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

Abstract

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 and examines it through the lens of two sex discrimination law doctrines: sex stereotyping and protections against sex discrimination in public accommodation laws. It asks 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 article contends 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.” 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. Conceptualizing #LivingWhileBlack aggressions in this way creates a link to sex stereotyping and thus to the body of sex discrimination law that both recognizes and prohibits sex stereotyping. 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. It proposes a “touchstone” theory of inquiry for understanding #LivingWhileBlack aggressions. This theory envisions multiple “touchstones”—legal, political, and cultural—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. 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, in particular, the connection between their own oppression and the oppression of Black people, and thus create the opportunity for coalition building.