Out-of-Wedlock Births: The United States in Comparative Perspective (Economic History; 196)
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Based on a cursory scan of jurisdictions, however, one sees that this approach has been adopted by a diverse range of jurisdictions at multiple levels: international, regional, national, and subnational. Similarly, at the regional level, the European Court of Human Rights and the Inter-American Court of Human Rights have both held that sexual orientation is a protected category under their respective treaties, even though it is not specifically enumerated as such.
Subnational tribunals have also reached this conclusion. Most of the examples to be discussed in this section concern sexual orientation because there are very few judicial opinions on whether gender identity is a protected category unto itself. Likewise, in upholding the criminalization of same-sex sodomy, the apex courts in Botswana and Zimbabwe could have declared sexual orientation to be a protected category, but they chose not to.
It is worth noting that the United States is exceptional in its treatment of protected categories under constitutional law. The US Constitution does not explicitly list any protected categories, 78 but the US Supreme Court has held that certain types of discrimination warrant more rigorous judicial review than others.
In contrast, the United States has created multiple tiers of judicial review for equal protection cases. The US Supreme Court has been opaque about what level of review should be applied to sexual orientation discrimination. In some jurisdictions, courts may face this question for the first time when reviewing cases concerning sexual orientation or gender identity discrimination. To answer whether these characteristics are protected categories, even though the constitution does not enumerate them as such, courts have generally reasoned by analogy. One approach to this analogical inquiry would be to say that SOGI discrimination is so similar to sex discrimination that sexual orientation and gender identity should themselves be protected statuses just like sex.
The Delhi High Court in India adopted this reasoning to conclude that sexual orientation is a protected category. Most courts, however, have not relied on reasoning that analogizes SOGI to sex. Instead of analogizing only to sex, courts have sought to identify a set of factors for determining whether characteristics qualify as prohibited grounds of discrimination. The factors for protection have varied from jurisdiction to jurisdiction. Even within a single jurisdiction, the factors have sometimes evolved. Indeed, there is no consensus among courts and commentators on a test for determining whether a characteristic is protected.
It is beyond the scope of this volume to propose any sort of model test.
Instead, the remainder of this section provides background on some of the factors that have emerged, and been debated, in the jurisprudence. These factors include 1 whether there has been a history or frequentness of irrational discrimination based on the characteristic, 2 whether groups defined by the characteristic are politically powerless, and 3 whether the characteristic is immutable. The first factor is a history or frequentness of unreasonable discrimination based on the particular characteristic.
For example, the Supreme Court of Canada has said that analogous grounds of discrimination—i. This rationale advances certain normative principles of equality law, such as anti-stereotyping and anti-subordination, both of which are connected to the protection of human dignity.
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If a characteristic has often been the basis for irrational discrimination—discrimination stemming from problematic stereotyping or subordination—courts have reason to double-check the political branches for recommitting these sins. Thus, the history or frequentness rationale justifies a presumption against such discrimination. Note, however, that determining protected categories based on the history or frequentness of discrimination may result in under-inclusiveness because new forms of irrational discrimination may arise.
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In such situations, courts should be empowered to scrutinize the discrimination if their aim is to combat irrational stereotyping and subordination. Political power is another factor that various courts around the world have invoked.
Theoretical Perspectives on Gender and Development
Carolene Products Company. The political powerlessness factor can work in conjunction with the history or frequentness factor. A social group may lack political power due to a history of stereotyping and subordination. For example, although women are not a numerical minority in most societies, they may be politically disadvantaged because of societal structures shaped by a history of sexist stereotypes and subordination. In this situation, granting women protected status addresses not only democratic failures, but also the history of sex-based stereotyping and subordination. A variety of courts—ranging from courts in the United States to the Taiwan Constitutional Court—have pointed to the comparative political disadvantage of gays and lesbians as a factor that supports treating sexual orientation as a protected category.
One line of criticism centers on the difficulty in operationalizing the factor. How exactly is political power to be determined? Would it necessarily follow that those social groups are no longer protected categories? These are questions that have vexed commentators. In some jurisdictions, courts have refused to recognize sexual orientation as a protected category in part because they found gays and lesbians to have political power. In this sense, making political powerlessness a requirement for protected categories creates an underinclusive list of protected categories.
Indeed, in some jurisdictions, the relevance of political powerlessness to judicial reasoning seems to be in decline although court opinions have not made clear why that is so. For example, in the United States, despite Carolene Products having inspired theories about political powerlessness, the Supreme Court has gone on to treat race and sex as protected i.
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Immutability is another factor that is sometimes considered by courts when determining whether a category is protected. Courts initially defined immutability narrowly as biological characteristics that cannot be changed.
Thus, laws that discriminate based on immutable characteristics ought to be subject to strong judicial review. This traditional conceptualization of immutability has been criticized for being too narrow, and courts have begun to take a more expansive view. The traditional immutability requirement could not explain, for example, why non-biological traits such as religion are so commonly considered protected categories. This move from traditional immutability to soft immutability has made it more likely that courts will treat sexual orientation and gender identity as protected categories.
Although the biological basis of sexual orientation and gender identity are contested, it seems less controversial to say that these are deeply personal characteristics—ones that can only be changed at great cost to the individual. As SOGI discrimination protections have developed around the world, so have narratives about the trajectories for incrementally developing these protections. This Part describes and interrogates two primary narratives. The first narrative states that rights protections proceed in a particular order based on the type of protection.
It claims that sexual orientation nondiscrimination is first protected with respect to the regulation of sexual activity, then employment, then same-sex partnership recognition through alternatives to marriage, then equal marriage rights, then parenting rights. The narrative also suggests that rights to gender identity nondiscrimination typically lags behind sexual orientation nondiscrimination. A second narrative concerns cultural groups. This narrative suggests that Western states lead in the development of SOGI nondiscrimination protections and then the rest of the world follows.
This part of the volume interrogates these conventional narratives about trajectories of change and reveals their flaws. It will also consider the potential harms of perpetuating these flawed narratives. Commentators have observed that the development of LGBT rights often follows familiar sequences, especially with respect to discrimination based on sexual orientation.
Kees Waaldijk, for example, observed that European countries tended to follow a similar path: first a country would decriminalize sodomy, then equalize age-of-consent laws for same-sex and different-sex sexual activity, then pass national antidiscrimination legislation pertaining to sexual orientation, then offer same-sex couples some form of legal recognition short of marriage, followed by full marriage equality. Consider, for example, the United States.
The United States has differed from Europe in several ways. In contrast to the European experience, the United States extended nationwide marriage rights to same-sex couples before protecting LGB persons from discrimination in contexts such as private employment, housing, and public accommodations. One explanation for this is the relatively strong role played by courts in the United States.
When Waaldijk studied Europe, the countries that had legalized same-sex marriage had done so through legislative means. At the national level, the Supreme Court ruled in Obergefell v. United States that state bans on same-sex marriage are unconstitutional, which in effect brought same-sex marriage to the entire country.
Notably, when the US Supreme Court decided Obergefell in , the United States lacked—and it still lacks—a federal law banning SOGI discrimination in areas such as private employment, housing, and public accommodations. In this sense, the United States presents a very different narrative from that of Europe. In much of Europe, the prohibition of sexual orientation discrimination through legislation, including European Union law, influenced social norms in ways that facilitated the development of partnership recognition legislation and the eventual legalization of same-sex marriage.
On the other side of the world is the example of Hong Kong. There is also pending litigation concerning whether a same-sex couple that married overseas has a right to be recognized as married for civil servant spousal benefits and taxation purposes. Although the Court of First Instance ruled in favor of the same-sex couple with respect to civil servant benefits, the Court of Appeal ruled against the couple. This sequence stands in contrast to the sequence from Europe. Thus far, we have been discussing divergence from the European sequence regarding marriage and antidiscrimination legislation.
There are additional points of divergence related to family law. In the United States, same-sex parenting rights often pre-dated partnership recognition rights, while the opposite was true for Europe. One can speculate that the deviation was linked, in part, to patterns of family law reform driven by different-sex couples. Nancy Polikoff has pointed out that there has been a greater need for adoptive parents in the United States compared with Europe, especially with respect to the number of children in the foster care system.
Polikoff also pointed to the larger role played by US courts in developing parenting rights. Another difference between Europe and the United States is the fact that European governments have typically extended non-marital forms of legal recognition to same-sex couples—such as rights to registered partnerships or recognition through de facto cohabitation—prior to extending full marriage rights to same-sex couples.
Yet another divergence worth noting relates to transgender rights. In the United States, the conventional narrative is that mainstream LGBT rights organizations focused, for a long time, on advancing sexual orientation rights, leaving gender identity issues on the back burner. This is evident, for example, in the fact that the US Supreme Court has yet to hear a case about transgender discrimination. However, it has decided numerous sexual orientation rights cases, including cases in which gay and lesbian plaintiffs won landmark victories.
The disparity of protection is also evident in the fact that most states with state-level SOGI antidiscrimination legislation first addressed sexual orientation before extending protections to gender identity. This narrative that places progress on sexual orientation rights before gender identity rights is not universal.
There are jurisdictions outside the West that formalized protection of gender identity rights before protecting sexual orientation rights. For example, India and Pakistan have taken steps to address gender identity discrimination, yet these countries still criminalize same-sex sexual intimacy.