Duke Law Journal
In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results. This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. Under federal law, sexual harassment is actionable because it is a subspecies of sex discrimination. A man who makes unwanted sexual advances toward a woman discriminates on the basis of sex, courts presume, because he would not have made sexual advances toward another man. In 1998, the Supreme Court ruled that the same presumption is available in a case of same-sex harassment, i.e., a man harassing a man, if there is “credible evidence that the harasser was homosexual.” Since then, federal courts have decided 154 cases on whether a harasser was homosexual or experienced same-sex desire, often conflating the two questions. Empirical assessment of these cases raises questions about legal determinations of sexual orientation and sexual desire. First, it finds that courts rely on overly simplistic assumptions about sexual orientation that are contradicted by social science research. Surprisingly, in searching for evidence of same-sex desire, courts compare the harasser’s behavior to an idealized vision of romantic courtship that resonates with the picture of same-sex intimacy drawn by advocates of gay marriage. Second, these judicial inquiries into desire reinforce biases in favor of heterosexuality. Courts interpret sexually charged interactions to be devoid of desire when the harasser is involved in a heterosexual marriage, while reading desire into far less suggestive scenarios when the harasser self-identifies as nonheterosexual. And third, the judicial preoccupation with desire distracts from the purpose of sexual harassment law: eliminating invidious sex discrimination. This study has implications for other legal doctrines that may require definitions of sexual orientation or inferences of desire. It suggests that a relationship model of sexual orientation may not be appropriate in all legal contexts, and it calls into question the project of devising any all-purpose legal definition of sexual orientation. It also argues that reformers should be wary of how inquiries into sexual desire may operate as distractions and reinforce conventional notions of sexuality.
Jessica A. Clarke, Inferring Desire, 63 Duke L.J. 525 (2013), available at http://scholarship.law.umn.edu/faculty_articles/16.