Re: Re[2]: Oncale Case
Tue, 10 Mar 1998 23:30:40 -0500

Please note that the justices did not "come around" in Oncale. They did
NOT hold that gay harassment was actionable. They held that sexual
harassment against someone because of his/her gender (not his/her
orientation) is actionable. Nabozny essentially held the same thing.
The student LOST his sexual orientation claims, but WON his gender
claim. No Supreme Court with Scalia, Thomas, and Rehnquist will EVER
apply any scrutiny other than rational basis to a sexual orientation
claim. The Romer v. Evans case (Colorado Amendment 2) continued the
application of the lowest possible scrutiny to sexual orientation
claims. Yes, this is unfair and wrong, but in our constitutional
jurisprudence, harassing a kid for being gay is like harassing a kid for
not being able to throw a ball ---- it simply is not actionable. That's
why gay kids commit suicide and why gay employees get fired. Gays are
NOT protected under federal law. This Supreme Court will NOT read
current laws to allow it either. New legislation will be required to
change this gap in the law. Kristen Galles, Equity Legal <>


Sue Sattel wrote:
> This is the current interpretation by judges and justices, but I am
> thinking that it will eventually not pass the smell test. I say
> does this mean that if four kids line up at the Title IX office
> (ho ho) to get a complaint form, and each can get one but the gay
> kid, and they are each experiencing sexual harassment? Currently,
> it may, same words, same actions, but the one to whom it most
> applies, and who may be terrified, isn't covered? I know you are
> correct, K.galles, but I think this interpretation is temporary
> and with enough pressure and the right cases, the judges will come
> around just as in Onacle.
> "Sue Sattel" <>
> _______________________ Reply Separator _______________________
> Subject: Re: Oncale Case
> Author: at internet
> Date: 3/9/98 12:02 PM
> You are right. Sexual orientation harassment is NOT covered. Demeaning
> someone in a sexual manner IS covered, but tormenting them for BEING gay
> is not. The harasser has to have the sexual motive.
> <>
> __________________________________________________
> PaulEdison wrote:
> >
> > Does anyone know how likely it is that the
> > Supreme Court's decision this week on the Oncale
> > same-sex harassment case will result in cases
> > arising from _sexual-orientation_ harassment?
> >
> > I've heard this in some of the coverage, but was
> > under the impression that previously (including
> > in the OCR Guidance on sexual harassment) sex-
> > orientation harassment has definitely _not_ been
> > covered.
> >
> > Thanks
> > Paul Edison, Gender Issues Education
> > Curriculum/Video for Grades 6-12
> > <>

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