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http://ssrn.com/abstract=1104538
 
 

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Born that Way? Not a Choice?: Problems with Biological and Psychological Arguments for Gay Rights


Edward Stein


Yeshiva University - Benjamin N. Cardozo School of Law

March 10, 2008

Cardozo Legal Studies Research Paper No. 223

Abstract:     
Many people, especially legal and political advocates for gay rights, believe that it would be good for gay rights if sexual orientations were innate, inborn, or not chosen. The central legal context for the "born that way" and "not a choice" arguments for gay rights is the immutability factor in equal protection jurisprudence. Although many in the legal academy have argued against the significance of immutability, recently two state supreme courts, as part of denying claims for the legal recognition of same-sex relationships, invoked immutability as a condition for heightened scrutiny under the Equal Protection Clause and held that the gay plaintiffs had failed to satisfy this condition. This Article argues that there are serious problems with legal, ethical, and political arguments for gay rights that make use of scientific theories of how sexual orientations develop. On this basis and others, this Article concludes that advocates should avoid biological, psychological, and other scientific arguments for gay rights.

Number of Pages in PDF File: 76

Keywords: immutability, sexual orientation, gay rights, genetics, biology, psychology

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Date posted: March 10, 2008 ; Last revised: October 5, 2008

Suggested Citation

Stein, Edward, Born that Way? Not a Choice?: Problems with Biological and Psychological Arguments for Gay Rights (March 10, 2008). Cardozo Legal Studies Research Paper No. 223. Available at SSRN: http://ssrn.com/abstract=1104538 or http://dx.doi.org/10.2139/ssrn.1104538

Contact Information

Edward Stein (Contact Author)
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States
212-790-0269 (Phone)
212-790-0205 (Fax)

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