Abstract

Lesbians and gay men are frequent subjects for modern news, politics, and court opinions. From marriage for same-sex couples to Congressional hearings on the military's "Don't ask, don't tell" regulation, decision-makers are setting policy based on their ideas about how gay people are and how they fit into society. But what are those perceptions and how do they interact with law? We ordinarily think of lesbians and gay men as predominantly childless, urban residents of cities like San Francisco, New York, Chicago, or Los Angeles or as inhabitants of the Northeastern or Pacific Coast states. However, data from the 2000 census demonstrate that same-sex couples are located in virtually every county in each of the 50 states. Moreover, many of the states with the highest proportion of same-sex couples raising children are not those with the highest concentrations of lesbian or gay couples; rather they tend to be states in which all couples tend to have children. If these data are unexpected, our surprise is attributable to the dissonance between what we think we know about lesbians and gay men and accurate data.This phenomenon is less puzzling than it first appears. Psychologists have demonstrated that our perceptions of the world are shaped by schemas, a set of beliefs about people, events or situations that we use as guides in our interaction with these things. Thus, we are able to treat that person or object in what we perceive to be an appropriate manner, that is, consistent with our schema. We quickly develop models which ascribe a range of characteristics to others corresponding to their skin color, sex, other physical attributes as well as sexual orientation. We can quickly identify some major characteristics of the popular schema about gay people: (1) That lesbians and gay men exhibit "cross-gender" or gender atypical behavior, behavior traditionally associated with the opposite sex.\ (2) That gay identity is solely about sexual behavior and that lesbians and gay men experience sexuality and sexual activity different from heterosexuals. This is the crux of schema theory to this article. The schema of lesbians and gay men used by some judges has prevented them from appropriately interpreting legal doctrine and precedent, and has led to anomalous results. Moreover, the relatively non-rigorous nature of schema-matching, which is a feature of both legal and non-legal reasoning, has exacerbated this tendency for inaccuracy and distorted legal doctrine where lesbians and gay men are involved.Some of the most glaring examples have occurred under the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964, specifically those cases involving same-sex sexual harassment. While significant commentary exists on same-sex sexual harassment, this article differs from that commentary because it does not seek to explain or revise that doctrine through theoretical or jurisprudential constructs. Rather it uses same-sex sexual harassment as one example of how law can employ the insights of social science, particularly cognitive schema models. The article explores how social cognition theories inform and misinform judicial decisions and those of the participants in the cases.