Editor's Note: Jeremy Redlien is the creator of the blog Queering the Closet where he writes philosophical articles (mostly) on LGBTQ issues and does reviews of queer films. He is also the creator of the webcomic The Amazing Sassy about the dog Sassy and her human companion Jack, who is being rasied by two moms.
In an interview with Face the Nation on CBS, Martina Navratilova made the claim that "In 29 states in this country you can still get fired for not just being gay, but if your employer thinks you are gay."
In response, PolitiFact rated the claim as being half true.
To justify their claim, PolitiFact points out that while 29 states do not have legislation at the state level to protect against discrimination, there are exceptions, such as those that exist for government employees, or in local municipalities that have passed anti-discrimination laws, in addition to specific employers may also have anti-discrimination protections in place.
PolitiFact also points out that according to Hayley Gorenberg, deputy director of Lambda Legal, a 1989 Supreme Court Case based around Title VII of the Civil Rights Act (Price Waterhouse vs. Hopkins) *might* have set a precedent that could bar discrimination based upon an employer believing an employee is, uh... "gay." (More on the choice of this word later.)
So PolitiFact's arguments boil down to two main points. One is that exceptions exist within the 29 states that do not have legislation at the state level to offer protection against discrimination based upon sexual orientation. The second point revolves around the above possibility outlined by Gorenberg about employers with employees who may be, uh... "gay."
The first part of PolitiFact's argument holds some water. Even though Navratilova never said that "no protections exist" in 29 states, the fact that a certain number of protections do exist for certain, uh... "gays" might have justified rating Navratilova's claim as "Mostly True" rather than "True".
However, the second part is complete horseshit.
There has never been an actual case before a court in which an individual has successfully used the precedent set by Price Waterhouse vs. Hopkins to argue against discrimination based upon an employer's belief that an employee was/is, uh... "gay." So any lawyer who argues that it might be *possible* that such protections exist is simply offering up an opinion on what *might* happen if a fired employee were to use it in a court trial.
This is but the first error that PolitiFact makes in their use of Price Waterhouse vs. Hopkins. In their article, PolitiFact states:
Hayley Gorenberg, deputy legal director of Lambda Legal, cited the 1989 Supreme Court case Price Waterhouse vs. Hopkins. In that case, a woman sued the accounting firm where she worked because she was not offered a promotion after a senior manager told her she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The plaintiff convinced the court that sex stereotyping constitutes sex discrimination, Gorenberg said. This precedent could protect a straight person who appeared to an employer to be "gay" and suffered discrimination as a result.
Let's break this down:
1) Navratilova used the term "gay" in her original claim, which is problematic in its own right since it ignores transgender and transsexual identities (along with lesbian, bi, pan, etc...)
2) However, the number of states whose laws do not specifically protect against discrimination based upon gender identity is much larger than the number of states that protect based upon sexual orientation, meaning that to acknowledge gender identity would require a much wider analysis than what PolitiFact offers here.
3) I have seen it argued in the past that anti-discrimination laws for sex/gender might also apply to gender identity.
4) Since Price Waterhouse vs. Hopkins dealt with discrimination based upon gender stereotypes -- not on sexuality -- it seems like it would be the sort of test case one might use to expand protection against discrimination based upon sex/gender to discrimination based upon gender identity.
5) It is therefore possible that this is what Gorenberg was refering to when she cited Price Waterhouse vs. Hopkins as a precedent that might offer some protections to those who are, uh... "gay".
6) Gorenberg, being deputy director of Lambda Legal, should know the difference between sexual orientation and gender identity.
This all leads to the conclusion that PolitiFact, in order to apply Price Waterhouse vs. Hopkins to Navratilova's claim, deliberately conflated sexual orientation with gender identity. I'd also like to point out the fact that while PolitiFact does not quote Gorenberg directly when they say "This precedent could protect a straight person who appeared to an employer to be 'gay' and suffered discrimination," they do put the word "gay" in scare quotes.
In any case, this all makes PolitiFact's arguments here really, really screwy. Navratilova makes a claim that applies solely to sexual orientation. In analyzing it, PolitiFact brings in a case that might apply to gender identity, yet continues to use the term "gay" for unknown reasons. Furthermore, PolitiFact makes *no* mention of the current state of anti-discrimination laws based upon gender identity, which is completely different from those that apply to sexual orientation.
This is a *gargantuan* omission, one which makes PolitiFact's sin of omission against Navratilova extremely hypocritical.
However, even if they are correctly representing Gorenberg's citation of Price Waterhouse vs. Hopkins, PolitiFact is still relying on an expert opinion (which they have done in the past) as a key part of their ratings process. So even if they are correctly citing Gorenberg, they are still committing the logical fallacy of appeal to authority in order to justify their rating of Navratilova's claim.
In the grand scheme of things, I have no problem with PolitiFact or any organization wishing to present contrary opinions to publicly-made claims. But in attempting to clarify the situation in this case, PolitiFact only managed to further muddy the waters. Combine this with their repeated use of the appeal to authority fallacy and it becomes clear that it is PolitiFact and their rating system which is misrepresenting the truth.