Luke A. Boso (San Francisco) on "Dignity, Inequality, and Stereotypes”…

Luke Boso

Luke Boso

The economic impact and redistributive effect of harmful stereotyping can be described in terms of asymmetrical market imperfection relating to race, gender, sexual orientation, etc. 

However, Boso argues that not all stereotyping is harmful, neither is it illegal, similar to how Richard Epstein argued in “Statistical Discrimination” that not all racial discrimination is inefficient.  He takes the federal courts to task for inconsistently relying sometimes on “group subordination” as a reason to act, and sometimes they rely on “individual dignity” to find violations of Equal Protection and Substantive Due Process.  With respect to LGBTQ stereotypes, some of them neither subordinate nor violate individualism.

Interestingly, Boso cites Noa Ben-Asher for a proposition that I would be likely to make, one that is consistent with the concept of group subordination as asymmetrical market imperfections:  “Noa Ben-Asher argues that courts tend to forbid sex stereotyping only when it reinforces sex hierarchies, and particularly when it limits women's economic opportunities and men's domestic opportunities.”  In my mind, this would be a sufficient criterion, but not a necessary one.  Violations of individual dignity should also be recognized.

“Still, if the government acts in reliance on statistically relevant information about a historically oppressed group, does that action always both unequally deny individual identity expression and send a subordinating message about group status? Can the government progressively account for factual information about groups to address group-specific problems, even if the group-based information on which the government relies has the effect of conveying a message about the group that conflicts with individual group members' sense of identity *1140 and self?”

What happens when a stereotype has some basis in fact, even if it does not apply to everyone in the group?  “In a sense, however, these mental shortcuts are unavoidable, which in part explains why courts have been remiss to condemn them altogether. Linda Hamilton Krieger explains that stereotypes are “cognitive mechanisms that all people, not just ‘prejudiced’ ones, use to simplify the task of perceiving, processing, and retaining information about people in memory. They are central, and indeed essential, to normal cognitive functioning.”130 Charles Lawrence offers a similar depiction of stereotyping as a normal human sorting device, and identifies the moment at which this device causes harm as when the stereotyped thinking “eschews reality even when facts are available.”

Not all stereotypes are born of reflexive and unthinking impulses. To the contrary, many stereotypes are based on available facts. In her dissenting opinion in Tuan Anh Nguyen v. I.N.S.,Justice O'Connor summarized much of the Court's anti-stereotyping jurisprudence, explaining: “[t]his Court has long recognized ... that an impermissible stereotype may enjoy empirical support and thus be in a sense ‘rational.”’”

Boso relies on Kwame Anthony Appiah’s treatment of stereotypes:  “Anthony Appiah suggests that at least three different versions of stereotyping can operate in law: false, normative, and statistical.”

False stereotypes are easiest to deal with.  Similarly, the government ought not act upon normative stereotyping—‘how an individual ought to behave based on his or her group membership.”  Courts are inconsistent when dealing with normative stereotyping.

Statistical ones, on the other hand, are more difficult to deal with.  “As Professor Appiah explains, statistical stereotyping involves (1) a statistically true correlation between some characteristic and group membership, and (2) ascribing or applying that characteristic to an individual group member.Thus, the government engages in statistical stereotyping whenever policy hinges on statistical data tied to group membership rather than an evaluation of individuals' characteristics.”

“Conventional constitutional wisdom suggests that the government violates the Equal Protection Clause whenever it has the purpose or effect of perpetuating stereotypes, especially those based on race and sex. In recent years, some federal courts have extended the anti-stereotyping doctrine to state actions regarding sexual orientation.399 This conventional wisdom is not entirely correct…"

"Governmental stereotyping denies equal dignity when it has the purpose or effect of subordinating a group by sending a message of group inferiority (most often exemplified by policies that deny a benefit or exclude individuals based on their group status), and when it unequally denies individuals the liberty to form and express their identities…."

However, "The government may sometimes take normative and statistical stereotypes into account to prevent individual disparate treatment or wholesale group exclusion from opportunities and civic functions. For example, acknowledging that most Latinos speak Spanish is a permissible use of statistical stereotypes to prevent the government from using Spanish-speaking as a proxy for race and a reason to exclude.” - DreSmith

Abstract:

In Obergefell v. Hodges, the Supreme Court held that same-sex marriage bans violate the Equal Protection Clause for two primary reasons. First, they subordinate; they send the message that lesbians and gays are inferior to heterosexuals. Second, they unequally deny lesbian and gay individuals the liberty to make fundamental decisions about identity and self. These two conjoined themes--anti-group subordination and pro-individual liberty--comprise the two pillars of “equal dignity” that anchor Obergefell's holding. This Article proposes that these pillars also support the Court's anti-stereotyping jurisprudence, and equal dignity is thus one important aspect of what the Equal Protection Clause protects. To illustrate: in sex discrimination cases, courts reject state stereotyping when it perpetuates ideas about men's and women's roles and reinforces women's inferior social status; in transgender and sexual orientation discrimination cases, courts have begun to protect LGBTQ individuals from state demands for conformity to normative stereotypes about how to be a man or woman.

Protecting individuals' equal dignity can sometimes become complicated when the reasons for addressing a group's purported needs elide individual concerns and attachments. For example, the government sometimes relies on normative and statistical information about groups to combat group-associated health and poverty risks, to remedy individual disparate treatment, and to prevent wholesale group exclusion from opportunities and civic duties. Addressing these group-based needs, however, may effectively perpetuate stereotypes about what group membership means. Individual group members may object to the identitarian implications of the government's help.

Not all stereotyping both subordinates a group and denies individuals the liberty to be and express who they are. Accordingly, stereotyping is not wrong in and of itself; how the government uses stereotypes should determine whether state action violates the Equal Protection Clause. Counterintuitively, stereotyping can sometimes promote rather than deny equal dignity. While any state reliance on stereotypes risks essentializing identity, an absolute stereotyping prohibition exacerbates certain forms of race, sex, and sexual orientation blindness. Groups are important, and the government requires some flexibility to address group-based needs.

Andre Smith