Antigay Bias in Role-Model Occupations

By E. Gary Spitko

From the first game of the National League of Professional Baseball Clubs on April 22, 1876, tens of thousands of men have played professional sports in the Big Four—baseball, basketball, football, and hockey—major professional sports leagues in the United States. Until April 29, 2013, however, when National Basketball Association center Jason Collins came out publicly as gay, not one of those tens of thousands of men had ever come out to the public as gay while an active player on a major league roster. Is it because gay men can't jump (or throw, or catch, or skate)? Or is it more likely that the costs of coming out are too high?

In Antigay Bias in Role-Model Occupations, E. Gary Spitko argues that in the case of athletes, and others in role-model occupations, a record of widespread and frequently systematic employment discrimination has been excluding gay people from the public social spaces that identify and teach whom society respects and whom members of society should seek to emulate. Creating a typology of role models—lawyers/judges, soldiers, teachers, politicians, athletes, and clergy—and the positive values and character traits associated with them, Spitko demonstrates how employment discrimination has been used for the purpose of perpetuating the generally accepted notion that gay people are inferior because they do not possess the requisite qualities—integrity, masculinity, morality, representativeness, all-American-ness, and blessedness—associated with employment in these occupations.

Combining the inspirational stories of LGBT trailblazers with analysis of historical data, anecdotal evidence, research, and literature, Antigay Bias in Role-Model Occupations is the first book to explore in a comprehensive fashion the broad effects of sexual orientation discrimination in role-model occupations well beyond its individual victims.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: Nov 15, 2016
• ISBN: 9780812293487

Book preview

Antigay Bias in Role-Model Occupations

PENNSYLVANIA STUDIES IN HUMAN RIGHTS

Bert B. Lockwood, Jr., Series Editor

A complete list of books in the series is available from the publisher.

Antigay Bias in Role-Model Occupations

E. Gary Spitko

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 2017 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

www.upenn.edu/pennpress

Printed in the United States of America

on acid-free paper

10  9  8  7  6  5  4  3  2  1

Library of Congress Cataloging-in-Publication Data

ISBN 978-0-8122-4870-8

To Ian and Susan, with love

Contents

Preface

Chapter 1. Exclusion from a Public Social Space Defined by Qualities and Values

Chapter 2. Wielding Employment Discrimination Against Gay Lawyers as a Sword and a Shield

Chapter 3. Defending the Masculine Identity of the Military and Its Service Members

Chapter 4. Teaching That Homosexuality Is Immoral

Chapter 5. Representing the Electorate’s Values

Chapter 6. Promoting the All-American Image of Major League Sports

Chapter 7. Maintaining a Distance Between Gay People and God in Defense of Greater Orthodoxies

Conclusion. The Importance of Teaching the Qualities and Values of Gay People

Notes

Index

Acknowledgments

The noticeable shift in who does various jobs is but the visible sign of a deeper seismic shift in relations between groups and in the meaning of citizenship.

— Nancy MacLean, Freedom Is Not Enough: The Opening of the American Workplace

Preface

In June 2015, the United States Supreme Court held in Obergefell v. Hodges that the due process and equal protection clauses of the Fourteenth Amendment preclude a state from denying marriage recognition to same-sex couples.¹ Unquestionably, Obergefell was a monumental advance for gay civil rights. The arrival of marriage equality, however, does not signify that the struggle for gay equality has been won. Thus, a certain peril arises from the view that marriage recognition for same-sex couples is an apotheosis. Indeed, the prioritization of marriage equality by gay civil rights groups and the intense focus of popular media on the fight for marriage equality in recent years have tended to obscure from public attention the significant obstacles to gay equality that continue to exist.²

Equal employment opportunity for gay people remains a vital but unrealized goal. Numerous empirical studies conducted over the last four decades suggest that sexual orientation discrimination is a persistent and pervasive phenomenon in American labor markets.³ Despite such evidence, concerted efforts to enact legislation that would protect workers from sexual orientation discrimination have met with only limited success. No federal statute expressly proscribes such discrimination. Moreover, only twenty-two states as well as the District of Columbia prohibit private employers from discriminating on the basis of sexual orientation.⁴

Aside from the issue of the extent to which sexual orientation discrimination is common in American labor markets is the question of why employers might discriminate against employees or job applicants on the basis of their sexual orientation. That question is the focus of this book. In many cases, no doubt, mere animus toward gay people motivates the employer’s discrimination: some people find gay people repugnant and do not wish to associate with them. In other cases, the employer’s belief in a stereotype—such as that gay men are less likely to be aggressive or are more likely to molest a child—grounds the discrimination.

The principal thesis of this book, however, is that much employment discrimination against gay people is far more ambitious. Employment discrimination against gay people has been used in a calculated and often systematic effort to dissociate gay people from certain positive qualities and values. At the same time, such employment discrimination against gay people has been used as a means to maintain and strengthen the association between these positive qualities and values and the heterosexual majority as well as the institutions that the heterosexual majority holds dear: the majority defines itself in contradistinction to the minority.⁵ Thus, sexual orientation discrimination in employment serves as a powerful tool to reinforce social understandings about the inferior nature of gay people.

This book seeks to elaborate this thesis by developing and exploring the record of employment discrimination against gay people with respect to six role-model occupations: lawyer/judge, soldier, teacher, politician, major league athlete, and clergy. Each of these role-model occupations evokes certain positive qualities and values. Thus, sexual orientation discrimination in each of these role-model occupations acts as an effective means to define certain qualities and values as heterosexual while reinforcing the notion that gay people lack these qualities and values.⁶

An explanation of the scope of the book as it relates to LGBT inclusivity may be useful at the outset. This book focuses on employment discrimination against gay men and lesbians but does not focus on employment discrimination against bisexual or transgender persons. This limited focus is not to suggest that bisexual or transgender struggles are unimportant. Rather, discrimination against bisexual persons and discrimination against transgender persons take unique forms and, therefore, require separate treatment.⁷ This book maintains a more narrow scope limited to bias against gay men and lesbians lest the book become unwieldy.

Finally, this book appropriately appears as part of a series in human rights. The keystone of human rights law is the principle of nondiscrimination. The prohibition of discrimination, including with respect to the right to work, permeates numerous international human rights treaties. Beginning in the early 1980s and greatly accelerating in the early twenty-first century, the nondiscrimination principle has been extended through case law and various soft law to encompass discrimination on the basis of sexual orientation.⁸ Thus, there has come to be increasing acceptance of the notion that gay rights are human rights.⁹

Chapter 1

Exclusion from a Public Social Space Defined by Qualities and Values

From 1566, and for more than four centuries, the Stari Most (Old Bridge) straddled the Neretva River in the town of Mostar, Bosnia-Herzegovina. The Stari Most linked Ottoman old Mostar on the east with more ethnically mixed west Mostar. The bridge was an important gathering place for locals, the symbol of the town of Mostar, and an iconic monument to Mostar’s Ottoman heritage.¹

On November 9, 1993, during the violent aftermath of the disintegration of the former Yugoslavia, Croat gunners repeatedly shelled the Stari Most until it tumbled in pieces into the Neretva below. The bridge was of debatable strategic importance in the war in Bosnia-Herzegovina. Indeed, the shelling and destruction of the Stari Most have come to be understood by some not as a necessary operation in pursuit of a military objective but rather as an attack on the very concept of multi-ethnicity and the co-joined communities it had come to embody.²

Thus, the shelling of the Stari Most can be viewed as an attempt to influence social understandings through the destruction of a group’s material culture that would otherwise evidence the group’s history in a territory.³ History is replete with such examples of the purposeful destruction of a group’s material culture—for example, its architecture, places of worship, museums, libraries, monuments, and even graves—undertaken to terrorize an enemy people and even to eradicate the enemy people and the cultural record of that people’s existence in a community. Robert Bevan studied at length how the destruction of architecture has been used as a means to inform social understandings. Bevan concluded from his research, "This is the active and often systematic destruction of particular building types or architectural traditions that happens in conflicts where the erasure of the memories, history and identity attached to architecture and place—enforced forgetting—is the goal itself."⁴

Thus, in the 1990s, during the wars in the former Yugoslavia, Serb and Croat ethnic cleansing of Bosniaks went hand in hand with Serb and Croat destruction of Bosniak mosques, libraries, and bridges. Leading up to and during World War II, the Nazis demolished or burned hundreds of synagogues and destroyed Jewish homes, shops, and community buildings as a prelude to the Holocaust. And in Turkey the 1915 Turkish massacres—some would say genocide—of the Armenian people were accompanied and followed by the systematic erasure by the Turks of 1,800 years of Armenian architecture—including churches, monastic sites, monuments, and even whole towns.⁵

The obliteration of architecture is a readily perceivable and tangible example of but one of the means by which a dominant group might engage in the intentional exclusion of a disfavored group from an otherwise shared or public social space so as to define the character of a community, whether dominant or disfavored, or its institutions. A central premise of this book is that employment laws and practices similarly, albeit less violently, can and have been used as a tool for removing a disfavored group from a prominent public social space so as to influence social understandings with respect to the character of a community or its institutions. The public social space at issue when employment discrimination is used to influence social understandings, however, is not one defined by a physical place, such as a territory, town, or public park. Rather, the public social space at issue is one associated with and defined in relation to certain positive personal qualities and values.

The concept of military service, for example, is one such public social space. Society associates military service with, among other things, bravery. And bravery defines, in part, the concept of military service. Thus, to exclude someone from the public social space of military service is to dissociate him from the quality of bravery. Conversely, to allow one perceived to be cowardly to serve in the military is to risk redefining the public social space of military service.

Numerous qualities and values in addition to bravery are associated with and help define the concept of military service. Any of these qualities and values may or may not be of concern in a particular campaign to exclude a certain disfavored group from the public social space of military service. Such a campaign, however, may have the effect of dissociating the disfavored group from qualities and values in addition to those that were of original concern in the campaign. Thus, employment discrimination, when used to exclude a disfavored group from a public social space, helps to establish and maintain social norms and simultaneously to define both the dominant excluding group and the disfavored group that is being excluded.

Because the public social space at issue is not a physical space, its parameters often defy easy delineation. The parameters of the public social space at issue will vary depending on a number of factors, most importantly the identity of the disfavored group that the law or practice targets and the purpose of the exclusion. A variety of sources provide clues to the rough scope of the public social space at issue as well as to the purpose of the exclusion. Among these sources are statutory language, legislative histories, court opinions, litigation pleadings, formal witness accounts such as court and deposition testimony, less formal witness testimony such as accounts in memoirs and media interviews, survey data and other empirical studies, and public commentaries relating to the employment decisions and practices at issue.

Thus, the project of demonstrating that a desire to inform social understandings has motivated certain episodes of employment discrimination is similar to the effort to prove an individual or systematic case of less ambitious employment discrimination. Direct and circumstantial evidence is gathered and evaluated. The issue for consideration then becomes whether a preponderance of the evidence suggests that an intent to engage in the type of invidious discrimination in question is sufficiently causally linked to the employment decisions or practices at issue.

Most notoriously, for example, in Germany from 1933 to 1938, the Nazis enacted a series of employment laws systematically banning Jews from working in certain occupations.⁶ They banned Jews from holding public office and removed and excluded Jews from the civil service, the armed forces, the practice of law, the practice of medicine, and the newspaper, tax consultant, and patent agent professions.⁷ Finally, in late 1938, the Nazis banned Jews from a swath of German economic life, specifically from the operation of individual retail shops, exporting firms, sales agencies, as well as the independent operation of a trade.⁸

The exclusion of Jews from these occupations served multiple purposes, including furthering a program of ethnic cleansing: the discrimination acted as an incentive for Jews to emigrate voluntarily from Germany. These laws also served the purpose of informing social understandings, dissociating Jews from the concepts or qualities of German and citizen; the laws were intended to teach Germans that Jews were others—Jews were not Germans, were not citizens, were a threat to Germany, and were inferior. In this way, these employment laws facilitated the Holocaust to follow. A racial expert at the Nazi Ministry of the Interior, Dr. Achim Gercke, commented at the time of the first wave of anti-Jewish legislation:

The laws are mainly educational and give direction. The aspect of the law should not be underestimated. The entire nation is enlightened on the Jewish problem; it learns to understand that the national community is a blood community; it understands for the first time the racial idea, and is diverted from a too theoretical treatment of the Jewish problem and faced with the actual solution.⁹

Gercke explained further, Nevertheless the laws published thus far cannot bring a final solution of the Jewish problem, because the time has not yet come for it, although the decrees give the general direction and leave open the possibility of further developments.¹⁰

The use of employment discrimination to influence social understandings has been also an American practice. For example, in 1869, the Supreme Court of Illinois refused to grant Myra Bradwell a license to practice law, ruling that women in general were ineligible to practice law under Illinois law.¹¹ The court seemed somewhat sympathetic to Bradwell’s cause, remarking that Of the qualifications of the applicant we have no doubt, and we put our decision in writing in order that she, or other persons interested, may bring the question before the next legislature.¹² Nonetheless, the court concluded that the Illinois legislature, which had conferred upon the Supreme Court of Illinois the right to grant licenses to practice law, surely had not intended for women to be allowed to practice law and, indeed, Upon this question … neither [Bradwell] herself, nor any unprejudiced and intelligent person can entertain the slightest doubt.¹³ The court noted that it was regarded as an almost axiomatic truth at the time the legislature gave this power to the court That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply and execute the laws.¹⁴

Toward the conclusion of its opinion, with social norms in mind, the court endorsed only limited change respecting women and the practice of law:

all right minded men must gladly see new spheres of action opened to woman, and greater inducements offered her to seek the highest and widest culture.

There are some departments of the legal profession in which she can appropriately labor. Whether, on the other hand, to engage in the hot strifes of the bar, in the presence of the public, and with momentous verdicts the prizes of the struggle, would not tend to destroy the deference and delicacy with which it is the pride of our ruder sex to treat her, is a matter certainly worthy of her consideration.¹⁵

Thus, the Supreme Court of Illinois viewed employment discrimination against women in the legal profession as an instrument to influence social understandings: the implication is that women should be excluded from the hot strifes of the bar as a means to safeguard gender norms.

Myra Bradwell challenged the Supreme Court of Illinois’s decision in the United States Supreme Court, which affirmed the state court’s exclusion of women from the practice of law. In his opinion concurring in this judgment, Justice Joseph P. Bradley offered the following social understandings in support of the exclusion:

the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.¹⁶

Justice Bradley famously concluded that The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.¹⁷

In sum, the employment practice of excluding women from the practice of law simultaneously excluded women from a public social space that helped to define masculinity.¹⁸ In doing so, this employment discrimination reinforced the notion that a woman’s place is in the home. That employment law and practices have this power to define social norms and expectations was driven home to this book’s author when a female attorney with whom the author practiced law brought her young son to the office one day. A colleague asked the little boy if he wanted to be a lawyer when he grew up. His response undoubtedly was influenced by his mother’s occupation: Yuck, that’s a girl’s job.¹⁹

*   *   *

The focus of this book is the use of employment law and practices in the United States to exclude gay people from public social spaces. Gay people have long been the target of such purposeful exclusion across civilizations. Historian John Boswell’s effort to measure the variance in social tolerance toward homosexuality in Western Europe from the dawn of the Christian era up to the fourteenth century is informative on this point.²⁰ In furtherance of his investigation, Boswell sought to study the literature and social history from the era and place at issue. He found, however, that his project was made vastly more difficult because the longevity of prejudice against gay people and their sexuality has resulted in the deliberate falsification of historical records concerning them well into the [twentieth] century, rendering accurate reconstruction of their history particularly difficult.²¹ In his book Christianity, Social Tolerance, and Homosexuality, Boswell described several favorite means that censors have used to erase gay people from history and literature: gender pronouns have been altered or deleted, words and verses have been inserted or removed to change meaning, the significance of words has been twisted in translation, details in historical accounts have been suppressed, and entire works have been excised from translations.²² He concluded, It is little wonder that accurate analysis of gay people in a historical context is so rare when such formidable barriers oppose access to the sources for anyone not proficient in ancient and medieval languages.²³

In the United States, gay people frequently have been the target of efforts, often systematic, to remove them as a group from the public sphere.²⁴ For example, during much of the twentieth century, censors specially targeted homosexuality. Authorities and private citizens’ groups widely suppressed positive treatments of homosexuality in literature, the theater, cabarets, motion pictures, and even newspapers. Even negative references to homosexuality were frequently suppressed. Indeed, New York’s 1927 theatrical padlock statute as well as early motion picture production codes, for example, prohibited the depiction of homosexuality altogether.²⁵

Jackie Gardina has written of how same-sex relationships have long been scrubbed from family histories. For example, prior to the United States Supreme Court holding in Obergefell v. Hodges that the Fourteenth Amendment protects the right of same-sex couples to marry,²⁶ in states that did not recognize same-sex relationships, no public records—such as marriage licenses or domestic partner registries—noted that the partners identified as gay or lesbian. Even today, in many instances, newspaper obituaries omit any reference to the same-sex partner of a surviving relative or even of the deceased.²⁷

Gay people also have long been targeted for employment discrimination on the basis of their sexual orientation or sexual behavior. In the United States, the federal government was for many years the most prominent perpetrator of this discrimination.²⁸ The federal government’s systematic effort to exclude gay people from federal employment had several motivations. The historical record supports the argument that one of those reasons was a desire to inform social understandings by excluding gay people from a public social space associated with and defined by qualities and values such as allegiance to country and, especially, a morality that abhors sexual perversion. A chief objective was to protect the image of the government as morally good from contamination by gay people.²⁹

The persecution of gay people in federal employment reached its zenith in the late 1940s and early to mid-1950s. By the 1960s, the federal government had fired thousands of employees because of their alleged homosexuality and had denied employment to thousands more applicants on the same grounds. These figures do not include the thousands of men and women discharged from the military because of their homosexuality. The mass witch hunt for and purge of gay federal employees during this time have been largely forgotten. Historians who have focused on McCarthyism and the Red Scare purge of Communists from federal employment have largely ignored the concurrent Lavender Scare purge of homosexuals. This is so despite the fact that the federal government in this period separated far more people from federal employment on account of their homosexuality than for their affiliation with the Communist Party.³⁰

The mass purge of gay federal employees began in the State Department in 1947 simultaneously with the campaign to remove Communists from the State Department.³¹ The principal reason that gays were targeted was not a concern for security but rather a fear that gay employees would create a morale problem within the State Department, given that heterosexual employees did not want to associate with homosexuals and that the American public found homosexuality repugnant.³² By 1951, the State Department had separated 144 employees for homosexuality as compared to fourteen employees separated because they were deemed security risks. Through the 1950s and 1960s the State Department dismissed approximately 1,000 employees for alleged homosexuality. Again, this figure was significantly greater than the number of employees the government dismissed for ties to the Communist Party.³³

The purge of gay federal employees that began in the State Department soon spread to other federal agencies and throughout the federal government.³⁴ On June 7, 1950, the United States Senate adopted Senate Resolution 280, which directed a committee to investigate and report back to the Senate on the alleged employment by the departments and agencies of the Government of homosexuals and other moral perverts as well as on the government’s preparedness for the protection of life and property against the threat to security inherent in the employment of such perverts by the federal government. Pursuant to Senate Resolution 280, in December 1950, the Senate Investigations Subcommittee of the Committee on Expenditures in the Executive Departments issued its interim report, titled Employment of Homosexuals and Other Sex Perverts in Government.

The report relied, at least to some degree, upon the three principal grounds that historically had stigmatized gay people and been used to justify discrimination against them: that homosexuality was a mental illness, that homosexuality was immoral, and that homosexuality was illegal. The subcommittee professed a belief that persons afflicted with sexual desires which result in their engaging in overt acts of perversion should be considered as proper cases for medical and psychiatric treatment. Nonetheless, the subcommittee opined that sex perverts, like all other persons who by their overt acts violate moral codes and laws and the accepted standards of conduct, must be treated as transgressors and dealt with accordingly. Thus, the subcommittee concluded that homosexuals and other sex perverts are not proper persons to be employed in Government.³⁵ The subcommittee gave two reasons for its recommendation that gay people be barred from federal employment: first, gay federal employees posed an unacceptable security risk; and second, gay people were generally unsuitable.³⁶

The report noted that the FBI, the CIA, and the intelligence services of the army, navy, and air force all agreed that gay federal employees constituted a security risk.³⁷ The subcommittee stated that this danger arose in part because a gay person’s fear of disclosure of his sexuality made him easy prey to the blackmailer.³⁸ But the risk arose also, the report continued, from the fact that the lack of emotional stability which is found in most sex perverts and the weakness of their moral fiber[] makes them susceptible to the blandishments of the foreign espionage agent.³⁹ It is worth noting that the subcommittee did not uncover a single example of any gay American being blackmailed into revealing state secrets, and that none of the security services offered any evidence to back up their opinion that gay people were a security threat.⁴⁰

The subcommittee’s conclusion that gay people were generally unsuitable for federal employment similarly was grounded in part on the general belief that those who engage in overt acts of perversion lack the emotional stability of normal persons, and on the abundance of evidence to sustain the conclusion that indulgence in acts of sex perversion weakens the moral fiber of an individual to a degree that he is not suitable for a position of responsibility.⁴¹ The subcommittee also pointed to the criminality and immorality of homosexuality and noted that homosexuality is so contrary to the normal accepted standards of social behavior that persons who engage in such activity are looked upon as outcasts by society generally.⁴² Indeed, the subcommittee expressed its awareness that employment of gay federal employees might cause the public to hold the federal government in low esteem: There is no place in the United States Government for persons who violate the laws or the accepted standards of morality, or who otherwise bring disrepute to the Federal service by infamous or scandalous personal conduct.⁴³

Moreover, the subcommittee warned of the risk of contagion inherent in the employment of a gay person within the federal government. Homosexuality, the subcommittee concluded, begets further immorality, emotional instability, and weak moral fiber:

Most of the authorities agree and our investigation has shown that the presence of a sex pervert in a Government agency tends to have a corrosive influence upon his fellow employee. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. It is particularly important that the thousands of young men and women who are brought into Federal jobs not be subjected to that type of influence while in the service of the Government. One homosexual can pollute a Government office.⁴⁴

Thus, the report makes clear the subcommittee’s view that gay people must be excluded from federal employment lest they pollute normal people with their perversion.

From the 1880s, the Civil Service Commission’s regulations on the suitability for federal employment provided that lacking good moral character⁴⁵ or engaging in criminal or infamous conduct⁴⁶ or having been guilty of infamous or notoriously disgraceful conduct⁴⁷ would be grounds for exclusion from federal employment. Nonetheless, prior to 1950, the civil service regulation disqualifying one guilty of immoral conduct was not strictly adhered to or systematically enforced. Most government agencies simply ignored the issue of homosexuals.⁴⁸ Thus, the subcommittee charged with investigating homosexuals and other moral perverts in government found that prior to its investigation many Government officials failed to take a realistic view of the problem of sex perversion in Government with the result that a number of sex perverts were not discovered or removed from Government jobs.⁴⁹

The subcommittee reported, however, that since the initiation of its investigation, considerable progress ha[d] been made in removing homosexuals and similar undesirable employees from positions in the Government.⁵⁰ Pressure from Congress alone led to increased efforts by federal agencies to purge their gay employees from their positions in the federal government.⁵¹ Moreover, soon after the subcommittee issued its report, the Civil Service Commission amended its Federal Personnel Manual to include expressly homosexuality and sexual perversion as grounds for immediate dismissal from federal employment.⁵²

In addition, in April 1953, President Dwight D. Eisenhower issued Executive Order 10450 requiring that federal employees be of good conduct and character and expressly listing sexual perversion as a basis for denying federal employment, effectively excluding openly gay people from employment with civilian federal agencies whenever the employment at issue required a security clearance or otherwise was one affected with the national security.⁵³ Indeed, the effect of Executive Order 10450 reached well beyond federal employment. It impacted millions of private sector employees who worked for government contractors and were required to obtain and maintain government security clearances. Thus, Executive Order 10450 had the effect of banning openly gay workers from large swaths of the private economy. Moreover, although in theory a private sector employee who was denied a security clearance might still work for a government contractor performing work not requiring a security clearance, in practice, such employees typically were fired.⁵⁴

Remarkably, during the first decade of the Lavender Scare, not a single terminated gay employee challenged his dismissal.⁵⁵ Beginning in the early 1960s, however, the Civil Service Commission’s policy excluding gay people from federal employment came under a steady assault in the courts and in the political arena. The first person to challenge the exclusion in court was Dr. Frank Kameny, who went on to become one of the towering figures in the gay civil rights movement. Kameny was an astronomer who in 1957 lost his civilian job with the U.S. Army Map Service under the Civil Service Commission’s policy excluding homosexuals. He challenged his dismissal in administrative proceedings; by means of a letter-writing campaign to President Eisenhower, members of Congress, and the chairman of the Civil Service Commission; and in the courts.⁵⁶

Kameny ultimately lost his court challenge. The United States Court of Appeals opinion rejecting Kameny’s request for reinstatement is most notable for its failure to mention why he was fired. The court made no mention of homosexuality in its opinion but concluded rather obliquely that We are satisfied that … valid regulations of the Civil Service Commission authorized [Kameny’s] separation from the service.⁵⁷ In March 1961, the United States Supreme Court refused to hear Kameny’s appeal of that decision, bringing his legal challenge to an end.⁵⁸

Kameny’s dismissal from the Army Map Service because of his homosexuality resulted in the end of his career as an astronomer. Although he was heavily recruited for positions in the private sector, such recruitment ended when the potential employer learned that Kameny could not obtain a government security clearance. Kameny twice found work with government contractors using his background in astronomy and physics, but lost each position after the government denied him a security clearance.⁵⁹

In November 1961, Kameny cofounded the Mattachine Society of Washington, a cell of one of the nation’s first gay civil rights groups. This event also marked the founding of the gay civil rights movement locally in Washington, D.C. Yet, because of its location, the Mattachine Society of Washington focused many of its efforts on combating the antigay policies of the federal government with a particular focus on civil service employment, security clearances, and the military.⁶⁰

In September 1965, five members of the Mattachine Society of Washington met with a committee from the Civil Service Commission to lobby against the ban on gay federal civil service employees.⁶¹ Following that meeting, Commission Chairman John W. Macy, Jr., wrote a letter to the Mattachine Society of Washington in which he rejected the society’s request to rescind the policy banning gay people from federal employment and offered a justification for the policy. Macy’s justification, grounded mainly in public revulsion toward gay people, would become the Civil Service Commission’s official defense asserted in litigation brought by affected applicants and employees challenging the exclusion of gay people from the federal civil service:

Pertinent considerations here are the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower, and living facilities, the offense to members of the public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.⁶²

Thus, the commissioner’s justification of the policy had nothing to do with the gay person’s intrinsic ability to perform the job. Rather, the justification centered on the offense to coworkers and the public arising from the existence of gay people in federal employment and, relatedly, the potential