Living in New York, D.C., or San Francisco, many gays and lesbians might be excused for thinking we’ve all but won the civil rights battle. Except for some tenacious Middle America pockets that are expected to crumble as soon as the upcoming generation, raised on “Will and Grace,” MTV and “Brokeback Mountain,” takes over, gays and lesbians are enjoying an unprecedented openness, safety, and acceptance.
Kenji Yoshino, a gay, Asian-American law professor at Yale, in his new book “Covering,” calls this a dangerous and naive belief. He demonstrates quite ably that here is an assumption among mainstream, heterosexual society, gays and lesbians—and all other minorities such as African Americans and the disabled—should cover, meaning mute or hide behavior and characteristics intrinsic to their status as minorities. And this expectation is holding back every minority from full participation in our society.
This social pressure differs from the demands put on minority groups in the past. In the great American melting pot of a hundred years ago, new arrivals were expected to completely adopt the language and customs of their new country. Even African Americans were pressured to adopt all aspects of white culture. This conversion was mirrored in the way gays and lesbians repressed their attractions and even went through psychotherapy to become heterosexual.
As the country has become more pluralistic, and minorities more assertive, this conversion demand changed to a passing demand. It didn’t matter how one acted in private, as long as their public lives still conformed to the white, heterosexual norm. Yoshino says a perfect example is the military’s Don’t Ask, Don’ t Tell policy.
But now, Yoshino argues, in this age of civil rights and tolerance, there is what he calls a covering demand—a term borrowed from sociologist Erving Goffman. For gay people, this means limiting the exuberance of their orientation. For African Americans it means having to dress more conservatively and more expensively than whites just to be treated equally. But the covering demand is also a hypocritical stance because it demands that gays and other minorities refrain from forms of self-expression completely permissible to straight society.
“The covering demand is the final symptom of gay inequality, and it is the challenge that faces the gay rights movement in the future,” Yoshino writes.
Like any good lawyer, Yoshino marshals the facts.
Courts have become more willing to protect someone’s employment if it is threatened simply by their minority status. However, Yoshino describes several chilling cases that demonstrate when someone “acts” a certain way because of their minority status, such as a lesbian marrying her partner or a gay man expressing physical affection to his live-in boyfriend, courts are unwilling to help them, because those acts are considered voluntary rather than immutable.
Time and again, according to Yoshino, straight or “straight-acting” has won in court over “gay-acting.” Child custody cases are usually decided in favor of the heterosexual parent. A particular Missouri case barred a gay father from taking his children to any church that accepted homosexuality or performed gay marriages. A ruling as recently as 1998 in Missouri awarded custody of children to a lesbian because her children were unaware of her sexual orientation and it was demonstrated she did not engage in affectionate behavior with her partner in front of the children.
“Courts are using the vulnerability all parents experience through their children to force gays to surrender the basic rights of citizenship, such as the rights of political advocacy or association.”
The most egregious example is the termination in 1991 of Robin Shahar, a staff attorney for the state of Georgia, because she married another woman. Her boss, the state’s attorney general, Michael Bowers—who in 1986 successfully defended the state’s sodomy law before the U.S. Supreme Court—argued in the ensuing lawsuit that he fired Shahar not because she was a lesbian, but because her marriage would have put her in conflict with that sodomy law, which he said she was charged with enforcing. In fact, Shahar’s sexual orientation was known to her colleagues and superiors. She was terminated only after she let slip she was getting married—simply because she refused to cover.
Yoshino explains that the failure of courts to protect minorities from such covering demands—and he also demonstrates with examples constraints pose a burden on African Americans, the disabled, women, and religious groups—reflects a hesitation to assign exceptions to every aggrieved group that comes before the courts. Viewing the increasingly heterogeneous U.S. population, judges view this general approach as the only way the law can be rescued from a miasma of special considerations.
“The Supreme Court has explicitly cited identity proliferation to justify limiting its protections,” he writes. “Americans are sick to death of identity politics; the courts are merely following suit.”
Until judges apply what Yoshino calls the “liberty” principle to such cases will a person’s character not be a liability in court, and will jurists find a solution that allows free expression in a person’s life without swelling local statute books. As an example, he cites the U.S. Supreme Court’s 2003 Lawrence v Texas decision that overturned the nation’s sodomy laws. Instead of ruling along narrow lines, overturning sodomy laws that target gay people, the Supreme Court affirmed that the liberty of any individual protects them from intrusive regulation of their intimate relations with other consenting adults.
What Yoshino also excels in is providing all this case law through an engaging context. He melds his own gay and Japanese-American experiences into his discussion of civil rights to give the book a fresh and immediate perspective.
Lawyers and those closely involved with pro-gay legislation might quibble with some of Yoshino’s statements. He writes often of workplace protections for gays and lesbians as if most jurisdictions extended such guarantees, which is downright misleading. Such protections are inconsistent, far from extensive, and hardly advancing.
There is also a growing view in the law that transsexuals and individuals who do not conform to gender roles are protected because of their gender. For example, in a number of key rulings, effeminate men have been protected from firing due to their gender identity expression. To do so would violate sex-discrimination laws because his termination was for not conforming to what is expected of his gender. These individuals are winning cases despite the fact they don’t cover.
Another point weakening Yoshino’s contention that failing to cover is punished is the age of the cases he cites as evidence. Egregious as they are, many date from the 1980s and early ‘90s. Certainly, he could have found more recent examples to bolster his arguments. It’s hard to believe that there haven’t been later rulings either in favor or against non-covering individuals.
Finally, Yoshino calls for “reason forcing conversations” rather than lawsuits to beat back the covering demand.
“People confronted with demands to cover should feel emboldened to seek a reason for that demand,” he writes. “It is only when we leave the law that civil rights suddenly stops being about particular groups and starts to become a project of human flourishing in which we all have a stake.”
Idealistic words, but hardly a guaranteed remedy. One can imagine the results of such conversations when simple acts such as marriage and child-rearing are considered off-limits to gay people by most of the American population. What conversation would have convinced Texas legislators or voters to remove their sodomy laws allowing policemen to enter a gay man’s home and arrest him for having sex with his partner of ten years?
Sometimes, people have to fight.