Bench Memos

Sixth Circuit’s Non Sequitur on Sexual Orientation

If you don’t believe that a person’s sexual orientation is immutable to the same extent that a person’s race and sex are, then you must believe that gays and lesbians are not entitled to civil-rights protections on the basis of sexual orientation. That jarring non sequitur is at the heart of a Sixth Circuit panel opinion today in Dixon v. University of Toledo, authored by Judge Karen Nelson Moore.

The legal question in the case was whether Crystal Dixon, an African-American woman, engaged in protected First Amendment speech when she wrote an op-ed in which she stated:

I take great umbrage at the notion that those choosing the homosexual lifestyle are “civil rights victims.” Here’s why. I cannot wake up tomorrow and not be a Black woman. I am genetically and biologically a Black woman and very pleased to be so as my Creator intended.

As a result of her op-ed, Dixon was fired from her job as a high-level human resources officer for the University of Toledo (a public university). She sued the university over the firing.

The question whether the speech of a public employee in her personal capacity is protected by the First Amendment (so that she can’t be punished by her employer for it) involves a complicated and messy area of the law, and my point in this post is not to contend that the Sixth Circuit panel necessarily got the bottom line wrong. I’ll limit myself, rather, to pointing out that its reasoning on a central point in its analysis is defective.

Judge Moore asserts that Dixon’s op-ed “impl[ied] that LGBT individuals should not be compared with and afforded the same protections as African-Americans” (p. 11). Specifically:

Although Dixon correctly contends that she never explicitly stated that the University diversity policies should not extend to LGBT students and employees, by voicing her belief that members of the LGBT community do not possess an immutable characteristic in the way that she as an African-American woman does, the implication is clear: Dixon does not think LGBT students and employees of the University are entitled to civil-rights protections…. [pp.11-12]

There are two glaring problems with this logic:

For starters, civil-right protections do not necessarily hinge on immutability. That point is amply demonstrated by the fact that Title VII and lots of other civil rights laws protect against discrimination based on religion.

Second, as the New Yorker’s Margaret Talbot observed when covering the Prop 8 trial, “The immutability of sexual orientation is hardly a settled matter” and “it might well be that people convert, are born again, or lose their religion altogether as often as they switch their sexual preference.” Talbot, as well as the many pro-gay researchers who explore the fluidity of sexual identify, should be surprised to discover that, by Moore’s illogic, they must oppose laws and policies that would prohibit discrimination on the basis of sexual orientation.


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