In an opinion delivered on Friday, the Texas Supreme Court offered up some strange ideas about what it means to be gay. Six of the eight justices joined an opinion finding that a former San Antonio gym teacher had no legitimate claims of sexual harassment, in part because she didn’t prove that the alleged offender, a woman, is a lesbian.
The case centers on Catherine Clark, who alleged that her school district violated state civil-rights law in the late 2000s by allowing a hostile work environment that discriminated against her based on her gender. In complaints to the Equal Employment Opportunity Commission and the court, Clark said a co-worker named Annie Monterrubio made near-daily comments about Clark’s breasts, asked other colleagues to help name a dimple in Clark’s butt, told Clark she was going to “fuck next to” a candle Clark gave her while thinking of Clark, told Clark to close her legs when someone said they smelled shrimp in the office, and, along with another female coach, grabbed Clark’s butt during a group photo.
The defense mounted by the Alamo Heights Independent School District rested on the claim that Monterrubio’s harassment wasn’t specific to any one gender—she harassed men, too—and thus could not constitute sex discrimination. When she passed around photos of naked men, both male and female coaches saw them. When she told Clark that she should hook up with a male co-worker, both Clark and the co-worker were presumably made to feel uncomfortable. She regaled colleagues of all genders with explicit sexual anecdotes.
The majority opinion of the Texas Supreme Court agreed with this assessment of Monterrubio’s behavior, which the justices analyzed through the legal lens of Oncale v.
Sundowner, a 1998 U.S. Supreme Court decision that held a man’s claims of man-on-man sexual harassment were just as actionable under federal nondiscrimination law as those of opposite-sex harassment. But the Texas Supreme Court got Oncale all wrong in its decision on Clark. “Oncale requires evidence of homosexuality to be ‘credible,’” the opinion reads. Indeed, the Oncale decision notes that “a plaintiff alleging same-sex harassment” would have an easy time convincing judges and juries of discrimination “if there were credible evidence that the harasser was homosexual.” This provision isn’t written as an instructive set of limitations on how same-sex sexual harassment can be proven, however. The next sentence in the Oncale opinion continues the line of argument in a different direction: “But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”
Alamo Heights Independent School District v. Catherine Clark cites this caveat, then concludes that Oncale’s examples of evidence for same-sex sexual harassment not motivated by desire do not apply in Clark’s case. (The examples in Oncale are a “a female victim … harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace,” or “direct comparative evidence” that the alleged perpetrator treats men and women differently.) The Texas Supreme Court ruled instead that “comments about gender-specific anatomy and characteristics do not alone raise an inference that harassment is because of gender.”
This narrow reading of Oncale runs counter to the spirit of sex-discrimination law. The Texas justices claim that Monterrubio was simply an unprofessional, lewd employee who targeted Clark not because of her gender, but simply because she didn’t like her. (There is a not-insignificant conflict between the opinion’s characterization of Monterrubio as an equal-opportunity bully and its claim that Clark was singled out.) But bullies do not choose their targets, or their tactics, arbitrarily. The examples of Monterrubio’s supposedly equal harassment of male colleagues—a “sexual innuendo” made to two male coaches about a hurdler stretch, and a conversation with a male co-worker about his body and use of diet pills—differ considerably from her alleged treatment of Clark, which returned repeatedly to comments about her sexual organs and sex life.
A dissent changed Monterrubio’s first name to “Andy” to illuminate how her actions would be interpreted as cut-and-dry sexual harassment if she were male, but the justices who joined the majority opinion dismissed this comparison. The majority opinion argued that context matters, and that same-sex harassment must be judged differently from opposite-sex harassment. In that case, they should recognize that the gender of the victim is important context, too: Showing a woman a photo of male genitalia is a different act than showing the same photo to a man. Making repeated comments about a woman’s breasts is a different act than discussing a man’s weight-loss regimen. Comments about gender-specific anatomy alone may not be sexual harassment, but when paired with unwanted sexual touching and a promise to think about the victim during sex, it very well may be.
The Texas Supreme Court’s opinion also advances several ludicrous ideas about sexual desire and the motivations behind sexual harassment. Though Clark never alleged that Monterrubio is gay—only that she’d heard a rumor, and that, fair or not, made her increasingly disturbed by Monterrubio’s comments—the court took it upon itself to “review the record” for evidence that she might be. This is a gross misunderstanding of sexual orientation and harassment that exposes a judicial body ill-equipped to interpret questions of sexuality. A woman need not be a lesbian or bisexual to harbor some sexual desire toward another woman, just as a man need not be attracted to a specific woman, or women in general, to sexually harass her. In the court’s view, sexual orientation is fixed, laser-focused, and absolute, with no option for a person to seek sex-related gratification outside her chosen dominion.
By using an argument based on sexual orientation to excuse sexually humiliating behavior, the justices are envisioning a justice system wherein a bisexual woman could potentially be legally exempt from all gender-discrimination complaints because she is attracted to both genders; a gay man could touch a woman’s genitals with impunity because he usually likes men; or an asexual man could be excused from all harassment claims because he has no sexual desire for people of any gender. The argument also rests on the assumption that, for instance, heterosexual men who harass women are specifically, sexually interested in those women. But, although talking to and touching someone in sexual ways is indubitably motivated by sex and tied to gendered power dynamics, it need not be motivated by a general sexual desire for that victim’s gender to be gender-based harassment.
In one of the strangest parts of the opinion, the justices invoke Oncale’s example of a football coach hitting a player’s butt on his way out to the field (probably not harassment) and performing the same act on his female secretary (probably harassment) to explain away as “sexual horseplay” the incident in which Monterrubio and another female colleague grabbed Clark’s butt during a photo. The justices note that other courts assessing same-sex sexual harassment claims have determined that even acts as severe as “grabbing the plaintiff’s genitals, poking the plaintiff’s rectum, the harasser running her hands and body over the plaintiff’s body, and the harasser grinding his genitals on the plaintiff” could be interpreted as horseplay rather than harassment rooted in sex or gender. One of the court cases cited in that horrifying rundown, Smith v. Hy-Vee, involved a boss who dry-humped, ran her hands over, and smacked the butts of employees of all genders.
Neither that case nor the football coach example are appropriate analogues to Clark’s situation. Groping someone during a photo shoot is not an accepted gesture of encouragement, and Monterrubio allegedly reserved certain sexual comments and behaviors for Clark alone. Still, it is a failure of sexual harassment law that the act is defined so specifically that a female plaintiff must offer evidence of lesbianism or a broad misogynist worldview to prove a hostile work environment created by a woman. Calling sexual orientation the last word on desire misrepresents both the power-driven nature of sexual harassment and the nature of desire itself.