Thursday, December 30, 2010

Gay Covering - "Covering: The Hidden Assault on our Civil Rights" - by Kenji Yoshino

Unlike most racial minorities, women, and individuals with disabilities, most gays have (in fact or in the imagination of others) a panoply of options for assimilation. These forms of assimilation include conversion, passing, and covering. The history of gay rights can be retold as a history of
resistance to these three kinds for assimilation.

Through the middle of the twentieth century, gays were routinely asked to convert to heterosexuality, whether through lobotomies, electroshock therapy, or psychoanalysis. As the gay rights movement gained strength, the demand to convert gradually ceded to the demand to pass. This shift can be seen in the military’s adoption in 1993 of the “Don’t ask, don’t tell” policy, under which gays are permitted to serve so long as they agree to pass. Finally, at millennium’s turn, the demand to pass is giving way to the demand to cover -- gays are increasingly permitted to be gay and out so long as they do not “flaunt” their identities. The contemporary resistance to gay marriage can be understood as a covering demand: Fine, be gay, but don’t shove it in our faces.

Gays routinely cover along all four axes: appearance (“acting straight”); affiliation (not making references to gay culture); activism (avoiding the charge of being militant or strident about gay rights); and association (eschewing public displays of same-sex affection)...
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"Covering: The Hidden Assault on our Civil Rights" 
A conversation with author Kenji Yoshino about Yoshino's book. 
April 20, 2006 – Charlie Rose
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The Pressure to Cover
By Kenji Yoshino,
January 15, 2006 – The New York Times

When I began teaching at Yale Law School in 1998, a friend spoke to me frankly. "You'll have a better chance at tenure," he said, "if you're a homosexual professional than if you're a professional homosexual." Out of the closet for six years at the time, I knew what he meant. To be a "homosexual professional" was to be a professor of constitutional law who "happened" to be gay. To be a "professional homosexual" was to be a gay professor who made gay rights his work. Others echoed the sentiment in less elegant formulations. Be gay, my world seemed to say. Be openly gay, if you want. But don't flaunt.

I didn't experience the advice as antigay. The law school is a vigorously tolerant place, embedded in a university famous for its gay student population. (As the undergraduate jingle goes: "One in four, maybe more/One in three, maybe me/One in two, maybe you.") I took my colleague's words as generic counsel to leave my personal life at home. I could see that research related to one's identity referred to in the academy as "mesearch" could raise legitimate questions about scholarly objectivity…

The New Discrimination

In recent decades, discrimination in America has undergone a generational shift. Discrimination was once aimed at entire groups, resulting in the exclusion of all racial minorities, women, gays, religious minorities and people with disabilities. A battery of civil rights laws like the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 sought to combat these forms of discrimination. The triumph of American civil rights is that such categorical exclusions by the state or employers are now relatively rare.

Now a subtler form of discrimination has risen to take its place. This discrimination does not aim at groups as a whole. Rather, it aims at the subset of the group that refuses to cover, that is, to assimilate to dominant norms. And for the most part, existing civil rights laws do not protect individuals against such covering demands. The question of our time is whether we should understand this new discrimination to be a harm and, if so, whether the remedy is legal or social in nature.

Consider the following cases:

• Renee Rogers, an African American employee at American Airlines, wore cornrows to \work. American had a grooming policy that prevented employees from wearing an allbraided hairstyle. When American sought to enforce this policy against Rogers, she filed suit, alleging race discrimination. In 1981, a federal district court rejected her argument. It first observed that cornrows were not distinctively associated with African Americans, noting that Rogers had only adopted the hairstyle after it "had been popularized by a white actress in the film '10.' " As if recognizing the unpersuasiveness of what we might call the Bo Derek defense, the court further alleged that because hairstyle, unlike skin color, was a mutable characteristic, discrimination on the basis of grooming was not discrimination on the basis of race. Renee Rogers lost her case.

These five cases represent only a fraction of those in which courts have refused to protect plaintiffs from covering demands. In such cases, the courts routinely distinguish between immutable and mutable traits, between being a member of a legally protected group and behavior associated with that group. Under this rule, African Americans cannot be fired for their skin color, but they could be fired for wearing cornrows. Potential jurors cannot be struck for their ethnicity but can be struck for speaking (or even for admitting proficiency in) a foreign language. Women cannot be discharged for having two X chromosomes but can be penalized (in some jurisdictions) for becoming mothers. Although the weaker protections for sexual orientation mean gays can sometimes be fired for their status alone, they will be much more vulnerable if they are perceived to "flaunt" their sexuality. Jews cannot be separated from the military for being Jewish but can be discharged for wearing yarmulkes.

This distinction between being and doing reflects a bias toward assimilation. Courts will protect traits like skin color or chromosomes because such traits cannot be changed. In contrast, the courts will not protect mutable traits, because individuals can alter them to fade into the mainstream, thereby escaping discrimination. If individuals choose not to engage in that form of selfhelp, they must suffer the consequences.

The judicial bias toward assimilation will seem correct and just to many Americans. Assimilation, after all, is a precondition of civilization wearing clothes, having manners and obeying the law are all acts of assimilation. Moreover, the tie between assimilation and American civilization may be particularly strong. At least since Hector St. John de Crèvecoeur's 1782 "Letters from an American Farmer," this country has promoted assimilation as the way Americans of different backgrounds would be "melted into a new race of men." By the time Israel Zangwill's play "The Melting Pot" made its debut in 1908, the term had acquired the burnish of an American ideal. Theodore Roosevelt, who believed hyphenations like "Polish American" were a "moral treason," is reputed to have yelled, "That's a great play!" from his box when it was performed in Washington. (He was wrong it's no accident the title has had a longer run than the play.) And notwithstanding challenges beginning in the 1960's to move "beyond the melting pot" and to "celebrate diversity," assimilation has never lost its grip on the American imagination…
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Other Writings
by Kenji Yoshino

Related links:

California Prop 8 | "The Best Argument Against Gay Marriage - And why it fails." - By Kenji Yoshino, December 13, 2010 – Slate Magazine

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