Sexual Orientation and Rights

The International Library of Essays on Rights

Series Editor: Tom Campbell

Titles in the Series:

Sexual Orientation and Rights Genocide and Human Rights

Nicholas Bamforth Mark Lattimer

Rights: Concepts and Contexts Animal Rights

Brian Bix and Horacio Spector Clare Palmer

Disability Rights Gender and Rights

Peter Blanck Deborah L. Rhode and Carol Sanger

The Right to a Fair Trial Economic, Social and Cultural Rights

Thom Brooks Manisuli Ssenyonjo

Global Minority Rights Health Rights

Joshua Castellino Michael J. Selgelid and Thomas Pogge

Indigenous Rights Citizenship Rights

Anthony J. Connolly JoShaw

Civil Rights and Security Theories of Rights

David Dyzenhaus CL. Ten

Group Rights Bills of Rights

Peter Jones Mark Tushnet

Human Rights and Corporations Environmental Rights

David Kinley Steve Vanderheiden

Prisoners' Rights The Right to Bodily Integrity

John Kleinig A.M Viens
Sexual Orientation and Rights

Edited by

Nicholas Bamforth
The Queen s College, University of Oxford, UK
First published 2014 by Ashgate Publishing

Published 2016 by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright © 2014 Nicholas Bamforth. For copyright of individual articles please refer
to the Acknowledgements.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or
by any electronic, mechanical, or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval system, without permission
in writing from the publishers.

Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for
identification and explanation without intent to infringe.

Wherever possible, these reprints are made from a copy ofthe original printing, but these can themselves
be of very variable quality. Whilst the publisher has made every effort to ensure the quality ofthe reprint,
some variability may inevitably remain.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library.

Library of Congress Control Number: 2013957247

ISBN 9781409430407 (hbk)

Contents

Acknowledgements vii
Series Preface ix
Introduction xi

PART I ORGANIZING THE ARGUMENTS

3 Janet E. Halley (1994), 'Sexual Orientation and the Politics of Biology:

A Critique of the Argument from Immutability', Stanford Law Review, 46,
pp.503-68. 3

PART II SUBSTANTIVE PROGRESSIVE ARGUMENTS

2 David A.J. Richards (1979), 'Sexual Autonomy and the Constitutional Right
to Privacy: A Case Study in Human Rights and the Unwritten Constitution' ,
Hastings Law Journal, 30, pp. 957-1018. 71
3 Ronald Dworkin (1989), 'Liberal Community', California Law Review, 77,
pp. 479-504. 133
4 Edwin Cameron (1993), 'Sexual Orientation and the Constitution: A Test Case
for Human Rights', South African Law Journal, 110, pp. 450-72. 159
5 William N. Eskridge, Jr (1999), 'Hardwick and Historiography', University of
Illinois Law Review, pp. 631-85. 183
6 Editorial Note (1985), 'The Constitutional Status of Sexual Orientation:
Homosexuality as a Suspect Classification', Harvard Law Review, 98,
pp. 1285-309. 239
7 Robert Wintemute (1997), 'Recognising New Kinds of Direct Sex Discrimination:
Transsexualism, Sexual Orientation and Dress Codes' , Modern Law Review, 60,
pp.334-59. 265
8 Leslie Green (2000), 'Pornographies', Journal of Political Philosophy, 8,
pp.27-52. 291
9 Shannon Gilreath (2011), 'PornographylDeath: The Problem of Gay Pornography
in a Straight Supremacist System', in The End of Straight Supremacy: Realizing
Gay Liberation, New York: Cambridge University Press, pp. 169-203. 317

PART III CONSERVATIVE ARGUMENTS AND RESPONSES TO THEM

10 John M. Finnis (1995), 'Law, Morality, and "Sexual Orientation''', Notre Dame
Journal ofLaw, Ethics & Public Policy, 9, pp. 11-39. 355
vi Sexual Orientation and Rights

11 Andrew Koppelman, (1997), 'Is Marriage Inherently Heterosexual?',

American Journal ofJurisprudence, 42, pp. 51-95. 385

PART IV RADICAL ARGUMENTS

12 Ruthann Robson (1992), 'Developing Lesbian Legal Theory'; 'Sexual Privacy';

'Discourses of Discrimination', in Lesbian (Out)Law: Survival under the
Rule of Law, New York: Firebrand Books, pp. 15-26,63-71,81-90. 433
13 Carl F. Stychin (1995), 'Essential Rights and Contested Identities: Sexual
Orientation and Equality Rights Jurisprudence in Canada', Canadian Journal of
Law and Jurisprudence, 8, pp. 49-66. 465
14 Judith Butler (2002), 'On Being Beside Oneself: On the Limits of Sexual
Autonomy', in Nicholas Bamforth (ed.), Sex Rights: The Oxford Amnesty Lectures,
Oxford: Oxford University Press, pp. 48-78. 483

Name Index 515

Acknowledgements

Ashgate would like to thank the researchers and the contributing authors who provided copies,
along with the following for their permission to reprint copyright material.

The California Law Review for the essay: Ronald Dworkin (1989), 'Liberal Community',
California Law Review, 77, pp. 479-504. Copyright © 1989 by the California Law Review,
Inc.

Cambridge University Press for the essay: Shannon Gilreath (20 II), 'Pornography/Death:
The Problem of Gay Pornography in a Straight Supremacist System', in The End of Straight
Supremacy: Realizing Gay Liberation, New York: Cambridge University Press, pp. 169-203.
Copyright © 2011 Shannon Gilreath, published by Cambridge University Press, reproduced
with permission.

Harvard Law Review Publishing Association for the essay: Editorial Note (1985), 'The
Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification',
Harvard Law Review, 98, pp. 1285-309.

JUTA and Company Ltd for the essay: Edwin Cameron (1993), 'Sexual Orientation and the
Constitution: A Test Case for Human Rights', South African Law Journal, 11 0, pp. 450-72.

Notre Dame Law Review for the essay: John M. Finnis (1995), 'Law, Morality, and "Sexual
Orientation''', Notre Dame Journal ofLaw, Ethics & Public Policy, 9, pp. 11-39. Copyright ©
1994 Notre Dame Law Review, University of Notre Dame. Reprinted with permission.

Oxford University Press for the essays: Andrew Koppelman, (1997), 'Is Marriage Inherently
Heterosexual?', American Journal ofJurisprudence, 42, pp. 51-95; Judith Butler (2002), 'On
Being Beside Oneself: On the Limits of Sexual Autonomy', in Nicholas Bamforth (ed.), Sex
Rights: The Oxford Amnesty Lectures, Oxford: Oxford University Press, pp. 48-78.

Ruthann Robson for the essay: Ruthann Robson (1992), 'Developing Lesbian Legal Theory';
'Sexual Privacy'; 'Discourses of Discrimination', in Lesbian (Out)Law: Survival under the
Rule of Law, New York: Firebrand Books, pp. 15-26, 63-71, 81-90. Copyright © 1992
Ruthann Robson.

School of Law, Stanford University for the essay: Janet E. Halley (1994), 'Sexual Orientation
and the Politics of Biology: A Critique of the Argument from Immutability', Stanford Law
Review, 46, pp. 503-68.

The University ofIllinois Law Review for the essay: William N. Eskridge, Jr (1999), 'Hardwick
and Historiography', University ofIllinois Law Review, pp. 631-85.
viii Sexual Orientation and Rights

The University of Western Ontario for the essay: Carl F. Stychin (1995), 'Essential Rights
and Contested Identities: Sexual Orientation and Equality Rights Jurisprudence in Canada',
Canadian Journal of Law and Jurisprudence, 8, pp. 49-66.

John Wiley and Sons for the essays: Robert Wintemute (1997), 'Recognising New Kinds of
Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes', Modern
Law Review, 60, pp. 334-59. Copyright © 1997 The Modern Law Review Ltd, Copyright
© 2003 John Wiley and Sons; Leslie Green (2000), 'Pornographies', Journal of Political
Philosophy, 8, pp. 27-52. Copyright © 2000 Blackwell Publishers.

Every effort has been made to trace all the copyright holders, but if any have been inadvertently
overlooked the publishers will be pleased to make the necessary arrangement at the first
opportunity.

Publisher's Note

The material in this volume has been reproduced using the facsimile method. This means we
can retain the original pagination to facilitate easy and correct citation of the original essays.
It also explains the variety of typefaces, page layouts and numbering.
Series Preface

Much of contemporary moral, political and legal discourse is conducted in terms of rights and
increasingly in terms of human rights. Yet there is considerable disagreement about the nature
of rights, their foundations and their practical implications and more concrete controversies
as to the content, scope and force of particular rights. Consequently the discourse of rights
calls for extensive analysis in its general meaning and significance, particularly in relation to
the nature, location and content of the duties and responsibilities that correlate with rights.
Equally important is the determination of the forms of argument that are appropriate to
establish whether or not someone or some group has or has not a particular right, and what
that might entail in practice.
This series brings together essays that exhibit careful analysis of the concept of rights
and detailed knowledge of specific rights and the variety of systems of rights articulation,
interpretation, protection and enforcement. Volumes deal with general philosophical and
practical issues about different sorts of rights, taking account of international human rights,
regional rights conventions and regimes, and domestic bills of rights, as well as the moral and
political literature concerning the articulation and implementation of rights.
The volumes are intended to assist those engaged in scholarly research by making available
the most important and enduring essays on particular topics. Essays are reproduced in full
with the original pagination for ease of reference and citation.
The editors are selected for their eminence in the study of law, politics and philosophy.
Each volume represents the editor's selection of the most seminal recent essays in English
on an aspect of rights or on rights in a particular field. An introduction presents an overview
of the issues in that particular area of rights together with comments on the background and
significance of the selected essays.

TOM CAMPBELL
Series Editor
Professorial Fellow, The Centre for Applied Philosophy and Public Ethics (CAPPE),
Charles Sturt University, Canberra
Introduction

Arguments about the legal rights of lesbians and gays - both as individuals and as members
of same-sex partnerships - are important in constitutional debate and litigation in many
jurisdictions. While liberalizing arguments often initially focus on ending the criminal
regulation of consenting sexual activity (sometimes using the language of tolerance), debate
tends generally to focus - whether its subject matter is sexual activity, non-discrimination
protections, expression or partnership rights - on substantive constitutional values or rights
like privacy, equality, autonomy and dignity, and sometimes raises questions about the
balance to be struck with competing rights like religious freedom and the roles of courts and
legislatures in achieving any balance.! Given the links between social conceptions of gender
and sexual orientation (and discrimination based on either or both), there are clearly also
overlaps between the law's treatment of and responses to each.

Organizing the Arguments

The Lesbian and Gay Studies Reader offers a useful starting point when considering sexual
orientation and rights. The editors categorize lesbian and gay studies as treating sex and
sexuality as 'a central category of analysis' and as 'informed by the social struggle for the
sexual liberation, the personal freedom, dignity, equality, and human rights of lesbians,
bisexuals, and gay men' (Abelove et al., 1993, p. XV).2 This implies that the study of sexual
orientation and law focuses on the relationship between the two. In one respect, though, such
an approach is too narrow. Given the deep and long-standing hostility directed at sexual
minorities in many societies, a full study also requires examination (if only to challenge
them) of normative arguments that are hostile. It is also problematical to organize analysis
of sexual orientation and rights based only on the subject matter of reformist arguments:
for analogous grounds are advanced for the decriminalization of consenting sexual relations,
anti-discrimination protections for sexual minorities and the legal recognition of same sex
relationships.
Robert Wintemute (1995, pp. 6-8) observes that within legal analysis, sexual orientation
can be thought of as relating, first, to the direction of a person's emotional or sexual attraction
and, second, to whether the emotional-sexual conduct they engage in is with persons of
the opposite sex, the same sex or both sexes. The term is sometimes also used to refer to
a person's identity - whether they define themselves as lesbian, gay or heterosexual - but
Wintemute (1995, pp. 8-9) notes that the law finds it hard to focus on such a loose feature. 3 As

See generally Bamforth, 2011a, 2012.

For two early empirical surveys of law and sexuality, see Honore (1978) and Rivera (1979).
For other definitions, see William N. Eskridge's organizing category of 'gaylaw' or 'gaylegal
jurisprudence' (1993a, pp. 1-2; 1996b, p. 2416, n. 17). See also Cameron, Chapter 4 in this volume,
p. 161, and Stychin, Chapter 13 in this volume, pp. 476-77.
xii Sexual Orientation and Rights

Michael Warner suggests, 'A lesbian and gay population ... is defined by multiple boundaries
that make the question who is and is not "one of them" not merely ambiguous but rather a
perpetually and necessarily contested issue' (1993, p. xxv). Two approaches to the idea of
sexual orientation - essentialism and constructionism - have been identified. For Diana Fuss,
essentialism is 'most commonly understood as a belief in ... the true essence of things, the
invariable and fixed properties [of] which defines the "whatness" of a given entity' (1990, p.
xi), whereas constructionism' insists that essence is in itself a historical construction' (1990,
p. 2).4 Steven Epstein argues that

Where essentialism took for granted that all societies consist of people who are either heterosexuals
or homosexuals (with perhaps some bisexuals), constructionists demonstrated that the notion of
'the homosexual' is a sociohistorical product, not universally applicable ... and where essentialism
would treat the self-attribution of a 'homosexual identity' as unproblematic - as simply the conscious
recognition of a true, underlying 'orientation' - constructionism focused attention on identity as ... the
consequence of an interactive process of social labelling and self-identification. (1990, pp. 250-51)5

Constructionists see social categories as unstable. People of the same sex may have had sex
together throughout history, but the acts and those who participated have been categorized
differently from one society and time period to another (Weeks, 1991, p. 15).6 As Jeffrey Weeks
(1990, p. 3) notes, homosexual behaviour may be universal, but 'a homosexual identity ... is
historically specific' (emerging in the global north and west since the 1950s).7 Furthermore,
the identity-related phenomenon of the 'Closet' means that 'not all homosexually inclined
people want to identify their minority status - or even see themselves as homosexual' (Weeks,
1991, p. 184). Undue reliance on the notion of a lesbian or gay identity may promote the
artificial idea that the identity is unitary and fixed, regardless of differences between those in
the group.
Many arguments about legal protections for lesbians and gays are associated with one of the
two types oftheory.8 For example, in Chapter I Janet E. Halley argues that claims that sexual
orientation deserves protection against discrimination because it is immutable presuppose the
idea of a fixed identity understood in essentialist tenns (p. 4):9 since constructionists reject
the idea of a general, trans-historical identity, arguments which involve such a notion can
only plausibly be advanced by essentialists. However, Halley also argues that weak as well as
strong versions of both theories are possib le and that as a litigation strategy concerning rights,
suppOliers of each should converge on moderate constructionism (accepting that a person's

See also Stein, 1990, pp. 325-26; Weeks, 1991, p. 95; Rubin, 1993, pp. 9-10.
See also Calhoun (1993), Ortiz (1993) and Sty chin, Chapter 13 in this volume, pp. 468ff.
See also D'Emilio, 1992, p. 163. For a practical example, see David Halperin's account of
sexual categorizations in classical Athens (1989, pp. 42, 50-51).
7 See also Halley, Chapter 1 in this volume, p. 5; Stychin, Chapter 13 in this volume, p. 470;
Halley, 1989, pp. 932--63; Halperin, 1989; Eskridge, 1993a, pp. 2-5, 1996a, pp. 174-75; Stychin, 1994.
See, for example, Calhoun, 'there is something to the constructivist-essentialist debate' (1993,
p. 1861) and Eskridge (1992, pp. 365-75; 1994, pp. 611, 634-35, 643--44; 1993b, esp. pp. 1433-34,
1485-510). For analysis of the role of the debate in feminist theory, see Munro (2007, chs 1 and 5).
9 Halley's definitions of essentialism and constructionism are perhaps less neutral than those
adopted here: see p. 16. See also Nussbaum (2010, pp. 118-22) and Stychin, Chapter 13 in this volume,
p.472.
 Sexual Orientation and Rights xiii

direction of sexual attraction is often effectively fixed, but that their perception of sexual
orientation is determined by their social surroundings) (pp. 46-68).10
As an alternative, some arguments about rights focus just on sexual acts. These may also be
question-begging. As Halley notes, 'we all tend to imagine that [the act of] sodomy is about
homosexuals, but ... many resolute homosexuals never do any acts that could be called sodomy,
while many resolute heterosexuals are, where sodomy is concerned, acid recidivists' (1993,
p. 1722).11 Act-focused arguments can either collapse into claims for general sexual liberty,
giving insufficient weight to the particular restrictions historically imposed on minorities,
or - conversely - unfairly single out gay men, forcing the debate back to identity. 12 An undue
focus on acts also cannot explain claims for the recognition of same-sex partnerships: for
partnerships are not just about (some do not even involve) sex.
In jurisdictions where decriminalization has occurred, the basis on which a sexual
orientation is identified will remain important - for example in determining whether laws
against discrimination are tied to acts, identities or both. Clarity is needed since a society
which respects individual rights must avoid prohibiting choices, including discriminatory
choices, without offering a clear basis for doing so. Furthermore, the application of any law
may well be unclear ifits basis is not understood.13 Halley's preference is thus to look' both to
identities andto acts as conceptual locations for opposition' to discrimination (1993, p. 1771).
Whatever the solution, arguments for legal rights for lesbians and gays must - to be watertight
- take a stance concerning the issues so far.
Questions concerning the extent to which law can and should influence social change (and
therefore what priority to give law reform),14 and whether legal change should be led by the
legislature or the judiciary, inevitably also arise in a constitutional democracy. For example,
William Eskridge (20 II, pp. 715-20) couples strong advocacy oflegal rights with a call for
judicial caution where intense but rather even social divisions between religion- and sexuality-
related identities are involved. 15 However, Martha Nussbaum notes that 'law took the lead,
and social change followed' in fighting racial discrimination in the USA (2010, p. 208), and
in relation to sexual orientation legal change may still send a valuable 'signal to the whole
society that liberty and equality are made for all' (2010, p. 209).16 Meanwhile, in the South
African Minister of Home Affairs v. Fourie case, Justice Sachs asserted that 'The hallmark of
an open and democratic society is its capacity to accommodate and manage difference[s] of
intensely-held views and lifestyles in a reasonable and fair manner.'!7 Issues of this sort arise
about any socially contentious topic, and their role in relation to lesbians and gays perhaps

10 See also Bamforth, 1997, pp. 79-84,240-50.

II See also Nussbaum, 1999, pp. 186-90.
12 As Halley argues happened in Bowers v. Hardwick (1986) 478 U.S. 186 (1993, pp. 1734--40,
1756, 1768-70). See also Bamforth (1997, pp. 239--40).
13 See, for example, Sedgwick, 1993, p. 57.
14 See, for example, Jeffery-Poulter (1991), Eskridge (1993a; 1994, pp. 631-35; I 997a; 1997b;
1997c; 2000a, p. 647; 2000b, pp. 1333ff; 200 la, p. 876; 2002; Chapter 5 in this volume), Stychin (1996),
Waaldijk (2001a, p. 439; 2001b; 2003, p. 85) and Wintemute (2005).
15 See also Eskridge, 1997d, pp. 2416, 2449-74.
16 See also pp. 161-62, 204ff.
17 (2006) I S.A. 524, para. [95].
xiv Sexual Orientation and Rights

underlines the important part played by debate about rights in contemporary constitutional
argument.

'Law-and-Neutrality' and 'Majoritarian' Arguments

If a society respects individual rights, the use of law must be properly justified. Legal rights
for sexual minorities thus need to rest on a defensible theory of justice and be legitimate in
terms of or even mandated by the constitution of the society concerned. ls
Michael Sandel suggests that justice-related arguments are of two types: the 'naive'
approach holds that 'the justice of laws depends on the moral worth of the conduct they
prohibit or protect', and the 'sophisticated' approach that it 'depends not on a substantive
moral judgment about the conduct at stake, but instead on a more general theory about the
respective claims of majority rule and individual rights' (1989, p. 521). 'Naive' positions
include the views that homosexuality is 'morally reprehensible and therefore worthy of
prohibition' and that prohibitions 'are unjust because the practices they prohibit are morally
permissible, indeed sometimes desirable' (Sandel, 1989, p. 521). In the 'sophisticated' camp,
some seek to avoid moral judgment about lesbian and gay sex, arguing instead that 'in a
democracy, political majorities have the right to embody in law their moral convictions'
whatever the consequences for individuals, while others claim that 'individuals have a right
to choose for themselves whether to engage in' particular sexual acts and that the 'justification
oflaws [must] be neutral among competing visions of the good life' (Sandel, 1989, p. 521).
The best-known debate involving 'sophisticated' positions is that between H.L.A. Hart
and Lord Devlin about the 1957 Wolfenden Committee recommendations. The Committee,
supported by Hart, recommended the partial decriminalization of gay sex in England and
Wales on the basis that 'Unless a deliberate attempt is made by society ... to equate the
sphere of crime with that of sin, there must remain a realm of private morality and immorality
which is, in brief and crude terms, not the law's business' (Wolfenden Report, 1957, para.
61; see further Hart, 1963). In opposition, Devlin (1965, ch. 1)19 argued that the criminal
law should enforce the morality of the majority.20 A society was held together by bonds of
common thought, including about morality, and the state could use law to protect morality,
just as it could be used to protect other things essential to society's existence. The test
for what was immoral was what the right-minded person, the so-called "person on the
Clapham omnibus" (who might base their judgments largely on feelings) (Devlin, 1965,
p. 17), was presumed to consider immoral.
The details of this debate are well known and need not be repeated here. 21 Contemporary
arguments about legal rights are commonly ofthe 'naive' variety, focusing on the substantive

18See further Wedgwood, 1999, p. 240, n. 19; Bamforth, 2001.

19See also preface and ch. 7.
20 For analogous argument, see Rostow (1960).
21 See Bamforth, 1997. For liberal criticisms ofthe neutrality position, see MacCormick (1982, p.
28) and Raz (1986, p. 414).
 Sexual Orientation and Rights xv

moral or constitutional grounds which might be advanced in favour of or against protections

for lesbians and gays.22 Such arguments are considered in the next two sections.

Substantive Progressive Arguments

Four categories of substantive progressive argument - relating to privacy, equality, autonomy

and dignity, and sex discrimination - have been advanced.23 Their strengths and weaknesses
will be considered here. 24 Each category tends to adopt a particular position concerning the
people or acts the law should protect, sometimes by reference to the distinction between
essentialism and constructionism and/or the roles of acts and identities. 25 To different extents,
arguments in each category can be used to advocate decriminalization of lesbian and gay sex,
the right to be free from discrimination and the legal recognition of same-sex partnerships,
whether as marriages or civil unions/partnerships. Arguments concerning partnerships
generally involve equality and autonomy and/or dignity rather than privacy, and the partnership
debate also involves the context-specific question whether marriage (as some conservatives
claim) is innately confined to opposite-sex partners. 26 Particular arguments sometimes arise in
this context about whether legal recognition should come from legislatures or courts.

Privacy

In so far as it is correct to state that an initial stage in a society'S liberalization of its treatment
of sexual minorities tends to be decriminalization of consensual sexual activity,27 it is
un surprising that respect for privacy is often an early philosophical or constitutional argument
for legal change. Constitutional arguments for decriminalization were associated with the
right to privacy in United States case law, although it was not until the Supreme Court's
decision in Lawrence v. Texas that such an argument was finally successful,28 overturning
Bowers v. Hardwick where it had been held that it was not constitutionally impermissible
under the Due Process Clause, interpreted by reference to the implied constitutional right to
privacy, to criminalize consenting same-sex sexual activity.29
While defending the Wolfenden 'neutrality' stance, H.L.A. Hart gave qualified support to
John Stuart Mill's 'harm principle', whereby 'the only purpose for which power can rightfully
be exercised over any member of a civilised community, against his will, is to prevent harm
to others' (Mill, 1989, p. 13).30 The law's interference with individual liberty was an evil

22 Note also Nan D. Hunter's analysis of the role of morality (2004a, pp. 1129-30; 2004b, pp.
1529,1530-31,1535).
23 1 have previously argued that the strongest argument relates to autonomy (Bamforth, 2001).
24 Note also arguments advanced specifically in the United States concerning freedom of expression
and sexual minorities: Eskridge (1993a, ch. 5; 1997d, pp. 2411-73), Cole and Eskridge (1994), Calhoun
(1995, pp. 258-62), Richards (1999a) and Hunter (2004b, pp. 1545--47, 1552).
25 See 'Organizing the Arguments' above.
26 See 'Conservative Counter-Arguments' below.
27 See n. 14 above.
28 (2003) 539 U.S. 558.
29 (1986) 478 U.S. 186.
30 Hart sets out the nature of the qualification in Law, Liberty, and Morality (1963, p. 5).
xvi Sexual Orientation and Rights

requiring justification, and laws enforcing a sexual morality 'may create misery of a quite
special degree. Both the difficulties involved in the repression of sexual impulses and the
consequences of repression are quite different from those involved in the abstention from
"ordinary" crime' (Hart, 1963, p. 22).31 Recognition of 'individual liberty as a value involves
... acceptance ofthe principle that the individual may do what he wants', even ifthe majority
was distressed by the mere knowledge that others were acting in private in a way it thought
was wrong (unless, of course, there were other good grounds for forbidding the conduct)
(Hart, 1963, p. 47).
An early example of United States privacy scholarship can be found in the work of David
A.J. Richards (see Chapter 2). Richards' arguments - articulated at a time of strong social
hostility towards sexual minorities and nearly twenty-five years before Lawrence32 - sought
to establish a clear basis for privacy-related claims within US constitutional law and moral
theory, explaining why the criminal prohibition of consenting same-sex sexual activity was
unconstitutional. Richards based his case on a broad reading of the Due Process Clause in
line with Griswold v. Connecticut. 33 On this view, the US Constitution adheres to a code of
unwritten human rights - including privacy - interpreted by reference to and expressive of
the underlying moral values of autonomy and equality of concern and respect. 34 Richards thus
suggested that consensual adult homosexual sex could not, following the Supreme Court's
decision in Griswold, consistently be excluded from the constitutional right to privacy.35 Such
a right, understood as protecting matters of highly personal self-definition, also overcame
appeals to populist moral sentiment. Richards also challenged paternalism as a basis for
criminalizing same-sex sexual acts and appealed to the importance of love and self-definition
in individuals' construction of their own lives.
Richards' privacy-related arguments might suggest support for the notion of constitutional
neutrality. However, his simultaneous appeal to autonomy and equality of concern and respect
entailed a commitment to ideas of substantive morality, something which became more
visible in Richards' later work, in which the substantive goods involved in freely-chosen sex
and loving intimate relationships and the injustice in discriminating against lesbians and gay
men were more openly stressed. 36 From this perspective, the 'normative conception of moral
slavery', which for Richards explained the constitutional prohibition of slavery (1998, p. 3)37
could be used by analogy to justify prohibiting under the Fourteenth Amendment provisions

31 See also Hart, 1963, pp. 82-83; Richards, 1982, pp. 51-54; Mohr, 1988, pp. 109-14; Green,
1995; Eskridge, 1996a, pp. 186-87.
32 For a comparison with the position even fourteen years later, see Eskridge (1994, pp. 645-46).
Shannon Gilreath comments that: 'David [Richards] was doing some of the early theorizing about Gay
rights when it really took guts to write about Gay people and the issues we face. And his work is
formative of the discipline of queer theory' (2011 b, p. 200).
33 (1965) 381 U.S. 479.
34 And, in Richards' view, explicable by reference to Rawls's arguments [Richards, chapter 2 of
this volume, pp. 84-6], referring to Rawls (1971).
35 Note the somewhat different reading of Griswold developed in Sandel (1989, pp. 524-31).
36 See, for example, Richards, 1998, 1999b.
37 See also pp. 137-40, 142--43.
 Sexual Orientation and Rights xvii

which discriminated due to sex and sexual orientation,38 including the exclusion of lesbians
and gay men from marriage and military service (1998, p. 3).39 Richards' articulation of this
broader and deeper moral theory may perhaps help illustrate the need for arguments relating
to constitutional privacy rights to be placed in a larger context to avoid their focus appearing
unduly narrow.
Meanwhile, Ronald Dworkin sought, in opposition to Bowers, to explain why the
community's moral values were insufficient to justify penalizing consenting same-sex
sexual activity (see Chapter 3).40 He argued that at least four senses of 'community' could
be identified in debates about collective ethical values and individual lives. The first asserted
that questions about a community's ethical environment should be determined in accordance
with the majority's will. Dworkin, in contrast, claimed that while there might be arguments
for taking some decisions collectively, these did not necessarily justify taking all decisions
in that way. The second view was that each individual had responsibility for the ethical
well-being of others and should use their political power to reform those who lead defective
lives. Dworkin, in contrast, stipulated that a good human life must be endorsed by the person
living it, making the second view self-defeating: someone who abstains from consensual sex
through fear of punishment, while hating having to do so, cannot be said to have had their
life improved. The third view, which Dworkin associated with Devlin, is that tolerance of
minority practices undermined a community's ability to serve the needs of its members. In
response, Dworkin suggested it could not plausibly be assumed that community members
depend so closely on moral associations that tolerance of minority positions is necessarily
damaging. In addition, moral judgments cannot be deemed true or false merely by consensus,
such judgments existing to assess communities rather than just being their products. The
fourth view was that the value or goodness of any individual's life reflected the value of
life in their community, so that no sharp distinction could be drawn between a person's
own well-being and that of the community. Dworkin argued in response that while political
communities had a communal life, it was confined to formal political matters, these being the
things which create the community as a collective agent. The community cannot be regarded
as suffering from headaches or high blood-pressure, for these are things which by definition
only affect individual members. Similarly, a political community cannot be regarded as
having a communal sex life, meaning that community integration cannot justify enforcing the
majority's views concerning sexuality.
Dworkin's arguments provide support for the notion that same-sex sexual acts should be
protected within the constitutional right to privacy (the view accepted by the Supreme Court
in Lawrence, overturning Bowers). However, privacy is also a contentious basis for protecting
lesbians and gays. First, privacy arguments do not necessarily promote a positive view of
lesbian or gay sexuality, and may just focus protections on (or confine them to) the private realm.
Edwin Cameron (Chapter 4) thus argued - a point discussed by the Constitutional Court of

38 See Richards (1998, pp. 4, 5, 137--40, 142--43, 174, 176-78, 182, 199-200,203,261,263,
283-86,346-73,402--405,407--408,464-65; 1999b, pp. 53,108,156,171-72).
39 See also chs 7 and 8.
40 Dworkin's arguments concerning equality of concern and respect are often used as a positive
basis for claiming legal protections for lesbians and gays (see, for example, Richards, Chapter 2 in this
volume). This being so, Dworkin's arguments in Chapter 3 might perhaps best be seen as a response to
community-focused arguments advanced in favour of the decision in Bowers.
xviii Sexual Orientation and Rights

South Africa in National Coalition for Gay and Lesbian Equality v. Minister ofJustice, where
the criminal prohibition of consensual same-sex sexual activity was ruled unconstitutional
- that privacy arguments could only coherently be used against criminal restrictions instead
of offering a basis for protecting sexual minorities against public discrimination or rebutting
the view that public displays of non-heterosexual sexuality were shameful. 41 Cameron, later
himself a member of the Constitutional Court,42 sought instead to ground the constitutional
rights of lesbians and gays in the equal protection of the law. Other critics have gone further.
Writing after Bowers, Kendall Thomas argued that

the rhetoric of privacy has historically functioned to perpetuate the oppressive politics ofthe 'closet':
privacy is the ideological substrate ofthe very secrecy that has forced gay men and lesbians to remain
hidden and underground, and thus rendered them vulnerable to private homophobic violence. There
is no reason to think that we can rid privacy of its sedimented history. (1992, p. 1510)43

Constitutional scrutiny needed to move beyond the privacy paradigm. Or, as Cheshire Calhoun
put it, 'the rhetoric of privacy arguments can do as much to sustain sexuality injustice as to
intervene in it' (1995, p. 253).44
Second, privacy may seem artificial. The Editors of the Harvard Law Review suggest, in
Chapter 6, that it is 'especially ill-suited to the affirmation of gay rights, because it assumes
that homosexuality is merely a form of conduct that can take place in the privacy of the
bedroom at a specified time, rather than a continuous aspect of personality or personhood
that usually requires expression across the public/private spectrum' (p. 244). And, since legal
recognition of same-sex partnerships concerns official/public affirmation, privacy may not
offer plausible support. 45 Third, it can anyway be hard securely to distinguish the public from
the private or the collective from the individual. 46 For example, passing legislation concerning
taxation - on Dworkin's view a collective act of the community - clearly has immediate and
sometimes deep effects on the private wealth of individuals. It may therefore not be enough
to rely on definitions ofthe community in determining the acceptable boundaries of the law's
reach (and in tum the scope of the private): deeper moral and/or constitutional principles are
necessary.47
Such principles seemingly played a role in Justice Kennedy's majority judgment in
Lawrence, which championed a conception of privacy rooted in 'the substantive guarantee

41 Discussed by the Court at (1999) I SA 6, at paras [20]-[31], [75] (Justice Ackermann) and
[128] (Justice Sachs). See also Kapur (2010).
42 Justice Cameron's sexuality-related work includes Witness to AIDS (2005) and, with Mark
Gevisser, Defiant Desire: Gay and Lesbian Lives in South Africa (1995).
43 Note also Thomas's critique (1992, pp. l493ff) of the privacy-based critiques of Bowers
advanced by Michelman (1988) and Rubenfeld (1989). See also Sedgwick (1993, pp. 46-50). Thomas's
alternative argument (1992, pp. 1469-70, 1476) is based on the Eighth Amendment.
44 See also Sandel, 1989, p. 537.
45 On the public dimensions, see Nussbaum (2010, pp. 127-32); on the limits to privacy, see
Bamforth (2001, pp. 37-38).
46 See, for example, Nussbaum, 2010, pp. 74, 76.
47 Richard Mohr, who conducts a lengthy analysis of privacy in his book Gays/Justice (1988) is
happy to admit at p. 124 that it is a very complex notion.
 Sexual Orientation and Rights xix

of liberty' .48 This conception excluded 'unwarranted government intrusions into a dwelling
or other private places', but also 'extend[ed] beyond spatial bounds' by 'presum[ing] an
autonomy of self that includes freedom of thought, belief, expression, and certain intimate
conduct' .49 On this view, liberty protected the general dignity of freely-chosen intimate
relationships, of which sexual acts were merely one aspect. 50 One interesting issue here is
that the deeper principles seemingly supported an idea of privacy going beyond the narrow
'sedimented' conception attacked by Thomas. 51
The Lawrence analysis of privacy also involved a broader historical perspective. In
Bowers, Justice White had emphasized US constitutional history, stating that there was no
'deeply rooted' liberty claim to homosexual sex,52 while Chief Justice Burger had invoked
'millennia of moral teaching' against 'the act of homosexual sodomy' .53 Apart from noting
that Bowers had ignored the emerging consensus in other jurisdictions against criminalization
(exemplified by the decision of the European Court of Human Rights in Dudgeon v. United
Kingdom 54 ), the Lawrence Supreme Court accepted William Eskridge's argument that the
earlier focus on 'homosexual sodomy' was historically inaccurate (see Chapter 5).55 In reality,
'homosexual sodomy' had not been the regulatory object of nineteenth-century statutes, which
had penalized non-procreative intercourse in general, the explicit association of sodomy (an
act) with homosexuality (a status) being a twentieth-century phenomenon (Eskridge, Chapter
5 in this volume, pp. 220-21 56 ). The Court did not discuss Eskridge's further argument that
Bowers was inconsistent with privacy case law since Griswold,57 but it is hard to see how
Lawrence does not stand for a broader understanding of the right to privacy.

Equality

Given the arguable focus of privacy claims on the sexual or domestic spheres, it is
un surprising that arguments for legal protections in other arenas - for example in dealing
with sexual orientation-based discrimination in the workplace - have often been expressed
in terms of equality. Equality has long been thought to offer a positive justification for legal
protections, stating - in everyday terms - that lesbians and gays deserve as much protection
as heterosexuals, and gained practical appeal in constitutional litigation before United States

48 (2003) 539 U.S. 558 at 575.

49 (2003) 539 U.S. 558 at 562.
50 (2003) 539 U.S. 558 at 567-68,578-79.
51 An approach to private life extending beyond sexual acts and the bedroom was clearly evident
in the European Court of Human Rights' judgment in Smith and Grady v. United Kingdom (2000) 29
EHRR493.
52 (1986) 478 U.S. 186 at 194.
53 (1986) 478 U.S. 186 at 196-97.
54 (1981) Series A No.45, Application no. 7525/76.
55 Cited in Lawrence v. Texas (2003) 539 U.S. 558 at 571 (Justice Kennedy). As Eskridge put it in
Chapter 5: 'Because Justice White's opinion in [Bowers v.] Hardwick rested ultimately upon historical
analysis, the opinion may be tested against historical materials and theories' (p. 195).
56 See also Goldstein, 1988; Halley, 1993, p. 1726, 1750-67; Nussbaum, 1999, pp. 80-8l.
57 Eskridge's treatment of Griswold in Chapter 5 (pp. 215ft), may arguably be narrower than
Richards's in Chapter 2.
xx Sexual Orientation and Rights

courts after Bowers seemingly shut the door to privacy claims. 58 Its popularity was probably
also underlined by the growth in the idea of a lesbian and gay identity. John D'Emilio notes,
for example, that from the mid-1980s US campaigns concerning lesbian and gay issues fell
into 'a familiar, well-established equal rights framework, deeply rooted in American history.
This history has provided gay men and lesbians with several models of struggles employed by
minorities in search of equality. Blacks, women, ethnic groups, and religious minorities seek
this equality through social movements, legislative agendas, and litigation' (1992, p. 182).
Claims that lesbians and gays are entitled to protection under the Equal Protection Clause
of the Fourteenth Amendment, made with varying success, have turned on proving that they
constitute a 'discrete and insular minority', prejudice against which tends, in Justice Stone's
words, 'seriously to curtail the operation of those political processes ordinarily to be relied
upon to protect minorities, and which may call for a correspondingly more searching judicial
inquiry' .59 Chapter 6, by the Editors of the Harvard Law Review, provided an early and
influential argument that the Equal Protection Clause might offer a stronger basis than privacy
for safeguarding sexual minorities. More recently, William Eskridge has tied his argument
for the recognition of same-sex marriage to a formal equality paradigm: 'Gay couples should
have the same rights that straight couples have' (1996a, p. 5\).60
Non-discrimination legislation within the European Union and many of its Member States
now categorizes sexual orientation, by analogy with sex and race, as a prohibited ground of
discrimination. In the United Kingdom, respect for equality has been a popular campaigning
mantra in connection with lesbian and gay issues,61 and the Equality Act 20 I 0 - largely
reflecting the requirements of directly effective EU law - prohibits discrimination on the
ground of sexual orientation, gender identity and partnership status in employment and in
relation to the provision of goods, facilities and services.
Equality clearly now plays an important role in arguments about lesbians, gays and rights.
However, like privacy, such arguments have been questioned. At a theoretical level, different
views exist about whether equality demands that different sets of people be afforded the same
or similar opportunities, or exactly the same treatment, or treatment that can be deemed to
be the same or similar: all slightly different possibilities. 62 Also, is equality concerned with
formal processes, or substantive treatment, or available opportunities? Does it require that
people be raised to a particular (equal) level or is it enough for those currently above the level
to be reduced to it? Different theorists - and cases - offer different views.

58 For discussion (including the point that some courts used Bowers as a basis for denying equal
treatment claims), see Miller (1984), Sun stein (1988; in relation to Bowers pp. 1169, 1174), Eskridge
(l993a, pp. 142--43, critiquing Sunstein, and ch. 6), Watkins v. U.s. Army (1986) 478 U.S. 186 and
Halley, Chapter 1 in this volume, pp. 7-16. Hunter (2004a, 2004b) argues that the later Supreme Court
decision in Lawrence v. Texas confirms a revised approach to due process analysis and blurs equality,
liberty and dignity arguments.
59 United States v. Carolene Products (1938) 304 U.S. 144 at 152, fn. 4 (Justice Stone).
6ll See also Eskridge, 1996a, pp. 52, 62-74; Chapter 5 in this volume, p. 196; 2001 b; and Wedgwood,
1999. Note, however, Eskridge's argument (2009, pp. 1262-(5) that the United States is not yet ready
for j udicial recognition of sanle-sex marriage.
61 For examples see Bamforth and Richards, 2008, pp. 200-2ll.
62 For analysis of questions raised for feminist theory by the comparative nature of equality, see
Munro (2007, pp. 7-8, ch. 6).
 Sexual Orientation and Rights xxi

Second, and of practical importance in much litigation, is what aspect or feature ofa person
(or how they are treated) needs to be compared to see whether inequality is involved. In logic,
it is only possible to claim that two people, groups or characteristics are equal if we can say
what it is that makes them so, something which requires us first to identify the specific property
or item of moral worth which underpins the comparison. As the most likely possibilities are
opposite- and same-sex sexual acts and 'straight' or 'lesbian/gay' identities, the problems
raised by act- and identity-based approaches may well affect equality arguments with force. 63
A third question is why it is wrong to treat one of the people or things being compared
under equality analysis less favourably than the other: in the context of sexual orientation
discrimination, why we regard sexual orientation as an improper factor to be taken into
account in determining how one person rather than another is to be treated. If equality is not
itself the driving force for the comparison - for the prior item of moral worth is doing that
job64 - it might be thought to be piggy-backing on the deeper-level moral claim which should,
for the sake of clarity, be openly acknowledged.
As noted in the opening section, Janet Hall ey65 has criticized the act- or identity-based
assumptions in US Equal Protection Clause arguments that it is crucial to establish that
group membership constitutes an immutable status, defined as something the individual
cannot alter.66 Immutability-based equal protection arguments just do not offer 'the silver
bullet' their supporters think, she suggests in Chapter 1 (p. 19). One might add that merely
saying you cannot help something as it is 'in your nature' does not in any event offer a strong
independent basis for claiming that the characteristic concerned deserves legal protection: 67
it is also necessary to show that it (and behaviour associated with it) deserves protection.
More generally, if equality claims require the presence of an already-existing majority
group or characteristic as the object of comparison by a minority group or characteristic,
they may end up justifying only those legal protections which can be attained on the basis
of comparison. 68 Carl Stychin thus suggests in Chapter 13 that 'the personal characteristic
[which anti-discrimination law seeks to protect] becomes an (unfortunate) deviation from a
static norm' and that 'the norm is neither questioned nor interrogated, nor is it perceived itself
as an historically contingent category' (p. 472).
A fourth issue concerns how far, notwithstanding the shift towards equality analysis in North
America and Europe, discriminatory treatment of lesbians and gays entails the same type of
group-focused injustice as that experienced by women and people of colour. Cheshire Calhoun
(1995) argues that whereas gender and racial injustices assign a particular, disadvantaged
place to their victims in socioeconomic structures and practices, lesbians and gays do not
occupy such a place (a situation enhanced by definitional ambiguities about who counts as
lesbian or gay and by the role of the 'closet' in encouraging people to 'pass' as heterosexual).69

63 See 'Organizing the Arguments' above.

64 See generally Raz, 1986, ch. 9; Westen, 1982. A practical example is arguably provided by
Nussbaum (2010, pp. xiv-xvi).
65 Halley, 1989 and Chapter I in this volume.
66 For other criticisms, see Nussbaum (2010, pp. 118-22).
67 See, for example, Stychin, 1996, pp. 470-71, and more generally Robson, 1992, p, 83; Gilreath,
20lla,pp. 33-34,41,44, 50-54.
68 Tn relation to Equal Protection Clause case law, see Yoshino (1998, pp. 490, 500ft).
69 See also Rubin, 1993; Koppelman, 1996.
xxii Sexual Orientation and Rights

Sexuality injustice, for Calhoun, displaces its victims outside of civil society. Lesbian and
gay identities are displaced from society's public sphere, which is effectively reserved for
heterosexuals, whose orientation is continually represented as the unquestionable norm in
everyday social routines and institutions. Laws or public practices discourage public actors
from representing themselves as lesbian or gay, marking a distinction from the treatment
of women and racial minorities. 70 The injustice faced by lesbians and gays - and the denial
to them of equal standing to participate in debate about their treatment - is thus distinct,
suggesting that equality arguments cannot operate in an identical fashion for them.
This is perhaps analogous to Janet E. Halley's argument that the 'empirical and analytical
peculiarity of antihomosexual discrimination' lies in 'the Closet', which encourages some
people to manipulate the identity they attach to themselves (1989, p. 933).71 To Halley:

The mere disclosure of one's gay, lesbian, or bisexual identity ineluctably accumulates political
significance, while one's mere participation in political action to alter laws affecting gays and lesbians
can precipitously earn one a public homosexual identity. These legal and social prohibitions hobble
everyone's discourse about gay rights, producing a process failure of constitutional magnitude. It
is not the class of gays, lesbians, and bisexuals, but the classification of homosexuals - a group
that could include anyone participating in the antihomophobic argument - that requires heightened
scrutiny. (1989, p. 973)

In terms of US equal protection analysis, Halley thus sees anti-lesbian and gay discrimination
as something constitutionally questionable since it blocks the political process.72 By analogy,
Kenji Yoshino suggests that legal and social pressure has obliged lesbians and gays to 'pass'
- that is, to hide or disguise their identity as group members - or to 'cover', '[ c ]overing
mean[ing] that a group is permitted both to retain and articulate its identity as long as it
mutes the difference between itself and the mainstream' (1998, p. 500).73 On this view, equal
protection analysis has not, traditionally, helped sexual minorities given the extent to which
courts have relied on factors relating to immutability and visibility (Yoshino, 1996, 1998).
Yoshino (2002) thus calls for relevant factors to be re-evaluated to counter assimilationist
pressures and for 'covering' to be given proper attention in analyses of sexual orientation-
related discrimination. Nonetheless, he also suggests that to prevent undue assumptions from
developing about the cultures of groups - a phenomenon associated with ideas of group
identity and 'covering' - many future claims will need to be framed by reference to general
liberty rather than group-oriented equality (Yoshino, 2002, pp. 184-92).74

See also Mohr, 1988, chs 1 and 6; Calhoun, 1993; Halley, 2001, p. 98.
70

cf. Calhoun, 1993, 1995. Halley problematizes the idea of gay identity further in Split Decisions
71

(2006, pp. 28, 107-14).

72 In this regard, Halley (1989, pp. 966-76) builds on the First Amendment case law dealing with
speech and conduct. See also Chapter I in this volume, p. 63.
73 More generally see Yoshino, 2006.
74 Yoshino concedes that the boundaries between general and group-oriented claims are often
blurry. Note also the caste-based perspective advanced by Gilreath (201 la, ch. 2, esp. pp. 69-70).
 Sexual Orientation and Rights xxiii

Autonomy and Dignity

The popularity of equality arguments as a basis for claiming rights for sexual minorities - in
particular in the public sphere, including in relation to partnerships - cannot therefore conceal
the tensions they also involve. Arguments have thus also emerged under the headings of
autonomy and dignity, claiming to avoid the comparison problems associated with equality by
focusing on the sexual orientation of the individual, while being capable of encompassing non-
discrimination and partnership rights, thereby avoiding the limits associated with privacy.75
Justice Kennedy referred to both autonomy and dignity in Lawrence, and the South African
Constitutional Court regularly invokes dignity in litigation concerning sexual minorities. 76
At a theoretical level, R.A. Duff (1990, pp. 167-73) suggests that respect for a person as
an autonomous subject requires respect for their integrity as a sexual agent, able to decide for
themselves who to take as a sexual partner or partners. He uses this argument to justify the
criminal law's prohibition of rape, and it can also be used to explain why a person's sexual
fantasies, aspirations and behaviour, together with their sexual/emotional relationships,
should be respected by society and the law. Lack of consent to a sexual act obviously destroys
the reason for protection. However, respect for autonomy demands that each individual's
appreciation and definition of what is, for them, a valuable sexual act or sexual/emotional
relationship must - within the limits of consent - be respected. Laws that treat lesbian and gay
individuals and partners in an inferior fashion could be said to objectify them, by stigmatizing
them and giving the impression that their sexual/emotional feelings, desires and relationships
- matters which are central to their lived lives and self-understandings - count for nothing. 77
In the case of lesbians and gays, homophobic attacks, social abuse and embedded social
hostility might count as further evidence of objectification.78
The arguably related notion of respect for dignity is also important. Leslie Green suggests
that refusal to recognize same-sex marriages 'constitutes a dignitary wrong, for the comparative
disadvantage treats homosexual relationships and, derivatively, those who have best reason
to enter them, as second-class' (2011, p. 14).79 Martha Nussbaum advocates a 'politics of
humanity' (contrary to the 'politics of disgust', based on 'deep aversion' to non-heterosexual
minorities (2010, p. xiii)), combining 'equal respect for one's fellow citizens with a serious

75 For example see Bamforth and Richards, 2008, pp. 211-27.

76 See, for example, National Coalition for Gay and Lesbian Equality v. Minister ofJustice (1999)
1 S.A. 6.
77 It is not always wrong to single out particular groups for unfavourable treatment: we might well
say that any reasonable theory of justice would authorize within appropriate limits the punishment of a
group of self-identified torturers or child molesters. However, such an argument would not apply, as it
is submitted would be the case in relation to lesbians and gay men, where coherent theories of justice
would properly regard their sexual orientation as a morally neutral or positive factor.
78 Powerful empirical surveys include the findings of the Report of the Secretary's Task Force on
Youth Suicide, Volume 3: Prevention and Interventions in Youth Suicide (United States Department of
Health and Human Services, 1989) and Amnesty International's 2001 report Crimes ofHate. Conspiracy
of Silence: Torture and Ill-treatment Based on Sexual Identity; see also Amnesty International United
Kingdom's Breaking the Silence: Human Rights Violations Based on Sexual Orientation (1996).
79 See also Mohr's usage, at points as a value enforcing legal arguments based on privacy and
equal protection (Mohr 1988, pp. 57-62, 144-51 and 324-37).
xxiv Sexual Orientation and Rights

and sympathetic attempt to imagine what interests they are pursuing' and 'endowing the other
with life and purpose, rather than with dirt and dross, with human dignity rather than with
foulness' (2010, p. 50).80 Such an approach, she claims, found voice in Lawrence (Nussbaum,
2010, pp. 89, 123)81 and can be associated with the right to same-sex marriage (Nussbaum,
2010, ch. 5).82 More generally, section 10 of the South African Constitution, which stipulates
that 'Everyone has inherent dignity and the right to have their dignity respected and protected'
has played a central role, alongside the equality guarantee in section 9, in the South African
Constitutional Court's treatment of lesbian and gay issues. Justice Ackermann has asserted,
writing for the Court in National Coalitionfor Gay and Lesbian Equality v. Minister of Home
Affairs that the impact of a national immigration law which denied non-South African same-
sex partners of South African citizens the same immigration rights as those given to opposite-
sex partners 'constitutes a crass, blunt, cruel and serious invasion oftheir dignity' and conveys
the message 'that gays and lesbians lack the inherent humanity to have their families and
family lives in ... same-sex relationships respected or protected' .83 He also summarized
the Court's earlier decision in National Coalition for Gay and Lesbian Equality v. Minister
of Justice 84 as determining that 'past and continuing discrimination against both gays and
lesbians' conveys the message

that they ... do not have the inherent dignity and are not worthy of the human respect possessed by
and accorded to heterosexuals and their relationships. This discrimination occurs at a deeply intimate
level of human existence and relationality. It denies to gays and lesbians that which is foundational
to our Constitution and to the concepts of equality and dignity, namely that all persons have the same
inherent worth and dignity as human beings ... The denial of equal dignity and worth all too quickly
... degenerates into a denial of humanityY

This characterization was later invoked by Justice Sachs as part of the Court's determination
that excluding same-sex couples from the legal right to marry violated section 9 of the
Constitution. 86
Nonetheless, Christopher McCrudden notes that the meaning of dignity can vary. A 'basic
minimum content' can be discerned (2008, p. 679):87 namely that every person has intrinsic
worth, that such worth should be recognized and respected by others and that the state exists
for the sake of the individual. However, this cannot gloss over the profound differences
between the uses of the idea in different jurisdictions 88 (a point perhaps reinforced by the

so See also 2010, pp. 2-8; Eskridge, 1996a, pp. 190-91.

SlNote also McCrudden, 2008, p. 684.
82 See also Nussbaum, 1999, pp. 201-203.
83 (2000) (2) S.A. 1, para. [54].
84 (1999) 1 S.A. 6, paras [20]-[31], [36] (Justice Ackermann); see also paras [121] and [125]
(J ustice Sachs).
S5 (2000) (2) S.A. 1, para. [42].
S6 Minister of Home Affairs v. Fourie, (2006) 1 S.A. 524, para. [50]; see also paras [78] and [79],
and the Ontario Court of Appeal's reasoning in Halpern v. Attorney General (2003) 65 O.R. (3d) 161,
para. [5].
87 See also p. 723.
SB McCrudden, 2008, pp. 680ff, 697-98, 710-12, 723-24.
 Sexual Orientation and Rights xxv

varieties of view among theorists concerning the 'minimum' or 'core' content89 ). McCrudden
also suggests that dignity can be treated as 'a basis for human rights, a right in itself, or
... simply a synonym for human rights' (2008, p. 656).90 On some views, it is synonymous
with (or adds nothing to) autonomy; on others, the concepts are distinguishable, with dignity
expressing a more communitarian ideal and autonomy individual freedom (McCrudden, 2008,
pp. 659-60).91 On some interpretations, dignity may also serve to constrain rights - perhaps
in a paternalistic fashion - rather than reinforce them, which may be of particular concern in
relation to sexual orientation given the paternalistic role the law has often played in this area.92
Given the developing role of dignity and/or autonomy in the case law, further thought must
be given to these issues. In determining the usefulness of the concepts as foundations for
rights claims, their avoidance of the disadvantages associated with privacy and equality will
doubtless need to be balanced against the questions they themselves raise. 93

Sex Discrimination

Close social and cultural links exist between hostility towards sexual minorities and their
perceived departure from social conceptions of 'appropriate' gender roles. 94 Judith Butler
argues, in Chapter 14, that the violence often associated with homophobic hate crimes suggests
that a person's non-conformity with gender norms arouses astonishing levels of anxiety (see
esp. pp. 505-507),95 while Marc Spindelman suggests that discrimination against lesbians and
gays is 'integral to sexual hierarchy and the positioning of men and women within it', making
its elimination 'indispensable to sexual equality's realization' (2004, p. 1633).96 Arguments
about legal protections for lesbians and gays sometimes therefore overlap with arguments
about sex discrimination.

89 See, for example, Feldman, 1999, pp. 685-88; O'Mahony, 2012, pp. 555-59; Rosen, 2012, ch.
1, esp. pp. 54ff, 114-15. Note also David Feldman's assertion that 'The content of [dignity's1 central
core is not clear, making it an uncertain guide' (2000, p. 75).
90 See also pp. 675, 678, 680-81; Feldman, 1999, pp. 682, 690, 697-99; Feldman, 2000, pp. 61,
68; O'Mahony, 2012, pp. 559-65.
91 See also pp. 685ff, 699-701, 705-706; o 'Mahony, 2012, pp. 565-74; Rosen, 2012, ch. 1,
pp. 119-28.Note also David Feldman's suggestion that while freedom from inhuman and degrading
treatment, as a human right, has a prominent role in upholding dignity, '[t]amily life ... marriage and
non-discrimination are more directly geared to protecting the interests in autonomy, equality and respect'
(1999, p. 690; see also, however, 1999, pp. 695-96; 2000, pp. 73-74).
92 Feldman, 1999, pp. 685, 699-702; 2000, pp. 73-74,75-76; McCrudden, 2008, pp. 702-704;
Rosen,2012,pp.6-8,ch.2.
93 See generally McCrudden, 2008, p. 720; Waldron, 2012a; 2012b, pp. 139--40.
94 See Amnesty International (2001): 'Defiance of the "heterosexual norm" can provoke moral
condemnation, exclusion and violence, including torture. In this sense, violence against LGBT people
is gender-based violence, inflicted on those who challenge or fail to conform to traditionally defined
gender roles' (p. 7). See also Law (1988) and Koppelman (1994, pp. 242--44). For broader analysis, see
Eskridge, Chapter 5 in this volume, pp. 200-201, Eskridge (1992, pp. 348-51; 1999, pp. 645--46) and
Green (2011).
95 See also Valdes, 1995, p. 253.
96 See also Spindelman, 2005, p. 1375; 2010.
xxvi Sexual Orientation and Rights

r
Both Andrew Koppelman (1988, 1994,200 I and Robert Wintemute (1995, pp. 344--48)98
maintain that in logic, sexual orientation discrimination also constitutes sex discrimination
(see Chapter 7). Koppelman rightly notes that this position 'has usually been rejected by
the courts' (2001, p. 534),99 although Eskridge (2001a, p. 856) suggests that at the level
of logic, Koppelman's stance has been successfully refuted 'by none'.IOO In Chapter 7
(pp. 275-77) Win tern ute summarizes the position as follows: if the basis for categorizing a
man as gay or a woman as heterosexual is that they are attracted to men, the only difference
if the man is penalized for being attracted to a man or is prevented from marrying one, when
the woman is not, is their sex. The man and the woman are treated differently even though
the circumstances applicable to both are the same. The fact that sexual orientation may be
an extra basis for the different treatment cannot hide the existence of sex discrimination. 101
Wintemute notes in Chapter 7 that sexual orientation discrimination also reinforces traditional
sexual hierarchies (pp. 289-90),102 while Koppelman suggests that it 'should be clear from
ordinary experience that the stigmatization of the homosexual has something to do with the
homosexual's supposed deviance from traditional sex roles', whereby socially 'superior'
males pair with socially 'inferior' females (1994, p. 234).103 Eskridge also draws attention
to survey evidence which draws a link between anti-homosexual feelings and a belief in the
'traditional' family structure (1996a, p. 171).
Nonetheless Eskridge, who accepts the argument, refers to its 'transvestite quality' given
that it 'dresses a gay rights issue up in gender rights garb' (1996a, p. 172),104 and other
theorists directly challenge the argument for conflating distinct issues. !Os Indeed, Ruthann
Robson calls the argument 'unacceptable from a lesbian-centered view' (1992, p. 85) as it
collapses lesbianism, gender and sexual orientation into one another, with 'sexual orientation'

97 See also Law, 1988; Sunstein, 1994 and Hunter 2001.

98 See also Pannick, 1985, pp, 201-203; Bamforth, 2000.
99 Note also Wintemute (2003, pp. 277-78). The argument was accepted by the Supreme Court of
Hawaii in Baehr v. Miike (1999) 994 P.2d 566 and by the ECJ (as it then was) in relation to transsexuals
in Case C-13/94, P v. S. and Cornwall County Council [1996] ECR 1-2143 but rejected in relation to
lesbians and gay men in Case C-249/96, Grant v. South-West Trains [1998] ECR 1-621. The argument
was rejected by the House of Lords in MacDonald v. Advocate General for Scotland and Pearce v.
Governing Body ofMayfield School [2003] UKHL 34, as it has been in numerous US cases.
lOll See Eskridge's more general analysis (1993b, pp. 1504-10; 1996a, ch. 6; 1993a, pp. 218-28

(where he suggests at p. 228 that while the sex discrimination argument may be less important in
attacking anti-sodomy laws, it 'fits like a glove' in attacking the bar on same-sex marriage)). Critics of
the sex discrimination argument include Gardner (1998), Stein (2001) and Cameron, Chapter 4 in this
volume, p. 178.
1O[ See also Wintemute, 1995, esp. ch. 8.
lO2 See also Wintemute (2003, p. 273). For argument concerning the links between sex discrimination

and social perceptions of gender and discrimination on the basis of sexual orientation, see Law (1988)
and Eskridge (2000a, pp. 645--46).
103 See also pp. 256-57. See also Koppelman, 1988, p. 147; Nussbaum, 2010, pp. 140-50; and (for

an alternative approach) Hunter, 2001, pp. 406-15.

104 See also Eskridge (1993a, p. 220), Nussbaum (1999, p. 203; 2010, p. 11) and Wintemute (2003,

pp.277-79).
lOj See Cameron, Chapter 4 in this volume, and Gardner, 1998.
 Sexual Orientation and Rights xxvii

serving to gloss over the possibility that lesbians and gays have distinct legal concerns. The
argument thus 'subordinates lesbianism to feminism' (Robson, 1992, p. 85).
Since litigants tend to use sex discrimination arguments where claims based directly on
sexual orientation discrimination are unavailable (Wintemute, 2003, pp. 268, 278, 280-81),
its practical role may diminish as direct protections against sexual orientation discrimination
expand. However, the argument continues to illustrate in powerful fashion the social link
between sexual orientation discrimination and social conceptions of gender, and remains of
practical importance in the law's regulation of pornography, where the question has arisen as
to whether pornography featuring men having sex together constitutes discrimination against
women as some argue heterosexual pornography does. In R. v. Butler, the Supreme Court
of Canada decided that pornography could be classified as obscene partly on the basis that
it was 'perceived by public opinion to be harmful to society, particularly to women' .106 One
relatively rapid consequence was the targeting of lesbian and gcry publications and booksellers
by customs officials and police (Mohr, 1995, pp. 15-16; Green, Chapter 8 in this volume,
p. 314),107 and the Supreme Court later confirmed that Butler applied to lesbian and gay as
we II as heterosexual material. 108
An ongoing debate concerns whether the Butler reasoning - which bore a strong affinity
with the feminist anti-pornography arguments advanced by Catherine MacKinnon (1987,
1993) and Andrea Dworkin (1979) - merely served to impose a heterosexual interpretation
on all pornography or acts to promote feminism.l09 Leslie Green argues in Chapter 8 that
the MacKinnon/Dworkin stance inappropriately conflates heterosexual and gay male
pornography, not least given the socially disempowered position of gay people. The meanings
of gay pornography cannot be reduced to those MacKinnon and Dworkin associate with the
heterosexual variety, and there is no evidence that gay pornography harms men in the way that
heterosexual pornography harms women.1I0 Green questions the claim that male-male desire
affirms masculinity, given that conventional gender stereotyping suggests that such desire
undermines the masculinity of both male parties. Homosexual desire is usually an attraction
to people of the same biological sex, but the extent to which it is also an eroticized response
to conventional gender-associated traits is extremely variable. Green further notes that if
gay male pornography has a significantly different role from heterosexual pornography, then
lesbian pornography is also likely to (p. 314).111 By contrast, in Chapter 9, Shannon Gilreath
defends the application of MacKinnon's and Dworkin's stance to gay male pornography.ll2
He argues that pornography unjustly objectifies both the sexual act and those performing
it for the camera, and reinforces an explicitly gendered and inequality-based conception of
power. Gay pornography involves representations of the dominance or abuse of 'passive' gay
men by 'active' straight men, in such a way that the participants and gays more generally

[06 (1992) 89 D.L.R. (4"h) 449 at 467 (Sopinka J.).

107 Note also Allan C. Hutchinson's suggestion that while Butler did not directly bring about
customs seizures, it 'tend[ed] to validate such practices' (1995, p. 132).
lOS Little Sisters Book and Art Emporium v. Minister ofJustice (2000) 2 S.c.R. 1120.

[09 See generally, Green, Chapter 8 in this volume; Scales, 1994; Hutchinson, 1995, pp. 121-22,

131-32; Sty chin, 1995, chs 3 and 4.

[10 See also Eskridge, 1997d, pp. 2466-73.
III See also Hutchinson, 1995, pp. 126-29; Eskridge, 1997d, pp. 2466-73.

112 See also Kendall, 2004.

xxviii Sexual Orientation and Rights

are obliterated as worthwhile social actors beyond serving as objects of sexual pleasure. It is
'paradigmatically based on highly gendered concepts of male-over-female (and analogous
male-over-subordinated-male) power' (p. 322).113
Gilreath's support for MacKinnon's and Dworkin's stance seemingly exposes him to
the challenges many feminists have made to it. 114 Gayle Rubin suggests that feminist anti-
pornography campaigns can resonate with 'conservative, anti-sexual discourse' and tend to
present sex in the worst possible light, recreating 'a very conservative sexual morality' and
producing 'some of the most retrogressive sexual thinking this side of the Vatican' (1993,
p. 229).115 Rubin supports 'pro-sex' feminist thought, which has 'criticized the restrictions
on women's sexual behavior and denounced the high costs imposed on women for being
sexually active' (1993, p. 28).116 Drucilla Cornell argues that 'the relationship between desire
and politics is ... much more complicated than MacKinnon herself would have it' (1991,
p. 134),117 while Judith Butler suggests that Mackinnon fails 'to distinguish the presence of
coerced domination in sexuality from pleasurable and wanted dynamics of power' (1994, p.
7).118 Whatever one's view about whether sexual orientation discrimination also constitutes
sex discrimination, the pornography controversy clearly shows how debates within feminist
theory can have important consequences for the legal rights of lesbians and gays.119

Conservative Counter-Arguments

William Eskridge notes that in the United States, conservative claims that same-sex sexual
acts are 'unnatural' have given way to arguments about the social effects if legal protections
are granted 120 (even ifboth can be associated with what Martha Nussbaum calls the 'politics of
disgust'). As this implies, constitutional arguments often involve the pitting of a progressive
rights-based position against competing rights or policy arguments,121 as well as questions
concerning whether the issue is better determined by a court or by the legislature. With the
decriminalization of same-sex sexual activity in Europe and North America, the practical
focus for conservative arguments has shifted (in those parts of the world) to resisting

113 Gilreath draws on Dworkin (1979, p. 45). He also notes that many of those who oppose anti-

pornography measures seem to assume that pornography constitutes the totality of the lesbian and gay
creative impulse (pp. 349-51).
114 Gilreath's indebtedness to the two theorists, especially MacKinnon, is clear from The End of

Straight Supremacy (201 la, pp. II-14ft). Many of the arguments in this debate are collected in Cornell
(2000).
115 See also Halley, 2006, p. 29.

116 See also Butler, 1994, pp. 7-8.

117 This forms part of a sustained critique of Mackinnon's treatment of female pleasure and desire

(Cornell, 1991, pp. 130-47).

118 Note also Janet E. Halley's analogous criticism of cultural feminist argument (2006, p. 65).

119 For analysis of relevant feminist debates, see Munro (2007, esp. chs 1,2 and 4).

120 For a detailed history of the evolution of conservative arguments in the United States, see
Eskridge (2000b; 2002, ch. I).
121 See, for example, Trinity Western University v. British Columbia College Teachers [2001] 1
S.c.R. 772. Note also Eskridge's discussion of the deployment of First Amendment arguments against
lesbian and gay rights claims in some US cases (2000b, pp. 1332, 1354-56).
 Sexual Orientation and Rights xxix

anti-discrimination protections and the recognition of same-sex partnerships, and some

conservatives seek to argue that progressive legal change would pose a threat to their freedom
to practise their religious beliefs.122 Such arguments seemingly assume that the law should
support religious belief in general or a particular set of beliefs, 123 and that such interests must
be given priority over competing claims. 124
One key question is thus how far conservative arguments are explicable unless they are
grounded in religious morality or assertions about 'human nature'. One ofthe more prominent
conservative arguments, by John Finnis (see Chapter 10), a 'new natural law' theorist, was
fi led as a submission to the Colorado Supreme Court in Romer v. Evans,125 and Finnis's work,
with that of his collaborator Robert George, was later invoked by Justice Alito in his dissent
in United States v. Windsor, in which the US Supreme Court ruled the Defense of Marriage
Act unconstitutional. 126 Finnis argues that there is an objective and universal set of basic
human goods.127 The 'modes of responsibility' or 'requirements of practical reasonableness'
in tum specify how one must handle the goods, a morally justifiable decision being one taken
in accordance with the modes/requirements. In seeking to argue against legal protections for
lesbians and gays, Finnis and his colleagues 128 employ the good of marriage, defined as the
union of one man and one woman, who become literally one biological unit during acts of
marital sexual intercourse with procreative potential (or which would have if both parties
were capable of reproduction): something they call 'two-in-one flesh' union (p. 375).129 An
intentional decision by any unmarried person to engage in sexual activity, or by a married
person to engage in sex which is not 'marital', defies the need to respect the basic goods and
is thus immoral. Finnis states, in Chapter 10, that same-sex sexual acts

122 For classic European Convention examples, see Ewe ida. Ladele and McFarlane v. United

Kingdom, application nos. 48420110, 59842/10 and 36516110, European Court of Human Rights 15
January 2013 and 27 May 2013.
123 See Baroness Hale's important discussion in R. (on the application of Begum) v. Headteacher

and Governors of Denbigh High School [2006] UKHL 15, esp. paras [95] and [96]. See also R. v.
Secretary of State for Education and Employment, ex p. Williamson [2005] UKHL 15, paras [15], [17]
(Lord Nicholls). See also, in the UK, R. (AMICUS) v. Secretary of State for Trade and Industry [1994]
EWHC 869 (Admin).
124 See, for example, the argument rebutted by Justice Sachs in Minister of Home Affairs v. Fourie

(2006) 1 S.A. 524, para. [89]. For further discussion of religious hostility towards sexual minorities, see
Stychin (1998a), Wintemute (2002, esp. pp. 127-28) and Gilreath (2011 a, pp. 131--42, 151-54).
125 (1993) 854 P. 2d 1270; the case went on to the US Supreme Court, which ruled the state

constitutional amendment to be an unconstitutional expression of animus towards lesbians and gay men:
(1996) 517 U.S. 620. Finnis's Brief is referenced at (94-1039) 1995 WL 17013889. For discussion of
the Christian conservative campaign for the amendment, including the role played by Finnis and his
collaborator Robert George, see Nussbaum (2010, ch. 4). Andrew Koppelman, a strong critic, suggests
in Chapter 11 that the new natural law argument that marriage is inherently heterosexual is 'the most
sophisticated' ofthose available (p. 391). See also Macedo (1995, p. 276).
126 26 June 2013 (2013) 133 S.Ct. 2675, Alito J. dissenting judgment, transcript pp. 8-9.

127 For a summary of the theory, see Bamforth and Richards (2008, ch. 3).

128 Finnis, 1993-94, p. 1066; George, 1999, pp. 146-7, 168-70. See, principally, Finnis (1993,

1993-94, 1996, 1997) and George (1999, esp. chs 8 (with Gerard Bradley), 9 (with Patrick Lee), 11, 15
and 16).
129 See also Finnis, 1997, pp. 99, 118. Note also the footnotes in George (1999, chs 8 and 9).
xxx Sexual Orientation and Rights

cannot express or do more than is expressed or done ... [if] a prostitute pleasures a client to give
him pleasure in return for money, or (say) a man masturbates to give himself pleasure ... there is
no important distinction in essential moral worthlessness between solitary masturbation, being
sodomized as a prostitute, and being sodomized for the pleasure of it. (pp. 373-74)

A society that judges that family life 'is offundamental importance to that community's present
and future can rightly judge that it has a compelling interest in denying that homosexual
conduct - a "gay lifestyle" - is a valid, humanly acceptable choice and form of life, and in
doing whatever it properly can ... to discourage such conduct' (pp. 376-77). The new natural
lawyers strongly believe that the state should not recognize same-sex partnerships, and some
in the group have opposed decriminalization and non-discrimination protections. l3O
However, the idea of 'two-in-one flesh union', developed by new natural lawyer Germain
Grisez in Volume Two of his Catholic theological treatise The Way of the Lord Jesus (1993,
pp. 568, 570, 572, 575-76, 577, 579, 580, 584, 586, 618, 649; see also pp. 332--47, 620, 622),
undermines claims that the group's arguments are non-religious. l3l Leslie Green believes it
'doubtful that any intelligible secular principle can be wrought from the "one-flesh" dogma'
(2011, p. 15), while group member Robert George is a co-author, with fundamentalist
Protestants, of the 2009 Manhattan Declaration, an explicitly religious denunciation of same-
sex marriage (George et al., 2009). The new natural lawyers' arguments can thus be attacked
for claiming to operate on one (secular) basis when they are in fact of a different (religious)
character. 132 Other criticisms have been advanced. First, the group's views concerning
lesbians and gays are part of a broader package, which if implemented would affect the sexual
freedom of all citizens, particularly in relation to contraception and abortion.133 Second,
Martha Nussbaum (1994) dismisses Finnis's claim that history supports the idea of marriage
understood only as the union of one man and one woman. 134
Third, Gareth Moore (2003, pp. 253-57) argues that 'two-in-one flesh union' gets the facts
of reproductive biology wrong by failing to distinguish between a creature's activities and the
functioning of its organs and other parts. 135 Each part of an animal or human has a function,
and in combination they form the complete organism. But if males and females join together
as 'two-in-one flesh' to form the complete organism capable of reproducing sexually, we
would have to see them as mere organs or parts of that complete organism - which cannot

l30 Cf Finnis (1993-94, p. 1076) and the Supreme Court decision in Lawrence; Robert George and

Gerard Bradley, (02-102) (2003) w.L. 470066.

13l See further Bamforth and Richards (2008, chs 4, 8 and 10) and Koppelman, Chapter 11 in
this volume, pp. 426-29. For a Catholic critique of the new natural law position and presentation of
alternative views on sexuality, see Curran (1998).
132 This critique of 'new natural law' is developed at length in Bamforth and Richards (2008) and

in Bamforth (2011 b). For a definition of religious arguments, see Audi (1993).
133 See, for example, Eskridge, 2000b, pp. 1380-81.

134 See also Calhoun, 1993, pp. 1870-72; Eskridge, 199b, pp. 1441-47; 1996a, pp. 21-23; Boswell,

1994.
135 For an unsatisfactory response, see George (1999, pp. 146--47). For further analysis of the new

natural lawyers' mischaracterization of the role of bodily parts, see Koppelman, Chapter 11 in this
volume, pp. 409-11.
 Sexual Orientation and Rights xxxi

be correct (Moore, 2003, p. 256).136 Grisez's mating couple is not a single organism, but two
people engaging in a joint activity for a certain purpose (Moore, 2003, p. 257). Moore also
argues that ifGrisez was right and 'male and female formed one organism when they mated ...
it would be this single organism that reproduced ... [something] we call asexual reproduction.
It is characteristic of sexual reproduction, by contrast, that it is carried out by two animals
in collaboration' (2003, p. 257). Given the centrality of 'one flesh union' to the new natural
lawyers' claims about legitimate and illegitimate sexual activity, Moore's demonstration of its
scientific inadequacy is devastating to their position.137
Fourth, there are morally appealing views which show that a far broader range of consensual
sexual acts and sexual/emotional partnerships deserve respect.138 Andrew Koppelman notes,
in Chapter 11, that the new natural law prescriptions governing sex (which should, ideally, be
a joyous activity) are astonishingly prescriptive:

Even married heterosexuals engaging in uncontracepted sex typically do some things solely for the
purpose of ... physical pleasure. Must the new natural lawyers condemn these acts as well? How
detailed a sex manual, with ... subtle distinctions between permitted and forbidden acts ... and
positions, does the new natural law theory imply? (pp. 425-26)

Koppelman suggests that the same goods can be seen to be involved in sexual acts between
committed same-sex couples and committed opposite-sex couples.139 Furthermore, even for
those initially inclined to accept a natural law approach, the dismissal of 'two-in-one flesh'
using Moore's reasoning renders it unclear how reasonable reflection on the good of marriage
might necessarily produce the practical conclusions advanced by the new natural lawyers. A
feminist interpretation of natural law might produce a very different view of what counts as
'marital' (see Eskridge, 2000b, pp. \380-8\), and a liberal view might accept that people can
reasonably engage in sexual activity for purposes wholly unconnected with reproduction or
marriage: as an expression of sexual love and intimacy, for example, or purely for pleasure.
This broader view of marriage seems to have been recognized in recent US cases. In
Goodridge v. Department of Public Health, in which it was held that the denial of marriage
to same-sex couples violated the dignity and equality clauses of the Massachusetts State
Constitution,140 Chief Justice Marshall suggested that

Civil marriage is at once a deeply personal commitment to another human being and a highly public
celebration of the ideals of mutuality, companionship, intimacy, fidelity and family ... Because it
fulfils yearnings for security, safe haven, and connection that expresses our common humanity, civil
marriage is an esteemed institution, and the decision whether and whom to marry is among life's
momentous acts of self-definition. 141

136 Note also Stephen Macedo's observation (1995, p. 280) that despite the new natural lawyers'

rhetoric, what is being united - if anything is - is penises and vaginas, not persons.
137 See also Moore, 2000, pp. 224-26.

138 For criticisms ofthe new natural lawyers, see Macedo (1995) and Perry (1995).

139 See also Leslie Green's argument (2011, pp. 7-8) and Wedgwood (1999). Note also Erdos (2005,

pp. 28-30) and Andrew Koppelman's suggestion in Chapter 11 concerning alternative goods and hence
boundaries (pp. 403--404).
140 (2003) 798 N.E. 2d 941.

141 (2003) 798 N.E. 2d 941 at 954-55.

xxxii Sexual Orientation and Rights

Chief Justice Marshall also rejected the conservative view that procreation was at its centre:
'It is the exclusive and permanent commitment of the marriage partners to one another, not the
begetting of children, that is the sine qua non of civil marriage.' 142 This is analogous to Chief
Justice Walker's reasoning at US District Court stage in Perry v. Schwarzenegger, concerning
the compatibility with the Due Process and Equal Protection Clauses of the Fourteenth
Amendment of 'Proposition 8', which sought to amend the California state constitution
to confine marriage to opposite-sex couples. 143 Marriage was 'more than a license to have
procreative sexual intercourse' and 'wholly apart from procreation, choice and privacy
playa pivotal role in the marital relationship' .144 Same-sex couples 'are situated identically
to opposite-sex couples in terms of their ability to perform the rights and obligations of
marriage'.145 The debate thus seems to be between a view of marriage as a relationship based
on choice, mutual commitment and care, albeit entailing sex 146 - 'relational not procreational',
in Eskridge's words (1996a, p. 11 )147 - or as something fixed and inherently heterosexual,
involving a commitment to the type of sexual activity which is 'suitable' for reproduction. The
US Supreme Court now seems, in Windsor, to favour the first view, Justice Kennedy affirming
for the majority that sex was but one element in marriage, and that the 'status' conveyed
by legal recognition of same-sex marriage 'is a far-reaching legal acknowledgement of the
intimate relationship between two people, a relationship deemed by the State worthy of
dignity in the community equal with all other marriages' .148

Radical and Queer Approaches to Rights

Some progressive theories nonetheless challenge the effectiveness of legal change in securing
genuine sexual freedom or equality, often being sceptical of the ability of what they see as
'co-option' into institutions like marriage to make a meaningful difference to lesbian and gay
lives.

142 (2003) 798 N.E. 2d 941 at 961. Note also Eskridge (l996a, pp. 138-40).
143 704 F. Supp. 2d 921 (N.D. Cal. 2010), motion to stay District Court order pending appeal granted
201 0 WL 3212786 (9th Circuit August 16th 2010), certifying question to California Supreme Court 628
F 3d 1191 (9th Circuit 2011).
144 704 F. Supp. 2d 921 (N.D. Cal. 2010) at 992. See also Eskridge (1996a, pp. 96-98) and Nussbaum

(2010, p. 136).
145 704 F. Supp. 2d 921 (N.D. Cal. 2010) at 993.
146 See, for example, Cossman (2007, pp. 71-74) and Wedgwood (1999, p. 241). For analysis of

sexual choice, see Green (1995).

147 See also Eskridge (1996a, pp. 66-74, 84) and Nussbaum (2010, p. 136). One resultant question

is whether some accommodation may still be possible between advocates of rights for religious groups
and for sexual minorities: cf. Green (1995, p. 81), Wintemute (2002, p. 132), Eskridge (2011) and
Gilreath (2011a, pp. 237-41).
148 26th June 2013, (2013) 133 S.Ct. 2675, Court Opinion, transcript, p. 20. See generally transcript,

pp.14-26.
 Sexual Orientation and Rights xxxiii

For example, Ruthann Robson 149 sought to articulate 'a lesbian legal theory ... that was
inclusively and specifically lesbian' (1992, p. 13)150 and, in Chapter 12, one 'grounded in
lesbian existence' (p. 439). This required 'a critical attitude toward law', asking 'whether
or not ... [it] ... is appropriate in a particular situation' (p. 438).151 The 'starting point for
developing lesbian legal theory' was what might best benefit lesbian survival (p. 437).152
Since any attempt to define lesbians should be lesbian-generated not law-generated, a lesbian
was a woman who said she was. As such, '[w]hen we talk about legal rules as the basis
for lesbian choices ... we are domesticated' (Robson, 1992, p. 140). It was dangerous to
allow legal categorizations to displace lesbian ones, '[t]he challenge' instead being to 'mak[ e]
the law serve lesbian relationships instead of having lesbian relationships serve the law'
(Robson, 1992, p. 119).153 Rules should be evaluated (in terms of usefulness, desirability
and so forth) from a lesbian-centred perspective (Robson, 1992, p. 121). Robson, in Chapter
12, was also sceptical about the wisdom of lesbians being co-opted too far into arguments
about sexual privacy (p. 452).154 Legal privacy rights took as their paradigm the heterosexual
couple, working neither as a failsafe guarantee for nor a consistent obstacle to lesbians.
While the development of a bar to sexual orientation discrimination could nonetheless have
important symbolic value, non-discrimination measures were still laws and domesticated
lesbian experience by requiring the construction of legal narratives to present a case and
establish discrimination by reference to differences from the treatment of heterosexuals
(p. 460). Legal change was therefore not to be confused with revolution, the limitations of
law being recognized (p. 461). Robson also believed that the 'quest for lesbian survival is
not furthered by embracing the law's rule of marriage', lesbians' legal energy being 'better
directed at abolishing marriage as a state institution and spouse as a legal category' (1992,
p. 127).155
Other radical theorists question the need for legal marriage and treat rights (at least if
individualized) as problematical. 156 Apart from opposing gay pornography as an obstacle to
gay liberation in Chapter 9 (p. 321), Shannon Gilreath argues that same-sex marriage should
not be prioritized, efforts being shifted to developing an authentic sense of lesbian and gay
identity. Given the possible effects of law in reifying dominant social categories - for in
the present social system, the heterosexual defines the homosexual 'as rebels because the
failure to acquiesce in the sexual politics of gender imperils the system in which men are to
be dominant and in which heterosexuality (man over woman) equals dominance' (Gilreath,
2011 a, p. 7) - he seeks' a legal theory in pursuit of equality ... that operates in and through the
lives of Gay people' (Gilreath, 2011 a, p. 3). He claims - in a fashion rather akin to Robson on

149 Both sets of references used in this paragraph are to material drawn from the same book. Since

Chapter 12 reproduces only some of that material, readers are advised to cross-reference the original
page numbering reproduced in Chapter 12 with other parts of Robson (1992).
150 See also pp. 20-21.

151 See also pp. 440, 441, 443.

152 See also Robson, 1992, pp. 125, 129, 134, 136 and 140.

153 See also p. 70.

154 For practical examples, including pornography, see pp. 446-50.

155 See also Ettelbrick, 1989. For a liberal response, see Eskridge (1996a, esp. pp. 8-9,76,81-82).

156 See, for example, Spindelman, 2004, esp. pp. 1619-32; 2005, esp. p. 1374; cf. Eskridge, 2002,

ch.6.
xxxiv Sexual Orientation and Rights

lesbians - that 'Gay life under straight supremacy needs its own theory of action ... attuned
to the specificities of straight-over-Gay domination' (Gilreath, 20 II a, p. 13). Controversially,
he believes that an authentic 'Gay Self' with an identity, including a sense of community, is
discoverable through resistance to the 'Hetero-archy', begging the questions '[w]hat might
Gay people, as Gay people, contribute? ... [W]hat might we say if we were allowed to speak
in our own voice?' (Gilreath, 2011a, p. 29).157 Gilreath roots his substantive equality theory
in radical feminist analysis, placing him in - as seen in relation to pornography - what
Rubin calls the feminist 'anti-sexual' school. 158 He also criticizes US equal protection and
due process reasoning as assimilationist, defining equality 'in terms of equivalence to the
preexisting heteronormative standard' and protecting gays only in so far as they are deemed
equivalent to heterosexuals (Gilreath, 2011a, p. 78).159 His preferred substantive approach
would ask 'whether the law promoted the dominance of one group with the consequence of
the subordination of the target group, in a socio-political reality in which the groups are, in
fact, unequal in power, and where the ... hierarchy excludes the target group from power'
(Gilreath, 20 II a, p. 89).160 On this view, Lawrence took the heterosexual as the measure of the
norm, protecting lesbians and gays only through an assimilationist analysis (Gilreath, 20 II a,
pp.84-85).161
Gilreath (20 II a, p. 219),162 believes campaigners for same-sex marriage have uncritically
adopted the heterosexual model, overlooking its patriarchal and sexist character. Marriage
rights involve assimilation and supplication to the power of the heterosexual majority rather
than attempting to disrupt the existing institution (Gilreath, 20 Ila, pp. 210-17,224). However,
same-sex couples should have the same bundle of rights concomitant with state-sanctioned
coupling as those available to opposite-sex couples, the real objection being to fighting over
the word 'marriage' (Gilreath, 2011a, p 210). Adopting marriage would cause gay culture
uncritically to compromise its moral independence; equal rights could be secured without
descending into a 'like-straight' politics (Gilreath, 20 II a, p 232). Echoing his idea of 'Meta-
Memory', Gilreath (20 II a, pp. 225-26, 286-87) believes inner gay creativity allows for the
imagination of new ways of being, drawn in part from experience but more from imagining
possibilities which cannot clearly be envisaged under a heterosexual system. Rather like
Robson, he seemingly pursues a separatist line of reasoning: gay people (within his definition)
must follow their own lights, as must lesbians (within Robson's), law being useful only to the
extent that it assists in serving their goals.
Gilreath might be asked how far it is possible, in a society based on relations of power,
for a plausibly 'separate' identity theory - lesbian or gay liberationist - to emerge. He claims
a 'true' identity will only appear with the removal of current obstacles, yet still seems able
(with Robson) to formulate a separatist theory despite those obstacles' existence (although see
Gilreath, 20 II a, p. 286). It is also questionable whether it is sensible to invoke 'Meta-Memory',
something currently incapable of full articulation. Gilreath's understanding of a gay identity

157See also pp. 21, 285.

158See also Halley, 2006, pp. 12-14.
159 See generally ch. 2.
160 See also pp. 73, 86, 88, 90-91, 100. Note Gilreath's contrast (20 11 a, pp. 93-94, 97, 99) with the
famous US Supreme Court decision in Loving v. Virginia (1967) 388 U.S. 1.
161 See also p. 10.

162 See also p. 228

 Sexual Orientation and Rights xxxv

clearly also differs from the core 1970s gay liberationist notion of polymorphous perversity,
depicted by Dennis Altman (1993) as the view that human beings enjoy an undifferentiated
ability to derive sexual pleasure from all parts of the body (having an essentially bisexual
sex drive), a potential repressed by social forces into 'sexual orientations'. For Altman, the
removal of social oppression would simply make the heterosexual/homosexual distinction
irrelevant. 163 For Gilreath (2011 a, p. 293), by contrast, gay liberation believes in the existential
assertion of the Self - the notion that someone is a Gay man, gay identity being something to
be emphatic about and a basis for establishing an independent Self.
As a result (and however the above points are answered), Gilreath is hostile to members
of the other radical school, queer theory: members of which reject the use of fixed, including
sexuality-related, categories. 164 Michael Warner, for example, suggests that the sexual order
is 'so deeply embedded' in social institutions that 'queer struggles [must] aim not just at
toleration or equal status but at challenging those institutions and accounts' (1993, p. xiii). The
'preference for "queer'" entails 'thorough resistance to regimes of the normal' (Warner, 1993,
p. xxvi),165 fighting stigmatization associated with gender, the family, ideas of individual
freedom, the state, culture and the body, and challenging 'the common understanding of what
gender difference means, or what the state is for' (Warner, 1993, p. xiii). While acknowledging
that the 'exact parameters of queer theory are difficult to determine' and that '''queer'' as a
term is capable of constant reworking to serve new political purposes', Carl Stychin argues
in Chapter 13 that

Central to the project ... is the contestation of boundaries and categories ... Queerness is in part
a rejection of the minority group categorization ... queers constantly seek to reflect upon the
contingency and ambiguity of all sexual categories. Rather than constituting an identity category
itselt: queerness highlights the contingency of all boundaries of social practice and identity, including
its own. (p. 477)166

Queer theory's scepticism (and pragmatism) about rights is typified by Stychin, who accepts
the use of human rights arguments about sexuality while urging that we think carefully about
the content and goals of such arguments. He rejects '''grand theories" which are either for
or against the emphasis on rights struggles by social movements' (Stychin, 1996, p. 478).
The prospects for human rights are instead closely tied to prevailing cultural and historical
factors (Stychin, 1996, p. 478). He warns in Chapter 13 that sexuality-related categories
can be oppressive and must be subject to challenge, so that human rights arguments should
involve self-reflexivity about identities and their malleability (p. 481). Stychin accepts that
sexuality-related rights claims have often been successful - something he associates with the
globalization of human rights talk and of same-sex sexualities as identities (2004, pp. 953-
54) - but warns in Chapter 13 that law, as a category-friendly device, may easily entrench
current identities (pp. 468-80)167 and can unhelpfully discipline and normalize (Stychin,

163 Altman (2012) thus takes Gilreath to task for misrepresenting the idea of gay liberation.
[64 2011a, pp. 212, 226, 264, 276, 277, fn. 38.

165 For analysis ofthe arguably analogous divide within feminist theory between liberal, radical and

postmodern approaches, see Mumo (2007, esp. chs 1,2,4 and 5).
166 See also Stychin (1996, p. 468), Halley (2004), Halley and Parker (2007) and Leckey and
Brooks (2010, pp. 1, 10).
167 See also Stychin, 1996, pp. 467-72.
xxxvi Sexual Orientation and Rights

2004, pp. 966-68).168 Conservatives have themselves sought to co-opt the language of human
rights, tied to religion (Stychin, 2004, pp. 957-58),169 while progressive rights-talk may be
insufficient to bring about transformative social change (Stychin, 1996, p. 456). A right to
privacy, for example, tends to be meaningful only when linked to affordable housing (Stychin,
1996, p. 462). Human rights allow lesbians and gays into civil society, but society itself still
needs to be transformed. l7O
Judith Butler's work has been described as 'foundational for queer theory' (Halley and
Parker, 2007, p. 421),171 and in Chapter 14 she provides analysis of the links between lesbian
and gay issues and human rights theory. She notes that calls for legal rights are often seen as
attaching to individuals or definable groups. However, it is through the body that gender and
sexuality are implicated in social processes, thereby inevitably concerning our relations with
others. Butler is content for people to use the language of bodily autonomy, 'sexuality' and
'gender', since rights claims are part of the normative aspiration of movements seeking to
maximize the protection and the freedoms of sexuality minorities and women. However, we
have to understand sexuality and gender in a fluid fashion, as modes of being dispossessed or
ways of being for or by virtue of another. She suggests that the public assertion of lesbian and
gay sexualities should seek to change gender norms, aiming to create a social transformation
in the meaning of personhood. The assertion of sexual rights becomes a way of intervening
in the social and political processes by which the human is articulated, not prescribing
new gender norms but instead promoting freedom.172 To make real progress in challenging
homophobia, it is necessary to reconceive and rearticulate what it means to be human, in the
sense of being prepared to live with not knowing in advance what form 'humanness' ought
to take (as opposed, for example, to insisting on a binary gender-based view ofthe world).173
Butler suggests that when people speak of sexual rights, they are talking not merely of
rights that relate to their individual desires, but ofthings on which their individuality depends.
She accepts that it is appropriate to campaign for marriage and domestic partnership rights for
same-sex couples who want them, but stresses that the 'traditional' notion of marriage must
not be seen as a model of sexual legitimacy. Ties of kinship and community run more broadly
than this and should not be shut down by the desire simply to buy into an existing ideal, which
has faults as well as benefits. 174 In Chapter 14, she accepts that 'we are compelled to speak of
the human, and ofthe international, and to find out in particular how "human rights" do and do

168 This is perhaps akin to a concern expressed by Janet Halley in relation to calls for the legal

recognition of same-sex marriage: 'Rights have led to Regulation, and Regulation ... has led to
Normalisation ... recognition and rights arguments depend on regulation and normalisation arguments'
(2001, p. lll).
169 See also Stychin, 1998b.
170 Sty chin, 1998b, pp. 555-57; 2004, p. 967.

171 See particularly Butler's Gender Trouble (1999).

172 See also Butler and Birules, 2008.

173 See also Butler, 1994, pp. 14-15.

174 In Butler and Birules (2008), Butler expands on these points, suggesting that marriage should

be extended to couples regardless of sexual orientation, but that the risk of producing a conservative/
normalizing effect needs to be avoided. Campaigns in favour of same-sex marriage should thus support
alternative families, systems of kinship and personal association, and keep questions concerning the
definition of socially- (even if not legally-) recognized relationships open. Butler draws attention to
 Sexual Orientation and Rights xxxvii

not work' (p. 510). The language of rights must be used to assert an entitlement to conditions
of life that affirm the constitutive role of gender and sexuality. To do this coherently, however,
social categories such as 'human', 'gender' and 'sexuality' have to be subjected to critical
scrutiny, and we must accept their openness to reconception. Butler thus appears concerned,
as her treatment of partnership rights demonstrates, to promote a new and more flexible
understanding of human rights claims.

Conclusions

This introduction has sought to sketch in very general terms the terrain of scholarship relating
to sexual orientation and rights. Many of the arguments aired contain uncertainties and have
both weaknesses and strengths. Nonetheless, it is clear that this area engages with central
issues in legal, constitutional and human rights theory, and is thus of scholarly as well as
practical importance. Inevitably, large amounts of material, whether measured by reference to
subject matter or the contributions of individual authors, have been omitted from this survey.
Examples include the law's treatment of transsexual and transgender individuals, sexuality and
citizenship, and whether arguments for legal rights for sexual minorities should be universal
or culture-specific. 175 Arguments concerning how far it is plausible for sexual minorities to
count on the law as an agent of meaningful protection have only been lightly explored, and
on an ongoing basis this last issue might be thought to be of considerable practical concern
to anyone interested in sexual orientation and rights. A person's formal legal rights are only
ever a partial guide to - albeit a practically and symbolically extremely important foundation
for - the entitlements which they may meaningfully enjoy in day-to-day life (including, where
necessary, due to litigation). In relation to sexual orientation as much as any other topic, there
will be limits to how far legal change might - without more - encourage social change, and
vIce versa.

References

Abelove, Henry, Barale, Michele Aina and Halperin, David M. (eds) (1993), The Lesbian and Gay
Studies Reader, London: Routledge.
Altman, Dennis (1993), Homosexual: Oppression and Liberation (2nd edn), London: Serpent's Tail.
Altman, Dennis (2012), 'Can the Revolution Be Recovered?', Gay & Lesbian Review, March-April,
p.30.
Amnesty International (200 I), Crimes of Hate. Conspiracy of Silence: Torture and Ill-treatment Based
on Sexual Identity, London: Amnesty International.
Amnesty International United Kingdom (1996), Breaking the Silence: Human Rights Violations Based
on Sexual Orientation, London: Amnesty International.

communities of lovers, ex-lovers and friends which constitute complex kinship networks outside the
conjugal pattern.
175 Other possible topics include the law's treatment of consensual sado-masochistic sexual acts,

although arguments concerning the appropriate treatment of this area may well be readily inferable from
many of the arguments considered above.
xxxviii Sexual Orientation and Rights

Audi, Robert (1993), 'The Place of Religious Argument in a Free and Democratic Society', San Diego
Law Review, 30, pp. 677-702.
Bamforth, Nicholas (1997), Sexuality, Morals and Justice: A Theory of Lesbian and Gay Rights Law,
London: Cassell.
Bamforth, Nicholas (2000), 'Sexual Orientation Discrimination after Grant v. South-West Trains',
Modern Law Review, 63, pp. 694-720.
Bamforth, Nicholas (2001), 'Same-Sex Partnerships and Arguments of Justice', in Robert Wintemute
and Mads Andenaes (eds), Legal Recognition of Same-Sex Partnerships: A Study of National,
European and international Law, Oxford: Hart, pp. 31-54.
Bamforth, Nicholas (2011 a), 'Legal Protection of Same-Sex Partnerships and Comparative Constitutional
Law', in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law, Cheltenham:
Edward Elgar, pp. 551-68.
Bamforth, Nicholas (2011 b), 'New Natural Law, Religion, and Same-Sex Marriage: Current
Constitutional Issues', Wake Forest Journal of Law and Policy, 1, pp. 207-79.
Bamforth, Nicholas (2012), 'Sexuality and Citizenship in Contemporary Constitutional Argument',
international Journal of Constitutional Law, 10, pp. 477-92.
Bamforth, Nicholas and Richards, David A.J. (2008), Patriarchal Religion, Sexuality, and Gender: A
Critique of New Natural Law, Cambridge: Cambridge University Press.
Boswell, John (1994), Same Sex Unions in Premodern Europe, New York: Villard Books.
Butler, Judith (1994), 'Against Proper Objects', Differences, 6, pp. 1-26.
Butler, Judith (1999), Gender Trouble, New York: Routledge (rev. edn 2006).
Butler, Judith and Birules, Fina (interviewer) (2008), '''Gender is Extramoral": Interview with Judith
Butler', Barcelona Metropolis, available at: http://www.egs.edu/facultyl-judith-butler/articles/gender-
is-extramoral!. (Last accessed 31 August 2014).
Calhoun, Cheshire (1993), 'Denaturalizing and Desexualizing Lesbian and Gay Identity', Virginia Law
Review, 79, pp. 1859-75.
Calhoun, Cheshire (1995), 'Sexuality Injustice', Notre Dame Journal of Law, Ethics & Public Policy,
9, pp. 241-74.
Cameron, Edwin (2005), Witness to AIDS, London: LB. Tauris.
Cole, David and Eskridge, William N. (1994), 'From Hand-Holding to Sodomy: First Amendment
Protection of Homosexual (Expressive) Conduct', Harvard Civil Rights-Civil Liberties Law Review,
29, pp. 319-51.
Cornell, Drucilla (1991), Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law,
New York: Routledge.
Cornell, Drucilla (ed.) (2000), Feminism and Pornography, Oxford: Oxford University Press.
Cossman, Brenda (2007), Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging,
Stanford: Stanford University Press.
Curran, Charles E. (1998), 'Sexual Orientation and Human Rights in American Religious Discourse: A
Roman Catholic Perspective', in Saul M. Olyan and Martha C. Nussbaum (eds), Sexual Orientation
and Human Rights in American Religious Discourse, New York: Oxford University Press, pp. 85-
100.
D'Emilio, John (1992), Making Trouble: Essays on Gay History, Politics, and the University, New York:
Routledge.
Devlin, Patrick (1965), The Enforcement ofMorals, Oxford: Oxford University Press.
Duff, R.A. (1990), intention, Agency and Criminal Liability: Philosophy of Action and the Criminal
Law, Oxford, Blackwell.
Dworkin, Andrea (1979), Pornography: Men Possessing Women, New York: Penguin.
 Sexual Orientation and Rights xxxix

Epstein, Steven (1990), 'Gay Politics, Ethnic Identity: The Limits of Social Constructionism', in Edward
Stein (ed.), Forms of Desire: Sexual Orientation and the Social Constructionist Controversy, New
York, Garland, pp. 39-93.
Erdos, David O. (2005), 'Questions of Tolerance and Fairness', in H.N. Hirsch (ed.), The Future of Gay
Rights in America, New York: Routledge, pp. 15-36.
Eskridge, William N. (1992), 'A Social Constructionist Critique of Posner's Sex and Reason: Steps
toward a Gaylegal Agenda', Yale Law Journal, 102, pp. 333-86.
Eskridge, William N. (1993a), Gaylaw: Challenging the Apartheid of the Closet, Cambridge, MA:
Harvard University Press.
Eskridge, William N. (l993b), 'A History of Same-Sex Marriage', Virginia Law Review, 79, pp. 1419-
513.
Eskridge, William N. (1994), 'Gaylegal Narratives', Stanford Law Review, 46, pp. 607-46.
Eskridge, William N. (1996a), The Case for Same-Sex Marriage: From Sexual Liberty to Civilized
Commitment, New York: Free Press.
Eskridge, William N. (1997a), 'Challenging the Apartheid of the Closet: Establishing Conditions for
Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981', Hofstra Law Review, 25, pp. 817-
970.
Eskridge, William N. (1997b), 'Privacy Jurisprudence and the Apartheid of the Closet, 1946-1961',
Florida State University Law Review, 24, pp. 703-840.
Eskridge, William N. (1997c), 'Law and the Construction of the Closet: American Regulation of Same-
Sex Intimacy, 1880-1946', Iowa Law Review, 82, pp. 1007-134.
Eskridge, William N. (1997d), 'A Jurisprudence of "Coming Out": Religion, Homosexuality, and
Collisions of Liberty and Equality in American Public Law', Yale Law Journal, 106, pp. 2411-74.
Eskridge, William N. (2000a), 'Comparative Law and the Same-Sex Marriage Debate: A Step-by-Step
Approach toward State Recognition', McGeorge Law Review, 31, pp. 641-72.
Eskridge, William N. (2000b), 'No Promo Homo: The Sedimentation of Antigay Discourse and the
Channeling Effect of Judicial Review', New York University Law Review, 75, pp. 1327-411.
Eskridge, William N. (2001a), 'Equality Practice: Liberal Reflections on the Jurisprudence of Civil
Unions', Albany Law Review, 64, pp. 853-81.
Eskridge, William N. (2001 b), 'The Ideological Structure of the Same-Sex Marriage Debate (and Some
Postmodern Arguments for Same-Sex Marriage)', in Robert Wintemute and Mads Andenaes (eds),
Legal Recognition of Same-Sex Partnership: A Study of National, European and International Law,
Oxford: Hart, pp. 113-29.
Eskridge, William N. (2002), Equality Practice: Civil Unions and the Future of Gay Rights, New York:
Routledge.
Eskridge, William N. (2009), 'A Pluralist Theory of the Equal Protection Clause', University of
Pennsylvania Journal of Constitutional Law, 11, pp. 1239-67.
Eskridge, William N. (2011), 'Noah's Curse: How Religion Often Conflates Status, Belief, and Conduct
to Resist Antidiscrimination Norms', Georgia Law Review, 45, pp. 657-720.
Ettelbrick, Paula (1989), 'Since When is Marriage a Path to Liberation?', OUT/LOOK, National Gay
and Lesbian Quarterly, 6, pp. 8-17.
Feldman, David (1999), 'Human Dignity as a Legal Value - Part 1', Public Law, pp. 682-702.
Feldman, David (2000), 'Human Dignity as a Legal Value - Part 2', Public Law, pp. 61-71.
Finnis, John (1993), 'Disintegrity', in 'Is Homosexual Conduct Wrong? A Philosophical Exchange', The
New Republic, 15 November, p. 12.
Finnis, John (1993-94), 'Law, Morality, and "Sexual Orientation"', Notre Dame Law Review, 69, pp.
1049-76 (reprinted with amendments in Notre Dame Journal of Law, Ethics & Public Policy, 9
(1995), pp. 11-39).
xl Sexual Orientation and Rights

Finnis, John (1996), 'Is Natural Law Compatible with Limited Government?', in Robert George (ed.),
Natural Law, Liberalism and Morality, Oxford: Clarendon Press, pp. 1-26.
Finnis, John (1997), 'The Good of Marriage and the Morality of Sexual Relations: Some Philosophical
and Historical Observations', American Journal ofJurisprudence, 42, pp. 97-134.
Fuss, Diana (1990), Essentially Speaking: Feminism, Nature and Difference, New York: Routledge.
Gardner, John (1998), 'On the Ground of Her Sex(uality)', Oxford Journal of Legal Studies, 18,
pp. 167-87.
George, Robert (1999), In Defense of Natural Law, Oxford: Clarendon Press.
George, Robert, George, Timothy and Colson, Charles 'Chuck' (2009), Manhattan Declaration: A Call
of Christian Conscience, 20 November, available at: http://www.manhattandeclaration.org (Last
accessed 3 1. August 2014)
Gevisser, Mark and Cameron, Edwin (eds) (1995), Defiant Desire: Gay and Lesbian Lives in South
Africa, New York: Routledge.
Gilreath, Shannon (2011 a), The End of Straight Supremacy: Realizing Gay Liberation, New York:
Cambridge University Press.
Gilreath, Shannon (2011 b), 'Patriarchal Religion, Sexuality, and Gender: An Introductory Essay', Wake
Forest Journal ofLaw and Policy, 1, pp. 197-205.
Goldstein, Anne B. (1988), 'History, Homosexuality, and Political Values: Searching for the Hidden
Determinants of Bowers v. Hardwick', Yale Law Journal, 97, pp. 1073-103.
Green, Leslie (1995), 'Sexuality, Authenticity, and Modernity', Canadian Journal of Law and
Jurisprudence, 8, pp. 67-82.
Green, Leslie (2011), 'Sex-Neutral Marriage', Current Legal Problems, pp. 1-21.
Grisez, Germain (1993), The Way of The Lord Jesus, Volume Two: Living A Christian Life, Quincy, IL:
Franciscan Press.
Halley, Janet E. (1989), 'The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and
Bisexual Identity', UCLA Law Review, 36, pp. 915-76.
Halley, Janet E. (1993), 'Reasoning about Sodomy: Act and Identity in and after Bowers v. Hardwick',
Virginia Law Review, 79, pp. 1721-80.
Halley, Janet (2001), 'Recognition, Rights, Regulation, Normalisation: Justification in the Same-Sex
Marriage Debate', in Robert Wintemute and Mads Andenaes (eds.) Legal Recognition of Same-Sex
Partnerships: A Study of National, European and International Law, Oxford: Hart, pp. 97-111.
Halley, Janet (2004), 'Queer Theory by Men', Duke Journal of Gender, Law and Policy, 11, pp. 7-52.
Halley, Janet (2006), Split Decisions: How and Why to Take a Breakfrom Feminism, Princeton: Princeton
University Press.
Halley, Janet and Parker, Andrew (2007), 'Introduction', South Atlantic Quarterly, 106, pp. 421-32.
Halperin, David (1989), 'Sex before Sexuality: Pederasty, Politics, and Power in Classical Athens',
in M.B. Duberman, M. Vicinus and G. Chauncey (eds), Hiddenfrom History: Reclaiming the Gay
and Lesbian Past, London: Penguin, pp. 37-53.
Hart, H.L.A. (1963), Law, Liberty and Morality, Oxford: Oxford University Press.
Honore, A.M. (1978), Sex Law, London: Duckworth.
Hunter, Nan D. (2001), 'The Sex Discrimination Argument in Gay Rights Cases', Journal of Law and
Policy, 9, pp. 397-416.
Hunter, Nan D. (2004a), 'Living with Lawrence', Minnesota Law Review, 88, pp. 1103-39.
Hunter, Nan D. (2004b), 'Sexual Orientation and the Paradox of Heightened Scrutiny', Michigan Law
Review, 102, pp. 1528-54.
Hutchinson, Allan C. (1995), 'In Other Words: Putting Sex and Pornography in Context', Canadian
Journal of Law and Jurisprudence, 8, pp. 107-38.
Jeffery-Poulter, Stephen (1991), Peers, Queers, and Commons: The Struggle for Gay Law Reform from
1950 to the Present, London: Routledge.
 Sexual Orientation and Rights xli

Kapur, Ratna (2010), 'De-radicalising the Rights Claims of Sexual Subalterns Through "Tolerance"',
in Robert Leckey and Kim Brooks (eds), Queer Theory: Law, Culture, Empire, Abingdon: Routledge,
pp.37-52.
Kendall, Christopher N. (2004), Gay Male Pornography: An Issue of Sex Discrimination, Vancouver:
UBC Press.
Koppelman, Andrew (1988), 'The Miscegenation Analogy: Sodomy Law as Sex Discrimination', Yale
Law Journal, 98, pp. 145-64.
Koppelman, Andrew (1994), 'Why DiscriminationAgainst Lesbians and Gay Men is Sex Discrimination',
New York University Law Review, 69, pp. 197-287.
Koppelman, Andrew (1996), Antidiscrimination Law and Social Equality, New Haven, CT: Yale
University Press.
Koppelman, Andrew (2001), 'Defending the Sex Discrimination Argument for Lesbian and Gay Rights:
A Reply to Edward Stein', UCLA Law Review, 49, pp. 519-38.
Law, Sylvia A. (1988), 'Homosexuality and the Social Meaning of Gender', Wisconsin Law Review,
pp. 187-235.
Leckey, Robert and Brooks, Kim (2010), 'Introduction', in Robert Leckey and Kim Brooks (eds), Queer
Theory: Law, Culture, Empire, Abingdon: Routledge, pp. 1-18.
MacCormick, D.N. (1982), Legal Right and Social Democracy: Essays in Legal and Political
Philosophy, Oxford: Clarendon Press.
McCrudden, Christopher (2008), 'Human Dignity and Judicial Interpretation of Human Rights',
European Journal ofInternational Law, 19, pp. 655-724.
Macedo, Stephen (1995), 'Homosexuality and the Conservative Mind', Georgetown Law Journal, 84,
pp.261-300.
MacKinnnon, Catherine A. (1987), Feminism Unmodified, Cambridge, MA: Harvard University Press.
MacKinnnon, Catherine A. (1993), Only Words, Cambridge, MA: Harvard University Press.
Michelman, Frank (1988), 'Law's Republic', Yale Law Journal, 97, pp. 1493-537.
Mill, 1.S. (1989) On Liberty, ed. Stefan Collini, Cambridge: Cambridge University Press.
Miller, Harris M. (1984), 'An Argument for the Application of Equal Protection Heightened Scrutiny to
Classifications Based on Homosexuality', Southern California Law Review, 57, pp. 797-836.
Mohr, Richard D. (1988), Gays/Justice: A Study in Ethics, Society, and Law, New York: Columbia
University Press.
Mohr, Richard D. (1995), 'The Perils of Postmodernity for Gay Rights', Canadian Journal ofLaw and
Jurisprudence, 8, pp. 5-18.
Moore, Gareth (2000), 'Natural Sex: Germain Grisez, Sex, and Natural Law', in Nigel Biggar and Rufus
Black (eds), The Revival of Natural Law: Philosophical, Theological and Ethical Responses to the
Finnis-Grisez School, Aldershot: Ashgate, pp. 223-41.
Moore, Gareth (2003), A Question of Truth: Christianity and Homosexuality, London: Continuum.
Mumo, Vanessa (2007), Law and Politics at the Perimeter: Re-evaluating Key Debates in Feminist
Theory, Oxford: Hart.
Nussbaum, Martha (1994), 'Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms
to Modern Social Controversies', Virginia Law Review, 80, pp. 1515-651.
Nussbaum, Martha (1999), Sex and Social Justice, New York: Oxford University Press.
Nussbaum, Martha (2010), From Disgust to Humanity: Sexual Orientation and Constitutional Law,
New York: Oxford University Press.
O'Mahony, Conor (2012), 'There is No Such Thing as a Right to Dignity', International Journal of
Constitutional Law, to, pp. 551-74.
Ortiz, Daniel R. (1993), 'Creating Controversy: Essentialism and Constructivism and the Politics of Gay
Identity', Virginia Law Review, 79, pp. 1833-57.
Pannick, David (1985), Sex Discrimination Law, Oxford: Oxford University Press.
xlii Sexual Orientation and Rights

Perry, Michael (1995), 'The Morality of Homosexual Conduct: A Response to John Finnis', Notre Dame
Journal of Law, Ethics & Public Policy, 9, pp. 41-74.
Rawls, John ((1971), A Theory ofJustice, Cambridge, MA: Harvard University Press.
Raz, Joseph (1986), The Morality ofFreedom, Oxford: Clarendon Press.
Richards, David A.1. (1982), Sex, Drugs, Death and the Law: An Essay on Human Rights and
Overcriminalization, Totowa, NJ: Rowman & Littlefield.
Richards, David A.J. (1998), Women, Gays, and the Constitution: The Grounds for Feminism and Gay
Rights in Culture and Law, Chicago: University of Chicago Press.
Richards, David A.1. (1999a), Free Speech and the Politics ofIdentity, Oxford: Oxford University Press.
Richards, DavidA.J. (1999b), Identity and the Case for Gay Rights: Race, Gender, Religion as Analogies,
Chicago: University of Chicago Press.
Rivera, Rhonda R. (1979), 'Our Straight-Laced Judges: The Legal Position of Homosexual Persons in
the United States', Hastings Law Journal, 30, pp. 799-955.
Robson, Ruthann (1992), Lesbian (Out)Law: Survival Under the Rule of Law, New York: Firebrand
Books.
Rosen, Michael (2012), Dignity: Its History and Meaning, Cambridge, MA: Harvard University Press.
Rostow, Dean (1960), 'The Enforcement of Morals', Cambridge Law Journal, 18, pp. 174-98.
Rubenfeld, Jed (1989), 'The Right of Privacy' , Harvard Law Review, 102, pp. 737-807.
Rubin, Gayle S. (1993), 'Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality', in
Henry Abelove, Michele Aina Barale and David M. Halperin (eds), The Lesbian and Gay Studies
Reader, London: Routledge, pp. 3-22.
Sandel, Michael J. (1989), 'Moral Argument and Liberal Toleration: Abortion and Homosexuality',
California Law Review, 77, pp. 521-38.
Scales, Ann (1994), 'Avoiding Constitutional Depression: Bad Attitudes and the Fate of Butler',
Canadian Journal of Women and Law, 7, pp. 349-92.
Sedgwick, Eve Kosofsky (1993), 'Epistemology of the Closet', in Hemy Abelove, Michele Aina Barale
and David M. Halperin (eds), The Lesbian and Gay Studies Reader, London: Routledge, pp. 45--61.
Spindelman, Marc (2004), 'Surviving Lawrence v. Texas', Michigan Law Review, 102, pp. 1615-67.
Spindelman, Marc (2005), 'Homosexuality's Horizon', Emory Law Journal, 54, pp. 1361-406.
Spindelman, Marc (2010), 'Gay Men and Sex Equality', Tulsa Law Review, 46, pp. 123-50.
Stein, Edward (1990), 'The Essentials of Constructionism and the Construction of Essentialism', in
Edward Stein (ed.), Forms ofDesire: Sexual Orientation and the Social Constructionist Controversy,
New York, Garland, pp. 325-54.
Stein, Edward (2001), 'Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights',
UCLA Law Review, 49, pp. 471-518.
Stychin, Carl (1994), 'A Postmodern Constitutionalism: Equality Rights, Identity Politics, and the
Canadian National Imagination', Dalhousie Law Journal, 17, pp. 61-82.
Sty chin, Carl (1995), Law So Desire: Sexuality and the Limits ofJustice, London: Routledge.
Sty chin, Carl (1996), 'Constituting Sexuality: The Struggle for Sexual Orientation in the South African
Bill of Rights', Journal of Law and Society, 23, pp. 455-83.
Stychin, Carl (1998a), 'Celebration and Consolidation: National Rituals and the Legal Construction of
American Identities', Oxford Journal of Legal Studies, 18, pp. 265-91.
Stychin, Carl (1998b), 'Relatively Universal: Globalisation, Rights Discourse, and the Evolution of
Australian Sexual and National Identities', Legal Studies, 18, pp. 534-57.
Sty chin, Carl (2004), 'Same-Sex Sexualities and the Globalization of Human Rights Discourse', McGill
Law Journal, 49, pp. 951--68.
Sun stein, Cass R. (1988), 'Sexual Orientation and the Constitution: A Note on the Relationship Between
Due Process and Equal Protection', University of Chicago Law Review, 55, pp. 1161-79.
Sunstein, Cass (1994), 'Homosexuality and the Constitution', Indiana Law Journal, 70, pp. 1-28.
 Sexual Orientation and Rights xliii

Thomas, Kendall (1992), 'Beyond the Privacy Principle', Columbia Law Review, 92, pp. 1431-516.
United States Department of Health and Human Services (1989), Report of the Secretary's Task Force
on Youth Suicide, Volume 3: Prevention and interventions in Youth Suicide, Washington, DC: United
States Department of Health and Human Services.
Valdes, Francisco (1995), 'Queers, Cissies, Dykes, and Tomboys: Deconstructing the Conflation of
"Sex", "Gender", and "Sexual Orientation" in Euro-American Law and Society', California Law
Review, 83, pp. 1-377.
Waaldijk, Kees (2001 a), 'Small Change: How the Road to Same-Sex Marriage Got Paved in the
Netherlands', in Robert Wintemute and Mads Andenaes (eds), Legal Recognition of Same-Sex
Partnerships: A Study ofNational, European and international Law, Oxford: Hart, pp. 437--64.
Waaldijk, Kees (2001b), 'Toward the Recognition of Same-Sex Partners in European Union Law:
Expectations Based on Trends in National Law', in Robert Wintemute and Mads Andenaes (eds),
Legal Recognition ofSame-Sex Partnerships: A Study of National, European and International Law,
Oxford: Hart, pp. 635-51.
Waaldijk, Kees (2003), 'Taking Same-Sex Partnerships Seriously - European Experiences as British
Perspectives?', international Family Law, pp. 84-95.
Waldron, Jeremy (2012a), Dignity, Rank, and Rights, Oxford: Oxford University Press.
Waldron, Jeremy (2012b), The Harm in Hate Speech, Cambridge, MA: Harvard University Press.
Warner, Michael (1993), 'Introduction', in Michael Warner (ed.), Fear ofa Queer Planet: Queer Politics
and Social Theory, Minneapolis, University of Minnesota Press, pp. vii-xxxi.
Weeks, Jeffrey (1990), Coming Out: Homosexual Politics in Britainfrom the Nineteenth Century to the
Present, London: Quartet.
Weeks, Jeffrey (1991), Against Nature: Essays on History, Sexuality and Identity, London: Rivers Oram.
Wedgwood, Ralph (1999), 'The Fundamental Argument for Same-Sex Marriage', Journal of Political
Philosophy, 7, pp. 225-42.
Westen, Peter (1982), 'The Empty Idea of Equality', Harvard Law Review, 95, pp. 537-96.
Wintemute, Robert (1995), Sexual Orientation and Human Rights: The United States Constitution, the
European Convention, and the Canadian Charter, Oxford: Clarendon Press.
Wintemute, Robert (2002), 'Religion vs. Sexual Orientation: A Clash of Human Rights?', Journal of
Law and Equality, 1, pp. 125-54.
Wintemute, Robert (2003), 'Sex Discrimination in MacDonald and Pearce: Why the Law Lords Chose
the Wrong Comparators', King's College Law Journal, 13, pp. 267-81.
Wintemute, Robert (2005), 'From "Sex Rights" to "Love Rights": Partnership Rights as Human
Rights', in Nicholas Bamforth (ed.), Sex Rights: The Oxford Amnesty Lectures 2002, Oxford: Oxford
University Press, pp. 186-224.
Wolfenden Report (1957), Report of the Committee on Homosexual Offences and Prostitution, Cmnd.
247, London: HMSO.
Yoshino, Kenji (1996), 'Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays',
Columbia Law Review, 96, pp. 1753-834.
Yoshino, Kenji (1998), 'The Assimilationist Bias in Equal Protection: The Visibility Presumption and
the Case of "Don't Ask, Don't Tell"', Yale Law Journal, 108, pp. 485-571.
Yoshino, Kenji (2002), 'Covering', Yale Law Journal, 111, pp. 769-939.
Yoshino, Kenji (2006), Covering: The Hidden Assault on Our Civil Rights, New York: Random House.
 Part I
Organizing the Arguments
 [1]
Sexual Orientation and the Politics of
Biology: A Critique of the Argument
from Immutability

Janet E. Halley*

Three recent scientific reports that purport to show a biological basis for
homosexuality have changed the face of pro-gay equal protection litigation by
making the argument from immutability more attractive. Professor Janet E.
Halley critiques these studies and their reception in legal culture. Because
immutability is not a requirement for successful pro-gay litigation, moreover,
Professor Halley contends that pro-gay litigators who invoke the argument
from immutability do so not only at their option, but at the risk of misrepresent-
ing and dividing the community they hope to represent. She argues that pro-
gay legal argument should focus instead on common ground that adequately
represents the self-conceptions of both pro-gay essentialists and pro-gay con-
structivists. And she suggests just such a common ground for more effectively
articulating pro-gay equal protection arguments.

INTRODUCTION. • • • • • • • • • • • • • • . . . . . . . . . . • • • • • • . • • • • • • • • • • . • . . . . . . . . . 504
1. THE ARGUMENT FROM IMMuTABILITY......................... 507
II. THE TOPOGRAPHY OF DISAGREEMENT.......................... 516
A. Choice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517
B. Genes................................................... 521
C. Autobiographies ......................................... 526
D. Litigation ............................................... 528
m. THE STUDIES •••••••••••••••••••••••••••••••••••••••••••••••• 529
A. Recent Experiments...................................... 531
B. The Brain Study ......................................... 534
C. The Twins Study. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538
1. The "bisexuals" .................................... , . 540

* Associate Professor of Law, Stanford University. J.D., Yale Law School, 1988; Ph.D. (Eng-
lish), U.C.L.A., 1980; B.A., Princeton University, 1974. Thanks are gratefully extended to Paul R.
Billings, Paul Brest, Jon W. Davidson, Kay Diaz, Marcus W. Feldman, Thomas C. Grey, Ruth Hubbard,
Vicki Laden, Mark Kelman, Andrew Koppelman, Mary Newcomb, Daniel R. Ortiz, Judge Richard A.
Posner, Margaret Jane Radin, William H. Simon, Edward Stein, David A. Strauss, and Catherine Wells
for making the construction of this argument into an extended cross-disciplinary conversation; to the San
Francisco Bay Area Group with Interests in Genetics and Society. the New York University Gay and
Lesbian Symposium, and the Feminist Legal Theory Seminar of the University of Chicago Law School
for lively discussions; to Andy Eisenberg, Paul Lamia, and Iris Wildman for bibliographical assistance;
to Lisa Hayden and Suzanne Woods for clear-headed research assistance; and to the Dorothy Redwine
Estate for research support.
4 Sexual Orientation and Rights

504 STANFORD LAW REVIEW [Vol. 46:503

2. The nonresponsive brothers .......... . . . . . . . . • . . . . . . . . 542

3. One autobiography... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544
N. COMMON GROUND. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 546
A. Coming to Terms with Essentialism and Constructivism .... 547
1. Essentialisms......................................... 547
2. Constructivisms.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550
3. Impure identity. . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . 553
B. Finding Common Ground.......................... ....... 556
1. The lay of the land .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 556
2. Choosing a place to stand .....•.................•.... 560
C. Arguing for Equal Protection on Common Ground ......... 563
CONCLUSION. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 567

INTRODUCTION

The claim that sexual orientation is biologically determined has become

increasingly salient in legal arguments that lesbians and gay men comprise a
minority population warranting meaningful constitutional protection. Accord-
ing to this argument, gay men and lesbians constitute a suspect class under the
Equal Protection Clause in part because the characteristic that differentiates
them, and that constitutes the basis of discrimination against them, is
immutable.
A series of recent scientific reports, l and the way that legal culture has
received them, have made biological causation theories far more plausible.
These studies have stimulated media and activist speculation that, confronted
with scientific proof of the immutability of homosexuality, judges will be
forced to deem gay men and lesbians a suspect class.2

1. The most important studies are J. Michael Bailey & Richard C. Pillard, A Genetic Study ofMale
Sexual Orientation. 48 ARCHIVES GEN. PSYCHIATRY 1089 (1991); Dean H. Hamer. Stella Hu. Victoria L.
Magnuson, Nan Hu & Angela M.L. Pattatucci. A Linkage Between DNA Markers on the X Chromosome
and Male Sexual Orientation. 261 SCIENCE 321 (1993); Simon LeVay. A Difference in Hypothalamic
Structure Between Heterosexual and Homosexual Men. 253 SCIENCE 1034 (1991). For a discussion of
related reports. see notes 102-105 infra.
2. Richard Green. introduced on Ted Koppel's Nightline as an attorney and psychiatrist, gave both
legal and medical legitimacy to the claim that biological causation is the key to equal rights for gays and
lesbians:
Well. legally. I think. [the LeVay study] could make a very big difference. In American
constitutional law. groups that are prejudiced against or stigmatized are given special protec-
tion by the courts if the feature for which they are discriminated is what's called immutable or
innate or essentially unchangeable..•• So if we can find. the scientists can find that a specific
part of the brain is primarily responsible for sexual orientation. then the stigmatization and the
legal discrimination against gays and lesbians in this country should fall.
Nightline (ABC television broadcast, Aug. 30. 1991) (available in LEXIS. Nexis library. ABCNEW
File). Green has more recently been quoted in a similarly sweeping statement Natalie Angier. Study on
Sexual Orientation. N.Y. TIMES. July 18. 1993. § I, at 24, 24 C" 'If sexual orientation were demonstrated
to be essentially inborn,' [Green] said. 'most laws that discriminate against gays and lesbians. including
sodomy laws. housing and employment discrimination laws. all would fall. ..·).
Similar statements have appeared in major print media. E.g.• Natalie Angier. The Biology of What
It Means to be Gay. N.Y. TIMES. Sept 1. 1991. § 4. at 1.4 ("If homosexuality were viewed legally as a
biological phenomenon. rather than a fuzzier matter of 'choice' or 'preference,' then gay people could
no more rightfully be kept out of the military. a housing complex or a teaching job than could. say.
blacks."); David Gelman. Donna Foote. Todd Barrett & Mary Talbot, Bom or Bred? NEWSWEEK, Feb.
 Sexual Orientation and Rights 5

February 1994] CRITIQUING IMMUTABILITY 505

At the same time, remarkable changes in identity politics over the past
decade, most notably the emergence of queer identity and of an unrepentant
movement of self-described bisexuals, have complicated gay and lesbian com-
munities.3 New voices are heard, offering a sustained, community-based attack
on the idea that subordinated communities should endorse the identities through
which superordinated groups suppress them. Many gay men, lesbians, bisexu-
als, and queers reject the view that they constitute a minority distinguished by a
stable, natural identity.
Two new theoretical developments support this attack. The postmodem
critique of liberal explanations of the self posits that culture, not human nature,
gives humans their sexual orientations.4 In a distinct but related critical setting,
cultural critics of science argue that science is part of culture, not its opposite.s

24, 1992, at 46, 48 (Proof that homosexuality is biologically caused "could gain [the 'gay community']
the civil-rights protections accorded any 'natura!' minority, in which the legal linchpin is the question of
an 'immutable' characteristic.").
The scientists themselves have predicted that their findings will change the equal protection land-
scape. Simon LeVay, author of the brain study described at text accompanying notes 117-136 infra has
speculated as follows:
"Is homosexuality immutable or a chosen lifestyle? The last time the Supreme Court ruled on
this matter, it was argued that it was biological, but nobody belieVed it This work may show
that sexual orientation is genetically determined like skin color, and may therefore have impli-
cations for the civil rights of gays and lesbians." .
Jamie Talan, Study Shows Homosexuality Is Innate: Gay Scientist Is a Hero and a Villain, News DAY,
Dec. 9, 1991, at 41, 41 (quoting LeVay); see also Sharon Kingman. Nature. Not Nurture? THE IN-
DEPENDENr. Oct. 4. 1992, at 56 (U'In the United States there is a law that protects people who have
immutable characteristics, such as race, from discrimination. So if homosexuality were proved also to
be an immutable characteristic, then the law would have to be changed.''') (quoting Laura S. Allen, who
coauthored a brain study similar to LeVay's; see note 103 infra).
3. On bisexuals, see BI ANy OrnER NAME: BISEXUAL PEoPLE SPEAK OUT (Loraine Hutchins &
Lani Kaahumanu eds., 1991); CLOSER TO HOl-IE: BISEXUALITY & FEMINISM (Elizabeth Reba Weise ed.,
1992); Bisexualities: Theory and Research, 11:112 J. HOMOSEXUALITY (Fritz Klein & Timothy J. Wolf
eds., 1985) (special issue). On queer identity and politics, see FEAR OF A QUEER PLANET: QUEER POLI-
TICS AND SOCIAL THEORY (Michael Warner ed., 1993) [hereinafter FEAR OF A QUEER PLAmrr]; Lauren
Berlant & Elizabeth Freeman, Queer Nationality, in FEAR OF A QUEER PLAmrr, supra, at 193; Steven
Seidman, Identity and Politics in a 'Postmodem' Gay Culture: Some Historical and Conceptual Notes,
in FEAR OF A QUEER PLANEr, supra, at 105; Michael Warner, Introduction, in FEAR OF A QUEER
I'LANET, supra, at vii. See also Lisa Duggan, Making It Perfectly Queer, 22 SOClAUST REv. Il (1992)
(tracing history and politics of queer movement); Identity Crisis: Queer Politics in the Age of Possibili-
ties, VILLAGE VOICE, June 30, 1992, at 27 (roundtable discussion of queer identity with Holly Hughes,
Gregg Bordowitz, Marcellus Blount, Eve Kosofsky Sedgwick, AIisa Soloman, and Jeff Nunokawa); Eve
Kosofsky Sedgwick, Queer and Now, in TENDENCIES I, 5-9 (Eve Kosofsky Sedgwick ed., 1993).
4. See, e.g., 1 MICHEl. FOUCAULT, THE HISTORY OF SEXUALITY: AN INTRODUCTION 42-49 (Robert
Hurley trans., 1978); see also Wn.LIAM E. CONNOLLY, IoENrITY\DIFFERENCE: DEMOCRATIC NEGOTIA-
TIONS OF POLITICAL PARADOX 73-78 (1991); DAVID M. HALPERIN. ONE HUNDRED YEARS OF HOMOSEX-
UALITY AND OrnER EsSAYS ON GREEK LoVE 41-53 (1990).
5. See, e.g.. LUOWIK FLECK, GENESIS AND DEVELOPMENr OF A SCIENTIFIC FACT (Thaddeus J.
Trenn & Robert K. Merton eds. & Fred Bradley & Thaddeus J. Trenn trans., 1979) (1935); DONNA J.
HARAWAY, SIMIANS, CYBORGS, AND WOMEN: THE REiNvENTION OF NATURE 7-20 (1991); KARIN D.
KNORR-CETINA, THE MANuFACIURE OF KNOWLEDGE: AN EsSAY ON TIlE CONSTRUCTIVIST AND CONTEX-
TUAL NATURE OF SCIENCE (1981); BRUNO LATOUR & STEVE WOOLGAR, LABORATORY LIFE: THE CON-
STRUCTION OF SCIENTIFIC FACTS 43-90 (1979); 4 THE SOCIAL PROCESS OF SCIENTIFIC INvEsTIGATION
(Karen D. Knorr. Roger Krohn & Richard Whitley eds .• 1980); Kathryn Pyne Addelson, The Man of
Professional Wisdom, in DISCOVERING REAurY: FEMINIST PERSPECTIVES ON EPISTEMOLOGY, META.
PHYSICS, MEn!ODOLOGY, AND PHn.osoPHY OF SCIENCE (Sandra Harding & Merrill B. Hintikka eds.,
1983); David Bloor, Durkheim and Mauss Revisited: Classification and the Sociology of Knowledge, 13
STUD. HIST. & PHn.. SCI. 267 (1982).
6 Sexual Orientation and Rights

506 STANFORD LAW REVIEW [Vol. 46:503

Together, these political and intellectual movements have produced pro-gay

constituencies eager to deny the claim that homosexuality is biologically
caused or to assert that the biological status of sexual orientation is an answer
to the wrong question.
The result is the celebrated essentialism/constructivism debate-or, more
accurately, impasse. This article attempts to get beyond that impasse by going
around it. It argues that pro-gay legal argument should not focus on positive
claims of biological causation, or on pure constructivist claims that homosexu-
ality is a historically contingent artifact, but should repair to a common middle
ground. On that middle ground, sexual orientation, no matter what causes it,
acquires social and political meaning through the material and symbolic activi-
ties of living people. This is the arena of representation, the arena in which we
signify to one another who we are, negotiate the norms attaching to that, and
arrange and rearrange power along the sexual orientation hierarchy.
Part I examines the doctrinal, jurisprudential, and strategic history of the
argument from immutability in general and its use in cases challenging discrim-
ination against gay men, lesbians, and bisexuals. It concludes that immutability
is not a requirement for suspect class status and is unlikely to become one, so
that pro-gay litigators who invoke the argument from immutability do so at
their option. Part II describes the pro-gay argument from immutability as a
form of pro-gay essentialism, and notes that pro-gay constructivists vigorously
oppose both. It maps a topography of this disagreement among pro-gay advo-
cates, and concludes that we should not attempt to resolve this disagreement in
litigation. Part m turns to the scientific studies that have been cited in some
gay-rights cases as conclusive proof that homosexual orientation is immutable.
A close reading of two of those studies argues, first, that they have been ab-
sorbed into the broader culture as scientific confirmations that homosexual ori-
entation should be understood as essentialist rather than constructivist, while in
fact the studies incorporate essentialist models of sexual orientation as untested
hypotheses; and second, that the more constructivist aspects of sexual orienta-
tion identity excluded from the studies are nevertheless important to the social
subordination of gay men, lesbians, and bisexuals. Finally, Part IV seeks out
common ground from which to build legal arguments that adequately represent
the self-conceptions of pro-gay essentialists and pro-gay constructivists. It pro-
ceeds by dis aggregating essentialism and constructivism, mapping the signifi-
cant territory of their overlap in sexuality studies, and locating the optimal
places in that conceptual zone for articulating equal protection arguments.
This article argues that pro-gay legal arguments from biological causation
should be abandoned. Instead, pro-gay essentialists and constructivists should
design legal strategies that emphasize the political dynamics that inevitably at-
tend sexual orientation identity-no matter how it is caused.
 Sexual Orientation and Rights 7

February 1994] CRITIQUING IMMUTABILITY 507

I. THE ARGUMENT FROM lMMuTABn..ITY

Gay rights advocates writing about equal protection before 1986, when the
Supreme Court issued its baneful decision in Bowers v. Hardwick,6 echoed a
reassuring refrain: Since homosexuality is immutable, it qualifies as a suspect
classification, or at least meets one of several criteria for suspect class status
under equal protection analysis. Most often this argument depended on an em-
pirical claim that sexual orientation is either hardwired into us at birth or
branded upon us so soon thereafter that it cannot be altered. 7
These arguments accepted an invitation apparently issued by a Supreme
Court plurality in Frontiero v. Richardson, 8 which concluded that discrimina-
tion based on sex warranted strict scrutiny.9 The plurality opinion stated a
number of discrete reasons for its decision that sex discrimination was constitu-
tionally sensitive: "a long and unfortunate history of sex discrimination" per-
petuated through "stereotyped distinctions between the sexes"; the "high
visibility of the sex characteristic" exposing women to "pervasive ... discrimi-
nation"; and the fact that "sex, like race and national origin, is an immutable
characteristic determined solely by the accident of birth."10
Two features of the Court's subsequent treatment of immutability were ac-
curately foreshadowed in Frontiero. First, immutability is not a requirement
but a factor. 1I Second, that factor is not immutability alone but immutability-
plus. The careless reader of Frontiero might well suppose that the plurality had
completed its analysis of immutability when it observed that discrimination
against women based on their sex "would seem to violate 'the basic concept of
our system that legal burdens should bear some relationship to individual re-
sponsibility.' "12 But there is more. The Court went on to note that many im-
mutable characteristics-its examples were intelligence and physical
disability-form the basis of discriminatory decisions that are widely regarded

6. 478 U.S. 186 (1986) (upholding state law criminalizing sodomy against due process and pri-
vacy challenges).
7. See Stacy Lynn Boyle. Note. Marital Status Classifications: Protecting Homosexual and Heter-
osexual Cohabitars, 14 HAsnNos CONST. L.Q. 111. 127-28 (1986); Richard Delgado, Fact, Norm, and
Standard ofReview-The Case ofHomosexuality, 10 U. DAYTON L. REv. 575. 583-85 (1985); Kenneth
Lasson. Civil Liberties for Homosexuals: The Law in Limbo, 10 U. DAYTON L. REv. 645. 656-57
(1985); Harris M. Miller II, Note. An Argument for the Application of Equal Protection Heightened
Scrutiny to Classifications Based on Homosexuality, 57 S. CAL. L. REv. 797. 817-21 (1984); see also
Note, The Constitutionality of Laws Forbidding Private Homosexual Conduct, 72 MICH. L. REv. 1613.
1625-26 (1974); Note, The Legality of Homosexual Marriage, 82 YALE LJ. 573. 576 (1973).
8. 411 U.S. 677 (1973) (plurality opinion).
9. Id. at 688. The concurring Justices refused to apply strict scrutiny. id. at 691, and the determi-
nation that intermediate scrutiny should apply to classifications based on sex was not reached for an-
other three years. Craig v. Boren, 429 U.S. 190 (1976).
10. Frontiero, 411 U.S. at 684-86. A fourth factor that the plurality considered important was
Congress' recent amendment to Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963.
and its approval of the Equal Rights Amendment, which together evinced a "conclu[sion] that classifi-
cations based upon sex are inherently invidious." Id. at 687.
11. See, e.g., Bowen v. Gilliard, 483 U.S. 587. 602-03 (1987) (holding that relatives are not a
suspect class); Lyng v. Castillo, 477 U.S. 635, 638 (1986) (same). I am unaware of any case in which
the Supreme Court has gone beyond this moderated emphasis on immutability.
12. Frontiero, 411 U.S. at 686 (quoting Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164, 175
(1972)).
8 Sexual Orientation and Rights

508 STANFORD LAW REVIEW [Vol. 46:503

as unproblematic. 13 The Court's examples are a little dubious-one wonders

whether intelligence is unequivocally and certainly immutable, and discrimina-
tion based on physical disability exemplifies not the class of unproblematic
discriminations but the ones that seem to require more probing analysis than a
mere determination that they turn on an immutable characteristic. What makes
some discriminations based on physical disability acceptable, and others unac-
ceptable, is their relatedness to the particular purpose at hand. Nearsightedness
may legitimately disqualify potential fighter pilots but not potential law profes-
sors.14 Recognizing these problems at the level of doctrine, the Frontiero plu-
rality determined that heightened scrutiny was needed in cases involving sex
discrimination because "the sex characteristic," in addition to being immutable,
''frequently bears no relation to ability to perform or contribute to society."lS
Frontiero thus expresses a conclusion that, when a characteristic is both immu-
table and unrelated to the legitimate purposes at hand, discriminations based on
it may suggest unfairness. 16
John Hart Ely has argued that this "relevance" criterion, once invoked to
cure the defects of immutability as a test for unacceptable inequality, promptly
swallows the immutability factor whole:
[C]lassifications based on physical disability and intelligence are typically ac-
cepted as legitimate, even by judges and commentators who assert that immu-
tability is relevant. The explanation, when one is given, is that those
characteristics (unlike the one the commentator is trying to render suspect) are
often relevant to legitimate purposes. At that point there's not much left of the
immutability theory, is there?l7
Well, there might be, if there is any reason to suppose that an unrelated immu-
table characteristic is more invidious than a classification based on an unrelated
mutable one. The boilerplate response to this query is to say (as the plurality
did in Frontiero) that it is a "basic concept of our system that legal burdens
should bear some relationship to individual responsibility."18 But that response
is unsatisfying because it assumes exactly what is to be decided: that the state

13. Id. at 688.

14. This is not to underestimate the difficulty of determining relatedness in the context of physical
disability, where pre-existing arrangements, themselves mutable, may create relatedness where none
need exist The need to use a wheelchair is related to any job in a building with stairs and no ramps or
elevators. See Martha T. McCluskey, Note, Rethinking Equality and Difference: Disability Discrimina-
tion in Public Transportation, 97 YALE LJ. 863, 866-68 (1988); Rosalie K. Murphy, Note, Reasonable
Accommodation and Employer Discrimination Under Title I of the Americans with Disabilities Act, 64
S. CAL. L. REv. 1607, 1613-14 (1991). ,
15. Frontiero, 411 U.S. at 686. There are plenty of careless misreaders of Frontiero who construe
it to state a freestanding immutability factor uninflected by relatedness. See, e.g., Moss v. Clark, 886
F.2d 686, 690 (4th Cir. 1989) (holding that prisoners do not constitute a suspect classification because
the status of incarceration is neither immutable nor an indicator of invidiousness) (citing Frontiero on
immutability without reference to relatedness).
16. For a reprise of the stipulation that immutability should trigger suspicion only when conjoined
with irrelevance, see Mathews v. Lucas, 427 U.S. 495, 505-06 (1976) (conceding the immutability of
illegitimate status, but noting that distinctions based on legitimacy may be rational in some contexts).
17. JOHN HART ELY, DEMOCRACY AND DISTRUST 150 (1980) (emphasis in original) (footnote
omitted).
18. Frontiero, 411 U.S. at 686 (quoting Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164. 175
(1972».
 Sexual Orientation and Rights 9

February 1994] CRrrlQUING IMMUTABILITY 509

actor has a rightful power to make it someone's responsibility to conform to

state wishes that are (ex hypothesO totally unrelated to the job at hand. The
immutability argument thus rests on an unexpressed premise that the Equal
Protection Clause harmonizes well with a state-sponsored cultural conformity
and assimilationism. 19
There are other problems with the immutability argument as well. Assum-
ing a Carolene Products approach to equal protection,2o Bruce Ackerman ar-
gues that "anonymous and diffuse" groups are often more vulnerable to
invidious exclusion from political decisionmaking than "discrete and insular"
ones. 21 The characteristics that define anonymous and diffuse groups are often
acutely mutable, especially when they can be hidden: Then they can be pro-
fessed by and ascribed to a different set of people every year, month, day, or
even hour. That certainly holds true for gay men, lesbians, and bisexuals: An-
onymity and diffuseness produced by the closet are our chief organizing chal-
lenges, and they emerge from elements of our identity that are often radically
mutable-private and public identity.22 It's not just that the discrete-and-insu-
lar-minority model, with its immutability corollary, is a bad fit with the polit-
ical realities of gay, lesbian, bisexual, and queer life. The problems gay men,
lesbians, and bisexuals have entering fully into pluralist politics tend to COnIlrm
that, at least as it functions in process-based analysis, the immutability theory is
simply wrong.
The Court tentatively suggested in Frontiero that immutability is a factor
that intensifies the invidiousness of government-imposed burdens unrelated to
the job at hand. Academic assessments of the theory of suspect classifications
have not encouraged the Court to give any further emphasis to this factor. In-

19. The regulation of appearance at work offers just one example of the way in which the argu-
ment from immutability expressly facilitates monocultural impulses. See Peter Brandon Bayer, Mutable
Characteristics and the Definition oj Discrimination Under Title VI!, 20 U.C. DAVIS L. REv. 769
(1987); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection ojRace and Gender, 1991
DUKE Ll. 365; Karl E. Klare, PowerlDressing: Regulation oj Employee Appearance, 26 NEW ENG. L.
REv. 1395 (1992); see also Cassista v. Community Foods, Inc., 5 Cal. 4th 1050, 1065, 856 P.2d 1143,
1153, 22 Cal. Rptr. 2d 287, 297 (1993) (holding that a worker denied employment because she was
overweight could not obtain protection under state disability law unless she could show that her weight
was an immutable medical condition, "a physiological, systemic disorder," over which she had no
control).
20. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). This celebrated footnote
proposed a new role for federal judges following the demise of substantive due process: Instead of
policing legislatures' substantive decisions, judges would monitor their decisional process. In particular,
judges could use the Equal Protection Clause to ensure that "discrete and insular minorities" are not
unfairly boxed out of political decisionmaking. This process-based approach has been most forcefully
promoted by 10hn Hart Ely. See ELY, supra note 17. But it has also been criticized for resting on an
unstable distinction between substance and process. See, e.g., C. Edwin Baker, Neutrality, Process, and
Rationality: Flawed Interpretations oj Equal Protection, 58 T.ex. L. REv. 1029, 1058-61 (1980); Paul
Brest, The Substance oj Process, 42 OIllO ST. Ll. 131 (1981); Lea Brilmayer, Carolene, Conflicts, and
the Fate oj the "Inside-Outsider," 134 U. PA. L. REv. 1291 (1986); Lewis F. Powell, Jr., Carolene
Products Revisited, 82 CoLUM. L. REv. 1087, 1090-91 (1982); Laurence H. Tribe, The Puzzling Persis-
tence oj Process-Based Constitutional Theories, 89 YALE Ll. 1063, 1064 (1980).
21. Bruce A. Ackerman, Beyond Carolene Products, 98 HARv. L. REv. 713, 723-24 (1985).
22. For a more detailed explication of this problem, see Janet E. Halley, The Politics oj the Closer:
Towards Equal Protection Jar Gay, Lesbian and Bisemal Identity, 36 UCLA L. REv. 915, 930-63
(1989).
10 Sexual Orientation and Rights

510 STANFORD LAW REVIEW [Vol. 46:503

deed, although academic commentators writing in the period between Frontiero

and Hardwick clearly regarded the justification for heightened judicial review
under the Equal Protection Clause to be painfully problematic, they rarely, if
ever, even alluded to immutability as a conceptual solution.23 The Supreme
Court echoed this lukewarm-to-cold reception of the idea that immutability jus-
tifies heightened scrutiny in its 1985 decision, Cleburne v. Cleburne Living
Center.24 Refusing to hold that mentally retarded residents of group homes
constitute a suspect or "quasi-suspect" classification,25 the Court looked di-
rectly to Ely's attack on the immutability theory. Laying out the complete pas-
sage from Ely quoted above,26 the Court emphasized that "those who are
mentally retarded" are "different, immutably so, in relevant respects," from
others whom the state treated differently.27 Nevertheless, the Court refused to
infer from this kind of difference a need for formally heightened judicial solici-
tude. Indeed, the Court cited Frontiero as precedent not for relying in whole or
in part on immutability, but for inquiring into relevance instead.28 After
Cleburne, immutability remains a factor, but it is not clear that the Court will
ever again make even an asymptotic approach to a claim that discrimination
based on a characteristic the bearer cannot shed is intrinsically repellent to any
'''basic concept of our system.' "29
Two developments since Cleburne have contributed to a startling resorgi-
mento of immutability-based arguments among gay-rights advocates notwith-

23. See, e.g., Baker, supra note 20, at 1090, 1094 (concluding that the Supreme Court's equal
protection practice in the sex discrimination cases focused on either a "purpose[] [to] contribute[] to
the subordination of a sexual group" or a classification that "embodies a negative or stereotyped judg-
ment about the capacities or qualities of either sex"); Brest, supra note 20, at 141-42 (concluding that
laws "which treat people based on certain stereotypes, inflict a dignitary harm, an insult, a stigma" that
warrants substantive condemnation as "an evil in itself," and recommending that equal protection theory
stop trying to avoid such substantive evaluation); Robert M. Cover, The Origins of Judicial Activism in
the Protection of Majorities, 91 YALE L.J. 1287 (1982) (arguing that heightened scrutiny properly ap-
plies to minorities subject to intermittent or occasional mistreatment and especially to blacks whose
disadvantages are a product of the political process itself); Owen M. Fiss, Groups and the Equal Protec-
tion Clause, 5 PHIL. & Pus. AFF. 107, 148-55 (1976) (arguing that the Equal Protection Clause protects
"specially disadvantaged groups," and arguing that blacks constitute such a group because they form a
social, not merely a legal group, they have been in a position of "perpetual subordination," and they
have been excluded from political power). None of these analyses look to immutability for help in
justifying judicial intervention in political decisions. Even Fiss's distinction between "naturaI" and "ar-
tificial" classes actually distinguishes between groups that are socially generated and those created by
the majoritarian decision disadvantaging them. ld. at 148, 156.
24. 473 U.S. 432 (1985).
25. ld. at 433. The plaintiffs in Cleburne sought a zoning permit allowing them to establish a
group home for mentally retarded residents. ld. Though the Court refused heightened scrutiny, it went
on to hold that the permit denial failed rational basis scrutiny. ld. at 447-50. Its rational basis analysis
makes no mention of immutability. ld.
26. ld. at 442 n.10 (quoting ELY, supra note 17, at 150 (footnote omitted»; see text accompanying
note 17 supra. The Court also relied on Ely's position that immutability is not a good indicator of
process failure: '''Surely one has to feel sorry for a person disabled by something he or she can't do
anything about, but I'm not aware of any reason to suppose that elected officials are unusually unlikely
to share that feeling.''' 473 U.S. at 442 n.10 (quoting ELY, supra note 17, at 150).
27. 473 U.S. at 442.
28. ld. at 440-41.
29. Frontiero v. Richardson, 411 U.S. 677,686 (1973) (quoting Weber v. Aetna Casualty & Sur.
Co., 406 U.S. 164, 175 (1972».
 Sexual Orientation and Rights 11

February 1994] CRITIQUING IMMUTABILITY 511

standing their anemic condition in Supreme Court thinking and in the academic
literature. First, equal protection law about sexual orientation began to focus
on the identity or status of homosexuals-an issue that the pro-gay argument
from immutability seems tailored to illuminate. This development began when
the Supreme Court held in Bowers v. Hardwick30 that states did not violate
federal constitutional guarantees of due process and privacy by criminalizing
same-sex sodomy. Hardwick was soon followed by a series of federal court
holdings that refused to apply heightened equal protection review to discrimi-
nation based on sexual orientation because of Hardwick's due process holding.
They reasoned that, because Hardwick permitted states to criminalize same-sex
sodomy, and because same-sex sodomy is the "behavior that defmes the class
of homosexuals,"31 Hardwick precluded the application of heightened scrutiny
to anti-gay discrimination. "After all," one court reasoned, "there can hardly be
more palpable discrimination against a class than making the conduct that de-
fines the class criminal."32
These cases challenged gay-rights advocates to convince courts that sod-
omy alone does not define the class of gay men, lesbians, and bisexuals. Liti-
gators set out to constrain Hardwick by framing equal protection cases in which
plaintiffs had been subjected to unfavorable treatment not because of any sex-
ual conduct but because of their public and private identities as gay, lesbian, or
bisexual.33 This strategic choice resulted in an emphasis on military cases

30. 478 U.S. 186 (1986).

31. Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) (holding that Hardwick "forecloses
[plaintiffs) efforts to gain suspect class status for practicing homosexuals" because, "[i)f the Court was
unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a
lower court to conclude that state sponsored discrimination against the class is invidious"); see also
High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir.) (reasoning that
"because homosexual conduct can . . . be criminaIized, homosexuals cannot constitute a suspect or
quasi-suspect class"), reh'g denied, 909 F.2d 375 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d 454,
464-65 (7th Cir. 1989) (same), cen. denied, 494 U.S. 1004 (1990); Woodward v. United States, 871
F.2d 1068, 1076 (Fed. Cir. 1989) (holding that homosexuals cannot constitute a suspect class both
because their defining characteristic is not immutable and can be criminaIized), cen. denied, 494 U.S.
1003 (1990).
32. Padula, 822 F.2d at 103.
33. In Padula, the FBI refused to employ the plaintiff because a background check revealed that
she was a "practicing homosexual." 822 F.2d at 99. Subsequent cases challenging discrimination
against military personnel are distinguishable because they lack record evidence even that tenuous of
homosexual conduct. In Steffan v. Cheney, 780 F. Supp. I, 4-5 (D.D.C. 1991), another district court
similarly reasoned that because the plaintiff was discharged from the Naval Academy based on his own
statements that he was homosexual, and because his resignation from the Navy and subsequent refusal to
answer discovery questions foreclosed further investigation into his sexual conduct, "this is primarily a
case about the plaintiffs status as a homosexual." After an interesting skirmish in which the district
court held that the Secretary of Defense was entitled to discovery of Steffan's sexual conduct, 733 F.
Supp. 121 (D.D.C. 1990), and the Court of Appeals for the District of Columbia Circuit reversed, hold-
ing that the plaintiffs sexual conduct was irrelevant to a discrimination claim based on sexual orienta-
tion status alone, 920 F.2d 74 (D.C. Cir. 1990), the district court reintroduced conduct into the case by
other means. Applying rational basis scrutiny, it held that the plaintiff could rationally be dismissed, in
part on grounds that he "could one day have acted on his preferences in violation of regulations prohib-
iting such conduct." 780 F. Supp. at 13 (emphasis added). Reversing, the court of appeals held that the
military policy under which the Naval Academy forced Steffan's resignation targeted status and not
conduct; that it was irrational to presume past or future conduct on the basis of Steffan's profession of
homosexual orientation; and that, to the extent the policy was concerned with a "propensity" to engage
in homosexual conduct, it regulated intent and thoughts in violation of "various common law and consti-
12 Sexual Orientation and Rights

512 STANFORD LAW REVIEW [Vol. 46:503

notwithstanding the unfavorable deference with which courts typically treat

military policy. The military, after all, was in the business of discharging
troops based solely on their sexual-orientation identity, and of generating po-
tential plaintiffs with records devoid of any evidence of prohibited (or even
disparaged) conduct.34 In many of the resulting cases, however, courts imputed
sodomitical conduct on the basis of identity and denied heightened scrutiny.35
What Patricia A. Cain calls "litigating around HardwiclC'36 thus became, in
part, a campaign to regain some control over the legal definition of homosexual
identity.37
A second development since Cleburne has intensified gay-rights advocates'
interest in immutability theories: the cultural success of genetics as a source of
knowledge about who we are as humans. 38 Before the Human Genome Project
became a household word, gay-rights articles asserted the argument from im-
mutability in dispassionate, even perfunctory, recitations. 39 The first serious
reevaluation of equal protection for gay men and lesbians after Hardwick em-

tutional principles that guard the sanctity of a person's thoughts against government contro!." Steffan v.
Aspin, 8 F.3d 57, 64-68 (D.C. Cir. 1993). Nor is the panel's decision likely to be the last word. At the
time this article went to press, the Court of Appeals for the D.C. Circuit has vacated the panel discussion
pending en.banc review. Steffan v. Aspin, 62 U.S.L.W. 2309 (D.C. Cir. Jan. 7, 1994).
In Meinhold v. United States Dep't of Defense, 808 F. Supp. 1455, 1457 (C.D. Cal. 1993), a district
court held that the Department of Defense's policy of banning gay men and lesbians "based merely on
status, and not conduct" violated the Equal Protection Clause. See also High Tech Gays, 895 F.2d at
571, 573 n.9 (holding that, after Hardwick, "it would be incongruous to expand the reach of equal
protection to find a fundamental right of homosexual conduct," and rejecting plaintiff's argument that
Hardwick should not apply to the heightened scrutiny issue because the challenged regulations "all
relate to conduct"), reh'g denied, 909 F.2d 375, 380 (9th Cir. 1990) (Canby & Norris, JJ., dissenting)
(arguing that "It is an error of massive proportions to define the entire class of homosexuals by sod-
omy••.. fI1he Department of Defense is discriminating against homosexuals for what they are, not
what they do."); Watkins v. United States Army, 847 F.2d 1329, 1340, 1345 (9th Cir. 1988) (holding
that Army's discharge of soldier based on his homosexual identity violated the Equal Protection Clause
and distinguishing Hardwick because plaintiff's discharge was based solely on his sexual orientation
without reference to conduct), vacated & order affd on other grounds, 875 F.2d 699 (en banc) (holding
that plaintiff's discharge was improper on equitable estoppel grounds), cert. denied, 498 U.S. 957
(1990).
Analysis of the conduct/identity problem in post-Hardwick litigation has been offered by Patricia
A. Cain, Litigatingfor Lesbian and Gay Rights: A Legal History, 79 VA. L. REv. 1551, 1617-27 (1993);
and Nan D. Hunter, Life after Hardwick, 27 HARv. C.R.-C.L. L. REv. 531, 543-53 (1992); see also
Halley, supra note 22, at 948-61.
34. For an implicit admission that the Justice Department has found these pure identity cases
difficult to defend, see Memorandum from Janet Reno, Attorney General, to Bill Clinton, President (July
19, 1993) (assessing the Clinton Administration's proposed new policy on homosexual conduct in the
armed forces) (on file with the Stanford UIW Review).
35. See note 33 supra.
36. Cain, supra note 33, at 1617.
37. For a discussion of alternate routes to legal protection that do not rely on the immutability
argument, see text accompanying notes 244-253 infra.
38. Walter Gilbert, A Vision of the Grail, in THE CODE OF CODES: SCIEN1lFIC AND SOCIAL IsSUES
IN TIm HUMAN GENOME PRomer 83, 84 (Daniel J. Kevles & Leroy Hood eds., 1992) [hereinafter CODE
OF CODES) (predicting that the Human Genome Project will help answer the questions: "[\V]hat actu-
ally specifies the human organism? What makes us human?"). For a more detailed description of the
"new genetics," see text accompanying notes 72-89 infra.
39. See note 7 supra.
 Sexual Orientation and Rights 13

February 1994] CRITIQUING IMMUTABIliTY 513

braced the argument from immutability with readily apparent reluctance.4() As
stronger biological claims pointing to a genetic role emerged, that tone
changed; indeed, the ftrst strong post-Hardwick proposal emphasizing immuta-
bility came from the intersection of law and medicine. 41 Bolstered by citations
to recent scientiftc experiments claiming to show that human sexual orientation
rests on a biological substrate, the argument from immutability has become the
platform on which many gay-rights advocates prefer to contest post-Hardwick
courts' equation of homosexual identity with criminalizable sodomy.42
Although pro-gay advocates often advance the argument from immutability
with enthusiasm, it is clear that many judges do not find it persuasive. In three
nonbinding opinions, federal judges have deemed homosexual orientation im-
mutable in the limited sense that attempting to reverse it through social policy
is as cruel and futile as attempting to change it through medical or psychologi-
cal therapy.43 But the actual holdings on record reject the argument outright. 44
Strong biological evidence, however, might alter future judicial outcomes.

40. Elvia Rosales Arriola, Sexual Identity and the Constitution: Homosexual Persons as a Dis-
crete and Insular MinOrity, 10 WOMEN'S RTS. L. REP. 143, 154-55 (1988) (arguing that "[mjaking
discrete and insular status depend on •.• immutability •.• fails on deeper analysis," but nevertheless
concluding that "at least for constitutional purposes, sexual orientation can be treated like race or gen-
der, since in the vast majority of cases it is virtually an immutable trait").
41. Richard Green, The Immutability of (Homo)sexual Orientation: Behavioral Science Implica-
tions for a Constitutional (Legal) Analysis, 16 J. PSYCHIATRY & L 537 (1988). Green, who holds a J.D.
and an M.D., listed immutability as a necessary requirement of snspect classification. Id. at 538-39. In
his more recent book, he has moderated his statement of the relevant law. RICHARD GREEN, SEXUAL
SCIENCE AND TIlE LAW 62-63 (1992) (arguing that judicial acknowledgement of new suspect classifica-
tions "often" depends on the immutability of a defining trait). But see Nightline, supra note 2, for his
statement to the press that immutability not only is a necessary but may even be a sufficient ground for
invalidating official anti-gay laws.
42. For examples from popular legal culture, see note 2 supra.
43. The successes include a dissent, a concurrence, and a district court opinion reversed on other
grounds. High Tech Gays v. Defense Indus. Sec. Clearance Office, 909 F.2d 375, 377 (9th Cir. 1990)
(Canby, J., dissenting from denial of reh'g en banc) (relying on ''the overwhelming weight of respecta-
ble authority" to conclude that "[sJexuai identity is established at a very early age; it is not a matter of
conscious or controllable choice"); Watkins v. United States Army, 875 F.2d 699, 726 (9th Cir. 1989)
(en bane) (Norris, J., concurring) (concluding that even if therapy made sexual reorientation possible,
"the possibility of such a difficult and traumatic change does not make sexual orientation 'mutable' for
equal protection purposes" and that "allowing the govemment to penalize the failure to change such a
central aspect of individual and group identity would be abhorrent to the values animating the Constitu-
tional ideal of equal protection of the laws"), cerr. denied, 498 U.S. 957 (1990); Jantz v. Muci, 759 F.
Supp. 1543, 1548 (D. Kan. 1991) (noting that "available scientific evidence ••• strongly supports the
view that sexual orientation is not easily mutable"), rev'd on other grounds, 976 F.2d 623 (lOth Cir.
1992), cert. denied, 113 S. Ct 2445 (1993). When the district court's opinion in Jantz was reversed on
other grounds, pro-gay advocates lost not only its finding that homosexuality is immutable, but also its
express holding that immutability is not a requirement for strict scrutiny. /d. at 1548 (citing Supreme
Coun cases that omit immutability from the list of suspect class requirements and concluding that "com-
plete and absolute immutability simply is not a prerequisite for suspect classification").
For an account of therapeutic efforts to alter sexual orientation (always, as it happens, in the direc-
tion of heterosexuality), see GREEN, supra note 41, at 77-84.
44. High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir.
1990) (finding that u[hjomosexuality is not an immutable characteristic"); Woodward v. United States,
871 F.2d 1068, 1076 (Fed. Cir. 1989) (finding that "homosexuality is primarily behavioral in nature"
compared to race and gender which "exhibit immutable characteristics"), cert. denied, 494 U.S. 1003
(1990); see also Steffan v. Cheney, 780 F. Supp. 1,6-7 (D.D.C. 1991) (finding that "homosexual orien-
tation is neither conclusively mutable nor immutable"), rev'd sub nom. Steffan v. Aspin, 8 F.3d 57 (D.C.
Cir. 1993), vacated/or reh'g en bane, 62 U.S.L.W. 2309 (D.C. Cir. Jan. 7, 1994). The Ninth Circuit's
14 Sexual Orientation and Rights

514 STANFORD LAW REVIEW [Vol. 46:503

Several courts have noted that the controversy over biological causation is a
reason to reject the argument from immutability,4s a rationale that might cut the
other way if the scientific community were to reach consensus on the etiology
of homosexual orientation. Courts are increasingly prepared, moreover, to
commit the questions raised when pro-gay litigators rely on recent scientific
reports to the jury for factfmding.
Not discouraged by this lackluster track record, gay-rights plaintiffs have
begun to bolster the argument from immutability by citing the new scientific
reports. In at least four recent cases challenging discrimination against gay
men, lesbians, and bisexuals, plaintiffs' attorneys have cited the new scientific
findings to support their arguments that homosexual orientation is a suspect
classification because it is immutable.46
In Dahl v. Secretary of the United States Navy,47 challenging a sailor's
discharge from the Navy, in Steffan v. Aspin,48 challenging the forced resigna-
tion of a midshipman from the United States Naval Academy, in Baehr v.
Lewin,49 in which plaintiffs have already won heightened scrutiny of Hawaii's
refusal to recognize same-sex marriages, and in Evans v. Romer,so in which
plaintiff sought and obtained injunctive relief against Colorado's Amendment
Two, these arguments have failed. The plaintiff in Dahl cited the studies of
Simon LeVay and of Bailey and Pillard to support a claim that '''it has now
been conclusively and authoritatively established that sexual orientation is bio-
logical, genetic and innate.'''Sl Plaintiff's offer to prove this claim at trial was
declined only because the court denied heightened scrutiny on other grounds
and proceeded to grant the plaintiff summary judgment under rational basis
review. 52 Lawyers asked for summary judgment in Steffan in part on the

decision in High Tech Gays is particularly troubling because the panel majority, though it described
immutability as a factor, applied it as a requirement. 895 F.2d at 573.
45. See, e.g., Steffan, 780 F. Supp. at 6 n.l2 (stating that "[w)ithout a definite answer at hand, yet
confident that some people exercise some choice in their own sexual orientation, the Court does not
regard homosexuality as being an immutable characteristic"); Baehr v. Lewin, No. 91-1394-05, at 5
(Haw. Ct. App. Sept. 3, 1991) (order granting Defendant's motion for judgment on the pleadings) (hold-
ing that homosexuals do not constitute a suspect class, in part because "[tlhe issue of whether homosex-
uality constitutes an immutable trait has generated much dispute in the relevant scientific community"),
rev'd on other grounds, 852 P.2d 44 (Haw. 1993).
46. Steffan v. Aspin, 8 F.3d 57, 64-68, (D.C. Cir. 1993). vacated/or reh'g en bane, 62 U.S.L.W.
2309 (D.C. Cir. Jan 7,1994); Evans v. Romer, No. 92CV7223, 1993 WL 518586 (Colo. Dist. Ct. Dec.
14.1993); Dahl v. Secretary of the United States Navy, 830 F. Supp. 1319 (M.D. Fla. 1993); Baehr, 852
P.2d at 44.
47. 830 F. Supp. at 1323.
48. 8 F.3d at 57. For plaintiffs immutability argument, see Plaintiffs Motion for Summary Judg-
ment and Affidavits I and n of Richard Green, published in slightly modified form in GAYS IN TIlE
Mn.rrARY: JOSEPH STEFFAN VERSUS TIlE UNITED STATES 3, 17-19,56-83, 171-73 (Marc Wolinsb.-y &
Kenneth Sherrill eds., 1993) [hereinafter GAYS IN TIlE Mn.rrARY].
49. 852 P.2d 44 (Haw. 1993).
50. No. 92CV7223, 1993 WL 518586 (Colo. Dist. Ct. Dec. 14, 1993).
51. Dahl, 830 F. Supp. at 1323 (quoting Plaintiffs Memorandum in Support of Motion for Sum-
mary Judgment).
52. The Dahl court held that plaintiff "may have submitted sufficient evidence to create a triable
issue of material fact as to whether homosexuality is an 'immutable' characteristic," but refused height-
ened scrutiny on other grounds. [d. at 1324. The fact that the court nevertheless granted the plaintiff
summary judgment under a rational basis review that carefully examined the Navy's discriminatory
 Sexual Orientation and Rights 15

February 1994] CRITIQUING IMMUTABILITY 515

grounds that recent scientific fmdings about the etiology of homosexual orien-
tation offered "conclusive" evidence of its immutability; in findings on this
point reached without a hearing, the district court noted that the immutability
claim seemed irrelevant to the "great 'in between'" inhabited by bisexuals, and
concluded that scientific controversy on the issue left unchallenged its own
intuition that "some people have some choice in their own sexual orienta-
tion."53 The appellate panel reviewing this decision was able (like the trial
court in Dahl) to rule for plaintiff on rational basis grounds and pretermitted
consideration of plaintiffs arguments for heightened scrutiny.54 Similarly
strong biological causation claims were advanced in Baehr, where they met an
intricate fate that indicates how liable to backfire the argument from immutabil-
ity, even when bolstered by the new scientific findings, really is.55

practices against Dahl, id. at 1335-37, suggests that the immutability argument, even if provable, re-
mains unnecessary.
53. Steffan, 780 F. Supp. at 6 n.12 (emphasis in original); see Memorandum of Law In Support of
Plaintiffs Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary
Judgment, in GAYS IN TIlE MILITARY, supra note 50, at 3,3-39 (plaintiff's argument from immutability).
54. Steffan v. Aspin, 8 F.3d 57 (D.C. Cir. 1993), vacated for reh'g en bane, 62 U.S.L.W. 2309
(D.C. Cir. Jan. 7 1994).
55. The plaintiffs in Baehr v. Lewin asserted that Hawaii's refusal to acknowledge same-sex mar-
riage discriminated against them on the basis of sexual orientation and violated the state's equal protec-
tion clause. 852 P.2d 44 (Haw. 1993). Their brief cited Simon LeVay's experimental report, examined
in more detail below, see text accompanying notes 117-120 infra, which concludes that a sex-related
brain structure differs in size among homosexual and heterosexual men and predicts eventual identifica-
tion of a causal link between brain structure and homosexual orientation; but the trial court held that
homosexuality is not an immutable characteristic, in part because science was in controversy. See Baehr
v. Lewin, No. 91-1395-05, at 5 (Haw. Ct. App. Sept. 3, 1991) (order granting Defendant's motion for
judgment on the pleadings), rev'd on other grounds, 852 P.2d 44. Plaintiffs challenged this finding as
erroneous in their appeal, and relied on the study of Bailey and Pillard, examined below, see text accom-
panying notes 138-163 infra. Opening Brief for Appellants at 14-15, 15 n.5, Baehr, 852 P.2d 44 (No.
91-1395-05). Ruling for the plaintiffs, a plurality of the Hawaii Supreme Court held that the state's
refusal to recognize marriage of same-sex partners discriminated not on the basis of sexual orientation
but on the basis of sex and, declaring sex to be a suspect classification in state equal protection doctrine,
remanded for application of strict scrutiny. Baehr, 852 P.2d at 64-67. The plurality vigorously denied
that immutability had anything to do with the constitutional claim, but failed to convince Justice Bums,
who concurred only in the result. Id. at 53 n.14. The plurality noted, with admirable precision, that a
same-sex marriage does not necessarily involve a homoerotically related pair and refused to consider
plaintiffs' professed homosexuality relevant to the decision. Id. at 51 n.ll, 53 n.14. Writing for him-
self, however, Justice Bums concluded that, to prevail on a sex discrimination claim, same-sex couples
must prove that their homosexuality was "biologically fated" and thus a natural component of their
"sex." Id. at 69-70 (Bums, J., concurring).
At the time the plurality decision was handed down, Justice Bums' concurrence appeared to be
necessarY to the judgment in plaintiffs favor. (Even this is unclear: Of the five justices who heard oral
argument in the case, one dissented outright from the judgment, and another-a temporary justice whose
appointment expired before judgment was entered-sought to join in the dissent. Id. at 48 n.*, 70 n.l.
His concurrence was treated as legally ineffective by the plurality, but as part of the tally by the dis-
senter.) The plaintiffs filed a motion for clarification seeking clear guidance on the standard they would
have to meet on remand. Justice Burns and the dissenter could have then blocked any clarification of
the immutability question, and forced a remand to a trial court which had already found '''that homosex-
uality was not an immutable characteristic,''' Baehr, No. 91-1394-05, at 5 (order granting Defendant's
motion for judgment on the pleadings). By the time the court ruled on the motion for clarification,
however, the temporary justice concurring in the dissent had been replaced with a new permanent justice
who voted with the plurality to issue an order requiring the trial court to adjudicate the case under the
law as stated in the plurality opinion.
16 Sexual Orientation and Rights

516 STANFORD LAW REVIEW [Vol. 46:503

Even when plaintiffs in Evans v. Romer framed more moderate claims on

the basis of new scientific reports about homosexual orientation and its causes,
the court misconstrued them as strong claims of the sort advanced by plaintiffs
in Dahl, Steffan, and Baehr. In Evans, plaintiffs argued that "sexual orientation
is highly resistant to change, whatever its etiology," and when they cited the
work of Dean Hamer and Simon LeVay, they added the proviso that "it is not
necessary for a trait to be genetically determined for it to be an involuntary trait
that is highly resistant to change."56 At a full trial on the merits, however, the
court heard a much more absolute immutability claim-"Plaintiffs strongly ar-
gue that homosexuality is inborn"-and rejected it on the basis of the testimony
offered by plaintiffs' own witness, Dean Hamer.57
The scientific evidence available has not made judges more likely to accept
pro-gay advocates' argument from immutability. As the foregoing legal analy-
sis suggests, gay-rights advocates who base their equal protection cases on the
argument from immutability do so at their option. As 1 argue in the next Part,
they do so at the cost of dividing the communities they serve. As 1 argue in
Part III, they do so despite the failure of the existing science to support their
empirical claim that homosexual orientation is immutable. It is time to think
carefully about whether the pro-gay argument from immutability has any justi-
fiable part to play in pro-gay litigation.

II. THE TOPOGRAPHY OF DISAGREEMENT

I argue in this Part that those who wish to premise legal rights of gay men,
lesbians, and bisexuals on a biological argument should cease and desist, and
should seek instead a common litigation strategy with those in the pro-gay
community who resist the argument from immutability. Some distinctions are
in order first.
By anti-gay, I mean to describe those who believe that homosexuality is
bad or harmful and should be punished, hidden, or restrained; by pro-gay, I
refer to those who believe that homosexuality is good or value neutral and
should be celebrated or tolerated. For purposes of this Part, an essentialist view
of homosexual orientation claims that it is a deep-rooted, fixed, and intrinsic
feature of individuals. This essentialist view assumes that homosexual orienta-
tion is determined (by nature or nurture), not chosen. (1 will later redesignate
this position "strong essentialism.") The constructivist view of homosexual
orientation claims that it is a contingent, socially malleable trait that arises in a
person as she manages her world, its meanings, and her desires. The pro-gay

56. Trial Memorandum on Plaintiffs' Case in Chief at 35 & n.8, Evans v. Romer, No. 92CV7223,
1993 WL 518586 (Colo. Dist. Ct. Dec. 14, 1993).
57. Evans, 1993 WL 518586, at *11 (''The preponderance of credible evidence suggests that there
is a biologic or genetic 'component' of sexual orientation, but even Dr. Harner, the witness who testified
that he is 99.5% sure there is some genetic influence in forming sexual orientation, admits that sexual
orientation is not completely genetic. The ultimate decision on 'nature' vs 'nurture' is a decision for
another forum, not this court, and the court makes no determination on this issue."). For a critical .
review of plaintiffs' use of scientific testimony in the Evans v. Romer trial, see Donna Minkowitz, Tnal
by Science: In the Fight over Amendment 2, Biology is Back-and Gay Allies Are Claiming It, VILLAGE
VOICE, Nov. 30, 1993.
 Sexual Orientation and Rights 17

February 1994] CRITIQUING IMMUTABILITY 517

argument from immutability is, on these definitions, essentialist. When the

pro-gay argument from immutability adds a reliance on biological causation
theories, it merely locates the source of determination in nature.
Neither essentialism nor constructivism is necessarily gay-affIrmative.
Anti-gay conservatives use both essentialist and constructivist justifIcations for
their discriminatory policies, even as pro-gay advocates use essentialist and
constructivist arguments to defeat them. Thus there are four, not two, opposed
positions-pro-gay essentialism, pro-gay constructivism, anti-gay essentialism,
and anti-gay constructivism-each incorporating its causal theory into its social
policy argument:
* Pro-gay essentialism holds that because homosexual orientation is fixed,
immutable, and definitional, it should be protected from discrimination.
* Pro-gay constructivism holds that all forms of sexual orientation are muta-
ble, either across an individual's life, at some important moment of personal
choice, or across historical periods, and that social policy on sexual orientation
should not impede these variations.
:I: Anti-gay essentialism holds that homosexual orientation is fixed, immuta-
ble, and normatively bad or sick, either in itself or in its manifestation, and that
society should tailor discrimination against gay men and lesbians to express
normative judgments, deter manifestations of homosexual orientation, or cure
homosexuals of their illness.
:I: Anti-gay constructivism either emphasizes the mutability of heterosexual
orientation, arguing that heterosexuality must be shored up by anti-gay dis-
crimination, or points to the mutability of homosexual orientation, arguing that
discrimination should be designed to convert gay men and lesbians to
heterosexuality.
Pro-gay activists usually limit their debate to the fIrst two categories-pro-
gay essentialism and pro-gay constructivism. But without taking into account
the anti-gay positions that these causal theories sometimes support, pro-gay
analysis cannot adequately assess the relative merits of essentialism and
constructivism.

A. Choice
Anti-gay constructivists say that being gay, lesbian, or bisexual is a choice,
and for that reason forms a proper target for a majority that thinks these ways
of being are morally bad and seeks to deter people from adopting them. For-
mer Vice President Dan Quayle became the most visible proponent of this posi-
tion during the 1992 presidential campaign when he announced, "My viewpoint
is that it's more of a choice than a biological situation.... I think it is a wrong
choice."58

58. Karen De Witt, Quayle Contends Homosexuality Is a Matter of Choice, Not Biology, N.Y.
TIMES, Sept. 14, 1992, at A17. Fonner Vice President Quayle further explained his position: "It is a
wrong; it is a wrong choice. I do believe in most cases it certainly is a choice." Id.
Anti-gay political appeals echo Quayle's argument with increasing frequency. The chief proponent
of Amendment Two in Colorado told the New York Times: "'From up until the time I was iu the eighth
or ninth grade, I didn't really like girls, wasn't interested in them.••. If I had [had] a counselor who
was predisposed in that way, he could easily have convinced me: "You're one of us. We like guys."'"
18 Sexual Orientation and Rights

518 STANFORD LAW REVIEW [Vol. 46:503

Most contemporary efforts to justify discrimination against gay men and

lesbians rely on former Vice President Quayle's factual assumption. For exam-
ple, Judge Posner assumes throughout his analysis of homosexuality that, to the
extent that society can prevent or deter homosexuality at an acceptable cost, its
repression is justified to "make persons who would otherwise become or re-
main homosexuals happier."s9 As it happens, he concludes that many, but by
no means all, forms of discrimination against homosexuals function inef-
ficiently.6o But other conservative analysts justify capacious regimes of dis-
crimination on the factual assumption that homosexuality is to some extent
chosen. Conservative commentator E.L. Pattullo, for example, posits that at
least some individuals choose their sexual orientation, and argues on that basis
that discrimination against gay men and lesbians, including constraints on their
speech, should be tailored to deter such sexual-orientation "waverers" from
choosing homosexuality over heterosexuality.61
Pro-gay essentialism offers a refutation of this anti-gay constructivist rea-
soning. It is an exoneration strategy, describing gay men and lesbians as inca-
pable of resisting their sexual orientation and thus not "responsible" for it. Its
claim to fairness taps a deep reservoir of intuitive plausibility: that an individ-
ual should not be criminally punished or civilly burdened because he or she
helplessly bears a disfavored characteristic.62 Pro-gay essentialism is also a
practical strategy, claiming that punishing homosexuality is useless because it

Dirk Johnson, "r Don't Hate Homosexuals," N.Y. TIMES, Feb. 14, 1993, at A24 (quoting Will Perkins).
Much of the revulsion expressed by young men in the military services at the idea of being seen in the
shower by a gay man is premised on anti-gay constructivism. Like Perkins, these men are concerned
that their own heterosexuality, far from being immutable, is a tentative accomplishment See Kendall
Thomas, Shower/Closet, 20 AsSEMBLAGE 80, 83 (1993) (describing this fear as the "shock of reeogni-
tion that would follow from the revelation that the straight male shower and the gay male closet are
neither opposing nor even abutting structures").
59. RICHARD A. POSNER, SEX AND REAsON 308, 303-09 (1992) [hereinafter POSNER, SEX AND
REASON]. Posner doubts, however, that homosexual orientation can be chosen, id. at 297, and thus
constructs his efficiency arguments on a premise he is willing to have thrown into doubt. Since writing
Sex and Reason, he has taken a more agnostic position on immutability and developed new arguments
that do not rely on it. See Richard A. Posner, Economics and the Social Construction ofHomosexuality,
in RICHARD A. POSNER, OVERCOMING LAW (forthcoming 1995) ("It is of no importance to my economic
analysis" whether homosexuality is immutable or not).
60. In Sex and Reason, Judge Posner concluded that sodomy laws should be repealed, POSNER.
SEx AND REASON, supra note 59. at 311. and that the military should exclude gay men and lesbians only
for conduct that is also prohibited for heterosexuals, id. at 321. But Posner cautioned that antidis-
crimination protection for homosexual educators of young people "may be premature." ill. at 322. 403-
04, and concluded that society justifiably retains the ban on same-sex marriage, id. at 311-14. In his
more recent examination of marriage policy, Posner concludes that principles of contract, not status.
should govern marriage, and that such a regime removes the barrier to the legal recognition of same-sex
relationships. See Posner, supra note 59. at 16-17.
61. B.L. Pattullo, Straight Talk About Gays, COMMENTARY, Dec. 1992, at 22-23.
62. Surveys have shown that people who think homosexuality is immutable tend also to disap-
prove of discrimination against gay men and lesbians. Jeffrey Schmalz, Poll Finds an Even Split on
Homosexuality's Cause, N.Y. TIMES, Mar. 5, 1993, at A14 ("Americans who say individuals cannot
change their homosexuality-43 percent of those surveyed-are more sympathetic to the gay view on
these issues [gays in the military and gay lifestyles generally] than the 44 percent who see it as a
choice."); see also Kurt B. Emulf, Sune M. Innala & Frederick L. Whitam, Biological Explanation,
Psychological Explanation, and Tolerance of Homosexuals: A Cross-National Analysis of Beliefs and
Attitudes, 65 PSYCHOL. REP. 1003, 1007-09 (1989) (fmding similar results among Filipino and Swedish
as well as American subjects).
 Sexual Orientation and Rights 19

February 1994] CRITIQUING IMMUTABILITY 519

cannot be deterred. The argument from immutability may be the only "high
concept" argument against anti-gay discrimination in the repertoire of popular
debate today.
For a number of reasons, the pro-gay argument from immutability, when
advanced as a legal claim, is not the silver bullet its proponents think. First, as
we have seen, this "folk" form of antidiscrimination reasoning has not survived
the exactions of constitutional analysis, which seeks a principled way of distin-
guishing the many discriminations based on immutable characteristics that we
do not find normatively or legally troubling. Second, as many proponents of
the argument from immutability concede, the empirical record suggests not that
changing someone's sexual orientation is impossible, but that it is so wrench-
ingly difficult as to be cruel (and thus, in some versions, excessively costly
when tallied with the scarcity of effective conversions).63 Staking the immuta-
bility argument on this particular ground is problematic in several ways. The
first resort of these arguments is a description of personality or personhood, in
which the "traits" associated with homosexual orientation "are so central to a
person's identity that it would be abhorrent for government to penalize a person
for refusing to change them, regardless of how easy that change might be phys-
ically."64 Personhood arguments transpose the site of immutability from the
body to the personality. As Kendall Thomas argues, such a move risks
"perpetuat[ing] the psycho-medical conception of the origins and nature of
sexual orientation ... [,] leav[ing] the door open for effective regulation sim-
ply by substituting a medical response to homosexual conduct ... for a legal

63. It is also possible to cast a moderated immutability argument in tenus that emphasize the
agency of gay men and lesbians in adopting and affinning their sexual orientations. Lesbian philosopher
Claudia Card points out that one can have an option, exercise it, and thereafter be unable to revisit that
decision and "make it again." Claudia Card, Lesbianism and Choice, 23 J. HOMOSEXUALITY 39,41-42
(1992). Card argues that sexual orientation might be labile, mutable, and subject to autonomous deci-
sionmaking at one point in a person's life, but that once a choice is made certain ethical, psychic, and
interpersonal dynamics make changing that choice impossible, or so costly as to be catastrophic. [d.
Similarly, William Connolly'S account of "branded or entrenched contingencies" in identity-"obdurate
contingencies"-aJlows him to "emphasize[] how [certain identities] are both contingent formations
and resistant to modification once consolidated." CONNOLLY, supra note 4, at 176. Pro-gay essentialists
shy away from this moderated conception of immutability because it defeats their preferred polemical
point, that gays should not be punished because they cannot be deterred. The plaintiffs in Evans v.
Romer, for example, argued that discrimination on the basis of homosexual orientation warrants height-
ened scrutiny because sexual orientation is an "involuntary characteristic," no matter how it is caused.
Trial Memorandum on Plaintiff's Case in Chief at 32-36, Evans v. Romer 1993 WL 19678 (Colo. Dist.
Ct. Jan. 15, 1993) (No. 92CV7223), affd, 854 P.2d 1270 (Colo.), cert. denied, 114 S. Ct. 419 (1993).
64. Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (en banc) (Norris, J., concurring);
see also Bowers v. Hardwick, 478 U.S. 186, 203 n.2 (1986) (Blackmun, J., dissenting) (arguing that
"[h]omosexuaI orientation may well form part of the very fiber of an individual's personality"); Trial
Memorandum on Plaintiffs' Case in Chief at 36, Evans (No. 92CV7223) (''Burdening individuals on the
basis of sexual orientation ••• is also unjust because sexual orientation is a characteristic central to a
person's identity."); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 943 (lst ed. 1978) (stating
that same-sex sodomy is "central to the personalities of those singled out by" an antisodomy statute);
Tribe, supra note 20, at 1075-77 (arguing that anti-gay legislation should be rejected on the basis of a
substantive view of "what it means to be a person" because it "denies those subject to it a meaningful
opportunity to realize their humanity"); Note, The Constitutional Status of Sexual Orientation: Homo-
sexuality as a Suspect Classification, 98 IfARv. L. REv. 1285, 1304-05 (1985) (asserting that "a gay
person's sexuality is fundamental to her personal identity" because "homosexuality is a determinative
feature of personhood").
20 Sexual Orientation and Rights

520 STANFORD LAW REVIEW [Vol. 46:503

one."6S And this modified fonn of essentialism entirely fails to represent those
pro-gay constituencies that deny the centrality of a particularized homosexual
orientation to their psychic makeup, whether because they identify as bisexual,
because they seek to de-emphasize the gender parameters of sexuality, because
they are experimental about sexuality, or because they experience sexuality not
as serious self-expressiveness but as play, drag, and ironic self-reflexivity.
Moreover, personhood arguments do not establish a rationale for delegiti-
mating popular decisions to sanction voluntary conduct. As philosopher Ed-
ward Stein has argued, pro-gay essentialism fails to address the anti-gay
argument that homosexuality, whether it is mutable or not, is expressed through
elected behavior, ranging from same-sex erotic acts to practices of self-identifi-
cation.66 Explaining why rules burdening conduct impinge on elements of life
central to personhood would require not a psychiatric or psychological theory
of sexuality but a political one. And the justification for these policies need not
rest on an assumption that they tend to increase or decrease the amount of
homosexuality and heterosexuality being expressed in a society: Anti-gay es-'
sentialism might espouse them on an assumption that to do otherwise would
indicate approval of the conduct of an immutably defined class. For example,
in an argument about gay marriage that he has since modified, Judge Posner
noted that "[t]o permit persons of the same sex to marry is to declare, or more
precisely to be understood by many people to be declaring, that homosexual
marriage is a desirable, even a noble, condition in which to live."67 Moreover,
he offered this justification for prohibiting same-sex marriage on an assumption
that heterosexual orientation in those who bear it is immutable.68
Finally, anti-gay constructivists are often willing to concede that many, if
not most, existing gay men and lesbians cannot switch their sexual orientation.
Instead, they tailor their anti-gay social policy to deter new enrollments in the
class of homosexuals. For these anti-gay constructivists, the suffering of those
who have already and irrevocably made that choice is unimportant-and so it
doesn't matter, either, whether that suffering arises from discrimination gay
men and lesbians are unable to duck because they cannot change their sexual
orientation, or from transfonnative therapies that cause them anguish. Pattullo,
for instance, reasons that even if only some children are sexual orientation '\va-
verers," social policy must "give [them] clear, repeated signals as to society's
preference" that they elect heterosexuality.69 This is the wise thing to do, Pat-
tullo argues, even at the cost of "condernn[ing] youngsters, who from earliest

65. Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REv. 1431, 1474 (1992). Such
therapies are currently suggested in § 302.60 of the American Psychiatric Association's Diagnostic and
Statistical Manual (DSM-Ill) for "Gender Identity Disorder of Childhood," which legitimates therapies
intended to divert effeminacy in boys. See Eve Kosofsky Sedgwick, How to Bring Your Kids Up Gay,
in FEAR OF A QUEER PLANET, supra note 3, at 71-72.
66. Edward Stein, The Relevance oj Scientific Research About Sexual Orientation to Lesbian and
Gay Rights, in GAY ETHICS: OUTING, CIvIL RIGHTS AND THE MEANiNG OF SCIENCE (forthcoming 1994).
67. POSNER, SEX AND REASON, supra note 59, at 312.
68. ld. (declining to "suggest that government's pronouncing homosexual marriage a beatific state
would cause heterosexuals to rethink their sexual preference").
69. Pattullo, supra note 61, at 24.
 Sexual Orientation and Rights 21

February 1994] CRITIQUING IMMUTABIUTY 521

memory know themselves to be gay,"70 and a fortiori at the cost of condemn-

ing those who have chosen and now cannot revise their choice. Indeed, the
pedagogical design of discrimination under this rationale makes public displays
of suffering not merely acceptable but valuable, as the clearest signal of major-
ity preferences imaginable.
An argument from immutability that relies on the futility of, and pain
caused by, psychotherapeutic efforts at conversion does not refute a program of
discrimination actually tailored to prevent people who can choose to become
homosexual from doing so in the fIrst place. To refute anti-gay arguments tak-
ing this form, a legal argument from immutability needs biological causation.
If pro-gay essentialists want to stay in the game, they will have to claim that
homosexuality is immutable because it is biologically determined-causal pro-
gay essentialism tout court. For that reason I will assume in the following Parts
that pro-gay essentialism asserts biological causation. In fact, in three of the
four recent cases relying on the new biological fIndings, that is the form that
the pro-gay essentialist argument has taken.71

B. Genes
In the last thirty years, genetics has undergone an astonishing ascendancy
among the life sciences. It has broken disciplinary limits it adopted in order to
distance itself from Nazi eugenics, and now forthrightly seeks to explain not
merely the characteristics of animals and the physiological features of humans,
but human behavioral and psychological traits.72 Pro-gay essentialism rides the
coattails of modem genetics' sweeping epistemological authority.
Recent developments in science have been invoked to support the claim
that homosexuality is now known, or will soon be known, to be a biologically
caused, immutable characteristic. For two reasons, this section will argue, pro-
gay essentialists should hesitate to rely on these developments to support the
argument from immutability. First, as scientifIc professionals have amply and
repeatedly insisted, behavioral genetics in general, and the homosexuality stud-
ies in particular, do not support the claim that homosexual orientation is geneti-
cally caused and therefore an immutable characteristic. Second, pro-gay
support for genetic explanations of sexual orientation may boomerang by vali-
dating the key premises of anti-gay eugenics.

70. Id.
71. See notes 47-54 supra and accompanying text.
72. The most comprehensive account of the transformation of genetics is DANIEL J. KEvLEs, IN
TIlE NAME OF EUGENICS: GENETICS AND TIlE USES OF HUMAN lliREoITY (1985). Other important contri-
butions include RUTH HUBBARD & ELuAH WAlD, ExPLODING TIlE GENE MYTH: How GENETIC INFOR-
MATION Is PRODUCED AND MANIPULATED By SCIENTISTS. PHYSICIANS, EMPLOYERS. INSURANCE
COMPANIES AND LAW ENFORCERS 13-38 (1993); DOROTIIY NELKJN & LAURENCE TANCREDI, DANGER-
ous DIAGNOSTICS: THE SOCIAL POWER OF BIOLOGICAL INFORMATION (1989); Evelyn Fox Keller, Na-
ture, Nurture, and the Human Genome Project, in CODE OF CODES, supra note 38, at 281; and Daniel J_
Kevles, Vital Essences and Human Wholeness: The Social Readings of Biological Information, 65 S.
CAL. L. REv. 255, 273-77 (199l). An account that de-emphasizes the retreat from eugenics after World
War II and emphasizes instead broader ideological origins in Western politics, economics, and philoso-
phy is R.C. LEWONTIN, STEVEN ROSE & LEON J. KAMIN, NOT IN OUR GENES: BIOLOGY, IDEOLOGY, AND
HUMAN NATURE (1984).
22 Sexual Orientation and Rights

522 STANFORD LAW REVIEW [Vol. 46:503

Part III below examines the methods and claims of the most important re-
cent studies of homosexual orientation. Even if pro-gay essentialists do not
choose to heed the arguments offered there, they should beware of exaggerating
the claims that human behavioral genetics can support as a general matter. Sci-
ence professionals pursuing internal criticism of the behavioral genetics pro-
gramme emphasize, first, that genetically caused characteristics are not
necessarily immutable in the sense that they persist unchanged over time. For
example, even if male pattern baldness is entirely genetically caused, it never-
theless emerges only in adulthood and then develops. And behavioral charac-
teristics may exhibit even more complex developmental mutabilities than
physical ones.73
Nor are genetically caused characteristics necessarily immutable in the
sense that they are immune from environmental influence. Confusion on this
point often arises from the popular assumption that characteristics shown to be
"heritable" are, for that reason, immune from environmental influence. But
population and behavioral geneticists use the term "heritable" only to describe
"the level of predictability of passage of a biologically interesting phenotype
from parent to offspring."74 Heritability confounds phenotypic variance caused
by heredity with phenotypic variance caused by environment.75 Moreover,
even when geneticists are able to control environmental variance (as they seek
to do, for instance, in experiments involving agricultural plants and laboratory
and farm animals), any finding that a certain phenotypic characteristic is likely
generated through the action of a single gene not interacting with other genes
("narrow-sense heritability") assumes the particular environmental factors in
which the characteristic emerged:
A statistical estimate for the narrow-sense heritability pertains only to a partic-
ular population studied under a specific environmental regime. It cannot be
regarded as valid for a different population or under different environments.
There is nothing that can be inferred from such an estimate about the extent to
which phenotypic differences between popUlations are due to genetic
differences. 76
Inasmuch as heritability studies do not even theoretically eliminate environ-
mental factors, they do not eliminate the possibility that phenotypic variation

73. See L.J. EAVES, H.J. EYSENCK & N.G. MARTIN, GENES, CULTURE AND PERsONALITY: AN
EMPIRICAL ApPROACH 161-99 (1989) (developing a model for testing the relative contribution of genes
and culture to behavioral characteristics that emerge in human development).
74. Marcus w. Feldman, Heritability: Some Theoretical Ambiguities, in KEYWORDS IN EVOLU-
TIONARY BIOLOGY lSI, 151 (Evelyn Fox Keller & Elisabeth A. Lloyd 005., 1992).
75. [d. at 151-52; see also M.W. Feldman & R.C. Lewontin, The Heritability Hang-Up, 190 SCI-
ENCE 1163, 1164 (1975) (''The narrow heritability does not provide an index of the importance of an
individual's genotype in determining the phenotype. It is merely an index of the amenability to selective
breeding and, as such, is of practical use in the construction of breeding programs.").
76. Feldman, supra note 74, at 155 (emphasis added). Feldman concludes by observing that
"norm of reaction" studies, in which genotypically identical individuals are reared in differing environ-
ments, produce differing measures of heritability for the same characteristic: "[Elven if the heritability
in one environment were high, it might not be in another." [d. at 157; see also DANIEL L. HARTl. &
ANDREW G. CLARK, PRINCIPLES OF POPULATION GENETICS 472 (2d ed. 1989) (asserting that norm of
reaction studies "underscore the fact that heritability is a measure defined in one environment").
 Sexual Orientation and Rights 23

February 1994] CRITIQUING IMMUTABIUTY 523

arises through a process of interaction between genotype and environment.77

Nor do they eliminate the possibility that environmental differences result from
and in tum cause genetic variance.78 It is difficult if not impossible to design
experiments that measure separately the wide variety of ways in which environ-
ment may contribute to an observed regularity in the transmission of pheno-
typic traits from parents to offspring when the object of study is Drosophila or
com. Human characteristics, and particularly human behavioral characteristics,
are even more difficult to assess and even more inhospitable to efforts to ex-
clude environmental and cultural factors.79 Thus, according to the internal crit-
icism offered by scientific professionals, any experimental program in human
behavioral genetics can offer only limited claims of genetic causation, and even
those claims do not necessarily demonstrate immutability.
At the same time, pro-gay essentialism takes some unacceptable risks when
that approach borrows the plausibility of modem genetics. On a purely prag-
matic level, pro-gay essentialism is just not different enough from anti-gay es-
sentialism to mount an effective resistance to the development of anti-gay
eugenics. Pro-gay essentialism fails to contest the arguments crucial to the dis-
criminatory social policies of both anti-gay essentialism and anti-gay construc-
tivism: that homosexuality is bad either because it is immoral or because it
disrupts the social order. Pro-gay essentialism parsimoniously aims at the anti-
gay constructivist premise that at least some homosexuality is chosen; but it
neglects the second premise, that homosexuality is bad or harmful. Pro-gay
constructivists worry that this failure to contest the moral and political meaning
assigned to homosexuality leaves pro-gay essentialism vulnerable to coopta-
tion. An anti-gay constructivist could convert to essentialism, maintaining the
premise that homosexuality is bad for moral or civic order, agreeing with
the important points explicitly made by pro-gay essentialism, and then, without
breaking logical stride, undertake an eugenic program to eliminate
homosexuals.

77. Feldman, supra note 74, at 156; see also SUSAN L. FARBER, IDENTICAL TWINS REARED APART:
A REANALYSIS 22-31 (1980); HARTL & CLARK, supra note 76, at 458-63. Feldman and Lewontin fur-
ther argue that experimenters cannot partition gene-environment interaction unless they also isolate
gene-environment correlation. Feldman & Lewontin, supra note 75, at 1164.
78. Feldman & Lewontin, supra note 75, at 1163 (''The genetic variance depends on the distribu-
tion of environments and the environmental variance depends on the distribution of genotypes.").
79. Id. at 1164 (concluding that in experiments involving human subjects, "experimental controls"
that allow the experimenter to partition purely genetic and purely environmental contributions as well as
those involving gene/culture interactions "are either impossible or unethical," rendering "statistical in-
ference about the heritability of traits that are phenotypically plastic ... invalid"); see also Robert
Plomin, The Role of Inheritance in Behavior, 248 SCIENCE 183, 186 (1990) (concluding that "[g]enetic
influence on behavior appears to involve multiple genes rather than one or two major genes, and
nongenetic sources of variance are at least as important as genetic factors").
Twins studies have emerged as the most promising means of controlling for environmental vari-
ance in human genetics. For pessimistic assessments of this theoretical approach, see HARTL & CLARK,
supra note 76, at 480·81; FARBER, supra note 77. For an effort to design experimental models ade-
quately complex to accommodate the problems of research in humans, see EAVES ET AL., supra note 73.
24 Sexual Orientation and Rights

524 STANFORD LAW REVIEW [Vol. 46:503

Anti-gay eugenics is more than a theoretical danger. Important mainstream

scientists have praised the Human Genome Project for its eugenic potential,so
and researchers on the causes of homosexuality repeatedly acknowledge the
possibility of anti-gay eugenics.S1 Moreover, modem genetics aspires not to
improve or purify a national or racial gene pool-a task that would require
currently unimaginable levels of official participation-but to enable individual
parents to prevent the birth of less-than-optimal infants through privately ob-
tained prenatal testing and selective abortion. 82 And of course selective abor-
tion of fetuses deemed to be genetically committed to homosexuality is not the
only conceivable way in which genetic information (or misinformation) could
be used. Current or imagined genetics technologies could be used to
subordinate or prevent the existence of gay men and lesbians in a variety of
ways: genetic fingerprinting could make involuntary identification possible;
cloning could provide parents with reproductive options untainted by any "gay
gene"; and genetic modification could cure the "condition" of genotypic homo-
sexuality.83 All of these approaches could be used whether the targeted genetic

80. For example, Daniel Koshland, editor of Science, which has published a number of the leading
studies claiming to identify biological causes of homosexuality, has stated that genetic diseases "are at
the root of many current societal problems," and has warned against "the immorality of omission-the
failure to apply a great new technology to aid the poor, the inflI1ll, and the underprivileged." Daniel E.
Koshland, Jr., Sequences and Consequences of the Human Genome, 246 SCIENCE 189, 189 (1989).
When asked whether funding proposed for the Human Genome Project might be better given to the
homeless, Koshland replied: "'What these people don't realize is that the homeless are impaired•••.
Indeed, no group will benefit more from the application of human genetics.''' Keller, supra note 72, at
282 (quoting Koshland's address to the FIrSt Human Genome Conference in October, 1989).
81. See, e.g., David J. Jefferson, Studying the Biology of Sexual Orientation Has Political Fallout,
WALL ST. J., Aug. 12, 1993, at AI, A4 (quoting Dr. Laura Allen and Dr. Dean Hamer). Two researchers
in neuroendocrinology have indicated that the principal obstacles to anti·gay eugenics are practical ones,
making no mention of the potential moral problems that would be involVed. Lee Ellis & M. Ashley
Ames, Neurohormonal Functioning and Sexual Orientation: A Theory of Homosexuality-Heterosexual-
ity, 101 PSYCH. BULL. 233, 252 (1987) (urging caution in attempts to prevent homosexuality because
"[s]everal decades of intense research may be required to adequately test the theory [that homosexual-
ity and other "sexual inversions" are prenatally causedl, and ••• to identify precisely where and when
intervention might be feasible"). Elsewhere anti-gay eugenics are actively recommended. E.g., G.
Duomer, B. Schenk, B. Schmiedel & L. Ahrens, Stressful Events in Prenatal Life of Bi· and Homosex·
ual Men, 81 EXPERIMENTAL CLINICAL ENDOCRINOLOGY 83, 87 (1983) ("These fmdings indicate that
prevention of war and undesired pregnancies may render possible a partial prevention of the develop-
ment of sexual deviations."). Often scientists raise a hortatory cry that prevention should not be at-
tempted. See Hamer et a!., supra note 1, at 326 (urging readers to regard homosexual orientation as a
"normal variation in human behavior," and stating that "[wle believe that it would be fundamentally
unethical to use [information from the Human Genome Projectl to try to assess or alter a person's
current or future sexual orientation, either heterosexual or homosexual"). Even those who do not share
the nOI1llative belief that homosexuality is bad may endorse prevention programs for other reasons. See,
e.g., POSNER, SEX AND REASON, supra note 59, at 308 (wondering whether "science, which has worked
so many wonders, may someday, perhaps someday soon, discover a 'cure' for homosexuality," and
opining that such a cure would be socially inefficient if applied to adults, who would suffer pain and
dislocation in abandoning a social identity, but may be cost free in the case of fetuses, infants, and even
children); Gelman et aI., supra note 2, at 48 (" 'No parent would choose to have a child bom with any
factor that would make life difficult for him or her.''') (quoting the program director of the Federation of
Parents and Friends of Lesbians and Gays).
82. KEVLES, supra note 72, at 267-68; Keller, supra note 72, at 289, 295-97.
83. On genetic fmgerprinting, see DNA ON TRIAL: GENETIC IDENTIFICATION AND CRIMINAL Jus-
TICE (Paul R. Billings ed., 1992); Eric Lander, DNA Fingerprinting: Science, Law and the Ultimate
Identifier, in CODE OF CODES, supra note 38, at 191. On cloning and genetic modification, see KEvLEs,
supra note 72, at 264-68.
 Sexual Orientation and Rights 25

February 1994] CRITIQUING IMMUTABILITY 525

trait unilaterally caused homosexual orientation, merely predisposed an individ-

ual to such an orientation, or had no relationship to human sexual development
at all. Pro-gay essentialism is not rhetorically or materially prepared to deal
with the furtive cultural dispersal of anti-gay essentialism taking all, or any, of
these forms. 84
Pro-gay essentialism also embodies ideological dangers that could engender
concrete political ones. Genetics does not merely describe reality; it also incor-
porates cultural norms into its premises and diffuses into the wider culture its
own implicit norms and epistemological commitments. Science scholar Evelyn
Fox Keller uses the example of alcoholism to illustrate how the ideological
assumptions of genetics might contribute disturbing new meanings to political
life. Keller emphasizes that the medical appropriation of modem genetics, fo-
cused as it is on the concept of genetic disease, makes genetic normality the
fundamental basis of analysis and yet pervasively fails to define it:
"Take alcoholism. Alcoholism gets defined as a genetic disease and we
look for genes that characterize populations of people who are addicted to alco-
hol. We don't look at the genes that characterize the populations that can drink
without becoming addicted....
. . . [LJet's suppose a durable, robust claim for a genetic contribution to
certain physiological responses that are correlated with alcoholism is ob-
tained.... At that point it becomes necessary to ask: 'How did the category of
alcoholism get defined in the first placeT "85
Genetics thus raises the question of "how the authority for prescribing the
meaning of 'normal' is distributed"86-a question whose answer will emerge
as scientific claims are interpreted and used in culture. One danger of shaping
pro-gay legal strategy on genetics is that this pattern developed in genetic
medicine will be reiterated in the context of sexuality: Definitions of the nor-
mal that exclude homosexuality will already be embedded in the science when
it enters culture.
Nor is the danger simply that heterosexuals will get to derme the normal as
identical with themselves. Heterosexual identity is a complex, indeed unstable
phenomenon, as is suggested by studies showing that men affirm their identities
as heterosexual even when they acknowledge having recent same-sex con-
tacts. 87 The instability of genetic normality is mirrored in the instability of
heterosexuality as a social-representational practice. Social-descriptive con-

84. I do not think that the danger of appropriation justifies abandoning scientific studies that hy-
pothesize a biological cause of homosexuality. If I did, I could not consistently write and publish this
article, which is ripe for misappropriation by anti-gay constructivists willing to distort its central points.
Nor do I think that gay men and lesbians who fmd themselves affmned or reflected in narratives of
biological causation should cease to say so. I argue only that they should not use litigation to obtain
official approbation for their sexual orientation identity. See Part n.D infra.
85. Lany Casalino, Decoding the Human Genome Project: An Interview with Evelyn Fox Keller,
SOCIALIST REv., Apr.-June 1991, at 111, 121-22 (quoting Keller); see also Keller, supra note 72, at
296-97.
86. Keller, supra note 72, at 299.
87. See, e.g., Robert E. Fay, Charles F. Turner, Albert D. Klassen & John H. Gagnon, Prevalence
and Patterns of Same-Gender Sexual Contact Among Men, 243 SCIENCE 338, 338 (1989); Janet Lever,
David E. Kanouse, William H. Rogers, Sally Carson & Rosanna Hertz, Behavior Patterns and Sexual
26 Sexual Orientation and Rights

526 STANFORD LAW REVIEW [Vol. 46:503

cepts that are this manipulable invite, and often receive, opportunistic redefini-
tion in the political sphere. The power to define and redefine who and what the
"normal" is, and who and what "heterosexuals" are, can become itself a method
of doing politics to secure some aspects of social superordination. The overlap
of genetic normality with heterosexual identity doubles the danger.
Despite the danger of the genetics model, however, it would be imprudent
for pro-gay constructivists to insist that legal strategy exclude and contradict
pro-gay essentialism. As Keller warns, robust scientific claims that homosexu-
ality is genetically caused may be made any day now:
"The first reaction of leftists to the [Human] Genome Project ... [is to argue]
that behavior and personality are not products of nature, but of nurture. I think
that's a position that is being radically undermined by the Genome Project and
will be impossible to maintain over the course of the next years .
. . . I don't have any doubt that [genetics researchers] are going to be able
to make credible claims for multi-gene "determination" of personality traits."ss
Legal strategy predicated exclusively on pro-gay constructivism would be se-
verely injured if and when researchers show, within the standards of proof that
pertain in reputable modem science, that homosexuality as it is currently mani-
fested in our culture is genetically determined. In that event, pro-gay construc-
tivism could maintain its program of legal reform only by successfully
attacking the standards of proof that pertain in reputable modem science.
Though pro-gay constructivists are entitled to, and should continue to, mount
such critiques,89 it may not be pragmatic to predicate legal strategy on their
success.

C. Autobiographies

Tom McNaught stated an autobiography in three sentences: "It's not a mat-

ter of choice. It's who I am.... It's genetic."90 Pro-gay essentialism makes
autobiographical sense to a significant number of gay men and to many, though
perhaps fewer, lesbians. But other people who experience anti-gay discrimina-
tion tell quite different stories. Some understand themselves to have chosen the
form of their desire or the ways in which it structures their lives.91 Others

Identity of Bisexual Males, 29 J. SEX REs. 141, 151-53 (1992); see also Janet E. Halley, Reasoning
About Sodomy: Act and Identity Tn and After Bowers v. Hardwick, 79 VA. L. REv. 1721 (1993).
88. Casalino, supra note 85, at 115-16 (quoting Keller).
89. For a study of ways in which African-Americans and Jews combatted the "scientific racism"
ascendant between 1870 and 1920, which claimed that they were biologically inferior, see Nancy Leys
Stepan & Sander L. Gilman, Appropriating the Tdioms Of Science: The Rejection of Scienrific Racism, in
THE BOUNDS OF RACE: PERsPECIIVES ON HEGEMONY AND REsISTANCE 72 (Dominick LaCapra ed.,
1991).
90. Tony Rogers, 'Why' of Homosex,uality, CHI. ThIB., June 2, 1993, at C2 (quoting Tom
McNaught).
91. See, e.g., Card, supra note 63; Carla Golden, Diversity and Variability in Women's Sexual
Identities, in LESBIAN PSYCHOWGIES: EXPWRATIONS AND CHAlLENGES 19 (Boston Lesbian Psycholo-
gies Collective ed., 1987).
 Sexual Orientation and Rights 27

February 1994] CRITIQUING IMMUTABILITY 527

occupy the hotly contested historical ground that homosexual identity is a prod-
uct of modernity, not nature or human nature. 92
Still others worry that the designations "gay" and "lesbian" constrain at the
very moment of their application. Among these are self-identified bisexuals,
who repeatedly report the difficulty they confront in fitting their lives and ex-
periences into the simple narrative form propounded by Tom McNaught. 93
Other strong currents in the pro-gay movements critique the very impulse to
organize around gay and lesbian identity, either because doing so suppresses a
sexuality distinct and semi-autonomous from homosexuality,94 or because it
obscures the historical, institutional, and political processes that produce iden-
tity.95 To the extent that these self-articulations are anticategorical, they are
increasingly performed under the rubric "queer."96

92. See, e.g., JOHN D'EMn.IO, SEXUAL POLITICS, SEXUAL COMMUNlTlES: THE MAKING OF AHOMO-
SEh"UAL MINORITY IN THE UNITED STATES, 1940-1970, at 10-13 (1983); FOUCAULT, supra note 4, at 43;
HALPERIN, supra note 4, at 41-53; EVE KOSOFSKY SEDGWICK, BETWEEN MEN: ENGLISH LITERATURE
AND MALE HOMOSOCIAL DESIRE (1985); EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET
(1990) [hereinafter SEDGWICK, EPISTEMOLOGY]; THE MAKING OF THE MODERN HOMOSEXUAL (Kenneth
Plummer ed., 1981); JEFFREY WEEKS, COMING OUT: HOMOSEXUAL POLITICS IN BRITAIN, FROM THE
NINETEENTH CENTURY TO THE PRESENT Il-44 (1977) (tracing a shift in the definition of homosexual
"from sin to crime," thence to "the medical model," and at last to "a way of life"). John Boswell has
voiced the most articulate opposition to this view. John Boswell, Categories, Experience and Sexuality,
in FORMS OF DESIRE: SEXUAL ORIENTATION AND THE SOCIAL CONSTRUCTIONIST CONTROVERSY 133
(Edward Stein ed., 1990); John Boswell, Revolutions, Universals, and Sexual Categories, reprinted in
HIDDEN FROM HISTORY: REcLAIMING THE GAY AND LESBIAN PAST 17 (Martin Duberman, Martha
Bauml Vicinus & George Chauncey, Jr. eds., 1989).
93. For example, CLOSER TO HOME: BISEXUALITY & FEMINISM, supra note 3, collects a number of
self-descriptive and autobiographical narratives that vary widely in their response to this problem. Per-
haps the most salient difference among these essays is their implicit response to the question whether a
unitary biography is possible for people whose erotic lives are invested in men and women. Some
contributors aspire to Iifestories of "wholeness." See, e.g., Margaret Mihee Choe, Our Selves, Growing
Whole, in CLOSER TO HoME, supra, at 17, 24 C"I am now at the point where I have grown tired of
chopping myself up to order into tiny, less-than-human pieces. I'm going to let the cuts heal and let
myself grow whole."); Ruth Gibian, Refusing Certainty: Toward a Bisexuality of Wholeness, in CLOSER
TO HOME, supra, at 3, 14 ("Inclusion. Discovering oneness where we believed there was polarity. Heal-
ing false dichotomies."). Others, however, conclude that their lives are too "fluid" for such integration.
See, e.g., Nina Silver, Coming Out as Heterosexual, in CLOSER TO HoME, supra, at 35, 46 (''My life is a
continual process of coming out. Ultimately, I cannot identify myself even as bisexual. As a human
being striving to reach my fullest potential, I can only relate as the lover."); Dvora Zipkin, Why Bi?, in
id. at 55, 72 ("[The label] bisexual ••. comes closest to describing who I am, who I have been and who
I may become. Might that change? Of course-that's what this essay has been about."); see also
Kathleen Bennett, Feminist Bisexuality; A Both/And Option for an Either/Or World, in CLOSER TO
HOME, supra, at 205, 228 (reviewing a selection of bisexual Iifestories and concluding that bisexuals,
feminists, and "gay Iiberationists" should "bas[e] our identity not only on fluidity, but on fluidity of
sexuality").
94. See Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in
PLEASURE AND DANGER: EXPLORING FEMALE SEXUALITY 267 (Carole S. Vance ed., 1984); see also
Judith Butler, Imitation and Gender Insubordination, in INSIDE/OUT: LESBIAN THEORIES, GAY THEORIES
13 (Diana Fuss ed., 1991); Andrew Parker, Sensitive New Age Guys, LESBIAN & GAY STUD. NEWSL.,
Mar. 1993, at 31 (reviewing ENGENDERING MEN: THE QUESTION OF MALE FEMINIST CRITICISM (Joseph
A. Boone & Michael Cadden eds., 1990».
95. See, e.g., Joan W. Scott, The Evidence of Experience, 17 CRITICAL INQUIRY 773 (1991);
Steven Seidman, Identity and Politics in a "Postmodem" Gay Culture, in FEAR OF A QUEER PLANET,
supra note 3, at 105.
96. Sedgwick, supra note 3, at 8 (describing "one of the things that 'queer' can refer to: the open
mesh of possibilities, gaps, overlaps, dissonances and resonances, lapses and excesses of meaning when
the constituent elements of anyone's gender, of anyone's sexuality aren't made (or can't be made) to
28 Sexual Orientation and Rights

528 STANFORD LAW REVIEW [Vol. 46:503

As long as people who suffer anti-gay discrimination differ about whether

they were born or became gay-indeed, about whether they are gay-neither a
purely essentialist nor a purely constructivist approach can adequately ground
pro-gay legal theory. And differ we do, media reports to the contrary notwith-
standing.97 Immutability offers no theoretical foundation for legal protection
of those gay men and lesbians who experience their sexual orientation as con-
tingent, mutable, chosen. This exclusion will only get worse as a distinctive
movement of bisexuals takes shape: The fairness theory of pro-gay essential-
ism does not explain why bisexuals-by hypothesis capable of satisfactory sex-
ual encounters with members of the so-called "opposite" sex-should not be
encouraged or forced to do so. But building a new foundation for legal protec-
tion on the contrary assumption-that sexual orientation is constructed and not
biologically determined-would risk the same exclusion in reverse. An ade-
quate legal theory should protect the entire social class on whose behalf it is
articulated.

D. Litigation
Pro-gay litigation has a number of important objectives. It seeks concrete
remedies for plaintiffs who have been materially harmed by anti-gay discrimi-
nation. It also seeks the more symbolic attributes of justice for plaintiffs per-
sonally, by restoring to them some measure of their dignity and civic
engagement. More broadly, it seeks to establish rules of law that will benefit
gay men, lesbians, and bisexuals (and, it is to be hoped, other subordinated
groups as well), either in subsequent litigation or through the gradual and mys-
terious processes by which legal rules shape public and private norms. Finally,
pro-gay litigation invites courts to use their privileged position as social produ-
cers of meaning-a kind of epistemological authority rivalled today by science,
but still formidable-to arrest, and hopefully to replace, the meanings gener-
ated by anti-gay discrimination. Of course, pro-gay litigation can fail, even
spectacularly, to obtain these goals. But win or lose, the effects of pro-gay
litigation far exceed those felt by' the individual plaintiff.
Unlike other political activities, litigation is special because it activates the
possibility of success or defeat on any or all of these very different fronts.
When pro-gay advocates turn to litigation, then, they face difficult pragmatic

signify monolithically',); Michael Warner, Introduction, in FEAR OF A QUEER PLANET, supra note 3, at
xii, xxvi (''The preference for 'queer' represents, among other things, an aggressive impulse of general-
ization; it rejects a minoritizing logic of toleration or simple political interest-representation in favor of a
more thorough resistance to regimes of the normal. ... 'Queer' ... suggests the difficulty in derming the
population whose interests are at stake in queer politics.").
97. Media reports on the scientific studies examined below tend to exaggerate the extent to which
members of gayllesbianlbisexuallqueer communities support the argument from immutability. For a
discussion of how this exaggeration reflects the mainstream media's relationships to gay, lesbian, and
bisexual community sources, see Kay Diaz, Are Gay Men Born That Way?, Z MAGAZINE, Dec. 1992, at
42, 46; Kathryn E. Diaz, The Cultural (Mis)appropriation oj a Brain Cell Study? The Media, the Mo-
tive, and the Hypothalami oj Gay Men, GAY COMMUNITY NEWS, Oct 6-12, 1991, at 9,9-11. For a
discussion of pressures within gay, lesbian, and bisexual communities to suppress differences on this
point, see Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereo-
types, and Legal Protection jar Lesbians and Gay Men, 46 U. MrAMI L. REv. 511, 522-27 (1992).
 Sexual Orientation and Rights 29

February 1994] CRITIQUING IMMUTABIliTY 529

and normative questions that should not inhibit them when they engage in other
forms of political action.
Outside of litigation, gay men, lesbians, bisexuals, and queers-in fact,
anybody who brings an open mind to debates about sexuality-should continue
to disagree as vociferously as we want about the degree to which our identities
are essential or constructed. But the distinctive and broad effects of litigation,
in particular its power to normalize in law and culture any defInitions of homo-
sexuality and homosexuals it adopts, must be measured against the exiguous
need for a doctrinal argument that defines who we are in ways that some of us
object to and cannot, and will not, conform to. Pro-gay essentialists and pro-
gay constructivists should stop treating their conflict over legal strategy as a
winner-take-all contest, and seek common ground.

ill. THE STUDIES

Recent studies in neuroanatomy, endocrinology, and behavioral genetics

have strengthened the allure of the pro-gay argument from immutability. These
reports have entered popular culture sufficiently to influence the thinking of
litigators and judges and have actually appeared in pro-gay litigation strategy as
proud supports for the argument from immutability.
This Part undertakes a critique of the most important recent studies report-
ing on biological correlates to homosexual orientation. Three considerations
limit the scope of this critique. First, I will report on but will not pretend to
develop further the critique offered by scientifIc professionals as they evaluate
the experiments in light of the standards of modem science and delineate the
(quite narrow) reach of the studies' well-justified conclusions.98 Second, I

98. William Byne and Bruce Parsons provide an intelligent and intelligible description of how
experimental design limits the inferences that can be drawn from published research reports. William
Byne & Bruce Parsons, Human Sexual Orientation: The Biologic Theories Reappraised, 50 ARCHIVES
GEN. PSYCHIATRY 228 (1993). Among the questions debated in that literature are whether biological
causes of human sexual orientation can ever be deduced from neuroanatomic findings or studies of twins
raised apart. A series of studies issued in the mid-1980s demonstrated that experience could cause
changes in brain development Id. at 229,237 nn.6-8; see also Russell D. Fernald, Cichlids in Love, THE
SCIENCES, July/Aug. 1993, at 27; Richard C. Francis, Kiran Soma & Russell D. Fernald, Social Regula-
tion of the Brain-Pituitary-Gonadal Axis, 90 !'Roc. NAT'L ACAD. SCI. 7794 (1993) (reporting on
changes in the size of cichlid fish brain structUIe after manipUlation of fishes' social structure and
gonadal state).
A well-conducted twins study cannot prove more than a correlation. Because Bailey and Pillard
studied twins raised together, they were unable to do more than wish away possible environmental
differences in experience. See Theodore Lidz, Reply to [Bailey and Pillard's] "A Genetic Study ofMale
Sexual Orientation, .. 50 ARCHIVES GEN'. PSYCHIATRY 240 (1993) Qetter to the editor); J. Michael Bailey
& Richard Pillard, in id. (response to Lidz defending methodology of twins study). Even twins studies
using twins raised apart can produce correlations that can be described as genetically caused only on
highly speculative grounds. One famous study of twins reared apart found that different twin pairs liked
the same brand of cigarettes, had married women with the same name, and had chosen the same names
for their children and dogs. Donald Dale Jackson, Reunion of Identical Twins. Raised Apart. Reveals
Some Astonishing Similarities, SMITHSONIAN, Oct 1980, at 48; see also Thomas J. Bouchard, Jr., David
T. Lykken, Matthew McGue, Nancy L. Segal & Auke Tellegen, Sources of Human Psychological Dif-
ferences: The Minnesota Study of Twins Reared Apart. 250 SCIENCE 223 (1990). For an examination of
the many ways in which environmental influences can contribute to the development of similar traits
even in twins raised apart. see FARBER. supra note 77.
30 Sexual Orientation and Rights

530 STANFORD LAW REVIEW [Vol. 46:503

leave to other critics the internal and external criticism of this literature on
grounds that it incorporates questionable assumptions about gender. 99
And third, the project undertaken here-to find common ground from
which pro-gay essentialists and pro-gay constructivists can launch litigation
strategies that include rather than divide pro-gay constituencies-can hardly
begin on an assumption that the argument from immutability must certainly be
wrong. For pragmatic and ethical reasons arising from the special demands of
litigation strategy, the following critique quite deliberately falls short of a claim
that the relevant experiments are bad science. To be sure, this Part offers a
criticism of the experiments' assumptions about sexual orientation categories,
but the argument pursued here is not that the studies are flawed because they
make such assumptions. Science must always begin with hypothetical defini-
tions, drawn from conventional language, of the phenomena it seeks to study.
A realist would posit that science eventually refines those conventional as-
sumptions to arrive at transparently correct descriptions of nature, while a prag-
matist would merely require that good science gradually accommodate its
categories closely enough to the emerging data that it can offer more or less
reliable predictions and, where appropriate, serviceable technologies. The re-
cent studies of homosexual orientation inaugurate rather than conclude research
programs in this field: They are owed the forbearance that realists grant to
early work, and that pragmatists grant to all science, even if their categorical
assumptions reflect social biases.lOo
They are not owed more than that, however. Specifically, they are not
owed any deference at all on the question whether human sexual orientation is
bimodal or continuumized: whether it appears in the foons of homo- and
heterosexuality or in more minute gradients between these two. When an ex-
perimenter faces the threshold decision whether to assume human sexual orien-
tation to be bimodal or continuously variable, she faces a question that
underlies the political dispute among pro-gay constituencies over the pro-gay
argument from immutability: Proponents favor a bimodal model; opponents
favor a continuumized model. Thus, science must choose between politically
loaded definitions for its hypotheses. Because the ultimate strength of statisti-
cal findings depends in part on the model of sexual orientation traits that re-
searchers adopt as their hypothetical apparatus,lOl and the available

99. Neuroanatomical and honnonal reports repeatedly assume that homosexuals are sex inverts,
such that gay men resemble women, and lesbians men, along some dimension that has been found to be
dimorphic for sex. This assumption has led hormone researchers to classify the male rat who presents
himself to be penetrated as "homosexual," but the male rat who penetrates him as "heterosexuaI." Byne
& Parsons, supra note 98, at 231. This inversion hypothesis richly warrants a thick cultural explanation,
but I do not attempt to fashion one here. For a brief restatement of the rationale for distinguishing
sexual orientation from gender, and pursuing analysis of the fonner on the assumption that it operates
semi-autonomously from the latter, see Halley, supra note 87, at 1724-26.
100. For an argument that science may incorporate social biases and nevertheless be "good sci-
ence," see Elizabeth Potter, Modeling the Gender Politics in Science, in FEMINISM AND SCIENCE 132,
141-44 (Nancy Tuana ed., 1989).
101. See EAVES ET AL., supra note 73, at 45 (''Estimates of genetic and environmental parameters
will be biased if the model is wrong.").
 Sexual Orientation and Rights 31

February 1994] CRITIQUING IMMUTABILITY 531

hypothetical apparatuses are politically contested, science may never find itself
in a position to adjudicate the essentialism/constructivism dispute.
The troubling feature of recent scientific developments in the area of human
sexual orientation is not experimenters' simple use of conventional definitions
about homosexual and heterosexual orientation (they could hardly do other-
wise). The problem arises in the way the resulting scientific reports have been
assimilated into the broader culture and into legal culture in particular. Often at
the urging of the scientists themselves, this science has been understood in the
broader culture as a series of empirical confirmations that those definitions are
natural and fixed. But the studies hypothesize definitions of homosexual and
heterosexual orientation that are subject to question politically; the definitions
the scientists incorporate should remain topics for political debate.
Thus, the following critique focuses not on what science can prove, but on
how science works at its common border with culture. At that border, cultural
practices become scientific assumptions, and scientific [mdings are offered to
confirm and disconfirm cultural intuitions. As the following analysis shows,
the political character of sexual orientation categories lurks at the outer edge of
the experimenters' method. Those of us who work politically and legally
should not allow the bright light thrown by scientific findings to dazzle us so
that we cannot see the political problems that the experimenters assumed away.
Indeed, as I argue in Part N, the excluded dynamics of sexual-orientation defi-
nition are precisely where common ground between pro-gay constructivists and
pro-gay essentialists is to be found.

A. Recent Experiments
Scientists have acclaimed three recent research reports-one from
neuroanatomy and two from behavioral genetics-as major breakthroughs in
the search for biological causes of homosexuality in humans. 102 Simon
LeVay's study of hypothalamic structure launched the current avid scientific
and media interest, perhaps because it was the first neuroanatomic study claim-
ing to find correlations between sexual orientation and a brain structure that has
been shown to have direct control over sexual behavior in rats.103

102. See Bailey & PiIlard, supra note 1; Hamer et al., supra note 1; LeVay, supra note 1. Recent
work on hormonal patterns has not achieved similar success. WiIliam Bync and Bruce Parsons have
concluded that hormone research currently comprises two separate literatures-studies of nonhuman
mammals and studies of humans-that are not as yet mutually illuminating. Byne & Parsons, supra
note 98, at 230-34. Research in nonhuman mammals has sought examples of gender nonconformity
exhibited in sexual behavior, for example, male rats who exhibit "lordosis," or readiness to be mounted,
and female rats who mount Id. at 231. But this model has not been successful in predicting the bewil-
dering variety of gender nonconformity found in research on humans, where the interrelations between
hormone balances, genital configuration, and social gender attribution are complex; where sexual orien-
lation identity and erotic gesture are relatively autonomous; and where sexual fantasy often entertains
different objects than does sexual behavior. Id.; see also Louis Gooren, Biomedical Theories of Sexual
Orientation: A Critical Examination, in HOMOSEXUALITYIHETEROSEXUALITY: CONCEPTS OF SEXUAL
ORIENTATION 71 (David P. McWhirter, Stephanie A. Sanders & June Machover Reinisch eds., 1990).
103. LeVay, supra note 1. For earlier studies of brain structures not linked to sexual behavior in
nonhuman animals, see Laura S. Allen & Roger A. Gorski, Sexual Orientation and the Size of the
Anterior Commissure in the Human Brain, 89 !'Roc. NAT'L ACAD. SCI. 7199 (1992); D.F. Swaab &
32 Sexual Orientation and Rights

532 STANFORD LAW REVIEW [Vol. 46:503

Genetic claims about sexual orientation have emerged from what I will call
"twins studies" and, most recently, in a pedigree and genetic linkage study. In
a twins study, researchers seek evidence of genetic relationships by examining
whether a trait appears in identical twins, fraternal twins, nontwin siblings, or
adopted siblings in proportions greater or less than one would expect from the
trait's distribution in the popUlation at large. J. Michael Bailey and Richard C.
Pillard's widely acclaimed study of male twins and adopted brothers is the
largest and most carefully designed twins study to date. 104 At the time of its
publication it constituted the strongest evidence yet that any biological differ-
ences between gay and straight men cause rather than result from their sexual
orientations. lOS
Since publication of Bailey and Pillard's twins study, a study using pedi-
gree and DNA-linkage analysis has produced an even bolder genetic claim.
Dean H. Hamer and a team of researchers examined gay men's family tree
patterns, or pedigrees, and observed higher rates of homosexuality in maternal
rather than paternal relatives, suggesting that male homosexuality might be ge-
netically transmitted through the mother. 106 In the next phase of their investi-
gation, a linkage study, Hamer's team examined chromosomal material from
homosexual brothers with no more than one lesbian relative and no homosexual
fathers or sons. The researchers found that 64 percent of the sibling pairs
shared an identifiable genetic sequence on the X chromosome.107 According to
the authors, that result was "evidence that one form of male homosexuality is
preferentially transmitted through the maternal side and is genetically linked to
chromosomal region Xq28."lOB They ultimately concluded, however, that
while this gene sequence appeared to contribute to sexual orientation in some
males, it could not be a determining factor for homosexual orientation
generally.109

M.A. Hofman, An Enlarged Suprachiasmatic Nucleus in Homosexual Men, 537 BRAIN REs. 141, 146
(1990). Both studies used methods similar to LeVay's.
104. See Bailey & Pillard, supra note 1.
105. See id. I dub Bailey and Pillard's study of male twins "the twins study" merely for short-
hand, though (1) it focuses on twins, nontwin siblings, and adopted siblings; and (2) other important
studies have used its methods.
Bailey and Pillard have conducted a more recent study of sexual orientation in women. It followed
almost exactly the methods used in their study of men and drew virtually the same conclusion: that
homosexuality in women is significantly heritable. J. Michael Bailey, Richard C. Pillard, Michael C.
Neale & Yvonne Agyei, Heritable Factors Influence Sexual Orientation in Women, 50 ARCHIVES GEN.
PSYCIllATRY 217 (1993). Because of these similarities, the twins study of women is subject 10 the same
criticisms I bring to the twins study of men, and I give it separate attention only when it departs from the
male study in ways important for my analysis. See, e.g., note 144 infra. A more recent twins study
focused on a source of variance ignored in the Bailey and Pillard studies: differences in the subjects'
sexual practices. Frederick L. Whitam, Milton Diamond & James Martin, Homosexual Orientation in
Twins: A Report on 61 Pairs and Three Triplet Sets, 22:3 ARCHIVES SEXUAL BEHAv. 187 (1993). For a
collection of articles on twins studies and sexual orientation, see TWINS AND HOMOSEXUALITY: A
CASEBOOK (Geoff Puterbaugh ed., 1990).
106. Hamer el aI., supra note 1.
107. ld. at 325-26.
108. ld. at 325.
109. ld.
 Sexual Orientation and Rights 33

February 1994] CRITIQUING IMMUTABIUTY 533

Hamer's linkage study thus forges out beyond Bailey and Pillard's twins
study by proposing that the causation of male homosexuality can be studied at
the level of a specific, identified genetic sequence. It is important, however, to
understand the limits of Hamer's study, as the study itself describes them.
Hamer's linkage study focused on a group of homosexual men selected to in-
tensify the likelihood of finding that the primary subjects' homosexuality was
transmitted to them by their mothers. Accordingly, the "one form of male ho-
mosexuality" purportedly linked to the genetic sequence is the form that affects
gay men with homosexual brothers, no lesbian relatives, and no gay fathers or
sons.110 The study provided no basis for any statements about the causes of
homosexuality in families with lesbians or paternally-related gay men, no basis
for inferring that the genetic markers identified in the study would reappear as
significant in a study of the general population of gay men, and no basis for
supposing that non-gay brothers of men in the study do not also have the ge-
netic markers identified in the study.HI Moreover, as the authors are quick to
point out, the study did not show any genetic concordance in seven of the
study's forty brother pairS. H2 Thus, even if one assumes that the identified
genetic sequence expresses itself somewhere in its bearers, the findings do not
command that their homosexuality is that place. l13
Culturally contested understandings of the categories, homosexual and het-
erosexual, became part of the experimental hypotheses of all three studies.
That in itself is not troubling. It is troubling, however, that cultural reception of
these studies has led nonscientific readers to suppose that the categories have
themselves been found to exist in nature. For three reasons it is most appropri-
ate to examine this problem in LeVay's brain study and Bailey and Pillard's
twins study, and to pretermit consideration of Hamer's pedigree and linkage
study. First, Hamer employs categorical assumptions very similar to those used
by Bailey and Pillard, but provides less detail about how he deployed them.114
Second, LeVay, Bailey, and Pillard have all actively and personally engaged in
media coverage of their studies, fostering the misunderstanding of this body of
science, while Hamer cuts a far less prominent figure in the media databases. 115
And third, Hamer draws conclusions from his data that afford an opportunity

110. See Mary-Claire King, Sexual Orientation and the X, 364 NATURE 288, 288 (1993).
Ill. Hamer et aI., supra note I, at 325; see also Anne Fausto-Sterling & Evan Balaban, Letters:
Genetics and Male Sexual Orientation, 261 SCIENCE 1257 (1993) (describing lack of a control group of
nonhomosexual brothers as "[tjhe most obvious weakness[]" of the Hamer study).
112. Hamer et aI., supra note I, at 325.
113. Biologists Anne Fausto-Sterling and Evan Balaban point out additional weaknesses in
Hamer's study, in particular its reliance on certain assumptions that, if disproven. might rob their find-
ings of statistical significance. Fausto-Sterling & Balaban, supra note Ill; see also Neil Risch, Eliza-
beth Squires-Wheeler & Bronya J.B. Keats, Technical Comments: Male Sexual Orientation and Genetic
Evidence. 262 SCIENCE 2063 (1993); Dean H. Hamer, Stella Hu, Victoria Magnuson, Nancy Hu &
Angela M.L. Pattatucci, Reply to Male Sexual Orientation and Genetic Evidence, 262 SCIENCE 2065
(1993).
114. Hamer et aI., supra note I, at 321-22.
115. See texts accompanying notes 121, 123, 145-148, & 238 infra.
34 Sexual Orientation and Rights

534 STANFORD LAW REVIEW [Vol. 46:503

for pro-gay essentialists and pro-gay constructivists to meet on the common

ground I identify in Part IV below.116

B. The Brain Study

In the most celebrated study linking homosexuality to biological traits, Si-
mon LeVay found that a group of cells in a certain portion of the brain-the
third interstitial nucleus of the anterior hypothalamus or INAH 3-was larger
in men he classified as heterosexual than in men he classified as homosex-
ual. 1l7 His experiment used postmortem samples from the brains of forty-one
subjects, thirty-five men and six women. us He drew from his findings essen-
tialist conclusions that increased in confidence and breadth as he moved be-
yond "high science" fora to more popular culture venues.
In the research report he published in Science, LeVay claimed only that his
fmdings "suggest[] that sexual orientation has a biological substrate" and "il-
lustrate[ ] that sexual orientation in humans is amenable to study at the biologi-
cal level." 119 He conceded his inability to determine whether the size of an
individual's INAH 3 "is the cause or consequence of that individual's sexual
orientation," but indicated a preference for the former explanation of his find-
ings by pointing out studies showing that the size of an apparently similar brain
structure in male rats remains stable after birth and strongly correlates with "the
amount of male-typical sexual behavior shown by the animalS."120
In discussing his study with the popular press, LeVay has consistently
pointed out these limits, and yet has simultaneously insisted that his study will
be foundational for determining whether nature or nurture causes sexual orien-
tation-indeed, that his research makes this the question upon which future
inquiry must fOCUS. 121 "We can't say on the basis of [the brain study] what

116. See text accompanying notes 236-238 infra.

117. LeVay, supra note I, at 1035.
118. [d. LeVay's study adopted the assumption, prevalent in hormonal research, that male homo-
sexuals' brains would be more like female heterosexuals' brains than like male heterosexuals' brains.
[d. The underlying paradigm is one of male homosexual feminization. Because LeVay was unable to
identify any of his female subjects as homosexual, he drew no conclusions about the etiology of homo-
sexual orientation in women. [d. I do not examine this interesting assumption about the intersection of
gender and sexual orientation.
119. [d. at 1034, 1036.
120. [d. at 1036.
121. See also David Perlman, Brain Cell Study Finds Link to Homosexuality: Tissue Differs Be-
tween Gay and Straight Men, S.F. CHRON., Aug. 30, 1991, at AI, Al2 (" 'What the study means is that
I've observed structural differences in the brains of gay and straight men, but it doesn't indicate whether
you're born with those differences ..• or whether there's some aspect of sexual behavior-perhaps even
in AIDS itself-that leads to structural changes.... [W]hat's most important is that homosexuality is
now a topic that can be studied in the laboratory as a problem in neurobiology, and not something that
must be left to the psychiatrists or the psychoanalysts.' ") (quoting LeVay); MacNeillLehrer NewsHour:
Sex and the Brain (pBS television broadcast, Aug. 30, 1991) (transcript No. 4150 at 4-6, available in
LEXIS, Nexis Library, Current File) (conceding that his study did not resolve whether the difference in
brain structure was the cause or the effect of homosexuality, but insisting that his study opens up ave-
nues for discovering "what it is that causes us to be homosexual or heterosexual").
In these statements LeVay proposes that his study frames the question for future investigators to
answer. The goal is to find the cause of human sexual orientation, the options are nature or nurture, and
the forms in which sexual orientation appears naturally are mapped by the homolhetero dichotomy. To
be sure, he has occasionally made more equivocal claims about his work. See Simon LeVay, Replica-
 Sexual Orientation and Rights 35

February 1994] CRITIQUING IMMUTABIUTY 535

makes people gay or straight," he explains, "[b]ut it opens the door to find the
answer to that question."122 As he raises this question, he also suggests that the
designations homosexual and heterosexual will ultimately be found to match
their biological bases, making no secret of the answer he expects to find: "'If
there are environmental influences,' he says, 'they operate very early in life, at
the fetal or early-infancy stage, when the brain is still putting itself together.
I'm very much skeptical of the idea that sexual orientation is a cultural
thing.' "123 In another interview, he indicated the depth of this conviction and
the strength with which he believes that his findings demonstrate its truth:
LeVay was alone in his fifth-floor laboratory when his moment of discov-
ery came. "I was measuring the total volume in the brain samples, blind to
where they came from, and it was right there."
The scientist looked down at the tissue samples, now blurred by tears. "I
was very emotional about it. 1 had a lot invested in my work. ... 1 have always
felt that 1 was born gay," he said.1 24
LeVay's claim to the media is that the brains of gay men differ from those
of heterosexual men in a way that causes their homosexuality, and that essen-
tialist assumptions about sexual-orientation categories will be proven true. One
need not decide whether such a claim is empirically plausible or implausible,
normatively good or bad, or pragmatically useful or harmful, to see that in
reaching it LeVay begs the question of essentialism vel non. LeVay assumes
essentialism in framing the fmding upon which his conclusion is based as weII,
and thus begs the question as to even the less controversial component of his
claim that INAH 3 size differs between gay and heterosexual men.
LeVay's experiment could be promoted as the first tentative proof that ho-
mosexual orientation is a biological fact, only because constructivist elements
in homosexual identity were excluded from its method. A somewhat detailed
review of LeVay's experimental procedure indicates that profoundly complex
social and political elements of sexual orientation identity fall outside its frame.
LeVay obtained the brain tissue samples and corresponding medical records
directly from hospital pathologists "at routine autopsies of persons who died at
seven metropolitan hospitals in New York and California."I2S LeVay's report
does not suggest that he sought or obtained permissions from the individuals
before their deaths. LeVay thus had no access to his subjects' own assessments
of their sexual orientations or to the history of their same-sex or heterosexual

lion Will Tell. N.Y. TIMES, Oct 7, 1991, at A16 Oetter to the editor) ('The ultimate significance of my
report will depend on whether or not it can be replicated and on determining if the structural differences
I have seen are actually related to a person's sexual drive."); see also Angier. supra note 2. at 1 ("Dr.
LeVay in no way claims to have discovered the-or even a-cause of male sexual preference. but
merely suggests he has detected something worth further investigation.''). But the modesty of these
statements only brings into high relief his more typical claim to have framed the agenda for future
research.
122. Gelman et al., supra note 2, at 50 (quoting LeVay).
123. [d. at 50-52. Gelman further reports that "LeVay ••• thinks a small number of sex genes may
be isolated, perhaps within five years: 'And that's going to blow society's mind ...• [d. at 48 (quoting
LeVay).
124. Talan, supra note 2, at 41.
125. LeVay. supra note 1. at 1035.
36 Sexual Orientation and Rights

536 STANFORD LAW REVIEW [Vol. 46:503

contacts. Instead, LeVay depended wholly on the subjects' medical records.

The records of the twenty-six subjects who had died of AIDS indicated "at least
one AIDS risk group to which [each] patient belonged (homosexual, intrave-
nous drug abuser, or recipient of blood transfusions)";126 the records of the
remaining subjects indicated sexual orientation only by fortuity.
LeVay classified his subjects as "homosexual" or "heterosexual" on these
scant records. If a subject had died of AIDS and his records indicated that he
was in the risk group "homosexual," LeVay classified him as homosexual.1 27
Conversely, LeVay classified as heterosexual two AIDS patients who, accord-
ing to their records, had denied engaging in homosexual activity.128 At least
one subject's records indicated that he had been identified as bisexual; LeVay
classified him as homosexual.1 29 If the record did not indicate past sexual
practices, LeVay classified the subject as heterosexual "on the basis of the nu-
merical preponderance of heterosexual men in the population."130 This last
group included all the women. l3l
In each instance, LeVay treated a representation of sexual identity as the
thing itself. The entire process of assigning sexual orientation identities to the
brains assumed that the artifactual document of a patient's hospital record was
a transparent window into his or her sexual history. But to take at face value
possibly self-protective denials of homosexual activity or identity is to ignore
the social history of AIDS as it has shaped the meaning of gay male identity.
The AIDS/HIV epidemic has been conducted in a way that requires every mv-
positive person to do something about homosexual identity: disavow it, confess
it, embrace it, ally with it. LeVay's method excludes from consideration the
complex social patterns of identity profession and ascription, the refracting lay-
ers of representation in which the image of sexual orientation is managed,
groomed, appropriated, negotiated. and captured. He reduced this complexity
to a single characteristic: essential sexual orientation lodged neatly within the
atomized individual who has died. 132
This exclusion of the social and representational aspects of sexual orienta-
tion identity makes LeVay's handling of his bipolar categories, homosexual
and heterosexual, almost startlingly crude. If a subject had died of AIDS and
had left records classifying him as belonging to the risk group "homosexual,"
LeVay implicitly determined that that subject had engaged in homosexual con-
duct and was therefore properly given a homosexual identity.B3 A single act of
homosexual conduct that could transmit HIV is treated as irrevocably defining:

126. [d. at 1037 n.9.

127. [d. at 1036 n.?
128. [d.
129. [d. at 1035.
130. [d. at 1036 n.?
131. [d. at 1035.
132. For a more satisfactory but necessarily more complex account of the relationship between
homosexual identification and HIV or AIDS diagnosis, see CINDY PATTON, INvENTING AIDS 120, 131
(1990) (''The relationship between identity-especially gay ••. identity-and HIV is highly unstable at
present.... [T]he AIDS narrative exists as a technology of social repression; it is a representation that
attempts to silence not only the claims of identity politics, but the people marginalized by AIDS.").
133. See LeVay, supra note 1, at 1036 & n.7.
 Sexual Orientation and Rights 37

February 1994] CRITIQUING IMMUTABILITY 537

It was of itself constitutive of a subject's homosexuality. Conversely, LeVay
"presumed" that any subject not identified as homosexual was heterosexual.1 34
LeVay has subsequently defended his research against the internal critique that
this assumption renders his data unreliable, as he had no way of assuring that, if
better informed, he would not have designated many of his heterosexual sub-
jects homosexual.1 35 Whatever the ultimate resolution of those debates about
experimental technique, LeVay's deployment of his categories remains open to
cultural criticism for ignoring the complexity of his subject. By making his
heterosexual class a universal default, LeVay insists that all persons are indeed
located in one of his two classifications. As a matter of theoretical assumption,
he eliminates the possibility of a person with a sexuality neither heterosexual
nor homosexual.
LeVay himself defmed sexual orientation as "the direction of sexual feel-
ings or behavior toward members of one's own or the opposite sex."l36 Clearly
his categorical apparatus fails to capture this nuance. LeVay never knew
whether, and to what extent, male subjects whose records indicated no homo-
sexual contacts nevertheless had had conscious homoerotic feelings on which
they had not acted, either because they disapproved of those feelings them-
selves or were not willing to contradict widespread social disapproval of them.
Nor did he know to what extent those subjects had had homoerotic fantasies
which they had failed or refused to construe as such. No matter how complexly
they might have engaged in homosexual desires, LeVay's method made them
heterosexual. Conversely, naming a man gay because he has been infected
with HIV through anal intercourse with another man is to deny the complexity
of fantasy, desire, and internal and public identity that give subjective and pub-
lic heterosexual identity its layered instabilities.
LeVay's error was more grave than simply misclassifying some subjects
who are "really" heterosexual as homosexual, or vice versa. He has changed
the nature of his categories from the merely lexical to the ontological. His
method forced these categories to describe and conclude the entire range of
human possibility-to constitute us, no matter who we are and what we do or
feel.
That's essentialism. Many people committed to increasing legal protection
for lesbians and gay men are deeply averse to this view of sexual orientation
categories; others are just as staunchly devoted to it. But both parties to the
pro-gay essentialism/constructivism debate should be able to agree that an ex-
periment resting on an essentialist assumption cannot prove an essentialist
conclusion.

134. [d. at 1035.

135. Joseph M. Carrier & George Gellert, Letters, 254 SCIENCE 630 (1991) (letter to the editor)
(noting "misclassification bias" in leVay's use of "bipolar categories of 'heterosexual' and 'homosex-
ual' men"). But see Simon LeVay, Letters, 254 SCIENCE 630, 630 (1991) (letter to the editor) ("I may
well have oversimplified the problem in my study, but sometimes such oversimplification is necessary
to make progress in a novel field.").
136. leVay, supra nole I, al1034 (emphasis added). My thanks 10 Lisa Hayden for pointing this
out.
38 Sexual Orientation and Rights

538 STANFORD LAW REVIEW [Vol. 46:503

C. The Twins Study

As LeVay acknowledged in his research report, even a conclusive showing
that a particular brain structure is larger in heterosexual than in homosexual
men cannot exclude the possibility that the difference is the effect rather than
the cause of sexual orientation. 137 Thus, when J. Michael Bailey and Richard
C. Pillard announced a carefully constructed and administered study comparing
the degree to which congenital male twins, fraternal twins, and adopted broth-
ers exhibited the same or different sexual orientation,138 hopes were raised that
genetic effects would be isolated.
Bailey and Pillard found that identical twins were more likely to be conso-
nant for homosexuality than fraternal twins or adopted brothers. 139 Like
LeVay, Bailey and Pillard make conservative claims for their study in their
research report. In the Archives of General Psychiatry, they reach the guarded
conclusions that their statistics "suggest that genetic factors are important in
determining individual differences in sexual orientation," and are "consistent
with some genetic influence."140 They estimate that heritability of homosexu-
ality is between 31 and 74 percent, depending in part on the incidence of homo-
sexuality in the population.141 In comments consistent with other researchers'
predictions of the strength of heritability findings in behavioral genetics,142
they also explain that a finding of heritability does not indicate the presence of
a genetic on-off switch, conceding that heredity may cooperate with environ-
mental factors in producing individuals willing to live as gay men. 143 Indeed,
they point out that finding that any identical twins pairs differ in sexual orienta-
tion proves that sexual orientation is not entirely genetic. l44
Again like LeVay, however, Bailey and Pillard make more heroic claims
for their data in other venues. They began a New York Times editorial essay by
proclaiming that "[s]cience is rapidly converging on the conclusion that sexual
orientation is innate."145 In an interview with Science, Bailey announced the

137. ld. at 1035-36.

138. Bailey & Pillard, supra note 1.
139. ld. at 1093. An anomaly in Bailey and Pillard's male study was that fraternal twins were
only slightly more likely to be consonant for homosexuality than adoptive brothers. ld. at 1092 ("[TJhe
difference was only marginally ·significant."). Their study of lesbians resulted in similar fmdings. Bai-
ley et al., supra note 105, at 219 ("Rates for [fraternal twins] and adoptive sisters did not differ
significantly.").
140. Bailey & Pillard. supra note 1. at 1093.
141. ld.
142. See, e.g., Plomin, supra note 79.
143. See id. at 1095. "[G]iven any heritability estimate, there are a variety of possible develop-
mental mechanisms. For instance, these data are consistent with heritable variation in prenatal brain
development or in some aspect of physical appearance that, by way of differential parental treatment,
leads to differences in sexual orientation." ld.
144. Bailey. Pillard, and their coauthors make this point explicitly in the lesbian twins study.
Bailey et aI., supra note lOS, at 222 (explaining that identical twins "who differ in sexual orientation can
do so only because relevant environmental factors differ"). LeVay makes the same point in a book
addressed to a popular audience. SIMON LEVAY, THE SEXUAL BRAIN 138 (1993) (concluding from the
variability of sexual orientation between identical twins that "nature alone, or nurture alone, cannot
provide an adequate explanation for our sexual individuality").
145. 1. Michael Bailey & Richard Pillard, Are Some People Born Gay?, N.Y. TIMES, Dec. 17,
1991, at A21.
 Sexual Orientation and Rights 39

February 1994] CRITIQUING IMMUTABIliTY 539

team's belief that their twins study supplies the element of causation missing
from LeVay's brain study.l46 He stated that he and Pillard maintain a "work-
ing hypothesis" that the genetic substrate they identified "affect[s] the part of
the brain that [LeVay] studied."147 If confirmed, this hypothesis would suggest
that hypothalamus size causes homosexual orientation. In the same interview,
Bailey also threw cold water on theories suggesting that social experience con-
tributes to homosexuality: "'No one has ever found a postnatal social environ-
mental influence for homosexual orientation-and they have looked plenty
......·148 Others seem to agree. Psychology professor Gregory Carey, for
instance, promptly expressed the view that, though earlier studies suggested a
genetic contribution to homosexuality, the Bailey and Pillard study "really sort
of clinches it."149
As Bailey and Pillard ushered their study into the mainstream media, they
consistently implied that they had shown that homosexuality was a discrete
trait, not a continuous one. Their New York Times editorial, for instance, de-
scribes homosexuality and heterosexuality not as conventional categories of
analysis, but as the labels for distinct populations: "Homosexuals often act
differently from heterosexuals in early childhood"; brain structure may differ
"between homosexual and heterosexual men"; "a biological explanation is
good news for homosexuals."150 But a close examination of their methods in-
dicates that, even more than LeVay, they have simply assumed this bipolar
model of sexual orientation, and have systematically excluded the social and
political dynamics of sexual orientation identity.
Advertising in urban gay publications, Bailey and Pillard recruited 161 self-
identified gay and bisexual men (I will call them the "volunteers") and their
male twins or adoptive brothers (the "brothers").1S1 To test their hypothesis.
Bailey and Pillard had to assign sexual orientation identities to both groupS.152
They used three indicators of sexual orientation identity. First, when possible.
they asked subjects whether tltey identified as "homosexual/gay," ''bisexual,''
or "heterosexual." Next, they asked subjects to rate themselves for adult fan-
tasy and behavior on the Kinsey scale. 153 When they were unable to ask a
brother these questions (either because his volunteer sibling refused permission

146. Conslance Holden, Twin Study Links Genes to Homose:mality, 255 SCIENCE 33 (1992).
147. ld. In a recent interview, however, Pillard expressed caution about relying on LeVay's study,
indicating that it should be replicated before such inferences are drawn. Edward Stein, Evidence for
Queer Genes: An Interview with Richard Pillard, 1 GLQ: J. LESBIAN & GAY STUD. 94, 103-04 (1993).
148. Holden, supra note 146, at 33. Bailey does, however, accept the possibility of environmental
influences that are "biological" rather than social. ld. Nevertheless, Pillard makes sweeping claims for
the exonerating power of even a genetic contribution to sexual orientation, implicitly denying that that
would be any different from an unmediated genetic determination or a genetic contribution that cooper-
ates only with prenatal factors: '''A genetic component in sexual orientation says, 'This is not a fault,
and it's not your fault ••• : .... Gelman et aI., supra note 2, at 48 (quoting Pillard).
149. Gay Men in Twin Study, N.Y. TIMES, Dec. 17, 1991, at C5 (quoting Gregory Carey, Assistant
Professor of Psychology at the University of Colorado).
150. Bailey & Pillard, supra note 145.
151. Bailey & Pillard, supra note I, at 1090.
152. For a detailed discussion of their methodology, see id. at 1090-91.
153. See AI..FRED C. KINSEY, WARDELL B. POMEROY & CLYDE E. MARTIN, SEXUAL BEHAVIOR IN
THE HUMAN MALE 638 (1948).
40 Sexual Orientation and Rights

540 STANFORD LAW REVIEW [Vol. 46:503

to contact him, or because he declined to participate in the study or to answer

questions about his sexual orientation1S4), Bailey and Pillard asked the volun-
teer sibling to designate his brother's sexual orientation. Once again, the op-
tions were "homosexual/gay," "bisexual," or "heterosexual." If the brother
could make such an identification with a high degree of certainty, Bailey and
Pillard used that identification for the brother. 1ss
Unlike LeVay's subjects, Bailey and Pillard's were alive when the experi-
menters met them. They chattily ascribed sexual orientation identities to them-
selves, estimated the proportion of their desires and conduct that were
homosexual or heterosexual, guessed their brothers' sexual orientations, and in
some cases actively refused to answer questions about their sexual orientations.
In short, Bailey and Pillard set up a living theater of sexual orientation self-
representation and allo-interpretation. Particularly in its handling of bisexual
identity and of the nonresponsive brothers, the twins study reaches out more
decisively than LeVay's to the border between science and culture, creating a
more detailed photographic negative of the cultural assumptions that it silently
incorporates.

1. The "bisexuals."
Bailey and Pillard classified as homosexuals all self-designated bisexuals,
an unspecified number of subjects whose Kinsey responses indicated that their
sexual practices and fantasies were just as often heterosexual as homosexual,
and three subjects whose sexual practices and fantasies were more often hetero-
sexual than homosexual but who "rated the idea of having sex with men as
'very sexually exciting.' "156
This method of classifying ambiguous subjects is entirely consistent with
LeVay's, and incorporates similar essentialist assumptions. Once again, human
sexual orientation is assumed to be bimodal and polar (homosexuallheterosex-
ual). These categories swallow all intermediate identities and are imposed on
every subject; any indication of homosexual anything (self-description, fantasy,
or conduct) conclusively classifies a subject as "a homosexual," while the mere
absence of those indicators leaves the subject in a default classification, that of
heterosexuals. By forgoing the opportunity to recognize a bisexual category or
to allow for a continuum of sexual orientation categories, Bailey and Pillard
embrace an essentialist hypothetical apparatus. Their use of the Kinsey scale
not only frustrates the heuristic purpose for which the scale was designed in the
first place, but also ignores important refinements in sexual-orientation models
that have arisen to overcome the scale's defects.
The social science of sexual orientation had already moved beyond the
crude dichotomous system hypothesized by Bailey and Pillard when Alfred C.

154. Bailey and Pillard were denied pennission to contact 21 % of the brothers; of those whom the
experimenters were permitted to contact, almost 6% did not return questionnaires. Bailey & Pillard,
supra note 1. at 1091. One brother filled out the questionnaire. but left the questions about his sexuality
blank. ld.
155. ld.
156. ld.
 Sexual Orientation and Rights 41

February 1994] CRITIQUING IMMUTABILITY 541

Kinsey introduced the very scale they use. The multipoint Kinsey scale reflects
the proportion of a person's sexual behavior and fantasy that is homosexual and
heterosexual.I 57 Kinsey designed the scale in this way to defeat the use of
"homosexual" and "heterosexual" as personal designations. ISS Far from realiz-
ing this intention, the Kinsey scale is repeatedly used to flout it, as Bailey and
Pillard's unapologetic misappropriation illustrates. And Bailey and Pillard are
not alone: People familiar with the scale readily invoke it as a catalog of
human types (e.g., "he's a Kinsey 5" or "she's a Kinsey I"). To stanch these
tendencies, subsequent sex researchers have sought to amend the Kinsey scale
in ways that emphasize possible refinements in the hypothetical construction of
sexual orientation categories.
An important alternative measure proposed by Michael Storms focuses on a
point that Bailey and Pillard failed to notice: the way in which the Kinsey scale
represents homosexuality and heterosexuality as mutually exclusive opposites,
such that one must retreat if the other is to advance. Of course a person who
scores as a Kinsey 3 (equally homosexual and heterosexual) could have hetero-
sexual eroticism as intense as any Kinsey 0 and homosexual eroticism as in-
tense as any Kinsey 6. Storms therefore argues that the intensity of homo- or
heterosexual eroticism should be registered as a variable independent of the
proportion of homo- or heterosexual eroticism. 159 Arraying heteroeroticism by
intensity on one axis and homoeroticism by intensity on another yields a rich
field of variation not readily subsumed into the identities homosexual and het-
erosexual except at its extremes.
Another often-noted defect of the Kinsey scale is its aggregation of behav-
ior and fantasy.160 This feature of the scale, though it properly acknowledges
the relevance of two quite incommensurate elements of erotic life, at once con-
founds them and omits many other factors that enter into sexual orientation
identity. Sexual fantasy and behavior may entertain divergent objects and may,
in tum, differ from desire, personal self-designation, and public identity. To
address this problem, Fritz Klein has developed a multifactorial grid to register
the possibility that, in a single person, sexual attraction, behavior, fantasies,
emotional preference, social preference, self-identification, and "hetero/homo
life style" might not "match"-and furthermore to distinguish between the re-

157. Kinsey's seven points on the continuum were: (0) exclusively heterosexual; (I) largely het-
erosexual but with incidental homosexual history; (2) largely heterosexual but with a distinct homosex-
ual history; (3) equally heterosexual and homosexual; (4) largely homosexual but with a distinct
heterosexual history; (5) largely homosexual but with incidental heterosexual history; (6) exclusively
homosexual. KINSEY ET AL., supra note 153, at 638-39.
158. Explaining the findings he produced on the basis of this continuum, Kinsey stated: "Males do
not represent two discrete populations, heterosexual and homosexual. The world is not to be divided
into sheep and goats. Not all things are black nor all things white." Id. at 639.
159. Michael D. Storms, Theories oj Sexual Orientation, 38 J. PERsONALITY & Soc. PSYCHOL.
783, 784-86 (1980); see also Al.FREo C. KINSEY, WARDELL B. POMEROY & CLYDE E. MARTIN, SEXUAL
BEHAVIOR IN THE HUMAN FEMALE 470-72 (1953).
160. See, e.g., Mary McIntosh, The Homcsexual Role, reprinted in THE MAKING OF THE MODERN
HOMOSIDI.'UAL 30, 39 (Kenneth Plummer ed., 1981) (originally published in 1968).
42 Sexual Orientation and Rights

542 STANFORD LAW REVIEW [Vol. 46:503

suIting patterns in a subject's present, past, and "ideal" life. 161 These factors
not only complicate-perhaps the better word is multiply-the identity "bisex-
ual," they also acknowledge that the social designation "heterosexual" may be
assigned to a person whose sexuality is quite complex.
Bailey and Pillard claim that they merely simplified their analysis when
they reduced sexual orientation to a homo/hetero dichotomy.162 But they did
much more than that, particularly when they introduced their study to the gen-
eral public with no proviso that their categories "homosexual" and "heterosex-
ual" were experimental devices, not human types soon to be mapped unerringly
onto nature. In a subsequent interview with philosopher Edward Stein, Richard
Pillard expressed the only misgivings I have found in the public record about
the misprision he and Bailey have invited. Commenting on the study of lesbi-
ans, Pillard said:
I think women are much more flexible in their sexual orientation-they don't
as often label themselves as gay or straight. Usually when you ask that ques-
tion of men, at least men over the age of thirty or thirty-five. a few will say
they're bisexual but most will say they're gay or straight; they dichotomize.
Women often will say, "Well, it depends on who I'm with, on what sort of
relationship I'm having ...." And they'll often have had relationships that are
lesbian and relationships that are heterosexual .... You might want to call
more women bisexual, which we end up doing, but I think women's orientation
is really much more complicated than men's sexual orientation. 163
If the struggle to define sexual-orientation categories is a political one, the im-
position of Bailey and Pillard's model on experimental subjects who actively
resisted it-even though it occurred within the framework of the experiment
itself-is also political. By presenting their results to the press without ex-
plaining that this imposition was merely an experimental convenience operat-
ing at the level of an untested hypothesis, Bailey and Pillard effectively
transferred some power to make decisions about sexual categories out of the
political and social spheres into the scientific laboratory.

2. The nonresponsive brothers.

In one of their most tendentious moves, Bailey and Pillard assigned
nonresponsive brothers the sexual orientations attributed to them by their vol-
unteer siblings if the volunteers were willing to say that they made the attribu-
tion with complete or virtual certainty.l64 Bailey and Pillard based this

161. Fritz Klein, The Need to View Sexual Orientation as a Multivariable Dynamic Process: A
Theoretical Perspective, in HOMOSEXUALITYiHETERosEXUALITY, supra note 102, at 277, 280; see also
Braden Robert Berkey, Terri Perelman-Hall & Lawrence A. Kurdek, The Multidimensional Scale of
Sexuality, 19 J. HOMOSEXUAllTY 67 (1990); Richard E. Whalen, David C. Geary & Frank Johnson,
Models of Sexuality. in HOMOSEXUAllTYiHETERoSEXUAllTY. supra note 102, at 60.
162. Bailey & Pillard, supra note 1, at 1091 (''Because the broader categories are fewer in number
and more readily understood, we have used them herein.").
163. Stein, supra note 147, at 99 (flrst ellipsis in original). A gender analysis would ask whether
the difference Pillard comments on here results in an account of homosexuality less appropriate to
women than to men.
164. Bailey & Pillard, supra note I, at 1091.
 Sexual Orientation and Rights 43

February 1994] CRITIQUING IMMUTABILITY 543

inference on their own and other studies showing that sibling pairs with respon-
sive brothers almost always agreed on a description of the brothers' sexual
orientation. 165 This practice exemplifies the experimenters' exclusion of the
representational dynamics in which one brother's semaphore of his sexual ori-
entation to his brother and possibly other family members becomes part of the
other brother's sexual orientation identity. Once again, social-representational
dynamics are excluded only by hypothesis, and cannot be deemed to be proven
unimportant by a study that ignores them.
First, there's the problem of why Bailey and Pillard had a problem in the
fIrst place. A volunteer sibling might refuse to grant the researchers permission
to contact his brother for a great number of reasons, many of which directly
touch the question of how well a brother knows his sibling's sexual orientation
identity. Gay men are often apprehensive about letting their brothers (and pos-
sibly, through them, other family members) know they are gay. Thus, a gay
man might well hesitate before doing anything to indicate an interest in his
brother's sexual orientation. In particular, an openly gay man who thought his
brother was gay but deeply closeted might pause before making such inquiries.
Conversely, the brother of an openly gay man might refuse to participate in a
behavioral genetics study that probes sexual orientation precisely because the
genetics study itself revives fears or hopes that the brothers' sexuality, or their
styles of self-disclosure, are tightly linked.
Bailey and Pillard's questionnaire instructed each volunteer to consider
himself "completely certain" about his brother's sexual orientation if his
brother had told the volunteer how he identifIed, and to consider himself "virtu-
ally certain" if he felt he could decide on the basis of his brother's "behavior
alone."166 It is not clear why the experimenters reposed such confIdence in a
brother's decontextualized verbal disclosure of his own sexual orientation. Nor
is it clear why declarations of heterosexual orientation were deemed as un-
problematic as professions of homosexuality. It is not clear why behavior was
considered a less reliable indicator than speech, or what kinds of behavior the
volunteers were supposed to recall, or what inferences they were supposed to
draw from different types of behavior. Of course, volunteers with strongly held
ideas about the semiology of sexual orientation inconsistent with these instruc-
tions might ignore them: Why should two brothers' agreement about ultimate
designation erase this rich source of misprision?
In relying on a volunteer's assessment of his brother's sexual orientation,
Bailey and Pillard treated the brother's sexual orientation category and his sib-
ling's confIdence in ascertaining that category as independent. But they can't
be, because you're less likely to feel certain about which category to assign
when applying a rigid either/or categorical system to someone who sends am-
biguous signals. Indeed, Bailey and Pillard note that the volunteers whose
brothers responded to questions about their sexual orientation "were not accu-
rate in predicting whether a nonheterosexual relative would label himself 'gay/

165. Id.
166. Id.
44 Sexual Orientation and Rights

544 STANFORD L4W REVIEW [Vol. 46:503

homosexual' or 'bisexual.' "161 The volunteers tended not to mislabel self-

identified heterosexual relatives as bisexual,168 or to mislabel self-identified
homosexual relatives as bisexual. 169 Where errors occurred, they involved the
volunteers' descriptions of brothers who identified themselves as bisexual. Of
the six such brothers, the volunteers designated only one as bisexual; they des-
ignated two of the remaining six as heterosexual, and three as homosexual. 110
The siblings tended to conftrm identities in the polar categories when describ-
ing their brothers and to impose the polar categories on more ambivalent rela-
tives. (There's no reason to think the volunteers did not do something similar
in describing themselves.)
These complex epistemologies of the closetl7l suggest not only that two
brothers might adjust their tolerance for disclosure in light of what each thinks
the other thinks is good, but also that they might actually reconceptualize their
own sexual orientation identities in light of their understanding, however glim-
mering, of their siblings' sexual orientation identities. They suggest that sexual
orientation in each brother may not be an atomized, essential state, but a re-
sponsive activity. To rely directly on the volunteers' certainty under these cir-
cumstances is to deeply underestimate the complexity of sexual knowledge.
The experiment was conducted, however, without much attention to these
difficulties. Bailey and Pillard conclude that their routine miscategorization of
bisexuals poses no problem to their method because "[its] major distinction ...
is between heterosexual and nonheterosexual relatives, which [the volunteers]
made quite welI."I12 In other words, the researchers and their subjects shared
the same essentialist assumptions that led them both to exclude the classiftca-
tion "bisexual" in the ftrst place. But the knowingness one has about someone
else's sexual orientation depends on how that person enacts it and on one's
interpretation of the resulting performances. The twins study purports to ex-
amine sexual orientation; instead, it covertly and complexly enacts sexual ori-
entation identity.

3. One autobiography.
One of Bailey and Pillard's own subjects gave a sexual-orientation autobi-
ography that suggests how deeply their experiment reflects, rather than exam-
ines, social practices of sexual-orientation categorization. According to this
autobiography, "Doug Barnett" was confident in his heterosexuality until he
was twenty-eight years old, when his identical twin brother "came out" to
him. 113 Barnett, who believes that sexual orientation is genetic, became curi-
ous about his own orientation. He experimented with sex with men and was

167. [d.
168. They did so for only lout of 80 such relatives. [d.
169. They did so for only 4 out of 35 such relatives. [d.
170. [d.
171. I am pluralizing the term invented by Eve Kosofsky Sedgwick. SEDGWICK. EpISTEMOLOGY,
supra note 92, at 67-68.
172. [do
173. Gelman et aI., supra note 2, at 46. Newsweek carefully points out that "Doug Barnett" is "not
his real name." [d.
 Sexual Orientation and Rights 45

February 1994] CRITIQUING IMMUTABIliTY 545

surprised to find such encounters "more fulfilling."174 "A year later both twins
told their parents they were gay."17S They later participated in Bailey and Pil-
lard's twins study.
Barnett's autobiography and Bailey and Pillard's study incorporating it im-
plicitly asked the same question, "Was Barnett ever straight?" Barnett's own
reported belief that homosexuality is genetic implicitly answers that his sub-
stantial heterosexual history was delusional-a long, unwilling conscription of
a naturally homosexual body into heterosexual culture. Bailey and Pillard's
conclusion that Barnett's homosexuality is probably genetically caused trans-
lates that belief into the authoritative vocabulary of science.
But once we decide that Barnett can be wrong about his sexual orientation,
why not say he is wrong about it now? Of course, passing as straight captures
more social rewards than passing as gay, a circumstance that creates some pref-
erence for believing Barnett now and not then. But that explanation does not
account for Barnett's sweet surprise at his homosexual engagement or its im-
plicit suggestion that his sojourn in heterosexuality had not felt like a forced
march through alien territory. To save appearances in this case as it is reported
to us, we need to acknowledge that Barnett's stable belief that his twin brother
was heterosexual, and his later loss of that belief, may have been causes of his
sexual orientation at least as important as their common genes. We cannot
believe anything about Barnett's self-description unless we also believe that his
self-description depends to some extent on his perception of his brother.
Barnett's perception of his brother depends, in turn, on his brother's repre-
sentation of himself. That representation was apparently plastic, at least in that
the brother had some power over when to tell Barnett that he was gay. It is
almost unimaginable that the brother's reasons for delay were unrelated to a
desire to avoid the stigma of homosexual identity. Moreover, the brother knew
that as long as he failed to "come out" to Barnett, Barnett would think him
heterosexual. Thus, the social and representational superordination of hetero-
sexuality over homosexuality, and the supporting ideological construction of
heterosexuality as a norm from which homosexuality deviates, acted twice to
shape Barnett's perception of his brother's sexual orientation.
Causa causae est causa causati: "The cause of the cause is to be consid-
ered as the cause of the effect alsO."176 If perceiving his brother as straight
caused Barnett to think of himself as straight, then the social superordination of
heterosexuality over homosexuality, and the interpretive system that supports
it, also caused Barnett to experience himself as straight. Perceiving his brother
as gay activated the reverse causal chain. In both phases of Barnett's life, the
representational system of sexual orientation intervened in his sexual-orienta-
tion identity.
Researchers using twins to study the relationship between homosexuality
and genetics worry about ascertainment bias, but not enough. They worry that

174. Td.
175. Td.
176. BLACK'S LAW DICTIONARY 220 (6th ed. 1990).
46 Sexual Orientation and Rights

546 STANFORD L4. W REVIEW [Vol. 46:503

twins studies, unless based on a random sample, will attract subjects with some
atypical pattern of commitments or characteristics that will distort their find-
ings. In particular, researchers worry that people who have a personal invest-
ment in promoting biological explanations of homosexuality-perhaps people
like Barnett-may volunteer for twins studies more often than people who do
not. l77 But a more primary form of ascertainment bias occurs when study sub-
jects share the experimenters' assumptions that two types of sexual orientation
exist, that one (homosexuality) is a marked deviation from the norm repre-
sented by the other (heterosexuality), and that any homosexual behavior ex-
cludes one permanently from the class of heterosexuals. When subjects do not
share these assumptions, as in the cases of Bailey and Pillard's self-described
heterosexuals with high scores for homoerotic fantasy, the bisexuals, and the
identity-resistant lesbians, the experimenters' decision to impose those assump-
tions anyway implicates the political problems described above. But when ex-
perimenters and subjects agree on these cultural assumptions, they slip into the
conclusions covertly.

IV. COMMON GROUND

As a matter of logical coherence and simple honesty, pro-gay essentialists

need not capitulate to pro-gay constructivists, or vice versa, to reach a common
litigation strategy. Pro-gay essentialists and pro-gay constructivists already
share common ground. It, rather than their differences, can and should form
the basis of their common litigation strategy.178
This Part begins the task of defining that common ground by setting out
ranges of conceptually available essentialist and constructivist positions. It
then spells out how historians and anthropologists of sexuality have differed in
the degree to which they pursue pure essentialist, pure constructivist, or merged
approaches, and argues that one particular merged approach offers the optimal
common position from which pro-gay advocates should develop litigation strat-
egy. Finally, it concludes that equal protection arguments that can be articu-
lated from that position offer better conceptual and descriptive resources for
pro-gay equal protection arguments than more essentialist alternatives.

177. A recent twins study invited such a possibility. The researchers advertised in the gay press
for study subjects using the following inducement: ''Twin research is an important technique for under-
standing the nature vs. nurture problem in the social sciences ascertaining which aspects of human
sexuality are learned and which are biologically determined." Whitam et al., supra note 105, at 203 app.
A. Even without such a bald invitation, it is hard to imagine gay, lesbian, or bisexual twin adults who do
not know why experimenters might want their time and attention.
178. The differences will remain, but will, I hope, be irrelevant to the arguments and descriptive
claims pro-gay litigants will need to make in court. For the many important issues on which pro-gay
constructivists and pro-gay essentialists disagree, fora other than litigation remain fully available. In-
deed, any proposal that such a strategic division of audiences is unethical probably rests on the easily
challenged assumption that the state is entitled to a clear, unmediated view of all one's meanings at
once.
 Sexual Orientation and Rights 47

February 1994] CRITIQUING IMMUTABILITY 547

A. Coming to Terms with Essentialism and Constructivism
Up to this point, I have assumed that an essentialist view of homosexual
orientation claims that homosexuality is a deep-rooted, ftxed, and intrinsic fea-
ture of individuals, determined and not chosen. I have assumed that the con-
structivist view of homosexual orientation holds pretty much the opposite: that
it is a contingent, socially malleable trait that arises in a person as she manages
her world, its meanings, and her desires. Essentialism and constructivism are
actually a good deal more complex than that. The purpose of this section is to
describe the range of possible conceptual positions that could fall under the
rubrics essentialist and constructivist. Distinguishing among essentialisms and
constructivisms is particularly important because high feelings in essentialism!
constructivism controversies tend to obscure underlying deftnitional problems,
and to foreclose the possibility of agreement and strategic cooperation.

1. Essentialisms.
In her influential book on the cultural and literary issues raised by post-
modern antiessentialism, Diana Fuss defines essentialism as "a belief in true
essence-that which is most irreducible, unchanging, and therefore constitutive
of a given person or thing."179 In particular, she notes that nature is the para-
digmatic source of true essence: "[F]or the essentialist, the natural provides
the raw material and determinative starting point for the practices and laws of
the social."ISO
Fuss' deftnitions elide three axes along which essentialist practices differ.
First, she recognizes only one source of essences: nature. Second, she uses an
ambiguous term-"unchanging"-as though it had a single meaning. And
third, she treats all essentialism as a matter of individual rather than group
characteristics. In the following paragraphs, I explore the consequences of
making the ftrst two of these distinctions; I defer consideration of the third to
the conclusion of this section because it implicates the relationship between
essentialism and constructivism in practice.
Distinguishing essentialism from biological causation. Essentialism as-
sumes at minimum that a pure and perfect definition of a particular thing can be
found. An essentialist view of a tree is that, even if the human mind is not now
capable of articulating it, some deftnition of "tree" can be framed that is irre-
ducible in the sense that it has all the necessary descriptors and no unnecessary
ones, and that is constitutive in the sense that, wherever the qualities described
by those terms appear in a single thing, that thing will be a tree.
If this is what an essence is, clearly nature cannot be the only source of
essences. Any attribution of an irreducible, constitutive characteristic to a per-
son or thing attributes to it an essence. An artifact can very plausibly be said to

179. DIANA Fuss, EsSENTIALLY SPEAKING: FEMINISM, NATURE & DIFFERENCE 2 (1989).
180. [d. at 2-3.
48 Sexual Orientation and Rights

548 STANFORD LAW REVIEW [Vol. 46:503

have an essence, as Plato himself acknowledged in the Seventh Letter. lSl

Think of the kitchen table caught in the hedges of To the Lighthouse. 182 So-
cially descriptive legal rules establish essences: Nature did not create felons or
tortfeasors, but law nonetheless imposes on them irreducible and constitutive
characteristics.
Attribution of a natural essence, then, is but one kind of essentialism. It is
"essentialism-plus": generic essentialism that specifies a certain source-na-
ture-for the essence it detects. I propose, therefore, to distinguish between
"weak essentialism" (attribution of any irreducible and therefore constitutive
characteristic, regardless of its source) and "strong essentialism" (attribution of
such a characteristic that is also natural or biological).
Detaching essentialism from nature permits one to see that biologically
caused characteristics need not also be essential ones. Freckles, tonsils, the size
of "moons" at the base of one's fingernails, the ability to roll one's tongue-
these examples suggest that biological causes determine many features of an
individual that are rarely, if ever, considered to define her.183 Even a biological
characteristic needs some other rationale to explain why it is essential.
In all but a few cases, human characteristics are socially and culturally
designated as essential. To be sure, from time to time the additional rationale
that explains why a characteristic is constitutive and defining is so predomi-
nantly natural that it virtually restores the univocal relationship between es-
sence and nature posited by Fuss. Imagine a genetically caused physical
condition so harmful to health that no infant born with it lives more than a few
days. Such a condition (along with any genes that cause or prevent it) distin-
guishes with grim certainty those who must die from those who may. The
decisiveness of this distinction might justify our deeming the characteristics
that produce such outcomes essential features of individuals, particularly of
those who must die because of them. That is, nature, appearing in its guise of
imminent and inescapable physical mortality, might properly be considered to

181. Plato, Letter VII. in THE COLLECTED DIALOGUES OF PLATO INCLUDING THE LE1TERS 1574,
1589-90 (Edith Hamilton & Huntington Cairns eels. & L. A. Post trans., 1963). Plato wrote:
For everything that exists there are three classes of objects through which knowledge
about it must come; the knowledge itself is a fourth, and we must put as a fifth entity the
actual object of knowledge which is the true reality. We have then. first, a name. second, a
description. third, an image, and fourth, a knowledge of the object. Take a particular case if
you want to understand the meaning of what I have just said; then apply the theory to every
object in the same way••••
The same doctrine holds good in regard to shapes and surfaces both straight and curved.
in regard to the good and the beautiful and the just, in regard to all bodies artificial and
natural, in regard to fire and water and the like, and in regard to every animal, and in regard to
every quality of character, and in respect to all states active and passive.
[d. (emphasis added).
182. When Andrew Ramsay tried to explain his father's philosophical work to Lily Briscoe, "she
said Heavens, she had no notion what that meant. 'Think of a kitchen table then,' he told her, 'when
you're not there.''' Lily went on to think. "Natura1ly, if one's days were passed in this seeing of angular
essences, this reducing of lovely evenings, with all their flamingo clouds and blue and silver to a white
deal four-legged table (and it was a mark of the finest minds so to do), naturally one could not be judged
like an ordinary person." VIRGINIA WOOLF, To THE LIGllTHOUSE 38 (1927).
183. Of course, many differences that are not currently considered to be biologically determined,
such as preference for bright colors or spicy foods, are similarly deemed nonessential.
 Sexual Orientation and Rights 49

February 1994] CRITIQUING IMMUTABIliTY 549

provide the rationale for deeming these characteristics essential. I84 Short of
such cases, the importance even of a biologically caused characteristic-the
decisiveness that induces us to consider that its possessors are irrevocably and
always suffused in their very being with that characteristic-will almost cer-
tainly be social.
That means that a commitment to essentialism, even strong essentialism,
cannot eliminate the obligation to examine the social and cultural processes that
designate characteristics to be so important they define who or what people are.
Distinguishing kinds of change. Under an Aristotelian conception of es-
sence, the requirement that an essential characteristic be "unchanging" means
not that it cannot be altered or effaced, but that altering or effacing it changes
the nature of the thing under definition.I8S That the letters "S-T-O-P" are es-
sential to a stop sign does not imply that they are impervious to change; if that
series of letters is removed, the sign may stilI be a sign, but it is no longer a
stop sign.
But that is not to answer questions about other kinds of change. Is it a stop
sign if only the "S" is missing? If it says "S-T-0-P" but is painted green, or is
round, or is in Beijing? Fuss' use of the term "unchanging" fails to anticipate
these various types of change, all of which may be crucial to deciding whether
a given sign remains a stop sign.
Similarly, the claim that a sexual-orientation category is immutable may
have a range of meanings. If the Aristotelian sense of immutability applies to
claims of identity, then the essentialist merely claims that to be a lesbian, a
woman must have whatever characteristic defmes a lesbian, and if she loses
that characteristic she ceases to be a lesbian. Claims that homosexual orienta-
tion is immutable usually rely on a much stronger definition of change-that
whatever it is that constitutes the essence of homosexual identity cannot be lost
or removed from a person once it exists, whether that occurs at conception,
before birth, in infancy, at a wild high school party, or in an agony of early
adult self-re-creation.
None of these distinctions predetermines what the essence of sexual orien-
tation is. Some people define a "homosexual" as a person who entertains desire
for erotic contacts with a person of the same sex. Others require same-sex
fantasy, as well or instead. Still others require actual erotic contacts, and there
is a lot of disagreement about whether it takes one contact or many, recent
contacts or any, to make a homosexual. Finally, the problem of identity vexes
any effort to establish all important aspects of homosexual orientation as un-
changing. If a person has a lot of same-sex contacts, desires them and
fantasizes about them, but does not imagine himself to be gay, or a homosex-
ual, or bisexual, is he wrong? And public identity has its own range of

184. For an extrapolation from this point to a more inclusive "Aristotelian essentialist" list of
capabilities that define ''humanness,'' see Martha C. Nussbanm, Human Functioning and Social Justice:
In Defense of Aristotelian Essentialism, 20 POL. THEORY 202, 214-23 (1992).
185. Essence and Existence, in 3 THE ENCYCLOPEDIA OF PHILoSOPHY 59 (paul Edwards ed., 1967)
("For Aristotle, the essence of an object ••• was what finds expression in the concept which the object
embodies, the concept under which it must be identified if it is to be identified as what it is.").
50 Sexual Orientation and Rights

550 STANFORD LAW REVIEW [Vol. 46:503

mutabilities largely regulated by the closet and the rule that anyone not desig-
nated homosexual is by default construed as heterosexual.
It is not at all settled, inside pro-gay communities or outside them, which of
these elements is essential to the identity homosexual, and which is merely an
accident that can alter without producing a defInitional change. Weak essen-
tialism is committed to characterizing one or more of these elements as essen-
tial; strong essentialism adds that the essence(s) are produced by nature; and
strong essentialists espousing the argument from immutability most often say
that the essence(s) are installed at conception, before birth, or not long thereaf-
ter. But the constructivist is more interested in the special sort of mutability
engendered by the simultaneous operation in a single culture of incommensu-
rate selections from this meta-defInitional menu. If you think someone is a
homosexual because he routinely has same-sex erotic contacts, and I think he is
not because he fantasizes about women, on a constructivist analysis our strug-
gle to defIne him is a struggle to change what he is.

2. Constructivisms.
If constructivism has an essence, it is the claim that human activities of
perception, conceptualization, description, or work produce or maintain (or pro-
duced or maintained) some part of the world or the world itself.1S6
Constructivisms vary along two axes: who or what does the constructing,
and who or what gets constructed. Labelling theory developed in sociology in
the 1950s and 1960s, for instance, predominantly concerned itself with the
ways in which individuals designated by others as, for example, deviant, come
to occupy the meanings and institutions assigned to them, and thus come to
participate in constructing themselves as deviant and in "managing" that iden-
tity.1S7 In labelling theory's studies of deviance, the constructing is done by the

186. Constructivism is not the same as the "antiessentialism" that has come under fire at the
intersection of critical race theory with feminist legal theory in articles critiquing feminism's use of the
category ·'woman." See, e.g., Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A
Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989
U. Cm. LEGAL F. 139, 152-57; Trina Grillo & Stephanie M. Wildman, Obscuring the Importance of
Race: The lmplication of Making Comparisons Between Racism and Sexism (Or Other -Isms), 1991
DUKE LJ. 397, 404-05; Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L.
REv. 581, 586-87 (1990). First, the intersectionality Iitemture is not primarily concerned with replacing
the essentialism it critiques with constructivism. Second, when intersectionality scholars seek to keep
white feminists from covertly defining feminism's constituency as "white women" mther than "wo-
men," the actual target of their analysis may not always be feminist essentialism in the sense in which I
use that term here. On that sense of the term, feminist legal theory is essentialist only if it involves a
claim that being a woman is r;onceptually inconsistent with being a person of color, but most of the
examples cited in the intersectionality analyses probably involve white women'sforgetting or not caring
about women of color--conceptual and normative errors that are more accurately described not as es-
sentialist but as mcist.
187. See HOWARD S. BECKER, OUTSIDERS: STUDIES IN TIlE SOCIOLOGY OF DEVIANCE (1963) (dis-
cussing deviance by reference to those inside or outside a particular set of social rules); ERVING
GOFFMAN, ASYLUMS: EsSAYS ON TIlE SOCIAL SITUATION OF MENTAL PATIENTS AND DnlER INMATES
(1961) (examining the relationship of an inmate's world view to his role in the institutional culture);
ERVING GOFFMAN, THE PREsENTATION OF TIlE SELF IN EVERYDAY LIFE (1959) (examining the role an
individual plays in shaping others' impressions of her); ERVING GOFFMAN, STIGMA: NOTES ON THE
 Sexual Orientation and Rights 51

February 1994] CRITIQUING IMMUTABILITY 551

particular players involved in deviance relationships and institutions, and what

they construct are specific deviant and, implicitly, normal persons.
Sociology of knowledge, and particularly social studies of science, leave
largely in place labelling theory's assumption that individuals acting alone or in
groups within institutions are the source of epistemic constructions, but they
have considerably deepened the constructivist claim about what those individu-
als construct. Sociologists of knowledge insisted that all perceptions of reality
are produced through conceptual systems. ISS But they did not attend systemati-
cally to the social location or interests of those who produce knowledge, and
have been criticized for giving little attention to "the extent to which socially
constructed meanings may reflect and reinforce the disparate power of ruling
elites."189 To some extent, recent work in sociology of science moves beyond
this limit. Social studies of science pursue the hypothesis that professional
forms of organization, communication, and activity (and not an objectively-
perceived nature) are what produce scientific "facts."190 In doing so, they fo-
cus sustained attention on the constraints of academic discipline, on the prac-
tices of group work, and on the local culture of career competition. 191 This
inquiry thus takes into account the possibility that the activities of producing
knowledge produce, in turn, the producers.
This double extension of social constructivism reached perhaps its most
thorough extent in the work of Michel Foucault. Foucault posited that human
knowledge arises "not from transcendental facts about language or human be-
ings," but from the systematic quality of knowledge itself, organized into an
"episteme, which is the total set of relations or discursive regularities that set
out the possibilities of meaning and truth."192 The specific discourses which an
episteme might incorporate function to produce knowledge not by their refer-
ence to things outside of discourse but by their internal regularities. 193
"[T]here can be no question," Foucault believed, "of interpreting discourse
with a view to writing a history of the referent."194 Moreover, forms of human
experience and subjectivity were themselves produced through the historical

MANAGEMENT OF SPOILED IDENTITY (1963) (fonnulating concepts about how stigmatized individuals
convey self-image).
188. PETER L. BERGER & THOMAS LUCKMANN, THE SOCIAL CONSTRUcnON OF REALITY: A TREA.
TISE IN TIm SOCIOLOGY OF KNOWLEDGE 97-98 (1966) (describing the "conceprual machineries of uni-
verse-maintenance" that construct "the social phenomena"); Ernst von GIaserfeld, An Introduction to
Radical Constructivism, in THE !NvENTEo REALITY: How Do WE KNow WHAT WE BELIEVE WE
KNow? CONTRIBunONS TO CONSTRUCTIVISM 17, 19 (paul Watzlawick ed., 1984) (explaining that "for
constructivists, all communication and all understanding are a matter of interpretive construction on the
part of the experiencing subject").
189. ANDREW KOPPELMAN, THE AmmISCRlMINATION PROJECT (forthcoming 1995) (manuscript at
ch.2, p. 141, on file with the Stanford Law Review).
190. See, e.g., LATOUR & WOOLGAR, supra note 5, at 105. For other works in this school, see
note 5 supra.
191. LATOUR & \VOOLGAR, supra note 5.
192. Linda Alcoff, Michel Foucault, in A COMPANION TO EPISTEMOLOGY 143 (Jonathan Dancy &
Ernest Sosa eds., 1992).
193. [d.
194. MICHEL FOUCAULT, THE ARCHAELOGY OF KNOWLEDGE 47 (A.M. Sheridan Smith trans.,
1972). quoted in Hu:eERT L. DREYFUS & PAUL RABINOW, MICHEL FOUCAULT: BEYOND STRUCIURALISM
AND HEru.lENEuncs 61 (2d ed. 1983).
52 Sexual Orientation and Rights

552 STANFORD LAW REVIEW [Vol. 46:503

operation of discourses. Knowledge produces knowers, not the other way

around. 195
In all these forms, and in the many others which I do not distinguish here,
constructivism is a causal theory, in which the causal agent is always some
version of "culture." It thus opposes strong essentialism, which identifies na-
ture as the causal agent, but not necessarily weak essentialism, which merely
identifies the existence of essences. 196 Some very strong versions of construc-
tivism identify categories themselves as the instruments of unjustified power
and sources of oppressive constraint. This hypothesis is (again) most fre-
quently associated with Foucault, who proposed that knowledge and power are
inextricably interlinked: "'Truth' is linked in a circular relation with systems
of power which produce and sustain it, and to effects of power which it induces
and which extend it."197 If the constructivist generation of categories is inevi-
tably associated with the application of force, constructivism offers an attack
even on weak essentialism. Short of strong ethical constructivism of this sort,
however, essentialism and constructivism are opposed only when both reach an
exclusive theory of causation. The possibility of common ground between es-
sentialism and constructivism, explored below, arises from this incomplete con-
tradiction of the former by the latter.
Nor does constructivism necessarily refute claims of immutability. I argued
above that essentialisms differ a great deal in the sense of "unchangingness"
that they posit. Correspondingly, constructivism claims that important features
of human beings and our world are contingent, historical products of human
activity and interaction, but it does not claim that anything it describes as so-
cially constructed would be easy, or even possible, to change. Eve Kosofsky
Sedgwick wryly comments:
I remember the buoyant enthusiasm with which feminist scholars used to greet
the finding that one or another brutal form of oppression was not biological but
"only" cultural! I have often wondered what the basis was for our optimism
about the malleability of culture by anyone group or program. 198
Indeed, some forms of constructivism involve a converse ethical problem:
whether they leave any room at all for human agency and decision. 199 Thus, it
is possible for a constructivist to claim that sexual-orientation identity is muta-

195. DREYFUS & RABINOW, supra note 194, at 168-83 ("The Genealogy of the Modem Individual
as Subject").
196. For a discussion of this incomplete disagreement of essentialism and constructivism, see
Daniel R. Ortiz, Creating Controversy: EssentislismiConstructivism and the Politics oj Gay [dentiry, 79
VA. L. REv. 1833, 1842-43 (1993).
197. Michel Foucault, Truth and Power, in THE FOUCAULT READER 51, 74 (paul Rabinow ed.,
1984).
198. SEDGWICK, EPISTEMOLOGY, supra note 92, at 41.
199. One such critique is offered by Bryan D. Palmer, who argues that the promotion of language
as the sole constitutive activity in some discourse theories tends "to reify language, objectifying it as
unmediated discourse, placing it beyond social, economic, and political relations, and in the process
displacing essential structures and formations to the historical sidelines." BRIAN D. PALMER, DESCEm"
INTO DISCOURSE: THE RE!FICATION OF LANGUAGE AND THE WRmNG OF SOCIAL HisToRY 5 (1990).
 Sexual Orientation and Rights 53

February 1994] CRITIQUING IMMUTABIliTY 553

ble across the range of human possibility, without making the distinct claim
that it is mutable in a given person, or even in a given society or era.2OO

3. Impure identity.

It is a cherished premise of the essentialism/constructivism impasse that

essentialism and constructivism are mutually exclusive. On this assumption, if
essentialism and constructivism appear together in the formation or description
of a social category, logical incoherence or hypocrisy must be at work. Probing
a third distinction passed over by Fuss indicates that this premise should be
rejected.
Fuss focuses exclusively on the attribution of a flxed, determinative charac-
teristic to a particular thing or person. Of course, one can also attribute such a
characteristic to an entire category, making the entire group essentialist. Noth-
ing requires that one proceed in any particular order through the step of form-
ing a category on one hand, and the step of placing individuals in it on the
other. One might proceed deductively, and establish a category before consult-
ing the qualities of proposed individual members. One might pursue a more
inductive course, and aggregate apparently similar individuals before forming a
general category in which to encompass them. Essentialism in these two differ-
ent kinds of definitional practice takes correspondingly different forms: De-
ductive essentialism would posit that a group shares a certain constitutive
characteristic, while inductive essentialism would incrementally note that indi-
viduals are strongly marked by a characteristc that increasingly seems impor-
tant enough to be considered constitutive of them. A researcher might decide
before making any experimental observations, for instance, that a human cate-
gory is defined by its members' enthusiasm for having sex on airplanes (deduc-
tive essentialism); or she might find upon interviewing a number of
experimental subjects that some of them are saliently differentiated by such an
enthusiasm and consequently decide to classify them using it as an index (in-
ductive essentialism). Moreover, each of these essentialist practices can take a
weak or a strong form: The researcher might suppose that noticing some sub-
jects' enthusiasm for having sex on airplanes is a fleetingly useful heuristic
(weak essentialism) or that it is a deeply embedded, gravely differentiating
characteristic (strong essentialism). The possibility of these discontinuities un-
derlies the rifts dividing LeVay and Bailey and Pillard's rationales for setting
up crude, conventional hypothetical categories "homosexuallheterosexual" for
purposes of administering their experiments (weak deductive essentialism)
from their actual practice of categorizing individual subjects (strong inductive
essentialism), and again from their misleading statements to the press sug-
gesting that their experiments conflrmed the natural origin of those categories
(strong deductive essentialism).

200. David Halperin, for example, argues that "[p jarticular cultures are contingent, but the per-
sonal identities and foons of erotic life that take shape within the horizons of those cultures are not."
HALPERIN, supra note 4, at 51-52.
Developing Lesbian Legal Theory
Ruthann Robson , Embodiments: The Possibilities of Lesbian Legal Theory in Bodies Problematized by
Postmodernism and Feminisms, 1 Stanford Journal of Law, Gender & Sexual Orientation__ (1992)
(forthcoming); Ruthann Robson , Lesbian Jurisprudence?, 8 Law & Inequality: A Journal of Theory and
Practice 443 (1990).
Ruthann Robson , Lifting Belly: Privacy, Sexuality and Lesbianism, 12 Women’s Rights Law Reporter
177 (1990).