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How judges decide: lesbian/gay identity and social cognition

Todd Brower (Western State University College of Law, Fullerton, California, USA)

Equality, Diversity and Inclusion

ISSN: 2040-7149

Article publication date: 8 November 2011




Borrowing from the literature on social cognition and schema theory, the purpose of this paper is to examine sexual orientation and sex discrimination, to critique and refine that doctrine, particularly when traditional gender roles are enforced in workplaces. The insights of cognitive schemas on lesbian and gay identity are employed to link models of judicial decision making and gender/sexual orientation.


Methodologically, the paper is located in the sociolegal tradition, but also uses case analysis to supplement and advance its thesis. Because US nondiscrimination law distinguishes between sexuality and gender discrimination, it provides a unique laboratory to critique not only American law, but the structure of nondiscrimination law generally.


Judges' and others' schemas of lesbian and gay men suggest explanations for the analytical confusion in nondiscrimination law. Additionally, the paper's specific findings both supplement and question aspects of extant models of judicial decision making and gender/sexuality.


Social cognition framework enables judges and commentators to reconceptualize facts and relevant doctrine in gender and sexual orientation discrimination cases and to critique some fundamental assumptions of nondiscrimination law. Further, because the paper bridges judicial decision making and gender/sexuality, researchers in those areas can use this analysis of a specific legal context to provide additional insights into how those models work and their underlying, hidden assumptions. This is a conference paper based on this author's work on schema theory and sexual orientation identity in nondiscrimination law.



Brower, T. (2011), "How judges decide: lesbian/gay identity and social cognition", Equality, Diversity and Inclusion, Vol. 30 No. 8, pp. 633-650.



Emerald Group Publishing Limited

Copyright © 2011, Emerald Group Publishing Limited

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