Volume 100 -- Issue 4 Georgetown Law Journal

Optimizing Orientation

In Sexual Reorientation I argued that antidiscrimination law should distinguish between an individual’s general orientation, defined as “the sex toward which the individual is attracted the majority of the time,” and specific orientation, defined as “the sex of the individual’s desired or actual partner(s).” I argued further that where sexual-orientation discrimination is prohibited, individuals whose general and specific orientations differ could bring actionable discrimination claims on the basis of their sexual-orientation nonconformity. Modeled on the protection against discrimination for gender nonconformity—which expanded the scope of sex-discrimination protection—I argued that the scope of sexual-orientation discrimination should be expanded by the protection against discrimination for sexual-orientation nonconformity.

My proposal for sexual reorientation was motivated most directly by two recent moments in the history of the fight for LGBT rights. The first was a dialogue between Ted Olson and Sandy Stier, respectively attorney and plaintiff in Perry v. Brown, the federal lawsuit challenging the constitutionality of California’s Proposition 8 ballot initiative that restricted marriage to opposite- sex couples. The second was the filing of the Apilado v. North American Gay Amateur Athletic Alliance (NAGAAA) lawsuit—which has since settled—on behalf of Steven Apilado, LaRon Charles, and Jon Russ, three bisexual players on San Francisco’s D2 softball team whose membership caused the NAGAAA to disqualify D2 from competing in its world series on the basis of the NAGAAA’s cap of two heterosexual team members, a cap argued to violate Washington’s public accommodations statute.

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