Protecting Sex: Sexual Disincentives and Sex-Based Discrimination

Article excerpt

"Male and female are created through the eroticisation of dominance and submission. The man/woman difference and the dominance/submission dynamic define each other.... The feminist theory of knowledge is inextricable from the feminist critique of power because the male point of view forces itself upon the world as its way of apprehending it." (1)

Catharine MacKinnon

Catharine MacKinnon's famous formulation of the social and political struggle between men and women as a manifestation of men's sexual subordination of women has informed feminist debate for the past two decades. The fundamental project of radical feminism was to demonstrate that sex discrimination and sexual domination are one and the same. Against this backdrop, recent developments in feminist and queer theory have turned the equivalence of sex and sexuality inside out--a dissociation that has played out prominently in the context of legal scholarship, particularly with respect to rape, pornography, and sexual harassment. This effort to rehabilitate "deviant" sexuality entails rescuing the fight against sex discrimination from the vilification of sex.

Whatever one's feelings on the relationship between sex and sex-based discrimination, they are likely to be reserved for academic debate. The successful application of equal protection doctrine to such sex-laden topics as birth status, contraception, and abortion has had the unfortunate side-effect of submerging judicial discussion of sexual subordination and sexual freedoms in favor of less contentious issues of biological equality and difference. The blanket omission of sexuality from sex discrimination decisions--despite the sustained theoretical frenzy surrounding the issue--is striking.

This Article considers a recent United States Supreme Court decision to explore the tension between sexuality and equal protection doctrine and to explain the practical ramifications of the erasure of the former from the latter. It identifies a sex-regulatory element of immigration law that could, in theory, be incorporated into a sex discrimination claim. But it suggests that such a claim, even if it were to succeed (an unlikely prospect) within the current doctrinal framework, would achieve only as much as any discrimination claim can-it would compel the government to treat everyone equally well or equally badly. This Article, then, is chiefly a descriptive undertaking. Its objective is to point out the omission of sexuality from current doctrine and to identify the ramifications of that omission.

In 2001, the Supreme Court decided Nguyen v. INS, (2) a case that challenged one of the last facially discriminatory statutes that remains on the books. (3) Title 8 U.S.C. [section] 1409 (4) specifies the naturalization procedures for the foreign-born children of unmarried United States citizens. The child of an unmarried citizen-mother is considered to have acquired United States citizenship at birth as long as her mother has at some point prior to childbirth lived in the United States or its territories for a continuous period of one year. (5) For the child of an unmarried citizen-father, however, the naturalization requirements are far more burdensome. (6)

Those additional burdens weighed heavily on Tuan Anh Nguyen. Born in Saigon to a Vietnamese mother and an American father, (7) Nguyen arrived in the United States at the age of five and lived with his father in Texas throughout his minority. At the age of twenty-two, Nguyen pled guilty to two counts of sexual assault on a child, and the INS initiated deportation proceedings. (8) In 1998, in Miller v. Albright, (9) Justices Stevens and Rehnquist failed to assemble a majority willing to decide whether [section] 1409(a) discriminated on the basis of sex in violation of the Equal Protection Clause. Justices O'Connor and Kennedy concurred in the judgment on the basis that the plaintiff in that case, the daughter of a citizen-father, lacked standing. …