NYU Law School
Yale Law School, Public Law Research Paper No. 14
This article considers how the gay civil rights movement might enrich an American civil rights discourse predicated on the paradigm classifications of race and sex. It posits that gays may be able to contribute a more robust theory of the relationship between assimilation and discrimination, a theory which takes assimilation to be an effect of discrimination as well as an evasion from it. The article maintains that gays may be more attuned to the discriminatory aspects of assimilation because they are capable of assimilating in more ways than racial minorities or women. Either in fact or in the imagination of others, gays can assimilate in three ways - conversion (in which the underlying identity is changed), passing (in which the underlying identity is retained but masked), and covering (in which the underlying identity is retained and disclosed, but made easy for others to disattend).
The article first elaborates this taxonomy of assimilationist demands in the context of orientation. It maintains that through the efforts of the gay rights movement, assimilationist demands against gays have shifted in emphasis from conversion through passing toward covering. At the same time, however, the article questions whether these shifts in emphasis are substantive or merely rhetorical, positing that covering demands which target traits or behaviors that are constitutive of identity are tantamount to conversion demands. Deploying the postmodern theory of status performativity, the article suggests that a commitment to protect certain statuses might also require the protection of traits or behaviors that might partially constitute those statuses.
The article then applies this theory of assimilation-as-discrimination to the contexts of race and sex. It demonstrates that antidiscrimination discourse often distinguishes between racial minorities and women on the one hand and gays on the other, in part because of the relative inability of racial minorities and women to assimilate into mainstream society. The article maintains, however, that racial minorities and women are not as immune to assimilationist demands as their general inability to convert or to pass might suggest, as such groups are routinely asked to cover. Indeed, the article argues that enforced covering is the contemporary form of discrimination to which racial minorities and women remain the most vulnerable. The article thus contends that resistance to the covering demand in the legal and political spheres is an issue around which racial minorities, women, and gays, might make common cause.
working papers series
Date posted: February 9, 2002
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