Toward a Touchstone Theory of Anti-Racism: Sex Discrimination Law Meets #LivingWhileBlack

This article asks the question: Can sex discrimination law do positive work for the project of dismantling anti-Black racism and white supremacy? This article’s answer is “yes.” White supremacy and anti-Black racism continue their pervasive and destructive paths in contemporary American society. From the murder of George Floyd to the daily exclusions of Black bodies from white spaces, the nation’s failure to right the wrongs of chattel slavery and racism continues to be highlighted in stark relief. This article centers the racism made manifest through #LivingWhileBlack aggressions—the phenomenon of white people calling 911 to report Black people engaging in lawful, routine, everyday activities—and examines it through the lens of two sex discrimination law doctrines: sex stereotyping and protections against sex discrimination in public accommodation laws. It contends that analyzing #LivingWhileBlack aggressions through the lens of sex discrimination law may yield two positive results: First, looking at the problem with a new perspective may lead to different, additional, or more comprehensive strategies for disrupting and dismantling white supremacy. Second, utilizing a sex discrimination frame to consider #LivingWhileBlack aggressions holds the potential to make legible to white women the connection between their own oppression and the oppression of Black people, thus create the opportunity for coalition building. The article proposes what it calls a “touchstone theory” of inquiry for understanding #LivingWhileBlack aggressions. 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 are one such analytical touchstone, while recognizing that a number of touchstones are necessary to fully unpack and address #LivingWhileBlack aggressions. In providing another touchstone for thinking about and resolving the #LivingWhileBlack problem, the article contributes to the scholarly dialogue addressing this pervasive and harmful phenomenon. The article first explores the sex stereotyping theory established in Price Waterhouse v. Hopkins and uses it to develop a derivative theory of racial stereotyping, which it describes as a White Privilege Stereotype. Framing #LivingWhileBlack aggressions as white people retaliating against Black people for claiming white privilege parallels Price Waterhouse’s framing of the rejection of Ann Hopkins as a partner in an accounting firm as punishing a woman for claiming male privilege. The article then engages with the history of the campaign for inclusion of “sex” in public accommodations laws. The article describes how the lessons learned from the history of prohibiting discrimination against sex in public spaces can help us to understand #LivingWhileBlack aggressions—punishing Black people attempting to live their “race in public.” In proposing a sex discrimination touchstone as one among many salient touchstones for analyzing #LWB aggressions, the article builds on the idea of a symbiotic dynamic through which multiple systems of subordination work together. 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 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.