Disrupting Sexual Categories of Intimate Preference
40 Pages Posted: 15 Jan 2010 Last revised: 15 Apr 2015
Date Written: 2010
Society tends to treat a person's sexual orientation and intimate preferences as if those concepts are static and immutable. People regularly divide themselves into binary gay and straight categories, and similarly seek masculine or feminine qualities in an appropriately sexed person. These intimate preferences occupy a uniquely private position in society, and the characteristics to which people claim attraction are thought so personal as to be sacred. In turn, we resist characterizing our intimate preferences as discrimination despite the tangible harms that befall those who are disproportionately excluded from romantic opportunities. But individual discriminatory intimate practices do not necessarily imply personal culpability; accepting that our intimate preferences can constitute discrimination, this project seeks to locate a source in law and society.
This Article applies Professor Vicki Schultz's disruption model of anti-discrimination -- which seeks to identify and disrupt difference-producing dynamics that stem from institutional actors -- to the realm of intimate and erotic desire. The disruption model as applied in this uniquely personal context helps reveal the mechanisms by which our preferences can be institutionally and socially constructed. It helps to explain how institutional actors define and hierarchize conceptions of sex, masculinity, femininity, and gendered racial expressions, and demonstrates how we internalize, eroticize, and pass on those desired traits.
By identifying sites at which the law could and should cease the process of creating and assigning value to certain categories and characteristics, this Article seeks to empower individuals and broaden the categories and characteristics that we think of as desirable. While every decision we make regarding those with whom we choose to be intimate is biased, partial, and thus “discriminatory” in the traditional sense, to ascribe individual fault for our preferences is in vain. Only when law and society ceases to create and reify rigid social categories and their attendant meanings will we be free to exercise real intimate choice.
Keywords: sexual orientation, gender, intimate preferences, employment discrimination, marriage equality, social construction, disruption
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