page 2 - Out in the Mountains

Commentary by Heather Wishik

What the Vermont ERA amendment could mean

Last month David Curtis wrote a
commentary about the proposed
Vermont Equal Rights Amendment “l
which he said that the amendment is
"intended to prohibit discrimination on
the basis of sex (gender) and not
sexual orientation." I believe that
sexual orientation discrimination is a
t_yp_e_ of sex (gender) discrimination, and
as such arguably would be prohibited
by the Vermont Equal Rights
Amendment if adopted. This is,
admittedly, not the understanding of
the legislative sponsors of the
amendment, or is it the position taken
by the Vermont ERA Coalition.

Courts which have looked at sexual
orientation discrimination claims
brought under federal civil rights
statutes such as Title VII of the Civil
Rights Act of i964 have so far been
reluctant to see such discrimination as
a type of sex discrimination. Certain
kinds of related discrimination have
received recognition by some courts,
however. In one case involving a
discrimination claim brought b_y a
transsexual airline pilot the federal
trial judge (who was later reversed on
appeal) agreed that telling an employee
he must remain make in order to retain
employment was sex discrimination in
employment.

The judge understood that to fire
an employee for changing sexes was to
make gender a condition of employment
- something prohibited under Title VII.
The judge also held that gender is a
matter of self perception and social
perception, not simply a matter of

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The purpose of Out in the .\Iollitf(Iitt.s' is to serve as
a voice for lesbians, gay men and our supporters in
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the goodness and diversity of the lesbian and gay
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importance to lesbians and gay men.

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Out in the Muririluitis is published by the Out in [he
Maunmins collective: Elizabeth Mae. Howard Russell.
David Ryan, Suzi Shira, Philip Roberts. Linda Wheeler,
Terje Anderson. Gilles Yves Bonneau. and Antonio Baio.

 

biology. In addition, courts looking at
sexual harassment claims where the
harassment was by a male employer
against a male employee have agreed
that same sex harassment is sex
discrimination. The employee would
not have been subjected to the
harassment but for his malcness.

So far, in cases where an employee
has been refused employment or fired
due to her/his homosexuality, federal
courts have held that such
discrimination is not covered under

Letters to the Editor

Title VIl’s prohibition against
discrimination based upon sex. There
have likewise been no successful cases
alleging that sexual orientation
discrimination is sex discrimination
under the Equal Protection Clause of
the U.S. Constitution.

Under state equal rights
amendments, which exist in 16 states,
sexual orientation cases have rarely
been brought. One gay couple did
bring a case alleging that Washington

contimwtl. page .9

VLS is not a gay paradise

Dear uul iii the Mountains.

This letter is in response to your
April cover story about Vermont Law
School’s ban of military recruiters.

As a third—year law student at
Vermont Law School I have witnessed
overt homophobia and gay-baiting
during my time at VLS, and this year
has been the worst. The dart board in
the student lounge had the gay rights
cover of a magazine as the target
recently; student mailboxes have been
decorated with accusations of
lesbianism; the student newspaper has
carried student commentaries telling all
the gays and lesbians to leave VLS,
etc., etc.. None of these events has
bothered Dean Jonathan Chase enough
for him to do anything about the
rampant homophobia in the institution.
That he responded to a
student-generated concern about military
discrimination by banning the military
from on-campus recruiting probably has
more to do with his political hostility
to the military and its policies than it
has to do with his feelings about
sexual preference-based discrimination.
If there was any doubt about this, he
made clear his own homophobia at a
recent open meeting about the
nondiscrimination policy and its
application to placement he opined that
military anti-gay policy should not
apply to attorneys in the military, but
he could understand the military might
be concerned about sex between men in
combat situations. This is also the

dean who, when confronted about his

own sexism, responded, ''I'm not sexist,
I'm sexual."

Gays and lesbians in this state
should not be misled into thinking that
Vermont Law School and its
administration are friendly to gays; the
place is sexist, racist, and homophobic,
in and outside the classroom. Don't be
f001Cd- Sincerely,

Susan L. Doncgan
Barre
Dear Editors;

At my request the Vermont Law
School Faculty unanimously adopted the
following resolution at its April ll
faculty meeting:

"The Vermont Law School Faculty

supports the present VLS
nondiscrimination policy in its full
scope and reaffirms its dedication to
guaranteeing freedom from
discrimination on any of the presently
listed bases. The faculty requests that
the Board of Trustees also reaffirm
VLS's institutional commitment to
nondiscrimination on all listed bases.
As a law school it is particularly
important that this institution make
public its commitment to equity for all
people, including equity for people
regardless of their parental or marital
status or sexual preference. To limit
our guarantees of equal access to those
groups which the law has already
recognized is to abandon our role as
spokespersons regarding law reform and
as thoughtful critics of the limitations
of present legal standards."

Hopefully the Vl.S Board of
Trustees at its August meeting will
reaffirm the VLS comprehensive
nondiscrimination LlUll\_\. However,
policies on paper do not prevent racism,
sexism and homophobia. During my
five years as a faculty member at VLS
I have counselled countless students
who came to me in distress due to
overt discriminatory behavior by a
faculty member or fellow student.
Some of this behavior was verbal; some
was physically violent; all of it was
debilitating to the students victimized
by it. I have repeatedly attempted to
get the law school to take institutional
action to educate its student body,
faculty, and staff on discrimination
issues. So far no action has been
taken by the school to address these
problems. I am leaving the institution
shortly and hope someone else will
continue to demand institutional
commitment to ending racism, sexism,
and homophobia in the daily operation
of the school. if no action is taken,
then the eommendably broad
nondiscrimination policy which I helped
to write and put into place will remain
nothing more than empty language.

Sincerely,

Heather R. Wishik

Associate Professor
of Law

Vermont Law Schi‘-ml