The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Gay Quotas"
A new article by Prof. Sheldon Bernard Lyke; the abstract:
In an era where diversity often takes center stage, the conversation
around true equality for vulnerable minorities remains pressing. This essay
explores the concept of implementing gay quotas as a pathway to not only
increasing representation but also redefining the legal framework for
equality. The implementation of quotas for lesbian, gay, and bisexual (LGB)
individuals presents an opportunity to address disparities within educational
institutions and workplaces directly. By setting a standard for inclusion,
these quotas could help ensure that sexual minorities have equitable access
to opportunities, ultimately fostering a more diverse and inclusive
environment. Moreover, the legal challenges arising from such policies
could prompt courts to establish more explicit standards for equal protection
related to sexual orientation, creating lasting change.This essay critiques the current political strategies and Supreme Court
decisions that have led to a muddled landscape for equality, particularly for
sexual orientation. It argues that the focus on diversity as a means of
inclusion has distracted from true equality, especially in the context of race
and sexual orientation. The Supreme Court's inconsistent application of
equal protection principles in cases involving sexual orientation has led to
unclear legal standards. This essay also discusses ongoing discrimination
and harassment faced by LGB individuals in the workplace. Implementing
LGB quotas could push courts to clarify their stance on equal protection for
sexual orientation, thereby setting important legal precedents.
I don't support such proposals, but I thought it was worth noting. For an example of an attempt to implement preferences for "LGBTQIA" in a guaranteed minimum income pilot project in West Hollywood, see this post.
I was also curious about a subject that the article doesn't seem to touch on, which is how the program administrators would determine who is gay, lesbian, or bisexual; I therefore e-mailed Prof. Lyke, asking,
If such a quota is instituted, how can an institution determine whether someone is indeed eligible? Say, for instance, that an applicant says that she is bisexual, because she has been attracted both to men and to women. To be sure, she may publicly appear to be heterosexual—she may be married to a man, for instance—but I take it that this is entirely consistent with bisexuality. Would she have to certify (perhaps under penalty of perjury?) that she is in fact in some measure attracted to women? Would she have to certify that she has in the past had some sort of sexual contact with women?
I appreciate that this problem has already arisen with regard to various race-based programs, where it has indeed led to high-profile controversies. But it just seems at first glance like it would be more serious with regard to sexual orientation, given that it's so hard for an outsider to know for certain what someone's sexual orientation is (especially whether that orientation is bisexuality).
He was kind enough to respond:
Thank you for reading Gay Quotas and for raising such a thought-provoking and reader-likely question—how, exactly, an institution could determine whether an individual is eligible for inclusion under a sexual-orientation-based quota. I appreciate your engagement because this question highlights the profound tension between identity, proof, and equality that my thought experiment aims to expose.
First, I am not persuaded that this is a serious administrative or conceptual problem. Concerns about "box checking"—that people will falsely claim a minority status to gain an advantage—are frequent but may be overstated. The empirical record in the racial context does not bear out the fear. Claims about people falsely identifying as Native American to obtain benefits, for example, have been both rare and methodologically contested. These worries often resemble the "voter fraud" narrative in elections: rhetorically powerful, but largely unsubstantiated. The anxiety itself often does more ideological work than the underlying conduct it purports to describe.
Second, if we take sexual orientation seriously as a protected identity, the most consistent approach is auto-identification, or self-identification. I draw here on comparative lessons from Brazil's Supreme Federal Court decision in ADPF 186, which upheld race-conscious quotas in higher education. The Brazilian court recognized two possible methods of classification: autoidentificação (self-identification) and heteroidentificação (identification by others). It held that either or both could be employed so long as the process respected personal dignity and avoided reinforcing stereotypes. (See Sheldon Bernard Lyke, Is Resistance to Foreign Law Rooted in Racism?, 109 Nw. U. L. Rev. Online 41, 52–53 (2014)).
This framework is practical precisely because it recognizes that identity has both an internal and external dimension. For sexual orientation, self-identification is even more essential than for race: it is not phenotypic, not reliably legible, and not necessarily expressed through behavior. Someone may experience same-sex attraction without ever acting upon it, and that desire alone may meaningfully situate them within a sexual minority. Hetero-identification might have limited use—for instance, in understanding how discrimination operates through perception—but as a criterion for quota eligibility, it would be intrusive and normatively suspect.
Third, I would not favor any system requiring individuals to certify their sexual orientation "under penalty of perjury." Law already recognizes and accommodates socially constructed identities that cannot be empirically verified—such as religion, gender, and even political beliefs. In our current understanding of gender, for example, we do not demand documentary proof to affirm someone's womanhood or manhood. As Catharine MacKinnon has argued, if a person seeks to inhabit a marginalized identity, the claim itself carries political meaning and should not be policed through external verification.
In short, a certain degree of indeterminacy is not a flaw but a reflection of social reality. The alternative—state-administered validation of intimate identity—would raise far greater concerns about privacy, equality, and dignity.
The project of Gay Quotas is not to design an apparatus to verify desire, but to test whether our constitutional and cultural commitments to equality can extend to sexual orientation in the same way they have—albeit imperfectly—to race and gender. The administrative discomfort you note is itself revealing: it shows how the law still struggles with identities that are socially constructed and internally known. The real question is not whether we can "prove" who is gay, but whether the state can recognize the structural inequality that sexual minorities face and act affirmatively to correct it.
I welcome any further exchange or questions, and sincerely appreciate you taking the time to read my work.
