Antigay Bias in Role-Model Occupations by E. Gary Spitko (review)

In Antigay Bias in Role Model Occupations, Professor E. Gary Spitko discusses how employers regularly exclude people from role model occupations based on their sexual orientation and why such exclusion matters. The book’s central theme is “that employment discrimination on the basis of sexual orientation with particular respect to role-model occupations has served as a means to exclude gay people from the public social spaces that identify and teach whom our society respects and whom members of society should seek to emulate.”¹ This book comes at an important time and makes a real contribution to the existing literature on anti-discrimination law.

In the United States, Title VII is the federal law that prohibits discrimination because of sex. There is currently a circuit split about whether Title VII prohibits employment discrimination based on a person’s sexual orientation. In Hively v. Ivy Tech Community College of Indiana,² the Seventh Circuit Court of Appeals recently held that Title VII’s prohibition on sex discrimination encompasses sexual orientation discrimination. However, several other circuit courts have held that Title VII does not prohibit sexual orientation discrimination.³

While there is a rich literature about why federal law should prohibit employment discrimination, Professor Spitko provides another compelling reason. His book demonstrates how employers have long excluded gay people from being lawyers, from serving in the military, from being teachers, and from playing professional sports once their sexual orientation became known. Professor Spitko convincingly argues that excluding people from these role model occupations has a host of consequences, including making it difficult for gay people to see themselves in role model occupations and robbing them of the opportunities to publicly demonstrate the qualities that people often associate with role models. As Professor Spitko notes:

For the contemporary gay aspiring lawyer, politician, or athlete, therefore, a ‘lavender ceiling’ caps expectations. It is impossible to know and difficult even to imagine what the other side of that lavender ceiling looks like. For the straight person as well, the lack of such gay pioneering role models hems in the concept of what it means to be gay.⁴

Many of the examples Professor Spitko examines are cases in which federal, state, and local governments prohibited individuals from serving in role model occupations because of their sexual orientation. The book tells the story of a woman who was fired from a job as a state lawyer because she married another woman. It details how the military excluded people from serving. It also discusses how local governments discriminated against gay teachers. Thus, the book shows how the government played a significant role in denying opportunity and also in creating the social norms about what kinds of people belong in certain jobs of authority.

The government’s critical role in creating a climate of exclusion, calls for a special response from it to remedy its past role. As Spitko notes, “Gay people . . . have long been targeted for employment discrimination on the basis of their sexual orientation or sexual behavior. In the United States, the federal government was for many years the most prominent perpetrator of this discrimination.”⁵

Federal and local governments also maintained for decades that gay people were not fit for these role model occupations and made many arguments to support this claim. These arguments were enshrined in court cases and other government records. Spitko notes that while many people are aware of the “Red Scare” and the federal government’s efforts to exclude Communists from employment, they know very little about the “Lavender Scare.” Quoting from the book, “By the 1960s, the federal government had fired thousands of employees because of their alleged homosexuality and had denied employment to thousands more applicants on the same grounds.”⁶ A 1953 federal executive order that expressly listed sexual perversion as a basis for denying federal employment blocked employment in the private sector for openly gay individuals who needed a federal security clearance.

Professor Spitko also critiques...