Race, Gender and Justice: Re-thinking Representation Spring 2002
	The Intersection of Sexuality & Gender Discrimination Wednesday, April 10, 2002

There are a number of points we want to discuss today

• The link between biological sex and cultural gender
• The link between sexuality (and sexual orientation) and the construction of gender
• The similarities and dissimilarities between the construction of race and the construction of gender
• The different meanings of marriage
• How law reifies and reflects these constructions

Today we will be discussing how the motives and beliefs behind gender discrimination are concomitant with the motives and beliefs which lead to sexual orientation discrimination. Similar to the way in which we discussed how ideologies of race were played out in the area of miscegenation law one of the useful ways to consider "cultural ideologies associated with sex" (which we call gender) is also through the examination of marriage.

First let's consider the difference between gender and sex. Sex is what we call the characteristic which differentiates between 'male' and 'female.' Gender is what we call the cultural and societal associations aligned with sex. How do different characteristics get assigned to (biological) sex as opposed to (cultural) gender? In other words, what are the biological features of sex which "matter"?

If we have established that there is a "gender line" which separates masculine from feminine similar to the "color line" which
separated White from non-White how is this demarcation regulated? What forces determine that this line is not crossed?
What sanctions occur if the boundaries of appropriate gender expression are breached? How are these different for the
sanctions for crossing the "color line"?

In particular we are trying to see if we can identify similarities (and differences) between how race and gender are constructed by marriage and law. In the case of race, marriage is used as a regulatory device of the "purity" of the race; to maintain the dividing line between White and Other. In this case the dividing characteristic, race, is a cultural construct, irrationally derived from alleged biological differences which, when examined, are hard to justify. In the case of gender how is marriage used?

What  are the rationales behind maintenance of the color line and maintenance of the gender line?

We have already established that Governmental classifications based on gender need to reach an "exceedingly persuasive" standard of heightened scrutiny in order to survive. A number of sex discriminatory laws by the State have been invalidated since the 1970s. Prior to 1970, laws which classified by sex or gender were routinely upheld.

Currently, there are a number of ways in which the Government maintains classifications based on sexual orientation and discriminates against the class of lesbians and gay men. Classifications based on sexual orientation are not "suspect classifications," but merely receive rational basis scrutiny by Courts. Sometimes it is difficult to differentiate between sex and
sexual orientation classifications. In fact, some people would argue that these two ideas are inextricably linked.

Professors Andrew Koppelman and Sylvia Law have been in the vanguard of recognizing the intersection of sexuality and gender discrimination. This interesting theoretical notion has gained currency recently through the Hawaii State Supreme Court's ruling in Baehr v. Lewin that the state marriage law preventing same-sex couples to be issued marriage licenses violates the Hawaii state constitutional ban on sex discrimination.
Even though the classification is based on sex, the class that is discriminated against is lesbians and gay men.

In the Hawaii marriage case one of the main arguments is that the nature of the current Hawaii
marriage law is not a sex classification, but a sexual orientation classification. What difference does it make? What does this say about the way that law functions that this point is one of main areas of contention?