and security clearances（Johnson，2004）.Were these exclusionary policies“discriminations”as we use that term today？Consider a common example.

Is it“discrimination”for a school to refuse to hire lesbians or gay men to be teachers？The answer to this question depends on whether there is a material difference between homosexuals and heterosexuals for purposes of this task-teaching schoolchildren.No one thinks that lesbians or gay men are different from straight people in their intelligence，ability to express themselves，attention to detail，and other abilities that are relevant to this occupation.North Americans long believed（and some still do）that homosexuals are more likely than heterosexuals to sexually assault children and young people；certainly that would be a material difference that would negate the inference that excluding gay people would constitute discrimination.But that asserted difference does not exist in fact.Empirical data indicate that lesbians and openly gay men almost never assault children，and that the problem of child molestation is associated with straight males and“closeted”gay men（e.g.，Jenny et al.，1994）.

（c）Policies Effectively or Disproportionately Excluding Gay People．Some exclusions operate indirectly，and most of them are not considered discriminatory.For example，a state program providing parents with subsidies and special privileges would apply to few gay men in Western societies.Is this a discrimination against gay men？Probably not，because there is no complete exclusion of gay people，nor is the program motivated by anti-gay prejudice.The qualification（raising children）is one that the state can reasonably emphasize，and homosexuals do have the option of raising children in the West（Lesbians frequently raise their own biological children；gay men do so much less often）.

A more difficult question is whether state rules limiting civil“marriage”to different-sex couples is discrimination against homosexuals. On the one hand，marriage has traditionally been limited to differentsex couples，and this limitation does not reflect anti-gay prejudice.If you understand marriage as an institution uniquely for procreation between the spouses，then state non-recognition of same-sex marriage is not a discrimination-indeed，it would be illogical to recognize such unions as marriages.On the other hand，civil marriage in most modern countries is not limited to procreation；the point of civil marriage is to encourage unions of couples who love one another and want to form a family，with or without children.Because many lesbian and gay couples have the same aspiration，their exclusion from civil marriage may then be discrimination（Eskridge and Spedale，2006，chap.1）.

2．Should anti-gay discrimination be a matter of legal concern？

Not all“discriminations”should be illegal.In the United States，for example，the Supreme Court has allowed universities to“discriminate”in favor of racial minorities（and therefore against applicants of European ancestry），in order to achieve a greater good，namely，harmony and diversity in student’s educational experience（Grutter v. Bollinger，2003）.Some discriminations are so minor and episodic that few people believe they should be illegal；social disapproval is sufficient.That may not be the case for anti-gay discrimination.It is certainly widespread in Western countries，and will probably become more widespread in the People’s Republic as lesbian and gay communities become more socially noticeable.

In the last generation，Western governments have withdrawn most（but not all）of their anti-gay discriminations and sometimes even barred private discriminations（Eskridge，1999，app.B1）.The reason for this change in policy is that more people have come to know openly lesbian and gay citizens，and have concluded that it is wrong to treat them unfairly.Discriminations impose unfair burdens on lesbians and gay men.At the same time，and even more important，thoughtful observers have concluded that anti-gay discrimination imposes significant costs on society as a whole.Consider several points.

（a）Harmony．Anti-gay beliefs and policies are typically motivated by emotional prejudice，and usually not calm judgment about social welfare.When public policy is driven by prejudice against an unpopular minority，social harmony will suffer.This is the case with anti-gay policies，especially persecutions.They serve no public purpose and often exist simply to express disgust or even hate toward a minority.

Although no one knows what“causes”people to have particular sexual orientations，scientists have concluded that homosexuality is not a conscious choice.Nor is it associated with hyper-sexuality or even artistic abilities.Lesbians and gay men are pretty much indistinguishable from the rest of the population，except for their sexual tastes.One to three percent of the persons in any society are homosexual in orientation（Posner，1992）.Scientists have also concluded，even more firmly，that homosexuality is not a mental disease，sickness，or defect.Indeed，it is“homophobia，”emotional hatred of homosexuality，that scientists say is the pathology，the mental disease（e.g.，United States National Institute of Mental Health，Task Force on Homosexuality，1969）.

Given these facts，public persecution of lesbians and gay men is particularly wasteful and socially disastrous.The government has limited crime-fighting resources，and there is plenty of aggressive，irresponsible activity in any modern country.To divert precious resources away from predatory and assaultive activities，toward persecuting a harmless minority is extremely unproductive.More important，it undermines the possibility of social harmony.Policies of persecution，when the victims are a socially productive group，stir up social hatreds and empower the most vicious among citizens.This was certainly the experience in the United States during the 1950s.In the name of national security，thousands of American homosexuals were hunted like dogs，and our country’s politics was for a brief time dominated by crazy people，whose prejudice-based campaigns against“Communists”and“sex perverts”turned citizens against one another（Johnson，2004）.

Even less aggressive state and private policies excluding lesbians and gay men can contribute to disharmony.Such policies send a message that homosexuals are inferior and degraded，perhaps even subhuman.In societies like the United States and perhaps also China，where there is anti-gay social anxiety，young persons who perceive themselves as homosexual will often be overwhelmed；some will commit suicide（United States Department of Health and Human Services，1989）.Other citizens will understand those policies as public support for their private prejudices.Whether it is racial or religious or anti-gay，prejudice contributes to violence.Gay people in the United States have been subject to vicious attacks，encouraged by homophobic policies（e.g.，Herek and Berrill，1992）.To encourage violence against a minority is not good for overall social harmony.

（b）Diversity（and the Closet）．Most large countries consist of various groups-racial groups，religious minorities，and now sexualized groups such as gay people.That China and the United States，for example，consist of several different races，living and working together，is not just an occasion for tolerance，but for celebration.Moreover，in our increasingly interdependent world，everyone needs to appreciate differences in race，sex，religion，and even sexual orientation.A country that teaches hostility to minorities is not presenting its best face to such a world.Nor is it preparing its own citizens for fruitful participation in the larger，and extremely heterogeneous，world economy and community.

Diversity concerns resolutely oppose persecution，but also cast doubt on exclusionary policies，including some that are only indirect exclusions.American policies persecuting and excluding homosexuals in the mid-twentieth century did not discourage homosexuality，but did force most lesbians and gay men into secret lives，what we call“the closet”（Chauncey，1994，epilogue）.For the homosexual minority，a world of public masks and secret sex lives was emotionally devastating and inherently unstable.Policies encouraging discretion and prudence in the workplace and other public environments are fine，but those ruthlessly coercing adults to hide in closets are not useful.

A regime of the closet also imposes costs on third parties.The most unfortunate example is marriage.In America of the 1950s，most gay men and lesbians married persons of the opposite sex-typically without telling their heterosexual partners about their true sexual feelings.Most of these marriages were unhappy for both partners，and certainly unfair to partners who were misinformed.Today，some bisexual or gay male Americans still marry or have sex with women，but without telling them that they are also having sex with men.Many of these unsuspecting women have been infected with the HIV virus that causes AIDS.More generally，medical experts have found that AIDS-prevention campaigns depend heavily on cooperation with gay and bisexual male communities and have recommended against gay-stigmatizing policies（e.g.，Philipson and Posner，1993）.

The lowest AIDS rates among Western societies are in Scandinavia，whose countries not only abandoned anti-gay laws and policies，but adopted laws affirmatively barring anti-gay discrimination.Indeed，Denmark as the first nation in the world to recognize same-sex unions（1989），and all its Nordic neighbors have followed suit-with further declines in AIDS rates.Experts have found a connection between their pro-gay policies and lower rates of sexually transmitted diseases（see Eskridge and Spedale，2006）.

（c）Efficiency．A modern efficient society understands that human capital is its greatest asset.Nowhere is this more true than in the People’s Republic of China and the United States.Everyone is needed to contribute to innovation and other social projects.And everyone should contribute in ways that suit his or her talents，expertise，and abilities. Policies that sort people’s contributions based upon arbitrary criteria， such as race，undermine the rationality needed to advance social projects.For example，if a country had a rule that no racial minority could be licensed as an engineer，there would be a great unfairness to minority persons who wanted to be engineers.But the greater unfairness would be to the society as a whole，for it would be deprived of countless persons who would be good engineers，and perhaps some who would be the best the country could hope to find.

The same is true of lesbians and gay men.They are just as capable as other kinds of citizens.State policies excluding them from certain professions（including education）will deprive the country of talent and energy needed to train the next generation.Exclusions of homosexuals from government service would have a similar effect.The general point is that one’s sexual orientation is irrelevant to one’s ability to do a good job in a modern society.Policies，including private ones，that discriminate are undermining a country’s ability to compete in world markets and to carry out public projects at home.

To be sure，there is a partially countervailing efficiency consideration.Institutions and workplaces are delicate mechanisms，and they are governed by rules that would seem unfair to the outside.This is the justification commonly heard，sometimes persuasively，for anti-gay discriminations.The United States still excludes lesbians，gay men，and even bisexuals from military service.On the whole，this is probably a grossly inefficient policy，but its justification is that young adolescent men would be uncomfortable serving with openly gay bunkmates（Eskridge and Hunter，2003，chap.5）.In my view，the better accommodation of such（exaggerated）fears would be a policy which allowed gay people to serve in the armed forces，but allowed some self-selection among the young recruits.

3．What steps should be taken to assure non-discrimination rights for lesbians and gay men？

There are good reasons for a modern society to eliminate any state discriminations against lesbians and gay men，and even to prohibit such discrimination in private workplaces.But these reforms can not be instituted immediately in societies，like the United States（until recently）and China，where most people are poorly informed about homosexuality and are fearful of lesbians and gay men.Not only will the people refuse to cooperate with anti-discrimination measures，but there could be a backlash against gay people as well as the government.Caution is needed.Equality now is not possible.

But equality over time is both possible and desirable.Discrimination against lesbians and gay men will erode，over time，once ordinary people learn more about this sexual minority.The way for them to learn more is not just government educational campaigns，but meeting and working with openly gay countrymen and women.Once ordinary people perceive that homosexuals are pretty much like themselves，discriminatory attitudes will diminish.An effective reform strategy would proceed in three steps，perhaps carried out over a long period of time（generally，Eskridge and Spedale，2006，chap.6；Waaldijk，2001）.

Step One is to form a public consensus against persecution and violence against homosexuals.Assuming that many or even most people do not like gay people or find them mysterious，reformers can still argue that this minority is not causing social harm and that state resources must be deployed against persons who are harming others.Accordingly，the government should repeal laws making private homosexual activity between consenting adults a crime and should make sure that general laws against public disorder and lewdness not be applied in ways that target minorities.This can be accomplished quietly through administrative education and rules.

Step Two should proceed at the local level and should afford more affirmative support for the homosexual minority.Shanghai and other communities within the People’s Republic of China already contain colonies of lesbians and gay men，some of whom are forming families.Local governments as well as community groups in these areas should familiarize themselves with these citizens.Familiarity will engender understanding，which will facilitate greater support for fair treatment.Officials and private leaders can institute informal policies that offer lesbians and gay men fair treatment in the workplace，monitor harassment and violence against these people，and even recognize their relationships with one another and with children they want to raise.The processes in Step Two might engage communities for years，perhaps even decades.As more gay people reveal themselves，more communities will join this kind of dialogue.

Step Three would proceed at both national and local levels and would represent movement，at the appropriate time，toward fully equal treatment of lesbians and gay men by the state.The primary national reform would be a directive or statute prohibiting sexual orientation discrimination by private employers，restaurants and other public accommodations，and apartment houses.This is an important step，and governments usually take this step earlier than other national reforms.This is important，because it would send a message that governments disapproves of anti-gay discrimination and considers it a social problem.At some point，later in time，either the national or local government needs to recognize relationships between adults of the same sex and accord them the rights and duties of different-sex marriage.In Western countries，same-sex marriage is usually the last equality right bestowed on lesbian and gay citizens（Waaldijk，2001）.

Bibliography

Chauncey，George.Gay New York：Gender，Urban Culture，and the Making of the Gay Male World，1890-1940.New York：Basic Books，1994.

Clendenin，Dudley，and Adam Nagourney.Out for Good：The Struggle to Build a Gay Rights Movement in America.New York：Simon＆Schuster，1999.

Eskridge，William N.，Jr.Gaylaw：Challenging the Apartheid of the Closet.Cambridge，Mass.：Harvard University Press，1999.

Eskridge，William N.，Jr，and Nan D.Hunter.Sexuality，Gender，and the Law.Mineola，New York：Foundation Press，second edition，2003.

Eskridge，William N.，Jr，and Darren R.Spedale.Gay Marriage：For Better or For Worse？New York：Oxford University Press，2006.

Herek，Gregory M.，and Kevin T.Berrill，editors.Hate Crimes：Confronting Violence Against Lesbians and Gay Men.1992.

Jenny，Carole et al.“Are Children at Risk for Sexual Abuse by Homosexuals？”Pediatrics 94（1994）：41 et seq.

Johnson，David K.The Lavender Scare：The Cold War Persecution of Gays and Lesbians in the Federal Government.Chicago：University of Chicago Press，2004.

Philipson，Tomas J.，and Richard A.Posner.Private Choices，Public Health：The AIDS Epidemic in an Economic Perspective.Cambridge，Mass.：Harvard University Press，1993.

Ruskola，Teemu.“Minor Disregard：The Legal Construction of the Fantasy That Gay and Lesbian Youth Do Not Exist.”Yale Journal of Law and Feminism 8（1996）：269-332.

Stacey，Judith，and Timothy Biblarz.“（How）Does Sexual Orientation of Parents Matter？”American Sociological Review 66（April 2001）：159 et seq.

Stein，Edward.The Mismeasure of Desire：The Science，Theory，and Ethics of Sexual Orientation.Oxford：Oxford University Press，1999.

Waaldijk，Kees.“Small Change：How the Road to Same-Sex Marriage Got Paved in The Netherlands.”In Robert Wintemute and Mads Andenaes，editors，Legal Recognition of Same-Sex Partnerships：A Study of National，European，and International Law，437-464，Oxford：Hart Publishing，2001.

United States Department of Health and Human Services，Report of the Secretary’s Task Force on Youth Suicide.Washington，D.C.：Government Printing Office，1989.

United States National Institute of Mental Health，Task Force on Homosexuality.Final Report.Washington，D.C.：Government Printing Office，1969.