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Tops, Bottoms, and Versatiles: What Straight Views of Penetrative Preferences Could Mean for Sexualtiy Claims Under Price Waterhouse (with Richard Luedeman), 123 Yale Law Journal 714 (2013)


This Essay reports the results of a survey experiment that we conducted on over eight hundred heterosexual respondents to compare associational attitudes toward gay men who engage in different types of sexual practices. Specifically, we randomly assigned respondents to hear one of three descriptions of a gay character, which differed only with regard to the character’s penetrative preference: top (preferring to penetrate one’s partner), bottom (preferring to be penetrated by one’s partner), and versatile (having an equal preference). Overall, we find that heterosexuals displayed heightened and statistically significant associational aversion toward versatile characters and, to a lesser degree, toward bottom characters, relative to respondents’ willingness to associate with top characters. We elaborate why heterosexuals seem to display systematically less associational aversion toward those men whose penetrative preference is most consistent with gender stereotypes. Based on those results, we revisit the notion, adopted by many courts, that Price Waterhouse sex-stereotyping doctrine cannot apply to sexuality claims because it would turn sexual orientation into a protected class after Congress has opted not to do so. Our results suggest that gender-motivated homophobia is not uniformly targeted toward all gay men or uniformly present among all who discriminate on the basis of sexual orientation. We also further consider why respondents were most averse to versatility, drawing a potential distinction between “trait opposition” and “trait intermediacy” gender violations. Finally, we discuss the implications of our findings for the broader LGBT movement in law and society.

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