Chalk talk--Sexual orientation discrimination: Teachers as positive role models for tolerance

Journal of Law and Education, Apr 2002 by Eisenmenger, Michelle

I. Introduction

In December of 1974, the school secretary one day asked guidance counselor Marjorie Rowland why she was in such a "good mood." Rowland eventually responded that she was in love with a woman.1 She later revealed her bisexuality to the school vice principal after a discussion with a homosexual student's angry mother, whom Rowland had counseled to accept her son's sexuality.2 These confidences about her sexuality, combined with those to co-workers with whom she was friendly, resulted in her transfer and the non-renewal of her contract.3 Rowland's subsequent lawsuit against the Mad River School Board led to a jury award to Rowland for personal anguish, mental anguish and suffering, as well as loss of earnings.4 On appeal, the Sixth Circuit reversed this ruling, finding that her sexuality was not a matter of public concern and that she failed to show that she was being treated differently than similarly situated heterosexual employees.5

Unfortunately, a similar story told today may yield a similar result, albeit with possibly a different approach. There is no federal civil rights legislation prohibiting discrimination based on sexual orientation and only eleven states and the District of Colombia have enacted such legislation.6 Furthermore, the Supreme Court has not recognized a fundamental right to homosexual conduct.7

Rowland is remarkable for another reason, however, in that the plaintiff is a homophobic society's archetypal villain, according to anti-gay activists: the homosexual educator.11 Opponents of legislation protecting homosexuals or bisexuals focus on this role in particular, because of the special status of teachers as role models and the amount of time they spend with children during their formative years.12 Believing that homosexuals are "per se immoral," these opponents maintain that they should not be in such positions of influence with children.13 This distinction, drawn by Former Senator, now United States Attorney General John Ashcroft, as well as other Senators, actually mirrors the distinction found in statistics drawn from the public.14

In 1977, public support for equal employment opportunities for gay people was at 56%, while only 27% believed gay people should be "allowed" to teach elementary school.15 Although public support has increased dramatically over the years generally, the difference between support for gay people on the whole and support for gay elementary school teachers has remained about the same.16 In 1999, 83% of the population supported equal employment opportunities for homosexuals, while only 54% felt that gay people should be allowed to teach elementary school.17

This article will address the two bodies of legislation that may protect gay men, lesbians and bisexuals from discrimination based on sexual orientation: (1) Title VII and (2) the proposed Employment Non-Discrimination Act (ENDA). This article will address these two potential legal solutions in terms of the relief they may offer to victims of sexual orientation discrimination. Particular emphasis will be placed on the role of homosexual teachers and the legal redress available under these two continually- developing legal theories. Although the majority of teachers are state employees, ENDA, a federal proposal, would cover most federal and state employees.21 The article concludes with a realization that even if the Supreme Court establishes precedent forbidding discrimination based on sexual orientation, the ENDA must be enacted before that Supreme Court precedent would have any noticeable effect on discrimination against homosexuals and bisexuals.

11. TITLE VII PROTECTION A. Supreme Court

B. Sex discrimination as "gender" discrimination

The United States Supreme Court decision in Price-Waterhouse v. Hopkins24 has established a "partial" protection for gay people. Under this formulation, when an individual experiences discrimination because she is perceived as having gender traits contrary to her biological sex, that discrimination would fall under the protected class of "sex" under Title VII.25

The extended protection developed in the Price-Waterhouse decision provides only a limited amount of protection to homosexuals, however, since many homosexuals may display societally imposed gender traits (appearing/acting "masculine" when male and "feminine" when female) but still be homosexual or bisexual. One might argue that gayness itself is a kind of non-conformity to gender-based roles. However, in evaluating "gender" discrimination claims, courts have offered relief only to victims of discrimination when the employer has distinguished between the victim's physical appearance and mannerisms and stereotypical gender-based physical appearance and mannerisms.26

The above case demonstrates how the "gender-norms" argument may be specifically helpful to teachers. Some homosexual or bisexual teachers who go to great lengths to hide their sexuality for fear of losing their jobs may find their efforts were for naught when their "perceived homosexuality" becomes the basis for their discharge. Extended protection regarding discrimination based on sexual stereotyping should provide relief for teachers terminated for this reason, insofar as the case is carefully pled. While such an extension of protection may not protect assertions of sexual orientation, it should protect those teachers who are perceived as being homosexual. So, for teachers who, because of privacy concerns, lack of interest in advocacy, or any other reason, have not made their sexual orientation known, sexual orientation discrimination directed towards them must be held to be "gender-motivated" and thus "because of sex." Therefore, while the "gender-norms" argument cannot save the class as a whole, it may save the individual.