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Excerpted From: Kyle C. Velte, Toward a Touchstone Theory of Anti-racism: Sex Discrimination Law Meets #Livingwhileblack, 33 Yale Journal of Law & Feminism 119 (2021) (257 Footnotes) (Full Document)


KyleVelteSwimming while Black. Jogging while Black. Barbecuing while Black. White supremacy and anti-Black racism continue their pervasive and destructive paths in contemporary American society. From the senseless, brutal murder of George Floyd by Minnesota police officers to the daily exclusions of Black bodies from white spaces, the nation's failure to right the legal, social, and psychological wrongs of chattel slavery and racism has continued to be highlighted in stark relief in recent years. This article asks the question: what work can sex discrimination law do for the project of dismantling anti-Black racism and white supremacy, specifically in public and recreational spaces?

The achievements of the women's rights movement--from the inclusion of “sex” in state public accommodation laws in the 1970s to women outnumbering men in law school in the 2010s deeply indebted to the ideals disseminated by and legal doctrine that grew from the civil rights movement. Generations of contemporary women's rights activists have analogized women's rights to racial civil rights in the hope that relying on the time-tested, successful blueprint of the civil rights movement would yield success for sex equality. It did: in many contexts, law, policy, and cultural norms espouse a formal and explicit commitment to sex equality. However, while many of the achievements of the women's rights movement are entrenched in law and policy, the gains of the racial civil rights movement are increasingly under attack. Can the sex discrimination doctrine that emerged from the women's rights struggle now return the favor to the racial civil rights project? This article's answer is “yes.”

This article centers the racism made manifest through the #LivingWhileBlack phenomenon common practice of white people calling 911 to report Black people engaging in lawful, routine, everyday activities examines it through the lens of two specific sex discrimination law doctrines: sex stereotyping and protections against sex discrimination in public accommodation laws. It argues that these two threads of sex discrimination law are generative of a new lens through which to analyze and address #LivingWhileBlack aggressions. It does so by introducing the concept of a “White Privilege Stereotype,” a form of racial stereotyping through which white people seek to retaliate against Black people when Black people engage in activities coded as “white,” often in places that are also coded as “white.” By engaging in these “white” activities, or by engaging in activities not specifically coded as “white” in “white” spaces, Black people challenge the privileges of whiteness by seeking to enjoy those privileges in the same way they are enjoyed by white people, which causes white observers to lash out and retaliate. Put another way, the White Privilege Stereotype is the likely “story” about Black people that many white perpetrators of #LivingWhileBlack incidents hold in their minds--a story about what Black people “do” in the world, specifically what they “do” for leisure and recreation, in addition to “where” they do it. In sum, when Black people do things that white people can do without fear of bodily, social, or legal harm, they are transgressing the boundaries of white privilege; when white people experience that transgression, they react with a #LivingWhileBlack aggression.

Conceptualizing #LivingWhileBlack aggressions as white people's reactions to Black people seeking to enjoy the privileges of whiteness creates a link to sex stereotyping and thus to the body of sex discrimination law that both recognizes and prohibits sex stereotyping. Using this body of sex discrimination law as a springboard for theorizing #LivingWhileBlack aggressions provides one useful frame for generating solutions to this troubling phenomenon. The article makes this conceptual link by drawing an analogy between how gender and racial hierarchies have been preserved, in part, through stereotyping and the policing and punishing of the oppressed group's nonconformity with such stereotypes.

Part I briefly summarizes the #LivingWhileBlack problem and the scholarly discussion that surrounds it. Part II describes Price Waterhouse v. Hopkins and its sex stereotyping theory. It then introduces a race stereotyping theory derived from Price Waterhouse's sex stereotyping theory-- the White Privilege Stereotype--and uses it to analyze the #LivingWhileBlack problem. The article does not, however, articulate a Price Waterhouse-deviyed racial stereotyping theory--White Privilege Stereotype--to make a legal argument within the context of employment discrimination, nor does it use that concept to argue for a particular outcome within any substantive area of the law. Rather, it uses employment discrimination law's sex stereotyping as a springboard for the articulation of a White Privilege Stereotype theory that may help us theorize and understand the #LivingWhileBlack problem. Casting #LivingWhileBlack aggressions as white individuals retaliating against Black individuals for “acting white” thus seeking to enjoy the privileges of whiteness--parallels Price Waterhouse's characterizing the rejection of Ann Hopkins as a partner in an accounting firm as punishing a woman for “acting like a man,” or seeking to enjoy privileges of maleness. Exposing the parallels between sex stereotyping and its derivative racial stereotyping, a White Privilege Stereotype, may engender a deeper understanding of the complex dynamics of #LivingWhileBlack, which may lead to different, additional, or more comprehensive strategies for disrupting and dismantling white supremacy.

Part III engages the history of discrimination against women in public spaces, the campaign for inclusion of “sex” in public accommodations laws, and how that history informs modern day controversies involving discrimination against LGBTQ individuals. Informed by this history, it describes how the history of sex discrimination in public can help us to understand the #LivingWhileBlack problem. In a sense, then, we have come full circle--racial civil rights provided a model for the women's rights movement, which in turn laid the groundwork for LGBTQ civil rights and, as argued below, also provides insights and arguments for challenging the #LivingWhileBlack problem facing the racial civil rights movement today.

In overlaying employment discrimination law's sex stereotyping theory and lessons from public accommodation sex discrimination law onto the #LivingWhileBlack problem, the goal of this Article is to contribute to the growing scholarly dialogue seeking to make legible this intractable problem and offer suggestions to dismantle it. Part IV proposes what I call a “touchstone theory” of inquiry for the intractable problem of white supremacy manifested through #LivingWhileBlack aggressions--a theory that encourages a multiaxial approach to analyzing white supremacy and its attendant white privilege. This theory envisions multiple “touchstones”--legal, political, and cultural, to name a few--that may inform our analysis of white supremacy. It asserts that lessons from sex discrimination law provide one such analytical touchstone.

In proposing a sex discrimination touchstone as one among many salient touchstones for analyzing #LivingWhileBlack aggressions, the Article builds on the notion of a symbiotic dynamic through which multiple systems of subordination work together. This dynamic highlights that individuals who are “singly burdened” (those who “simultaneously occupy positions of privilege and subordination”) may engage in “compensatory subordination” (utilizing their privilege to subordinate others), which then serves to fortify the very systems that subjugate them. As applied to the sex discrimination touchtone theory, this dynamic means that white (straight) women who are exercising white privilege in #LivingWhileBlack aggressions are doing so at the expense of reifying and reinforcing male privilege (to their own detriment). Exposing this dynamic through a sex discrimination touchstone inquiry of #LivingWhileBlack aggressions may encourage white women to work in coalition with Black individuals and organizations to engage in anti-racist work.

Rather than proposing a particular solution to the #LivingWhileBlack problem, this Article sets out to provide another framework for understanding and analyzing the problem--one built upon sex discrimination doctrine. In providing another touchstone for thinking about and resolving the contemporary manifestation of white supremacy and anti-Black racism that is the #LivingWhileBlack phenomenon, the Article seeks to contribute to the scholarly dialogue addressing this pervasive and violent phenomenon.

[. . .]

The multiple sources of the #LivingWhileBlack problem--structural racism, white supremacy, history, political division, individual biases (both implicit and explicit), and the like--call for multiple analytic frames for theorizing and tackling it. Henderson and Jefferson-Jones offer a compelling theory of Blackness as nuisance. Other scholarship suggests that considering the problem through the lens of trauma and mental health may be fruitful. This Article has offered another framework, a White Privilege variant of racial stereotyping derived from sex stereotyping in employment discrimination law and the lessons for “race in public” that we can learn from the “sex in public” struggles of the 1970s, through which to theorize and address the #LivingWhileBlack problem.

Comprehensive solutions to complex problems of white supremacy and anti-Black racism require a multitude of analytical and theoretical perspectives. Contributing to the growing numbers of such perspectives, this Article has endeavored to provide another point of entry for conceptualizing, problematizing, and addressing the #LivingWhileBlack problem. Considering the #LivingWhileBlack problem through the sex discrimination touchstone described herein may allow us to see and make legible the #LivingWhileBlack problem in a different light and in a way that adds to the analytical lenses offered by other scholars. Scaffolding critiques of white supremacy with multiple legal descriptive and analytical frames enhances the chances that it will be dismantled. The more ways we “see” and understand its dynamics, the more ways we “see” to intervene and disrupt the problem. Adopting a touchstone theory of inquiry of #LivingWhileBlack aggressions, and considering sex discrimination as one touchstone among many, contributes a useful conceptual framework that has the potential to help in the important work of “understanding subordination as a complex, symbiotic process” and, in turn, the potential for broader anti-racist coalitions, as well as imagining more and different solutions.

Associate Professor, University of Kansas School of Law.

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