Sexual Orientation and Rights

Nicholas Bamforth

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351900850
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Debate about the rights of sexual minorities, whether individuals or members of same-sex couples, has become an important issue for legislatures and courts in many constitutional democracies. This volume collects together some of the more significant writings in the debate, and reflects a variety of perspectives: liberal, conservative, and radical. The topics covered include the meaning and importance of sexual freedom, gender roles, marriage and other significant partnerships, child care and adoption, the criminal law, employment, and expression and pornography. The volume also seeks to relate arguments about sexual orientation and rights to broader debates within feminist theory.

Part I
Organizing the Arguments

[1]
Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability

Janet E. Halley*

Three recent scientific reports that purport to show a biological basis for homosexuality have changed the face of pro-gay equal protection litigation by making the argument from immutability more attractive. Professor Janet E. Hailey critiques these studies and their reception in legal culture. Because immutability is not a requirement for successful pro-gay litigation, moreover; Professor Hailey contends that pro-gay litigators who invoke the argument from immutability do so not only at their option, but at the risk of misrepresenting and dividing the community they hope to represent. She argues that pro-gay legal argument should focus instead on common ground that adequately represents the self-conceptions of both pro-gay essentialists and pro-gay constructivists. And she suggests just such a common ground for more effectively articulating pro-gay equal protection arguments.

INTRODUCTION

I. THE ARGUMENT FROM IMMUTABILITY

II. THE TOPOGRAPHY OF DISAGREEMENT

A. Choice

B. Genes

C. Autobiographies

D. Litigation

III. THE STUDIES

A. Recent Experiments

B. The Brain Study

C. The Twins Study

1. The “bisexuals”

2. The nonresponsive brothers

3. One autobiography

IV. COMMON GROUND

A. Coming to Terms with Essentialism and Constructivism

1. Essentialisms

2. Constructivisms

3. Impure identity

B. Finding Common Ground

1. The lay of the land.

2. Choosing a place to stand.

C. Arguing for Equal Protection on Common Ground

CONCLUSION

INTRODUCTION

The claim that sexual orientation is biologically determined has become increasingly salient in legal arguments that lesbians and gay men comprise a minority population warranting meaningful constitutional protection. According to this argument, gay men and lesbians constitute a suspect class under the Equal Protection Clause in part because the characteristic that differentiates them, and that constitutes the basis of discrimination against them, is immutable.

A series of recent scientific reports,¹ and the way that legal culture has received them, have made biological causation theories far more plausible. These studies have stimulated media and activist speculation that, confronted with scientific proof of the immutability of homosexuality, judges will be forced to deem gay men and lesbians a suspect class.²

At the same time, remarkable changes in identity politics over the past decade, most notably the emergence of queer identity and of an unrepentant movement of self-described bisexuals, have complicated gay and lesbian communities.³ New voices are heard, offering a sustained, community-based attack on the idea that subordinated communities should endorse the identities through which superordinated groups suppress them. Many gay men, lesbians, bisexuals, and queers reject the view that they constitute a minority distinguished by a stable, natural identity.

Two new theoretical developments support this attack. The postmodern critique of liberal explanations of the self posits that culture, not human nature, gives humans their sexual orientations.⁴ In a distinct but related critical setting, cultural critics of science argue that science is part of culture, not its opposite.⁵ Together, these political and intellectual movements have produced pro-gay constituencies eager to deny the claim that homosexuality is biologically caused or to assert that the biological status of sexual orientation is an answer to the wrong question.

The result is the celebrated essentialism/constructivism debate—or, more accurately, impasse. This article attempts to get beyond that impasse by going around it. It argues that pro-gay legal argument should not focus on positive claims of biological causation, or on pure constructivist claims that homosexuality is a historically contingent artifact, but should repair to a common middle ground. On that middle ground, sexual orientation, no matter what causes it, acquires social and political meaning through the material and symbolic activities of living people. This is the arena of representation, the arena in which we signify to one another who we are, negotiate the norms attaching to that, and arrange and rearrange power along the sexual orientation hierarchy.

Part I examines the doctrinal, jurisprudential, and strategic history of the argument from immutability in general and its use in cases challenging discrimination against gay men, lesbians, and bisexuals. It concludes that immutability is not a requirement for suspect class status and is unlikely to become one, so that pro-gay litigators who invoke the argument from immutability do so at their option. Part II describes the pro-gay argument from immutability as a form of pro-gay essentialism, and notes that pro-gay constructivists vigorously oppose both. It maps a topography of this disagreement among pro-gay advocates, and concludes that we should not attempt to resolve this disagreement in litigation. Part III turns to the scientific studies that have been cited in some gay-rights cases as conclusive proof that homosexual orientation is immutable. A close reading of two of those studies argues, first, that they have been absorbed into the broader culture as scientific confirmations that homosexual orientation should be understood as essentialist rather than constructivist, while in fact the studies incorporate essentialist models of sexual orientation as untested hypotheses; and second, that the more constructivist aspects of sexual orientation identity excluded from the studies are nevertheless important to the social subordination of gay men, lesbians, and bisexuals. Finally, Part IV seeks out common ground from which to build legal arguments that adequately represent the self-conceptions of pro-gay essentialists and pro-gay constructivists. It proceeds by disaggregating essentialism and constructivism, mapping the significant territory of their overlap in sexuality studies, and locating the optimal places in that conceptual zone for articulating equal protection arguments.

This article argues that pro-gay legal arguments from biological causation should be abandoned. Instead, pro-gay essentialists and constructivists should design legal strategies that emphasize the political dynamics that inevitably attend sexual orientation identity—no matter how it is caused.

I. THE ARGUMENT FROM IMMUTABILITY

Gay rights advocates writing about equal protection before 1986, when the Supreme Court issued its baneful decision in Bowers v. Hardwick,⁶ echoed a reassuring refrain: Since homosexuality is immutable, it qualifies as a suspect classification, or at least meets one of several criteria for suspect class status under equal protection analysis. Most often this argument depended on an empirical claim that sexual orientation is either hardwired into us at birth or branded upon us so soon thereafter that it cannot be altered.⁷

These arguments accepted an invitation apparently issued by a Supreme Court plurality in Frontiero v. Richardson,⁸ which concluded that discrimination based on sex warranted strict scrutiny.⁹ The plurality opinion stated a number of discrete reasons for its decision that sex discrimination was constitutionally sensitive: “a long and unfortunate history of sex discrimination” perpetuated through “stereotyped distinctions between the sexes”; the “high visibility of the sex characteristic” exposing women to “pervasive… discrimination”; and the fact that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.”¹⁰

Two features of the Court’s subsequent treatment of immutability were accurately foreshadowed in Frontiero. First, immutability is not a requirement but afactor.¹¹ Second, that factor is not immutability alone but immutability-plus. The careless reader of Frontiero might well suppose that the plurality had completed its analysis of immutability when it observed that discrimination against women based on their sex “would seem to violate ‘the basic concept of our system that legal burdens should bear some relationship to individual responsibility.’”¹² But there is more. The Court went on to note that many immutable characteristics—its examples were intelligence and physical disability—form the basis of discriminatory decisions that are widely regarded as unproblematic.¹³ The Court’s examples are a little dubious—one wonders whether intelligence is unequivocally and certainly immutable, and discrimination based on physical disability exemplifies not the class of unproblematic discriminations but the ones that seem to require more probing analysis than a mere determination that they turn on an immutable characteristic. What makes some discriminations based on physical disability acceptable, and others unacceptable, is their relatedness to the particular purpose at hand. Nearsightedness may legitimately disqualify potential fighter pilots but not potential law professors.¹⁴ Recognizing these problems at the level of doctrine, the Frontiero plurality determined that heightened scrutiny was needed in cases involving sex discrimination because “the sex characteristic,” in addition to being immutable, “frequently bears no relation to ability to perform or contribute to society.”¹⁵ Frontiero thus expresses a conclusion that, when a characteristic is both immutable and unrelated to the legitimate purposes at hand, discriminations based on it may suggest unfairness.¹⁶

John Hart Ely has argued that this “relevance” criterion, once invoked to cure the defects of immutability as a test for unacceptable inequality, promptly swallows the immutability factor whole:

[C]lassifications based on physical disability and intelligence are typically accepted as legitimate, even by judges and commentat...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Organizing the Arguments
• Part II Substantive Progressive Arguments
• Part III Conservative Arguments and Responses to Them
• Part IV Radical Arguments
• Name Index