ArticlesVolume 13, Number 1 (2004)

Sex Equality Panic

Abstract

The Supreme Court’s announcement in Oncale v. Sundowner Offshore Services, Inc., that same-sex sexual harassment can be actionable sex discrimination under federal anti-discrimination law, changes the social context against which it was decided. No longer, for instance, are men guaranteed all the protections male supremacy has traditionally offered them when they sexually subordinate other men. In refusing to de-sexualize same-sex sexual violence or render it legally invisible, Oncale disrupts the conventional social meanings that that violence has had. After Oncale, one cannot quite be certain how “boys will be boys,” or how one is supposed to¬†“take it like a man.”

As a strike against male supremacy, Oncale is an important step forward for sex equality rights, including the rights of those who identify or are identified as lesbians and gay men. For the first time ever, the Supreme Court has made anti-gay discrimination, in the form of sexual violence at least, subject to judicial scrutiny and action as a matter of sex equality law. Judicial decisions in Oncale’s wake have already begun to acknowledge this transformative potential. As Janet Halley observes: “a gay-friendly analysis has to welcome the Court’s [Oncale] decision that same-sex sex harassment is actionable sex discrimination: Without it, federal antidiscrimination law would have explicitly declared open season on gay men and lesbians, leaving us unprotected from sexual interference that can threaten our very ability to work and leam.