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‘If We Want To End Sexual Violence, We Need To Talk About Female Desire’

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“Good sex is about more than lack of violence or fear.”

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It might seem strange to be talking about pleasure and desire when we are surrounded by stories of rape and harassment. Aren’t we getting ahead of ourselves? Shouldn’t we concentrate first on stopping those crimes before we ask for sex that might actually work for us?

I don’t think so. The worst men—and the worst lovers—I have known were the ones who didn’t understand that women, too, want things from sex. That sex is not simply something we give to men—or something men take from us.

These were the men who commented, with a mixture of surprise and revulsion, on how much I actually seemed to enjoy the sex we had, how I acted as though we were sexual equals, as though my own desire mattered—and how unusual that was. I’ve never known what to say to that. I’ve never known whether to pity their ignorance or worry about the other women they have been with, about how those women may have felt forced to deny their desire, to keep their sexual agency secret, even in bed.

Study after study shows that women want sex just as much as men do—but they’re often afraid of the consequences of saying so. The story we tell about how women should behave sexually is one of hesitancy, of submission, of waiting for the man to make the first, second, and last moves. Cajoling a woman into sex is considered normal, hence much of the confusion about women who are now complaining, often for the first time, about men who pressure us into sex we don’t want to have.

Good sex is about more than lack of violence or fear. But there are still too many people out there who believe that it is enough for sex to not be painful or frightening for a woman. One recent study showed that 32 percent of college-age men said they would commit or had committed acts of violence against women that courts would describe as rape, but when asked if they would ever rape a woman, most said no. This is rape culture; nonconsensual sex is normalized and, as long as we don’t call it rape, tolerated.

There are still very few societies that are truly comfortable with women having sexual and reproductive agency—in other words, the right to choose when and if and how we have sex, and when and if and how we have children. All over the world, including in the United States, the basic assumption made about women by their governments and employers and families is that we do not deserve to decide what happens to our bodies—and we cannot be trusted to tell the truth about our experiences. This is sexual repression, and we must fight it.

We must also fight against internalizing it. The consequences of capitulating to what our bodies seem to want—whether it be an orgasm or another slice of cake—are made very clear to girls long before puberty turns up the dial on desire. We must not be too hungry, too horny, too greedy for anything in life, or we will become ugly, unlovable. Women who eat too much, talk too much, shag too much—women who want too much—will face shame, stigma, and ostracism. We must not lose control.

When you’ve learned to be suspicious of your own appetites, it takes time to treat yourself and your body with more kindness. How can we be honest with anyone else about our desires when “slut” is still one of the worst things you can call a woman, when women who openly enjoy or seek out sex are shamed for it, and men who do the same are celebrated?

For women and queer people, for anyone whose sexuality has been treated as abnormal and punished, and particularly for those who’ve survived sexual violence, it can be very hard to be honest about what we might want in bed, even with ourselves. That’s alright. It’s okay not to know what you want, as long as you know that the wanting itself is okay. This isn’t going to change overnight. But I know I’ve had more positive experiences than negative ones when I insisted on making my desires clear. Being able to ask for what you want is the first step toward real sexual liberation. The sort that works for everyone.

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Love All: The Art Of Polyamory

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As polyamory enters the mainstream, could a relationship revolution be under way?

By Rowan Pelling

One bright spring day last year I was idly browsing Facebook when my friend Dr Kate Devlin (a lecturer in artificial intelligence at Goldsmiths) updated her status from “single” to “in an open relationship”. Since I’m 49 and live in uptight, windswept Cambridge, rather than a sex-positive community in San Diego, this was a social-media first for me. It seemed clear the polyamory movement in Britain had finally achieved critical mass. There had been plenty of portents. First, the fact that the term polyamory, coined in 1992, entered the Oxford English Dictionary in September 2006, defined as “having simultaneous close emotional relationships with two or more other individuals… the custom or practice of engaging in multiple sexual relationships with the knowledge and consent of all partners concerned”. Meanwhile, female friends on Tinder kept being asked if they’d consider forming part of a love quadrangle. And I noticed people in my circle citing Dossie Easton and Janet Hardy’s The Ethical Slut: A Guide to Infinite Sexual Possibilities (the bible for consensual non-monogamists).

Then there were the celebrity polyamorists. Author Neil Gaiman and his musician wife Amanda Palmer have never made a secret of the fact that they both took lovers, with each other’s consent; although their set-up has reportedly become more conventional since they have had a child. Will Smith’s wife Jada Pinkett Smith once posted on Facebook, “Will and I both can do whatever we want, because we trust each other to do so. This does not mean we have an open relationship… this means we have a grown one.” Which sounds pretty much like your average polyamorist explaining why their ménage is an expansive, loving set of mutually agreeable arrangements, rather than a free-for-all. And Tilda Swinton became the poster girl for every mother who feels that, much as she loves the father of her children, she wouldn’t mind shifting him to another part of the house while she moves in her drop-dead sexy lover.

When news of Swinton’s unconventional domestic arrangements first broke, my husband said: “That’s the life you’d like, isn’t it?” I pointed out that John Byrne, the father of Swinton’s twins, has a croft he can escape to on his own, to read books and write: “You’d love that, wouldn’t you?” It seemed an excellent quid pro quo – especially for couples who aren’t each other’s gatekeeper and don’t give a fig what curtain-twitching moralists think. Throughout our 24-year relationship, my husband has never attempted to curtail my movements, and confesses himself “infinitely puzzled by men who are physically possessive”. Indeed, I’ve only been able to pursue my line of work (delving into erotic literature and sexuality) because he’s totally unruffled if I say, “I’ve got to go to San Francisco to interview the leader of the Orgasmic Meditation movement.” In similar spirit, I don’t question my spouse’s deeply entrenched desire to do no socialising whatsoever, to eschew travel and to potter round the house pondering metaphysical dilemmas as well as the contents of our two boys’ school lunch boxes. We have lost four parents and a beloved step-parent between us, as well as our first pregnancy (a baby with a terrible chromosomal disorder), so we know what heartbreak means and that profound love entails a level of kindness and support that goes way beyond sex.

But then nobody is too surprised when editors of erotic magazines, aristos or bohemians lead unconventional lives. For me, the significant thing about my friend Kate Devlin’s post was that it marked the moment when I first witnessed a bunch of well-heeled professionals all nod and say, “Good for you!”, rather than falling silent or expressing surprise. I sent her a message offering congratulations and suggesting polyamory would make a great article for my magazine The Amorist, which explores passion and sexuality. She replied, “I’m already halfway through.” The finished piece caused a bit of a stir, and a version was reprinted in The Times. Kate explained that she had one lover who occupied more space in her life than the other, who she saw once a month (both men also had at least one other regular partner), but that it worked for all of them, and she concluded, “I am content though. Happy, definitely, in a way that I couldn’t be if I were with just one person. I am fascinated by people and delight in learning more about each one… I know polyamory is not for everyone. There are degrees of it that are not for me. I’m tentatively feeling my way blindly because the familiar social structures aren’t in place, but it’s OK. It’s OK. I remind myself that it’s OK. For every pang of insecurity, I have an equal and opposite panic about being trapped. Then my heart lifts as I remember: I’m not.”

For decades, the notion of a complex, open-sided set of mostly heterosexual relationships has been associated with the more baroque excesses of the 1970s – along with key parties, pampas grass, shag-pile carpets and the bearded man from The Joy of Sex. It’s no surprise that this is viewed as the decade of carefree sexual exploration. Lovers benefited from the advent of the contraceptive pill: the first time an entire generation of women had been freed from fear of pregnancy. It was also an age of relative innocence, before the Aids pandemic and doomy sexual-health ads terrified the populace back into serial monogamy. But it was also an age when the bearded man had the upper hand. The general consensus was that “free love” was imposed by randy men on unwilling women, and that it never really worked; someone was always left sobbing and abandoned in the corner. Joni Mitchell spoke for many when she said, “It’s a ruse for guys.”

The only problem with that point of view is that monogamy clearly doesn’t work either. One-on-one is clearly the best way to proceed when you’re in those electrifying early years of love: the space when you’re so narcotically in thrall to your beloved that everyone else seems faintly repugnant. And monogamy certainly works while your cultural inhibitions, religious sensibilities, or sense of loyalty and duty to shared family, friends or children outweigh all other considerations. But, eventually, so the statistics tell us, only the fortunate minority feel a deep, abiding, unconflicted contentment in one person’s arms over an entire lifetime. The other 70 or so per cent of humans in the Western world will be unfaithful at least once in their lifetime. Divorce rates now run at well over 40 per cent in Britain and America. The certainty of adultery, heartbreak and pain is the other great inconvenient truth of our times. Which is why New York-based relationship guru Esther Perel recently published The State of Affairs, which attempts to explore the myriad reasons for infidelity and to look at how couples can not only survive betrayal but learn from it and even become stronger. The prevalent myth Perel seeks to dispel is the notion that one person can be everything to another: soul mate, lover, best friend, fellow adventurer and co-parent. In her view, adultery is often about the desire to reinvent the self and become fresh and fascinating in another’s eyes, rather than an active wish to reject the best beloved.

So what does a pragmatic, ethical individual do if they don’t ever want to behave like a lying, cheating love rat to the person they adore? For increasing numbers of people admitting to an enduring libido, the logical answer is polyamory. Now if, like me, you’ve knocked about a bit, you’re going to find the concept far older and more familiar than something supposedly invented at the tail end of the 20th century. Many in the LGBT community laugh at polyamory being some form of novel arrangement. The gay writer and comedian Rosie Wilby, whose book Is Monogamy Dead? was published last year, told me, “The LGBT community has experimented with forms of non-monogamy for decades. If you’re already doing something that has been widely viewed as ‘deviant’, then trying out another deviance from the norm has never felt like too big a jump. So it’s hardly a new concept for us.”

Indeed not. Think of the sexually fluid Bloomsbury set, who Dorothy Parker famously described as having “lived in squares, painted in circles and loved in triangles”. Many Edwardians – generally intellectuals, radicals and the upper classes – thought a free and open pass on fidelity was a practical way to go about things. After all, this was an era where the king himself – Victoria’s playboy son, Edward VII – was known to have taken many mistresses, including actresses Sarah Bernhardt and Lillie Langtry. It was also an idyll, a long-skirted, Arts and Crafts summer of love, which followed the more fixed morality of the Victorian era and flourished before the terrible devastation of the First World War. Proponents of unusual erotic arrangements were everywhere, from Vita Sackville-West (lover of Virginia Woolf) and her husband Harold Nicolson to the children’s author Edith Nesbit, who shared a house with spouse Hubert Bland and his mistress Alice Hoatson. Nesbit even raised Hoatson’s two children by Bland. Sexual experimentation started at the top. Meanwhile, last winter’s arthouse cinema hit Professor Marston and the Wonder Women dramatised the story of psychologist William Moulton Marston, the creator of Wonder Woman, who lived with wife Elizabeth and mistress Olive Byrne.

Complete Article HERE!

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Keeping the spark alive in long-term relationships

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by Whitney Harder

It’s a well-known fact that sexual desire ebbs and flows throughout the life of a long-term relationship for a number of reasons. Questions like “What factors increase and decrease desire?” and “How can couples work through those factors?” have long been topics of interest for researchers and clinicians, but dozens of studies respond to those questions with different answers.

Research by University of Kentucky Associate Professor Kristen Mark brings decades of findings together to help researchers, clinicians and couples understand where the science stands in a new issue of the Journal of Sex Research.

First thing’s first: It’s okay to have low or changing desire, and it doesn’t mean your relationship is headed toward a dead end.

“Maintaining desire is complicated and multidimensional, but low desire is not necessarily indicative of relationship issues,” said Mark, director of the Sexual Health Promotion Lab and faculty member in the UK College of Education’s Department of Kinesiology and Health Promotion.

If relationship issues aren’t causing the drop in desire, what is the cause? Mark and doctoral student Julie Lasslo identified several nonclinical factors in their study and how couples can work past them:

Gendered Expectations

Gender differences are often assumed, with expectations placed on men to always be ready for sex and expectations placed on women to be the gatekeepers of sex. “Women may express having less desire than men, but often that’s because women are not taught to pursue sex or that sexual desire and pleasure should be important to them,” Mark said. “Alternately, men are expected to be the pursuers of sex and to always be ready and willing. When they don’t fit that stereotype, it can be particularly difficult to address within the relationship.” Those expectations are played out across society, especially in pop culture, and can create issues for long-term relationships. What can couples do? Communicate with each other and acknowledge that these societal factors exist and may be contributing to the difficulty around desire—some may be entirely unaware of the influence of societal expectations.

Self-expansion is another important factor. When two individuals try to become one—how many think of a long-term relationship—”that’s a desire killer,” Mark said. It’s important to maintain a level of autonomy, where each individual focuses on expanding themselves, to have space for desire to grow. “Sexual desire is like fire, and fire needs air,” Mark said. “By becoming completely enmeshed with a partner, abandoning all autonomy, the excitement of the unknown is entirely removed from the relationship; and this can be problematic for maintaining sexual desire.”

In fact, individual sexual desire fluctuates over time, no matter what the relationship is like. Sexual desire is not a stable trait, “and if individuals and couples anticipate the fluctuation, there will be much less of a negative impact,” Mark said. For example, desire may decrease when someone experiences a job transition or faces uncertainty about their future, and may increase when children leave for school or college. “There are a variety of factors that impact individual-level sexual desire, many of which may have nothing to do with the relationship,” said Mark. “Having the expectation that these natural fluctuations exist helps to prevent negative influences of sexual desire discrepancy on the relationship.”

Individuals wanting to maintain desire in their long-term relationship can also focus on their own psyche, working to manage stress and improve confidence. “If someone is tired, stressed and lacking personal confidence, it is understandable that they may not want to have sex,” Mark said.

Of course, other factors include sexual compatibility, attraction and attitudes toward sex. So, what does all this mean? It means that desire is no simple issue, and a simple one-size-fits-all approach to the issue, such as medication, can be short-sighted, Mark said.

To help other researchers build on this topic and to help couples think about what impacts their own desire, Mark and Lasslo developed a conceptual model comprising individual, interpersonal and societal components, with individual and interpersonal factors interacting and societal factors serving as the context in which sexual desire is experienced.

“But there are still gaps to fill,” Mark said. “There’s definitely a need for more research on the complexity of sexual desire, particularly the similarities or differences of sexual desire experienced in sexual minority relationships and racial minority relationships.”

Some of Mark’s current research with her interdisciplinary team in the Sexual Health Promotion Lab is aimed at filling these gaps.

Complete Article HERE!

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How Homophobia Has Robbed Men Of Touch

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The pathological fear of even platonic contact has created a generation of men plagued by loneliness and anxiety.

I wrote an article in which I asked people to consider the following: American men, in an attempt to avoid any possible hint of committing unwanted sexual touch, are foregoing gentle platonic touch in their lives.

I call it touch isolation.

Homophobic social stigmas, the long-standing challenges of rampant sexual harassment and abuse, and a society steeped in a generations-old puritanical mistrust of physical pleasure have created an isolating trap in which American men can go for days (or weeks) without touching another human being.

The implications of touch isolation for men’s health and happiness are huge.

Gentle platonic touch is central to the early development of infants. It continues to play an important role throughout men and women’s lives in terms of our development, health and emotional well being, right into old age. When I talk about gentle platonic touch, I’m not talking about a pat on the back, or a handshake, but instead contact that is sustained and meant to provide connection and comfort: Leaning on someone for a few minutes, holding hands, rubbing their back or sitting close together not out of necessity but out of choice.

Yet, culturally, gentle platonic touch is the one thing we suppress culturally in men and it starts when they are very young boys.

While babies and toddlers are held, cuddled, and encouraged to practice gentle touch during their first years of their lives, that contact often drops off for boys when they cease to be toddlers. Boys are encouraged to “shake it off” and “be tough” when they are hurt.

Along with the introduction of this “get tough” narrative, boys find that their options for gentle platonic touch simply fade away. Mothers and fathers often back off from holding or cuddling their young boys. Boys who seek physical holding as comfort when hurt are stigmatized as “cry babies.”

By the time they are approaching puberty, many boys have learned to touch only in aggressive ways through rough housing or team sports. And if they do seek gentle touch in their lives, it is expected to take place in the exclusive and highly sexualized context of dating. This puts massive amounts of pressure on young girls; young girls who are unlikely to be able to shoulder such a burden. Because of the lack of alternative outlets for touch, the touch depravation faced by young boys who are unable to find a girlfriend is overwhelming. And what about boys who are gay? In a nutshell, we leave children in their early teens to undo a lifetime of touch aversion and physical isolation. The emotional impact of coming of age in our touch-averse, homophobic culture is terribly damaging. It’s no wonder our young people face a epidemic of sexual abuse, unwanted pregnancy, rape, drug and alcohol abuse.

In America, in particular, if a young man attempts gentle platonic contact with another young man, he faces a very real risk of homophobic backlash either by that person or by those who witness the contact. This is, in part, because we frame all contact by men as being intentionally sexual until proven otherwise. Couple this with the homophobia that runs rampant in our culture, and you get a recipe for increased touch isolation that damages the lives of the vast majority of men.

And if you think men have always been hands-off with each other, have a look at an amazing collection of historic photos compiled by Brett and Kate McKay in their article Bosom Buddies: A Photo History of Male Affection. It’s a remarkable look at male camaraderie as expressed though physical touch in photos dating back to the earliest days of photography.

As the McKays note:

“At the turn of the 20th century… Thinking of men as either “homosexual” or “heterosexual” became common. And this new category of identity was at the same time pathologized—decried by psychiatrists as a mental illness, by ministers as a perversion, and by politicians as something to be legislated against.

“As this new conception of homosexuality as a stigmatized and onerous identifier took root in American culture, men began to be much more careful to not send messages to other men, and to women, that they were gay. And this is the reason why, it is theorized, men have become less comfortable with showing affection towards each other over the last century.”

Spend some time looking at these remarkable images. You’ll get a visceral sense of what has been lost to men.

These days, put 10 people in the room when two men touch a moment too long, and someone will make a mean joke, express distaste, or even pick a fight. And its just as likely to be a woman as to be a man who enforces the homophobic/touch averse stigma. The enforcement of touch prohibition between men can be as subtle as a raised eyebrow or as punitive as a fist fight and you never know where it will come from or how quickly it will escalate.

And yet, we know that touch between men or women is proven to be a source of comfort, connection and self-esteem. But while women are allowed much more public contact, men are not. Because how we allow men to perform masculinity is actually very restrictive. (Charlie Glickman writes quite eloquently about this in an article for The Good Men Project. Read it. It’s a real eye opener.)

Male touch isolation is one of many powerful reasons why I support marriage equality. The sooner being gay is completely normalized, the sooner homophobic prohibitions against touch will be taken off straight men. As much as gay men have faced the brunt of homophobic violence, straight men have been banished to a desert of physical isolation by these same homophobic fanatics who police lesbians and gays in our society. The result has been a generation of American men who do not hug each other, do not hold hands and can not sit close together without the homophobic litmus test kicking in.’

The lack of touch in men’s lives results in a higher likelihood of depression, alcoholism, mental and physical illness. Put simply, touch isolation is making men’s lives less healthy and more lonely.

When visiting my 87-year-old father for a few days, I made a point to touch him more. To make contact. To express my affection, not just by flying a thousand miles for a visit, but to touch the man once I got there. It may seem simple, but choosing to do so is not always a simple thing. It can raise a lifetime of internal voices, many of which speak of loss and missed opportunities. But I hugged him. I put my arm around him as we shared a cigar and cocktails. I touched him whenever I walked past his chair.

Each evening, we would watch a movie. As part of that nightly ritual, I would sit in the floor, take off his shoes and socks and rub his bare feet for while. It is something I will remember when he is gone. Something I did right. Something that said to him, I love you. Spoken on the same deep touch levels by which he connected with me when I was a toddler sitting next to him, his strong arm around me as I watched the late show 50 years ago.

This touch thing is so crucial: I kiss and hug my son constantly. He sits with me—and on me. I make a point of connecting with him physically whenever I greet him. The physical connection I have with him has been transformative in my life teaching me about my value as a human being and a father.

We need to empower men to touch. We need to fix our sexually repressed (and sexually obsessed) American culture and put an end to distorted and hateful parts of our culture that allow homophobic people to police all men everywhere down to the very tips of our fingertips.

It’s too late in my life for the impact of these stigmas to be fully undone, but I have great hope for my son. When we collectively normalize gay life and relationships, my son, whatever his sexual orientation turns out to be, will be free to express platonic affection for others, be they men or women, in any way he sees fit. The rabid homophobes who have preached hate in America for far too long will finally be silenced, and men will be free to reach out and touch each other without fear of being labeled as somehow less of a man.

It’s a dream for a better America I can already see coming true.

Complete Article HERE!

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Federal courts ask: What is the meaning of ‘sex’?

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Existing prohibitions against discrimination ‘because of sex,’ already provide a civil rights umbrella wide enough to cover discrimination based on sexual orientation and transgender identity, some judges are beginning to say.

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A number of federal courts have begun to ask a question that has become more and more subtle over the past few years: What is the meaning of ‘sex’?

It’s a question that has in many ways evolved out of the storms of cultural change that have surrounded the country’s shifting ideas about human sexuality and gender over the past few decades. Many of these culminated in the US Supreme Court’s landmark 5-to-4 decision in 2015, in which a bare majority declared same-sex marriage a constitutional right.

On the one hand, the high court’s epoch-changing decision that legalized same-sex marriage created the kind of situation that inevitably arises out of rapid cultural change. Today, neither the federal government nor some 28 states offer any explicit civil rights protections for lesbian, gay, bisexual, and transgender people (LGBTQ), either in the workplace or any other arena of daily life.

“It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress,” notes the legal scholar William Eskridge, professor at Yale Law School in New Haven, Conn.

And many throughout the country, even those with liberal-leaning views, continue to be uneasy about the presence of transgender people in certain sensitive places, including school bathrooms and locker rooms.

On Friday, President Trump issued a policy memo that would disqualify most transgender people from serving in the military, after tweeting about his plans to issue such a ban last July. As Defense Secretary Jim Mattis reported to the president in February, the administration is concerned that the presence of transgender soldiers could “undermine readiness,” “disrupt unit cohesion,” and create unreasonable health care costs for the military, echoing arguments used in the past for other groups.

At least four federal courts have found this reasoning constitutionally jarring as well, potentially violating the Constitution’s guarantee of equal protection under the law.

Yet beyond sweeping constitutional questions which regulate what the government can do to its citizens, the nation’s evolving definitions of sex, marriage, and gender have also been quietly transforming the nation’s civil rights laws, which regulate how citizens live their common lives together.

Title VII and Title IX

Indeed, a number of federal courts have recently begun to weigh in on a vigorous and relatively new legal idea, simmering for the past few years in federal civil rights cases but only now beginning to take a more defined legal shape.

There may be no need to press Congress and the majority of state legislatures to change their statutes and explicitly add LGBTQ people to their lists of protected classes. (Traditionally, these include race, color, religion, sex, and national origin.) Existing prohibitions against discrimination “because of sex,” already provide a civil rights umbrella wide enough to cover discrimination based on sexual orientation and transgender identity, some judges are beginning to say.

The Obama administration took this position in 2016, telling the nation’s public schools that transgender students should be able to use the bathroom of their choice, a directive that interpreted Title IX’s prohibitions against sex discrimination as covering transgender identity.

Last April, the US Court of Appeals of the Seventh Circuit in Chicago, which includes nine justices nominated by Republican presidents and five by President Ronald Reagan, also embraced this idea. In an 8-to-3 decision that spanned the panel’s ideological spectrum, the full court ruled that the Title VII’s prohibition against sex discrimination in the workplace also included any based on sexual orientation.

Last month, the Second Circuit in New York issued a similar ruling. “Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” wrote Chief Judge Robert Katzmann for the 10-3 majority. It would be impossible “for an employer to discriminate on the basis of sexual orientation without taking sex into account,” he continued.

Such an evolving legal definition of sex could again reshape the nation’s legal landscape. “Potentially a lot is at stake,” says Professor Eskridge. “Depending how broadly you go, this idea could affect dozens of state statutes and dozens of federal statutes, the chief of which are Title VII and Title IX,” sections in the landmark 1964 Civil Rights Act that forbids discrimination both in the workplace and in public schools.

Original intent

On the surface, the debate over the meaning of “sex” in these cases divides legal thinkers into classic liberal and conservative approaches to the law. Those who focus on the “original intent” of laws and the precise words of the legal text have generally rejected the expansive lines of thinking about the definition of sex.

“I think the better answer, the cleaner answer is just, let Congress go ahead and change the laws,” says Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory Law School in Atlanta. And there’s virtue in hashing out such questions through a political process rather than letting a panel of judges make such society-shaping decisions.

Indeed, this was part of the reasoning behind a three-judge panel in the 11th Circuit in Atlanta, which came to the opposite conclusion. In a 2-to-1 decision, the majority said that discrimination “because of sex” and discrimination based on sexual orientation were two different things. The disagreement among appeals courts could invite a potential Supreme Court review, scholars say.

But the history of the legal concept of “sex discrimination” unfolded in a much more complex way, many observers note, and conservative jurisprudence, too, has played a key role in the evolving definitions of “sex” that almost immediately began to widen over time.

“There’s been this natural progression of the law,” says Susan Eisenberg, managing partner at the Miami office of Cozen O’Connor. As a trial attorney who has been defending companies from civil rights complaints for more than two decades, she’s has watched as the concept of “sex” in discrimination cases has evolved over time, changing the ways she defends her clients.

The evolution of civil rights law

In the first decade after the passage of the 1964 Civil Rights Act, she and others point out, the “original intent” of the prohibition against sex discrimination was clear. The nation’s elite law schools and medical schools were often reserved for male applicants only, single women could be denied leases and bank accounts, and the nation understood its merit-based workplace as the natural domain of men alone.

But by the 1970s, people began to claim that sexual harassment in the workplace also violated Title VII’s prohibition against sex discrimination, and the Supreme Court agreed, declaring “a hostile work environment” as a violation of Title VII.

By the end of the 1980s, the Supreme Court found that discrimination based on “gender stereotypes” was also a violation of civil rights laws – in this case a woman who was passed up for promotion because she did not act feminine enough.

“She argued: that’s discrimination against me on the basis of my sex,” says Steve Sanders, a professor at Indiana University’s Maurer School of Law in Bloomington. “They’re not discriminating against me as a woman per se, but they’re discriminating against me because I failed to demonstrate certain stereotypes of what it means to be a woman, and the Supreme Court accepted that.”

And the nation’s high court broadened the definition even further in 1998, ruling unanimously that Title VII’s workplace protections covered sexual harassment between members of the same sex – a key decision, says Ms. Eisenberg, citing a passage that in many ways redefined her job.

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” wrote Justice Antonin Scalia for the majority in the case Oncale v. Sundowner, explaining the expanding definition of sex in this area of civil rights law.

“The sexual orientation cases that we’re now seeing basically takes the logic of these cases one step further,” says Professor Sanders. “If you’re a man, the social stereotype and the social expectation is that you will want to have sex with a woman, that you will want to have a relationship and a marriage with a woman. But, no, you defy that gender stereotype about what it means to be a man, because you’re attracted to other men.”

“Well, if the idea that men should only be attracted to women and women should only be attracted to men is a form of gender stereotyping, ergo, the logic goes, it’s covered by Title VII,” he says.

The Trump administration, however, maintains that while the Justice Department “is committed to protecting the civil and constitutional rights of all individuals,” in these case it remains “committed to the fundamental principle that the courts cannot expand the law beyond what Congress has provided,” said Justice Department spokesman Devin O’Malley in February.

‘Lack of clarity can prove expensive’

Corporate attorneys say most businesses have already instituted their own antidiscrimination policies. “But though many have adopted these, only voluntarily, the unevenness, the irregularity of anti-discrimination laws, I think is very challenging for the business community to grapple with,” says Darren Rosenblum, professor at the Elisabeth Haub School of Law at Pace University in New York. “So I think there is an imperative to clarify the law on this point. That’s what they need first and foremost, because the lack of clarity can prove expensive, figuring out which norms to follow.”

Even so, Eisenberg points out that given the ways in which the high court has redefined the meaning of sex in past precedents, today simple claims of “gender stereotyping” already covers most claims of discrimination based on sexual orientation or gender identity.

“And if you’ve got people who are being discriminated against just because they’re not part of a protected characteristic, that’s just not good management,” Eisenberg says. “It’s not good for recruiting, it’s not good for maintaining employees, it’s not good all the way around.”

Complete Article HERE!

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