Homophobia as an Issue of Sex Discrimination: Lesbian and Gay Equality and the Systemic Effects of Forced Invisibility
| Author: | Christopher N Kendall BA (Hons), LLB, LLM, PhD Associate Professor, Murdoch University School of Law |
| Subjects: | Discrimination Australia (Other articles) Gay and lesbian legal rights (Other articles) Gender bias Homosexuality Law reform Sexual orientation (Other articles) |
| Issue: | Volume 3, Number 3 (September 1996) |
| Category: | Conference Papers from "Sexual Orientation and the Law" |
Introduction: A Note To Those Who Claim To Take Gender Equality Seriously On What It Takes To Do So
In 1994, June Williams, Western Australia's Commissioner for Equal Opportunity, released a 200 page Report outlining and documenting in some detail the systemic discrimination faced by those who identify or who are identified as non-heterosexual in our society. Noting that "discrimination on the ground of homosexuality in the areas of employment, education, accommodation, and the provision of goods, services and other facilities is widespread"[1] the Report concluded that the Western Australian Equal Opportunity Act should be amended so as to include "sexuality" as a ground of unlawful discrimination. One month after the release of the Commissioner's Report, then Attorney General Cheryl Edwardes announced that the Western Australian government did not accept the Commission's findings and would not amend the State's human rights legislation.[2]
In recent years there has been a concerted effort on the part of both the Commonwealth and the state governments in Australia to foster the image of an Australian nation committed to the promotion of fundamental human rights. This is perhaps best reflected in the now pervasive acceptance that our governments have an obligation to implement anti-discrimination measures aimed at protecting those individuals and groups historically and presently affected by both blatant and insidious forms of discrimination. In Western Australia, this recognition has resulted in equal opportunity legislation which outlaws discrimination on the basis of sex, race, religion, political affiliation, marital status, age, disability and impairment.[3] While recognition of the fact that certain sections of the Australian community are not yet afforded equal participation in the day to day activities of the nation is to be applauded, the final decision of our legislators as to which groups specifically are "worthy" of non- discrimination represents, at least from the perspective of lesbians and gay men (a group apparently not so "worthy"), a shameful admission on the part of these legislators that not all people are entitled to equal treatment under the law -- an admission that while diversity is to be encouraged, the public expression of some community difference is best not permitted, let alone encouraged.
Since the release of the Williams Report in 1994, much has been written in Western Australia (at least in the press) outlining why the present state government's refusal to extend basic human rights protections to lesbians and gay men is inexcusable, a violation of international law, an abject failure of leadership, even ludicrous. Again and again, in an attempt to convince others of their need for equality, lesbians and gay men have found themselves having to document (hence re-live) the hostilities and fears that are a daily feature in the lives of those for whom hatred, violence and some of the most horrific forms of discrimination remain an unchecked reality. As a gay man, I am not too surprised by the level of ignorance shown by many of those who oppose equal rights protections for lesbians and gay men. All too often, life experience has taught me that the wrath of the homophobe, the sexist and the racist is to be expected, as some will remain socially regressive regardless of the level of public disapproval for their expressions of hatred. What has most surprised me, however, is the reluctance on the part those persons who do support the need to protect other societal groups to extend these protections to sexual minorities.[4] As stated, in Western Australia, we have in place an organised, relatively effective[5] mechanism for assisting those who experience discrimination as a result of their gender, race etc. To the best of my knowledge, this is a system which even Ms Edwardes and many of her colleagues support. That is, to the best of my knowledge, I have never read any statements by Ms Edwardes or her colleagues indicating that sex discrimination (for example) does not exist or need to be addressed. Indeed, Ms Edwardes and her government have made it quite clear that they are (at least publicly) willing to commit their support to programmes aimed at eliminating domestic abuse, sexual assault, sexual harassment and the many other systemic harms which are central to women's inequality. Given this, I can only assume that Ms Edwardes and her colleagues do take sexual inequality seriously or that they are at least willing to admit that it exists and is unacceptable.
And so I ask, why inaction when it comes to discrimination on the basis of sexuality? More importantly, I want to ask quite bluntly whether the government honestly believes it can combat the many inequalities that result from systemic gender hierarchies without also combating inequalities based on sexual difference? It is my purpose in writing this paper to argue that it cannot. While it is true that not all inequalities can be addressed simultaneously, it is also true that inequalities do not exist in a vacuum. If, for example, the government is truly committed, as it must be, to eradicating sex discrimination, then a concerted effort must be made to eliminate the many barriers that presently impede gender equality. Human rights legislation is but one means of doing so. To implement equality initiatives without first understanding what gender stereotypes do, who they harm and who they benefit, however, is to implement an equality agenda that is at best politically myopic and at worst responsible for encouraging those discriminatory harms that make homophobia and sex discrimination the oppressive and interconnected constructs that they are and always will be - unless they are challenged simultaneously.
Any effort to address societal discrimination must recognise that the lesbian and gay community, as a minority community long denied full participation, also suffers disproportionately from systemic and direct discrimination, and that eliminating those barriers central to the maintenance of the homophobic reality in which lesbians and gay men live and work is also in the best interests of society as a whole. Specifically, if but one of the aims of anti-discrimination legislation is to halt a now recognised history of systemic gender discrimination, the exclusion of lesbians and gay men from any legislation which aims to challenge gender inequality, resulting as this will in the further suppression of lesbian and gay male expression, will only support those gender/power differences which sustain and are central to systemic inequality.
As long as lesbians and gay men are denied participation in all aspects of public life, real equality will never be achieved. To a large extent, forced invisibility is what homophobia is about. It ensures that lesbians and gay men, to the extent that they are perceived as violating those gender norms upon which heterosexual male dominance is based, remain silenced and hence invisible. Any attempt to achieve true systemic equality will thus fail in so far as it denies and fails to address the very real consequences of systemic homophobia on lesbians and gay men and on society as a whole. Discrimination does not exist in a vacuum. To the extent that some people, like myself, identify or are identified as non- heterosexual, our oppression, our reality, will continue to serve an insidious purpose -- the maintenance of compulsory heterosexuality as an oppressive institution central to the preservation of heterosexual male dominance and those inequalities which result from gender polarity[6] -- and until that purpose has been addressed, by every means imaginable, real social equality will remain illusory.
Lesbians and gay men, to the extent that they choose to build same-sex relationships based on mutuality and respect, relationships which reject hierarchical gender roles and the power relationships that result from gender polarisation, are seen as a threat to male supremacy because they challenge the social constructions assigned to the definitions "male" and "female".[7] In a world built on sexual hierarchy, nothing is more threatening to those who benefit from it than the notion that there can be love and justice between equals, that inequality need not be. Homophobia -- which is a reaction to the actual or perceived violation of gender norms -- is aimed at silencing lesbians and gay men because the public expression of their sexuality is seen as undermining male dominance, for which gender inequality is necessary. Anti-gay stereotypes are an enforcement mechanism for appropriate gender role behaviour, ensuring that men and women do not violate those gender roles central to male power and that gay men and lesbians are stereotyped and ultimately suppressed to the extent that they do so. The effect that this has on lesbians and gay men is silence, for fear of being identified, resulting in their invisibility. And that is exactly what homophobia is about: ensuring that lesbians and gay men, to the extent that they refuse to conform, to the extent that they refuse to partake in a system of sex inequality, are brutally suppressed and ultimately rendered invisible.[8] And so I say to those who claim to support the notion of systemic gender equality and those legislative efforts that aim to achieve it, your efforts will remain futile so long as you fail to also address the harms that result from homophobia. For so long as homophobia exists and remains unchecked, sexual equality will remain a fiction.
On Gender Hierarchy: Some Ideas About "Real" Men, "Real" Women and What Happens to Those Who Refuse to Make Up Their Mind
The discrimination experienced by lesbians and gay men is in many ways unique -- a fact which ultimately renders any legislative mandate aimed at addressing this inequality more challenging. Nonetheless, it is important to recognise that if equality-based legislative efforts are to provide true substantive equality, they must accommodate the particularities of disadvantage and recognise the special needs and differences of the disenfranchised. Our legislators must not lose sight of the fact that socially imposed oppressions are in many ways linked and that it is short-sighted to even attempt to address the effect of some forms of discrimination while allowing, by ignoring, others.
It has often been noted by those most in favour of legislation aimed at guaranteeing social equality and by those who attempt to explain the effect of inequality and pervasive sex discrimination on women[9] that systemic equality will not be realised until we eliminate those stereotypes that allow people to think in terms of how a particular gender ought to behave. To this, one must also add that true equality will not be realised until we eliminate those stereotypes which penalise persons who fail to conform to preconceived notions of appropriate gender role behaviour.
A number of academics have argued that the cultural and legal contempt for lesbians and gay men serves primarily to reinforce the social meaning attached to gender.[10] This has led some to argue (quite convincingly) that homophobia is a "weapon of sexism",[11] designed primarily to ensure that hierarchical gender differences, socially defined,[12] from which only men benefit, are pervasive and central to the maintenance of sex discrimination and those institutions that ensure male power. As Stoltenberg explains, "the system of male supremacy requires gender polarity -- with real men as different from real women as they can be, and with real men's superiority to women expressed in public and in private in every way imaginable."[13] Lesbian and gay male sexuality has the potential to subvert gender hierarchies because it does not, of necessity, [14] require or rely on the systemic subordination of women. Homophobia is aimed at silencing lesbians and gay men because the public expression of their sexuality is seen as undermining male dominance, for which gender hierarchy is necessary. As "a weapon of sexism," homophobia -- which can be seen as a reaction to the actual or perceived violation of gender norms -- reinforces male dominance by maintaining gender male privilege. Many anti-gay stereotypes are aimed at silencing the public expression of non-heterosexual sexual identities and both foster and maintain "appropriate" gender-role behaviour,[15] ensuring that women and men do not violate those gender hierarchies central to male power and that all lesbians and gay men are suppressed and punished to the extent that they do. As Pharr explains:
To be a lesbian is to be perceived (labelled) as someone who has stepped out of line, who has moved out of sexual/economic dependence on a male, who is woman-identified. A lesbian is perceived as someone who can live without a man, and who is therefore (however illogically) against men. A lesbian is perceived as being outside the acceptable, routinized order of things. She is seen as someone who has no societal institutions to protect her and who is not privileged to the protection of individual males...A lesbian is perceived as a threat to the nuclear family, to male dominance and control, to the very heart of sexism.[16]
There are numerous examples of the extent to which heterosexual male privilege relies upon and ultimately insists upon the preservation of gender inequality. Perhaps the most obvious example of the role of homophobia in preserving gender, hence social inequality, however, is the extent to which it is used to preserve "that bastion of patriarchal power, the nuclear family."[17] Patriarchy is the "manifestation and institutionalisation of male dominance over women and children in the family and the extension of male dominance over women in society in general."[18] Lesbian and gay male relationships have the potential[19] to reject hierarchical concepts of gender. They therefore challenge the notion that social traits, such as dominance and subordination, masculinity and femininity, equal and unequal are needed. Because they do so, they are seen as challenging patriarchy and the male supremacy derived from it and are consequently punished for "not participating fully in [the] daily maintenance of women's oppression"[20]:
when homosexual people build relationships of caring and commitment, they deny the traditional belief and prescription that stable relations require the hierarchy and reciprocity of male/female polarity. In homosexual relationships authority cannot be premised on the traditional criteria of gender.[21]
Lesbian and gay male relationships, because they can undermine that male/female split necessary for socially imposed gender inequality, are thus targeted for abuse. By subverting gender roles, and by choosing instead to build communities and relationships (monogamous or otherwise) premised on equality, reciprocity and caring, lesbians and gay men have considerable potential to undermine the notion that relationships, and by extension society, must be divided hierarchically in order to function. As Marc Fajer explains, "one of the biggest contributions that gay people can make to society is to demonstrate the weakness of the bipolar model of gender and to attempt to rectify some of the harms it creates."[22]
It is clear that patriarchal society has a vested interest in suppressing lesbian and gay male expression. At the risk of stating the obvious, it can now at least be acknowledged that much time and effort has been directed at silencing the public expression of any lesbian and gay male discourse and reality which challenges patriarchal privilege. Indeed, so pervasive is anti-lesbian and gay male discrimination in our society that the consequences for any who dare to speak and challenge socially imposed definitions of "normal" are far from appealing or empowering:
To be called a homosexual is to be degraded, denounced, devalued or treated as different. It may well mean shame, ostracism, discrimination, exclusion or physical attack. It may simply mean that one becomes an "interesting curiosity of permissiveness". But always, in this culture, the costs of being known as a homosexual must be high.[23]
For lesbians and gay men, the hostility directed at us (manifesting itself as it does in ways far too numerous to discuss within the scope of this brief paper)[24] ultimately ensures the almost complete suppression of lesbian and gay male public expression and visibility -- a suppression deemed necessary for the maintenance of systemic inequality and gender male, heterosexual privilege. As Jeffrey Byrne notes, because of the vicious circle of labelling and silencing to which lesbians and gay men are subjected, the personal costs of coming out in a still largely heterosexist and often violently homophobic society serve to ensure the continued invisibility of lesbians and gay men."[25] And it is this invisibility which is at the heart of homophobia -- a socially imposed muzzle aimed at silencing those whose very existence threatens to subvert gender male privilege.
The Meaning Attached to, and Effect of, Conformity: Lesbians and Gay Men at Work
Nor -- at the most basic level -- is it unaccountable that someone who wanted a job, custody or visiting rights, insurance, protection from violence, from distorting stereotype, from insulting scrutiny, from simple insult, could deliberately choose to remain in or re-enter the closet in some or all segments of their life....[F]or many gay people it is still the fundamental feature of social life; and there can be few gay people, however courageous, in whose lives the closet is not still a shaping presence.[26]
To those who deny the reality of anti-lesbian and anti-gay male discrimination, who deny the consequences of socially imposed silence and who refuse to acknowledge the effect this has on those who are silenced and on society's equality interest as a whole, I would ask only that you listen without prejudice to the voices of those for whom being silenced is very much a way of life. To my mind, the very real effect of socially imposed silence is best demonstrated by examining the effect this systemic force has on lesbians and gay men in their work environments.[27]
It is not unrealistic to assume that the fear of being labelled, "outed" or identified -- given what this represents and results in socially -- has adverse consequences in and on any work environment. Because the workplace is central to most people's lives and typically mirrors conditions present in society at large, it is not surprising that societal discrimination against lesbians and gay men manifests itself in the workplace[28] and that the overt hostility directed daily at lesbians and gay men in society generally has a very real impact on the ability of lesbians and gay men to find, retain and secure promotion in employment. To argue otherwise is to ignore the extent to which homophobia aims to suppress the public expression of lesbian and gay male public identity and to understate the effect of socially imposed "invisibility" on lesbians and gay men and indeed society as a whole.
The discrimination faced by lesbians and gay men, resulting as it does in silence, hence invisibility, while perhaps unique to lesbians and gay men as a minority population creates very real barriers, sometimes systemic, sometimes deliberate, that in one way or another adversely affect the equal participation of lesbians and gay men in the work force and which ultimately undermine attempts to achieve systemic equality. To date, little research has been compiled on the employment experiences of lesbians and gay men and the effect that socially imposed silence and invisibility has on their work performance and opportunities for promotion. The information that has been accumulated, however, indicates that in addition to the more blatant discrimination faced by those who do choose to identify as lesbian and gay in the workplace (ie. employment loss, workplace harassment etc.), there are incredible psychological costs attached to being "closeted" or hidden. In a series of interviews conducted in 1992-1993 in Canada, the "effects of the closet on self confidence, on the perceived (in)ability to reach out to other lesbians and gays in order to develop a support system, on the ability to have and maintain intimate relationships and on productivity", were mentioned in every interview.[29] The results indicate that the reality of those who identify or who are identified as lesbian or gay in our society is a reality very much affected by lost employment opportunities, mistreatment in the workplace and lost promotion in employment.
For the lesbian or gay man seeking employment, there are many unique difficulties directly related to her or his sexual orientation. Many will limit applications to employers or workplaces that have a reputation, perceived or otherwise, of being more accommodating and less homophobic. Many thus forfeit job opportunities for which they are duly qualified simply because an employer is perceived to be homophobic. Others will apply but will tailor their resumes so as to hide any work or community related activity that might reveal their sexual identity. When one has been forced socially to live with the discomfort of not knowing whether or not the public expression of her or his identity will be met with hostility, she or he will tend, quite understandably, to assume a guarded approach in most public contexts. In the employment context, lesbians and gay men find themselves tailoring their resumes to suit the perceived reputation of a potential employer. Indeed, it is not uncommon for lesbians and gay men to have more than one resume -- one "out" and one "in" (read "closeted"). The result is that many "sell themselves short". For example, although one might have considerable and invaluable work experience with lesbian and gay community groups etc. and might have derived strong personal and work related skills from these activities, experience indicates that it might prove detrimental to include this information on a resume. As a result, the full extent of one's experiences and resulting abilities cannot be appreciated.
If one does ultimately receive an interview, this tension continues throughout the interview process. Unsure of whether they are going to be met with hostility because of their sexual orientation, many lesbians and gay men will again choose to conceal their sexual orientation. Hence, information regarding valuable work/life experience may again be withheld for fear that information provided will disclose sexual identity. Relevant credentials will thus not be evaluated and any perceived hesitancy or unwillingness to address topics or interact with the interviewer may leave a negative and ultimately detrimental impression.
Once hired, lesbians and gay men (even if not publicly identified as such) face a full spectrum of discrimination. At the one end, those who do ultimately reveal their sexual orientation risk job loss, hostility and harassment.[30] Sometimes, the discrimination faced will prove more subtle. Other employees, for example, usually assume that their colleagues are heterosexual and will frequently elicit information about one's personal life that will either reinforce or refute this assumption. The lesbian and gay employee who is confronted with questions about her or his personal life is left with the choice of "coming out" and risking mockery and ostracization, of lying and living a lie or avoiding conversations with one's colleagues entirely. Avoidance, however, often leads to feelings of alienation and can give the impression that one is not friendly or collegial.[31] This, in turn, can create undue stress at work and can ultimately lead to lesbian and gay employees leaving that environment rather than confronting the source of the problem. Confrontation, after all, in this setting, requires identification, and this in turn might prove even more problematic.
The decision, albeit socially enforced, to hide one's sexual orientation, to remain invisible, also has profound effects on opportunities for job promotion and retention.[32] One may, for example, feel that her chances of being promoted will be affected by whether or not others, in particular her superiors, know that she is a lesbian. Of course, some do choose to openly identify as lesbian or gay in order to avoid censoring themselves in the workplace. By doing so in an environment without protective or supportive measures, however, they risk the more blatant discrimination of job loss and the more subtle effects that result from being labelled "different", hence not "appropriate" for other employment opportunities.[33] While more and more people are willing to take this chance and in so doing challenge those institutional practices that have and continue to hinder the participation of lesbians and gay men in the workplace, it is not surprising, given the price that may be exacted, that many do not.
Unfortunately, for these persons, for those who quite understandably do not "come out", there is also a price attached to their silence. Self-confidence is important in any work environment. The effort expended on hiding one's identity and not being oneself, for the sake of job security has the effect of undermining one's self-confidence and ultimately undermining work performance. As one lawyer explains:
I was very unhappy. I was drinking far too much and really hating my life. I was not being honest about who I was. I came to realise how internalised my homophobia was, how much I felt inferior because I was gay...I would second guess myself when the partners would ask me what I thought about a case. I would never say what I was thinking. I would think, 'what does he want me to think'. Admittedly, that concern is there for everyone, but it is an extra burden for closeted gays and lesbians because we spend all our time dealing with that pressure...Hiding takes energy on a constant basis. It's stressful -- there's always the fear of discovery, slipping up, substituting pronouns, using "my friend"- type language, "sanitising" the nature of events.[34]
Others have argued that the effort spent on concealment affects productivity and this, in turn affects their opportunities for promotion:
I'm hiding something. It occupies time at work, especially when social conversations occur. I fear people will find out. I don't want to test their policy on sexual orientation.[35]
Being gay and hiding it adds innumerably to the stress of working in a firm. I spent all my time worrying about the impact if people found out. Every word I spoke, on the phone to clients, to other lawyers, to secretaries, I had to be concerned about what I said. I was constantly checking myself and my reactions. Time better spent on doing work is taken up with anxiety about being discovered as gay or lesbian.[36]
At some point, the weight of what you're doing catches up with you. What you do during the day is completely separate from your real life. You're not yourself and have to make an effort to fit in. Pretending you're straight is a lot of work. Put yourself in a situation where you won't allow yourself to respond naturally to anything. You must check everything. Your brain is constantly going -- it's exhausting.[37]
This process of self-censure can also affect the perception others have regarding work performance, even if productivity levels are acceptable, indeed exemplary. By being denied the opportunity to express oneself as one would to those from whom you fear no repercussion, one again risks being seen as someone who is not a team-player -- as someone who lacks collegiality:
[I]n workplaces where lesbians and gay men have not felt free to talk about our home lives, often we are perceived as withdrawn or secretive, not qualities readily selected as leadership material. Or we are perceived as not joining in the social life of the workplace...Then management can see us as not adequately identified with our jobs and may pass us over at promotion time.[38]
For lesbians and gay men, in the workplace and elsewhere, our reality is a reality of forced secrecy. The result for lesbians and gay men as a minority community is invisibility and the discriminatory effects that result from invisibility. The result for society, given what homophobia aims to do and what it ultimately accomplishes, is the preservation of yet another tool which maintains systemic inequality generally and heterosexual male privilege specifically. Despite this, there remains considerable reluctance on the part of our legislators to include lesbians and gay men within the scope of those legislative initiatives aimed at addressing systemic inequality. While governments rarely provide reasons for not including lesbians and gay men in legislative efforts aimed at promoting equality, any arguments advanced against inclusion tend to ignore the consequences of invisibility.
Some Thoughts On Inclusion Through Invisibility
The need to address what amounts to a socially imposed silence becomes particularly apparent once one understands the role of homophobia and its effect on lesbians, gay men and society as a whole. Specifically, it seems both half-hearted and futile to implement legislation aimed at breaking down those discriminatory stereotypes that result in inequality if, by deliberately excluding measures aimed at protecting lesbians and gay men who do identify as such, you intentionally dissuade the public expression of those attitudes and sexual identities that, once expressed, do much to assist you in attaining this objective. Indeed, it is politically naive to assume that gender equity in the workplace, for example, will be achieved if gender inequality in society depends on the continued suppression of those persons whose mere presence challenges gender polarity and inequality, and effective measures to alter this fact are not implemented at all levels of social interaction.
It is often argued that lesbians and gay men do not need the protections offered by equality legislation because, unlike other designated groups, they have the option of "hiding" those "characteristics" that are the source of their oppression -- a "benefit" not afforded other designated groups. Protection may thus be viewed as not required because lesbians as women already benefit from human rights protections aimed at assisting women as a community and gay men as men can benefit from gender male privilege, hence avoiding discrimination.
Arguments of this sort, although not discriminatory on their face, are simplistic and naive. They also result in discrimination, even if may be unintended. They ignore the reasons why lesbian and gay male expression is suppressed socially and why lesbians and gay men must be included in any measures aimed at addressing systemic inequality. In particular, they ignore the specificity of lesbian and gay male oppression and the harms resulting from invisibility.
I want to make it quite clear at this stage that I am not arguing that privilege is not reaped by those who do "hide" their sexual identity or that some lesbians and gay men do not have the ability to do so. The most obvious example of this is seen in the ability of gay men to "pass" as straight men and hence benefit from heterosexual male privilege -- an option obviously not afforded to women[39]. There is also advantage gained from white skin privilege and from the privilege derived from being able-bodied -- a form of social privilege from which not all lesbians and gay men benefit and without which many will continue to face discrimination, regardless of their ability or desire to hide/silence their sexual identity. This is a fact which few can deny. This does not mean, however, that the social pressure to hide and be silent is not harmful both personally and politically and should not also be addressed and eliminated or that measures should not be implemented to ensure that the incentive to hide is rendered obsolete. As Byrne notes, being constantly told by straights that there is considerable benefit to be found in "remaining closeted is itself a grievous form of societal discrimination through which society pressures individuals into denying publicly their true sexual identities and lives." [40] While it is true that not all lesbians and gay men experience discrimination equally, that multiple identities result in disparate types of discrimination, and that many do derive advantage from differing forms of social privilege, it is also true that all lesbians and gay men are pressured socially to keep their sexual identities hidden and are penalised and immediately stripped of the benefits of heterosexual privilege to the extent that they do not. And while some will in the short run benefit personally from their ability to hide their sexual identity, given what is at stake in doing so it is clear that this option is of no benefit to gay liberation. It is also clear, given the extent to which homophobia and sex discrimination are linked, that the goal of systemic equality generally will remain unachievable so long as efforts are not made to encourage the public expression of non-heterosexual identities. Hence, while it is true that we have the option of participating in heterosexual privilege, I find it particularly insulting that this fact alone might be used to deny us those protective measures that will enable us not to do so. Indeed, it is clear that "hiding" and hence denying an aspect of one's identity, simply because you are told that you can and should do so is for many a "profound form of subordination"[41] given what hiding entails politically and personally.
For gay men, "hiding" requires that we muzzle our sexual identity and politic-- that is, remain silent and ultimately invisible as gay men -- or that we adopt a politic which supports and is committed to those values central to our own oppression. In either case, the only people who truly benefit are those who continue to support a social order in which the measure of equality is gender superiority versus alleged inferiority -- a social order which silences any gay male expression not wedded to male privilege and which as such ultimately results in the subordination of all women and those men who refuse to conform. This is not a choice any government allegedly committed to equality ought to be promoting. Unfortunately, by refusing to provide any protections to those lesbians and gay men who do identify as lesbian and gay, and by encouraging them instead to find protections only as members of another designated group or, in the case of white, able bodied gay men, to rely on the privilege offered white men generally, our governments do little more than reinforce the idea that lesbians and gay men should neither be seen, nor heard. In so doing, they create a hierarchy of oppression. They also encourage invisibility and deny the effects of that invisibility.
To argue that gay men, for example, do not need basic human rights protections because they already benefit or can benefit from male gender privilege, is to deny the reality of homophobia and to encourage all gay men to silence any gay male identity which might undermine gender male privilege. Those gay men who are not immediately penalised for being gay are those gay men whose identity does not threaten gender male privilege. Those who do not undermine gender male privilege, however, are those who remain closeted or who simply mimic those who oppress them and who, in so doing, reject any gay male politic not committed to gender male privilege. Ultimately, although it is an option, an examination of what results from choosing to hide makes it very clear that any environment which promotes this option and which does not encourage and allow the expression of a gay male politic not committed to male dominance is an environment which does not take sex equality seriously.
As previously stated, the purpose of homophobia is to ensure that gay men are bullied into rejecting any public expression of their sexual identity that undermines gender male power. To the extent that male supremacy depends on gender inequality, lesbians and gay men, because they have the potential to develop relationships that do not depend on a male/female hierarchy, threaten male supremacy. As Pharr explains, "misogyny gets transferred to gay men with a vengeance and is increased by the fear that their sexual identity will bring down the entire system of male dominance and compulsory heterosexuality.[42]" Homophobia, which finds expression in gay bashing, employment discrimination and familial and social ostracization, reminds all men that if they "break ranks with males through bonding and affection outside the arenas of war and sport" they will be "perceived as not being 'real men', that is, as being identified with women, the weaker sex that must be dominated and that over the years has been the subject of male hatred and abuse."[43] The gay male, socially feminised, internalises this misogyny and seeks to mimic, because he can, those behaviours and characteristics that will, he hopes, allow him to 'pass' for the 'male' he is supposed to be.
Obviously, this is a politic that all gay men need to reject. For gay men, mimicry and assimilation ensure that those gay men who are "visible" -- those who refuse to be silenced, who refuse to conform -- become the victims of greater physical and emotional abuse and discrimination. Because they continue to challenge the "normality" of gender polarity and in the process undermine male supremacy, these men will be brutally silenced. Those gay men who choose concealment on the other hand and who embrace and encourage that masculinity so central to male dominance do little more than sexualize their own oppression -- making a fetish of that which ultimately silences them. The result is a complete rejection of a gay male discourse that is not wedded to male privilege -- a politic which ensures that masculinity remains the only defining male construct to which public discourse is afforded and which ensures that real equality for gay men and all women remains unattainable -- the result being gay male silence, heterosexual male superiority, female inferiority and systemic inequality.
The desire to be male identified and reap the benefits of male privilege is, in a homophobic society, socially appealing. While no one should underestimate the power of homophobia and the extent to which it literally terrorises gay men into wanting to pass as "real" men, a rejection of this construct is nonetheless required. Admittedly, this is an issue that the gay male community itself must address in redefining its goals and the role it will play in the struggle to eliminate all systemic barriers. This task will not be assisted, however, by any government initiative which fails to assure lesbians and gay men that they do not need to hide their identity or "pass" in order to participate fully in society.
Conclusion
In Western Australia, the government has passed equal opportunity legislation aimed at addressing some of the many disadvantages presently faced by women and racial minorities. In so doing, our government has offered what it believes to be a progressive model for effective social change. In many ways, this effort does much, at least symbolically, to undermine the systemic discrimination faced by individual members of these groups. In other ways, however, this legislative objective remains incomplete, under-inclusive and, as such, ineffective. This is particularly true from the perspective of lesbians and gay men -- persons who, although very much the victims of prejudice and ignorance, remain excluded from those initiatives aimed at addressing prejudice, ignorance and the many inequalities that result from systemic discrimination.
It has been my purpose in writing this paper to argue that anti-lesbian and anti-gay male discrimination is very much an issue of gender discrimination. In so doing, I am not arguing that our legislators can simply assume that, because the Equal Opportunity Act (WA) already outlaws discrimination on the basis of sex, further legislative reform aimed at outlining the illegality of discrimination on the basis of sexuality is unnecessary. On the contrary, the specific recognition that sexuality discrimination exists (and is also unacceptable) is also needed. To begin with, no Australian court of law or administrative tribunal has yet to accept the argument that laws against sex discrimination necessarily forbid discrimination on the basis of sexual orientation. In addition, however, and perhaps more importantly, express legislative recognition that discrimination on the basis of sexual orientation is illegal would serve an important symbolic function by acknowledging the existence of a minority group very much in need of concrete legal protections. By failing to do so, by simply assuming that we can be incorporated into already existing categories, the government does little more than reinforce the notion that lesbian and gay male identities are best not seen, best not recognised, best left invisible. This, in turn, will do little to convince those who have faced discrimination on the basis of their sexuality that they can in fact find recourse before those human rights tribunals designed to protect them and that the government is in fact serious about eliminating the specific inequalities faced by this minority grouping.
What I am saying by arguing that homophobia is an issue of sex discrimination, is that if the government takes seriously the elimination of some forms of discrimination, it must recognise that inequalities cannot be separated. Lesbian and gay male identities and the public expression of these identities have the potential to question and subvert gender male privilege by rejecting socially imposed gender role behaviours, upon which heterosexual male privilege and patriarchal power depends. Homophobia serves an insidious purpose, the effects of which are felt far beyond the boundaries of the lesbian and gay male community. To the extent that they pose a threat to gender male privilege and the sex inequalities derived from male privilege, lesbians and gay men remain the victims of violence and pervasive discrimination. The result for lesbians and gay men is imposed silence, hence invisibility -- a discriminatory effect which imposes severe social, economic and personal disadvantage on those whose reality remains one of fear and hiding. The result for society generally is reinforced stereotype resulting in the preservation of gendered power hierarchies and systemic inequality.
Notes
[1] Commission for Equal Opportunity, Western Australia, Discrimination on the Basis of Sexual Orientation, (Perth: 1994) at 45.
[2] See Mark Irving "Failure to Protect Gays Deplorable", The West Australian, October 24, 1994 at 16. In May, 1996, WA Opposition Spokesperson, Yvonne Henderson, again proposed amendments to the Equal Opportunity Act (WA) aimed at prohibiting discrimination against lesbians, gay men, bisexual persons and transgendered persons in relation to employment, education and accommodation. On 4 September, 1996, the State Government rejected the proposed amendment. See Dave Reardon, "New Gay Rights Proposal Rejected", The West Australian, 5 September, 1996 at 3.
[3] The Equal Opportunity Act 1984 (WA); hereafter referred to as the "Act".
[4] In Western Australia see generally, Catherine Fitzpatrick, "Court Rebuffs Gay Lobby" in The West Australian, Saturday, 9 July 1994; Mark Irving, "WA Urged to Change Laws on Homosexuals" in The West Australian, Monday, 24 October 1994; Roger Martin, "Mayor's Homosexual Remarks Regrettable", The West Australian, Thursday 12 October 1995.
[5] By which I am not suggesting that the system presently in place does not require improvement or that other mechanisms to ensure access to justice should not also be examined and ultimately implemented. What I am suggesting is simply that the human rights tribunal system does serve some role, even if somewhat limited, in promoting systemic equality, but that it cannot do so if it is denied the opportunity to act on behalf of all persons in need of systemic equality. This is an argument I have developed elsewhere. See C Kendall and B Eyolfson, "One in Ten But Who's Counting: Lesbians, Gay Men and Employment Equity" (1995) 27 Ottawa Law Review 121. For an excellent analysis of the need to offer more efficient redress to persons on the receiving end of discriminatory conduct, see Anna Chapman, "Sexuality and Workplace Oppression" (1995) Melbourne University Law Review 311.
[6] Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence" (1980) 5(4) Signs: Journal of Women in Culture and Society 631.
[7] On gender polarity as a social construct defined by specific behaviours which ultimately result in the categories "male" and "female," rather than a biological determinant, see Catharine A. MacKinnon, Feminism Unmodified (Cambridge, Mass: Harvard University Press, 1987) and Teresa de Lauretis, Technologies of Gender: Essays on Theory, Film and Fiction (Bloomington, Indiana: Indiana University Press, 1987). As MacKinnon explains, "gender is an inequality of power, a social status based on who is permitted to do what to whom" (at 8). "Male is a social and political concept, not a biological attribute, having nothing whatever to do with inherency, pre-existence, nature, essence, inevitability, or body as such" (at 114). It is this social definition of male and female, with defining characteristics for each, which ultimately results in gender inequality.
[8] See generally, Suzanne Pharr, Homophobia: A Weapon of Sexism (Little Rock: Chardon Press, 1988).
[9] As will be explained later in this paper, although lesbian identified women obviously identify as "women" for the purposes of equal opportunity-type legislation, legislation like that presently in place in Western Australia make no effort to acknowledge, let alone address, the disparate treatment afforded lesbians as compared to those women who identify as or who are assumed to be heterosexual. While the argument can and has been made that lesbians already "benefit" from equal opportunity legislation, in that the legislation aims to counter the effects of systemic gender discrimination on all women, this argument ignores the very real consequences of systemic homophobia on those women who are lesbian. (See Mary Eaton, "Lesbians and the Law", in Stone (ed), Lesbians in Canada (Toronto: Between the Lines, 1990) and Tim Edwards, "Sexual Politics and the Politics of Sexuality," in Erotics and Politics (London: Routledge, 1994)). It also ignores the role that homophobia plays in maintaining gender inequality. As Rich explains within the context of feminist writing that specifically fails to mention lesbian existence and which, in so doing, implies that all women are essentially heterosexual: "research and theory that contributes to lesbian invisibility or marginality is actually working against liberation and empowerment of women as a group" ("Compulsory Heterosexuality and Lesbian Existence", in Blood, Bread and Poetry (New York: Virago Press, 1986), at 18.
[10] Perhaps the most thorough articulation of this theory is provided by Diana Majury in her insightful article, "Refashioning the Unfashionable: Claiming Lesbian Identities in the Legal Context" (1994) 7(2) CJWL 286. See also Lynne Pearlman, "Theorizing Lesbian Oppression and the Politics of Outness in the Case of Waterman v National Life Assurance: A Beginning in Lesbian Human Rights/Equality Jurisprudence" (1994) 7(2) CJWL 454; and, George Chauncey, Gay New York: Gender, Urban Culture and the Making of the Gay Male World 1890-1940 (New York: Basic Books, 1994). Clearly, the need to reinforce gender roles and in the process maintain sexism is not the only reason for the social rejection of same-sex relationships. As Marc Fajer ("Can Two Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes and Legal Protections for Lesbians and Gay Men" (1992) 46 Miami L. Rev. 511) explains, "[a]lthough most psychological studies of homophobia suggest that the strongest contributing factor is belief in the importance of maintaining gender-role stereotypes, a number of studies identify other factors that may be partially responsible as well. These factors include conservative attitudes about sexual issues in general, religious beliefs, and the belief that homophiles are dangerous. Notably, however, each of these factors can be attributed in part, or at least correlated to, fear of deviation from gender-role norms."
[11] Suzanne Pharr, supra. note 8. As Pharr explains (at 8), homophobia is central to preserving sexism and ultimately patriarchy: "Patriarchy -- an enforced belief in male dominance and control -- is the ideology and sexism the system that holds it in place. The catechism goes like this: who do gender roles serve? Men and the women who seek power from them. Who suffers from gender roles? Women mostly and men in part. How are gender roles maintained? By the weapons of sexism: economics, violence, homophobia." Homophobia works to maintain gender roles because it silences those women and men whose sexual identity and behaviour, it is believed, will "bring down the entire system of male dominance..."
[12] See supra., note 7.
[13] John Stoltenberg, "You Can't Fight Homophobia and Protect the Pornographers at the Same Time -- An Analysis of What Went Wrong With Hardwick," in Leidholt and Raymond, eds., The Sexual Liberals and the Attack on Feminism (New York: Pergamon Press, 1990) at 184.
[14] With respect to gay male sexuality, my comments should not be interpreted as implying that gay men do not presently benefit from the social, sexual and economic subordination of women or that some gay men do not choose to participate in male privilege. On the contrary, what I am stating is that gay men have a choice and that the choice they must make is that which rejects those behaviour patterns which reinforce male dominance and which are central to both sexism and homophobia. As Marylin Frye ("Lesbian Feminism and the Gay Rights Movement: Another View of Male Supremacy, Another Separatism," The Politics of Reality: Essays in Feminist Theory (Freedom, CA: The Crossing Press, 1983) at 146)) explains:
However a man comes to perceive himself as "different" with respect to his relation to gender categories, in his sensual desires, in his passions, he comes to perceive himself in a cultural context which offers him the duality masculine/feminine to box himself into. On the one hand, he is "offered" the dominant sexist and heterosexist culture which will label him feminine and castigate him, and on the other hand, he is "offered" a very misogynist and hyper-masculine gay male subculture; he is invited to join a basically masculist gay rights movement. If he has the aesthetic and political good taste to find all of the above repugnant, he can only do what lesbians have been doing: invent. He has to move on in previously indescribable directions. He has to invent what maleness is when it is not shaped and hardened into straight masculinity, gay hyper-masculinity or effeminacy. For a man even to begin to think such invention is worthwhile is to be disloyal to phallocracy. For a gay man, it is to be the traitor to masculinity that the straight man always thought he was.
[15] Fajer, supra. note 10 at 607.
[16] Pharr, supra. note 8 at 18. As Majury notes (supra note 8 at 311):
Lesbians are discriminated against because they challenge dominant understandings and meanings of gender in our society. And the more, and the more overtly , we challenge gender, the more, and the more overtly, we are discriminated against. Gender differentiation, premised on the subordination of women, is as essential to heterosexualism as it is to sexism. Lesbian inequalities are sex inequalities because they are rooted in a highly circumscribed definition of gender and gender roles, according to which women are seen only in relation to men.
As Pharr explains (at 19), gay men are also perceived as a threat to male dominance:
...and the homophobia expressed against them has the same roots in sexism as does homophobia against lesbians. Visible gay men are the objects of extreme hatred and fear by heterosexual men because their breaking ranks with male heterosexual solidarity is seen as a damaging rent in the very fabric of sexism. They are seen as betrayers, as traitors who must be punished and eliminated. In the beating and killing of gay men we see clear evidence of this hatred...Misogyny gets transferred to gay men with a vengeance and increased by the fear that their sexual identity and behaviour will bring down the entire system of male dominance and compulsory heterosexuality.
[17] Ibid. at 17. Pharr continues by noting that "the central focus of the right-wing attack against women's liberation is that women's equality, women's self-determination, women's control of our own bodies and lives will damage what they see as the crucial societal institution, the nuclear family. The attack has been led by fundamentalist ministers across the country. The two areas they have focused on most consistently are abortion and homosexuality, and their passion has led them to bomb women's clinics and to recommend deprogramming for homosexuals and to establishing camps and quarantine people with AIDS. To resist marriage and/or compulsory heterosexuality is to risk severe punishment and loss."
[18] Gerda Lerner, The Creation of Patriarchy (New York: Oxford University Press, 1986) at 239. Kathleen Gough in her essay, "The Origin of the Family, Toward an Anthropology of Women (New York: Monthly Review Press, 1975), lists six characteristics of male power historically enforced in family arrangements and through which male supremacy is maintained: "men's ability to deny women sexuality or to force it upon them; to command or exploit their labour to control their produce; to control or rob them of their children; to confine them physically and prevent their movement; to use them as objects in male transactions; or to withhold from them large areas of the society's knowledge and cultural attainments."
[19] Again, it must be emphasised that while gay men have the potential to undermine patriarchy, to the extent that they rely on their ability to "pass" as men, they merely reinforce it. See Riane Eisler, Sacred Pleasures: Sex, Myth and the Politics of the Body (New York: Harper Collins, 1995). On the need to reject those values central to male dominance within the context of lesbian relationships, see, eg. Irene Reti, ed., Unleashing Feminism: Critiquing Lesbian Sadomasochism in the Gay Nineties (Santa Cruz, CA: HerBooks, 1993). See also Sheila Jeffreys, AntiClimax: A Feminist Perspective on the Sexual Revolution (New York: NYU Press, 1990).
[20] Bruce Ryder, "Straight Talk: Male Heterosexual Privilege," (1991) 16 Queen's L.J. 287 at 289.
[21] Sylvia Law, "Homosexuality and the Social Meaning of Gender" [1988] Wisconsin Law Review 187 at 218. Andrew Koppelman ("The Miscegenation Analogy: Sodomy Law as Sex Discrimination" (1988) 98 Yale LJ 145) provides further support for the notion that gay male relationships have the potential to undermine gender polarities when he writes (at 159):
Hostility to homosexuals is linked to other traditional, restrictive attitudes about sex roles. This suggests that Thomas Szasz is right: "the homosexual does not threaten society by his actual behaviour but rather by the symbolic significance of his acts. Homosexuality threatens not the family as such, but a certain traditional ideology of the family. That ideology is one in which men, but not women, belong in the public world of work and are not so much members as owners of their families, while women, but not men, should rear children, manage homes, and obey their husbands.
[22] Fajer, supra. note 10 at 616.
[23] K. Plummer, Sexual Stigma: An Interactionist Account (London: Routledge, 1975) at 175.
[24] In Australia, see generally, however, Gail Mason, "Violence Against Lesbians and Gay Men" (1993); Anthony Schembri "Beaten Black and Blue: Naming AIDS Hate Crime", (1995) 9(6) Australian AIDS Bulletin 26; Anon, "Gay Hate Stickers on Sale", West Side Observer, August 1993 at 5; Steve Tomsen, "Hatred, Murder and Male Honour", [1994] Criminology Australia 2; Ryan Takach, "Gay and Lesbian Inequality: The Anti-Vilification Measures", (1994) 4 Australasian Gay and Lesbian Law Journal 30; Gary Kinsman, The Regulation of Desire: Sexuality in Canada (Montreal: Black Rose Books, 1987). For an international perspective see Gregory Herek and Kevin Berrill, eds., Hate Crimes: Confronting Violence Against Lesbians and Gay Men (London: Sage Publications, 1992); Gary Comstock, Violence Against Lesbians and Gay Men (New York: Columbia University Press, 1991); Ruthann Robson, Lesbian Outlaw (New York: Firebrand Books, 1992); Kevin Jennings, "Gay and Lesbian Youth: Voices From the Next Generation," in Becoming Visible (Boston: Alyson Publications, 1994); Martin Duberman, Cures: A Gay Man's Odyssey (New York: Dutton, 1991); and Steve Chrysler, "Gay Hate Crimes On the Rise Around the World", Update, 7 December 1994.
[25] Jeffrey Byrne, "Affirmative Action for Lesbians and Gay Men: A Proposal for True Equality of Opportunity and Workforce Diversity," (1993) 11 Yale Law and Pol. Rev. 47 at 56.
[26] Eve Kosofsky Sedgwick, Epistemology of the Closet (Los Angeles: University of California Press, 1990) at 68.
[27] Some of the arguments outlined here are developed in further detail in C Kendall and B Eyolfson, "One in Ten But Who's Counting: Lesbians, Gay Men and Employment Equity", supra. note 5.
[28] Byrne, supra. note 25 at 56.
[29] The only information I have located which outlines first-hand the actual frustrations and experiences of lesbians and gay men in the workplace is found in an as yet unpublished paper written by Pam Shime, a student of law at the University of Toronto, Ontario, Canada. Entitled "Homophobia in the Law: The Experiences of Lesbians and Gay Men in the Legal Profession", this work, excellent in its scope and content, consists of a series of interviews, conducted in 1992, with practicing lawyers, articling students and law students seeking articles in the Toronto region. A copy of this paper is on file with the author. For a broad overview of the experiences of employees in the United States, see Vicki Quade, "The Struggle to be a Gay Lawyer", Barrister Magazine, Winter 1991-92 at 29.
[30] "Work and Career: the Results", Out/Look, Fall 1988, at 94: National Gay Task Force. See also, "Employment Discrimination: A Survey of Gay Men and Women", in W.B. Rubenstein (ed) Lesbians, Gay Men and the Law (New York: New Press, 1993) at 244.
[31] As Shime explains (supra. note 29 at 13), the desire to "fit in" is one of the explanations most cited for the decision to stay in the closet. This decision is, however, a double-edged sword: "if you come out, you won't fit in. But if you stay in the closet, you will avoid social events and contact to a certain extent in order to maintain your secrecy. Unless you are willing to live a lie completely, which many people are, you might well be seen as straight, but standoffish, or cold or unsociable." As one gay lawyer explains, "the associates and junior partners had families and baby stories and being gay was not part of that. I was reticent to socialise since I didn't want questions asked about my social life. I was ultimately perceived as someone who did not fit in."
[32] Ibid at 14.
[33] As Shime (Ibid. at 16) again notes many of the lawyers she interviewed felt that law firms attempt to justify the non-inclusion of "out" gay lawyers by arguing that while they personally are not homophobic, they are required to think first and foremost about the needs and concerns of their clients. This line of reasoning should not be seen as credible. To begin with, it assumes that all clients are heterosexual and homophobic. More importantly, however, as Shime explains, "what is really going on is that the senior partners' own sense of identity and comfort level about working with someone who sleeps with people of the same sex is emerging. They blame it on the clients, but it is simply homophobia dressed up as if it is someone else's problem." As the Coalition for Lesbian and Gay Rights in Ontario (We Count: Lesbians, Gay Men and Employment Equity (Toronto, 1991) at 14) explains this excuse is also used to exclude lesbians and gay men from employment opportunities in "sensitive areas" like teaching, a line of reasoning which is both unfounded and short-sighted: "this myth usually raises its head in the area of teaching and other jobs dealing with youth. This is the old stereotype that lesbians and gay men are child molesters, a prejudice which has long been disproven. In each generation, a certain number of children will grow up gay. If they have role models to make this a less painful experience, it can only be to everyone's advantage."
[34] Shime. supra. note 29 at 18.
[35] Ibid. at 19.
[36] Ibid. at 20.
[37] Ibid. at 22.
[38] CLGRO, supra. note 33 at 8.
[39] See Andrea Dworkin, Pornography: Men Possessing Women (New York: Penguin Books, 1989) at 61.
[40] Byrne, supra. note 25 at 76.
[41] Id.
[42] Pharr, supra. note 8 at 18.
[43] Ibid. at 19.