There are hot discussions on other blogs on petition asking the APA to treat institutions that discriminate on the basis of sexual behavior as violators of the APA's policy against discrimination on the basis of sexual orientation. There is also a counter-petition to maintain current APA practice and arguing that there is a distinction between orientation- and behavior-based discrimination.
It seems obvious to me that one can discriminate on the basis of a behavior without thereby discriminate on the basis of the tendency towards that behavior. Consider three cases:
- Institution A prohibits its employees from engaging in same-sex sexual activity, because on Christian religious grounds it believes such activity to be immoral.
- Institution B prohibits its employees from having sex, because on gnostic religious grounds it believes sex to be always immoral.
- Institution C prohibits its employees from having intercourse with members of the opposite sex, because they are convinced by Andrea Dworkin's arguments that opposite-sex intercourse is always wrong.[note 1]
A policy is not discriminatory against a group G simply because it is harder, though still possible (and maybe even if impossible), for members of G to follow the rules, unless the rules were put in place precisely to make things harder for members of G. It is easier for those raised in an English-speaking family to speak English well. But requiring that faculty speak English well does not discriminate against those who were not raised in an English-speaking family, unless the rules on English speech were put into place precisely to make things harder for such people.
Now Institution B probably did not act in order to make things specifically harder for persons of non-asexual orientation. The concern seems very directly to be with behavior. Nor is Andrea Dworkin wishing to penalize heterosexuals; she just thinks that the geometry and social meaning of heterosexual intercourse is derogatory to women. Likewise, the traditional Christian arguments are not against homosexual orientation (while there are hints that some traditional Christian authors were aware of the phenomenon of homosexual orientation, they are much more concerned with behavior) but against behavior, and so, barring evidence of insincerity on the part of the institution, Institution A is probably not discriminating against people of homosexual orientation in this policy. (There may be discrimination based on homosexual orientation on an informal level, but that's a different question.)
So, none of the three institutions discriminates on the grounds of sexual orientation. There is a further question to ask, namely whether what they are doing is reasonable. But that would require examining the actual arguments against homosexual behavior, sex in general, and heterosexual intercourse, respectively. And the answer would not be directly relevant to the question whether there is discrimination on the grounds of sexual orientation.
Here is a quick test for whether x discriminates on the grounds of Y. If x's subjective reasons for her action would be no different were x not to know about the existence of Y, then x is not discriminating on the grounds of Y. Discrimination is an intentional behavior. Now, in Case A, it seems very likely that this test applies: the subjective reasons for discriminating on the basis of homosexual behavior would be equally present if the people running the institution didn't know about sexual orientation. Thought experiment: Would a Christian institution at a time when people didn't generally have the concept of sexual orientation be any less likely to discriminate on the basis of sexual behavior? Surely not. If anything, the contrary seems true.