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Sex vs. Sexual Orientation; Prejudice vs. Discrimination

By Dr. Jeff Mirus (bio - articles - email) | Aug 01, 2017

The Justice Department is now arguing that the Civil Rights Act of 1964, which prohibits discrimination based on sex, does not prohibit discrimination based on sexual orientation. What a difference the President makes to the Justice Department’s conception of law! This is one of those supposedly minor things that makes a huge difference to the development of society and culture: I mean who is rewarding whom for thinking what. The sad premise is that most people go along to get along. But that is not my main purpose here. Instead, I propose to reflect on the distinctions implicit in my title, “Sex vs. Sexual Orientation; Prejudice vs. Discrimination”.

Sex and Sexual Orientation

The word “sex” (in this context) means just what it always used to mean on forms: male or female. Those are the only two human sexes. Rare cases that blur the distinction are the result of the occasional but inescapable failure of natural processes in an imperfect world or, as Christians know, in a natural order which is disrupted by sin. By contrast, “sexual orientation” refers to what attracts a man or a woman sexually. A small percentage of both men and women experience same-sex attraction, or even attraction to non-human sexual objects. This happens for a variety of reasons that we do not fully understand and cannot make irrelevant to the tensions of daily life.

Now a person is male or female not only independently of his or her habitual sexual desires but also independently of sexual desire altogether (which may in some cases or at particular times be non-existent). Just as a male does not cease to be a male at those times when he feels no sexual desire for a woman (and vice versa), neither does a male cease to be a male when he desires to couple with another male, or with a dog, or (forgive me) with a corpse, or with a toy. Everyone on the face of the earth recognizes this easily.

But sexual orientation is a different sort of thing. It is desire and nothing but desire. There may be any number of contributing causes, but it is completely defined by whatever we desire. And that is why the number of sexual orientations is ever multiplying (remember LGBTTQQFAGPBDSM?).

As far as human law goes, however, desire is meaningless. One can no more prohibit desire than one can prohibit mental speculation. The desire to steal cannot be controlled by human law. No, but human law does deal with theft. To some extent if even deals with the “foreplay” leading up to theft, when that becomes harassment, such as luring people away from home under false pretenses so that they or their possessions become more vulnerable. Nor is a person less guilty of theft, in the eyes of the law, because he or she resisted the desire to steal for as long as he or she could.

It is manifest to the meanest intelligence that a law which prohibits discrimination based on sex (male or female, something we are) has no implicit intention to prohibit discrimination based on how we respond to our sexual desires (how we act based on what we desire). To argue otherwise is to read what we might call an irrational prejudice back into the law, as if sexual orientation and sex are the same thing.

Prejudice and Discrimination

Having just used the second set of key words, we can now proceed to examine the difference between prejudice and discrimination. As every schoolboy knows, the first thing that happens when we react positively to one person and negatively to another in similar situations, is that someone will claim that we “are just prejudiced”. In other words, we are accused of holding a blind, unreasoning like or dislike of those in a certain class.

If we choose for our softball team a beautiful young woman who hits .490, passing over the larger and stronger young man who hits .220, the younger and stronger young man will almost certainly snigger to somebody that “the manager has certain reasons for liking pretty girls on his team.” If we hire a strong male firefighter over a female who is equally qualified mentally and emotionally, somebody will initiate a law suit against our illegal “discrimination”, which is presumed to be based on, guess what?, a blind and unreasoning dislike of those in a certain class—in short, a prejudice.

We tend to forget that “discrimination” is generally a good thing while “prejudice” is decidedly not. Discrimination is the act of recognizing and appreciating the differences among several things which are otherwise under consideration in the same context—like knowing the difference between a good or bad wine, or a good or bad work of art, or (indeed) a good or bad baseball player, and knowing what creates the differences between the two that are relevant for the intended purpose. Prejudice, on the other hand, means “pre-judgement”—a judgement for or against someone made either in ignorance or by a recognition of differences that are actually irrelevant to the intended purpose.

It is one of the tragedies of the politicization of Just About Everything that we tend to forget the difference between discrimination and prejudice, for the lack of a proper distinction is peculiar to law and government. What I mean is that human law cannot outlaw prejudice (which is a mental and emotional issue), but it can outlaw human actions which are based on our discrimination between persons or things in consideration of the relevant purposes. The law always assumes that prohibited discrimination arises from prejudice—that is, illegal discrimination is irrelevant to the conventional purposes at issue (or, even if it is not completely irrelevant in every case, it must be avoided for some overriding beneficial purpose)—and so in the world of law and politics discrimination is always bad.

But we need to remember this is a specialized usage that undermines a generally positive meaning. We also need to remember that it is not the law that makes discrimination a bad thing. Rather, it is the immorality of treating others based on prejudice that ought to give rise to the law. Thinking well depends on our ability to discriminate properly between persons, behaviors, things, ideas and arguments in accordance with their legitimate purposes. As it always has, the proper use of words matters enormously not only to each one of us personally, but to the common good.

Jeffrey Mirus holds a Ph.D. in intellectual history from Princeton University. A co-founder of Christendom College, he also pioneered Catholic Internet services. He is the founder of Trinity Communications and See full bio.

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