Clarke, Jessica A., Duke Law Journal
C. Fictions Regarding Same-Sex Desire
How do courts determine if a harasser experienced sexual desire for a plaintiff if that harasser does not identify as gay? As discussed, if a court finds credible evidence that a harasser is homosexual, it may automatically infer that the harassment was because of sex. (153) But courts rely on a narrow, self-identification-based definition of homosexual identity. Thus, courts often find themselves deciding whether a reasonable jury could infer that the ostensibly heterosexual harasser harbored sexual desire for the plaintiff based only on that harasser's conduct toward the plaintiff. This may be part of the circular inquiry into whether a harasser is gay, or it may be considered a replacement for that inquiry. (154) This Section will describe how courts analyze desire in such cases.
Courts undertaking this inquiry have created an elaborate set of fictions about what types of motives are consistent with same-sex desire, comparing the conduct at issue to an idealized sort of romantic courtship, which takes the form of earnest solicitations, in private settings, without mixed emotion or hostility. These fictions mirror the images of model gay couples portrayed by same-sex marriage advocacy groups, in "long term, committed, marriage-like relationships, whose personal narratives appeal to middle America." (155) Such relationships are simple love stories. Thus, courts hold that a harasser cannot both loathe and desire her object. They read sexual propositions as insincere mockery, rather than acknowledging the element of insincerity in many forms of flirtation. They understand aggression, hostility, and threats as inimical to desire. And they see public displays as devoid of sexuality.
It is tempting to understand this set of cases as a result of the fact that federal judges have very limited imaginations when it comes to sexuality, particularly of the same-sex variety. (156) But a close reading reveals an active judicial imagination infused with preconceptions, myths, and stereotypes about sex (meaning both stereotypes about men and women and stereotypes about what is erotic) and sexual orientation. Courts imagine that only those who are truly gay might harbor same-sex desire. Gay identity is determined based on whether the individual performs a certain cultural script about what it means to be gay. (157) One such script is performed by coming out of the closet, (158) being "openly" gay, and working to recruit straight coworkers. (159) But there is another, newly available cultural script about gay identity as romantic: a search for same-sex relationships that fulfill "yearnings for security, safe haven, and connection." (160) For the most part, judicial decisions hold same-sex desire to one or the other of these two standards. Same-sex desire is not understood as complicated, paradoxical, (161) humorous, or otherwise exhibiting the full range of the human experience. (162)
My point in highlighting the complexities of same-sex desire is not to argue that courts should allow cases to proceed to juries in all of these circumstances. (163) Deciding whether any of these plaintiffs ought to have prevailed requires a first-order normative framework for thinking about why harassment is sex discrimination and a second-order set of legal rules that correspond with that framework. This Article is agnostic on these questions, although possibilities are explored in Part III. Additionally, it is impossible to reach a conclusion on whether any of these cases should have survived summary judgment given that the focus on desire by litigants and courts obscured other ways of thinking about how harassment might be "because of sex," impoverishing the record. The purpose of this Section is to expose the incoherence of the desire inquiry in the same-sex harassment context by examining various fictions underlying that inquiry. This in turn sets up the argument that desire should not be the test of whether harassment is discriminatory. …