Ongoing Discrimination Against LGBT in Military, Other Society
By Kenji Yoshino
The recent scandal over military surveillance of gay student groups reflects a broader shift in American attitudes toward homosexuality.
As we learned a few weeks ago, the military has been monitoring meetings of student groups at the University of California, Santa Cruz, the State University of New York at Albany and New Jersey's William Patterson University. These groups oppose the military's "don't ask, don't tell" policy, which excludes openly gay individuals from serving in uniform.
When the military said the surveillance was needed to preserve national security, the gay media immediately cried McCarthyism. During the Cold War, the government used the same justification to engage in widespread surveillance of individuals known or suspected of being gay.
But there's a difference. "As far as is known," the Center for the Study of Sexual Minorities in the Military states, "the current surveillance does not target homosexuality itself, but rather gay groups which have voiced opposition to the 'don't ask, don't tell' policy barring openly gay service." In other words, it's not all gays who are vulnerable to surveillance, but only the subset of gays who choose to be activists.
This change reflects the seismic shift that's occurring in this country's attitudes toward homosexuality. It used to be that no open homosexual could escape anti-gay discrimination. Now some can, as long as they "cover" -- sociologist Erving Goffman's term for how individuals downplay their stigmatized identities. The gay person who covers by not joining a pro-gay group may well escape surveillance. It is the gay person who "flaunts" his identity by resisting anti-gay policies who is more likely to be punished.
We can see this shift across the board. Take public employment. It used to be that homosexuality was deemed per se incompatible with most state employment. Now governmental employers will often hire gay people, but routinely refuse to hire gay people who "flaunt." When Michael Bowers, then the attorney general of Georgia, terminated lesbian attorney Robin Shahar, he insisted that he was not doing so because of her homosexuality. Rather, he said, he revoked her employment contract because she had engaged in a religious same-sex commitment ceremony. In 1998, the court that upheld her termination emphasized this distinction, stating that Bowers had fired her not for her status as a gay person, but for her behavior.
Or take child custody. It used to be that gays were categorically banned from getting custody of children. So if a married woman came out, divorced her husband, and then sued for custody of her child, she would lose. Now the lesbian mother will sometimes prevail, so long as she covers. A Missouri court granted custody in 1998 to a lesbian mother after finding that she "never engaged in any sexual or affectionate behavior in the presence of the children." But a lesbian mother will generally not succeed if she flaunts. In denying a mother custody in 1990, a Louisiana appellate court cited her "open, indiscreet displays of affection beyond mere friendship" with a same-sex partner.
This shift represents an advance. Social attitudes toward gays have softened such that we are no longer treated as an undifferentiated, pathologized mass. Yet the demand to cover still exacts terrible dues. Many of the activities for which gays are punished -- speaking out on political issues, having a commitment ceremony, or engaging in a display of affection in the home -- are fundamental to human flourishing. When the state conditions our privacy, employment or parental rights on the surrender of those goods, it condones enduring second-class citizenship for gays.
The shift from the demand not to be gay to the demand to cover may be progress. But it is not equality.
Kenji Yoshino is professor of law and deputy dean of intellectual life at Yale Law School. He is a graduate of Harvard (1991), Oxford (1993), and Yale Law School (1996). He specializes in antidiscrimination law and constitutional law. His book, "Covering: The Hidden Assault on Our Civil Rights," was recently published by Random House. Look for more information on www.kenjiyoshino.com.
Discuss GLBT discrimination in our IRC forum
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The recent scandal over military surveillance of gay student groups reflects a broader shift in American attitudes toward homosexuality.
As we learned a few weeks ago, the military has been monitoring meetings of student groups at the University of California, Santa Cruz, the State University of New York at Albany and New Jersey's William Patterson University. These groups oppose the military's "don't ask, don't tell" policy, which excludes openly gay individuals from serving in uniform.
When the military said the surveillance was needed to preserve national security, the gay media immediately cried McCarthyism. During the Cold War, the government used the same justification to engage in widespread surveillance of individuals known or suspected of being gay.
But there's a difference. "As far as is known," the Center for the Study of Sexual Minorities in the Military states, "the current surveillance does not target homosexuality itself, but rather gay groups which have voiced opposition to the 'don't ask, don't tell' policy barring openly gay service." In other words, it's not all gays who are vulnerable to surveillance, but only the subset of gays who choose to be activists.
This change reflects the seismic shift that's occurring in this country's attitudes toward homosexuality. It used to be that no open homosexual could escape anti-gay discrimination. Now some can, as long as they "cover" -- sociologist Erving Goffman's term for how individuals downplay their stigmatized identities. The gay person who covers by not joining a pro-gay group may well escape surveillance. It is the gay person who "flaunts" his identity by resisting anti-gay policies who is more likely to be punished.
We can see this shift across the board. Take public employment. It used to be that homosexuality was deemed per se incompatible with most state employment. Now governmental employers will often hire gay people, but routinely refuse to hire gay people who "flaunt." When Michael Bowers, then the attorney general of Georgia, terminated lesbian attorney Robin Shahar, he insisted that he was not doing so because of her homosexuality. Rather, he said, he revoked her employment contract because she had engaged in a religious same-sex commitment ceremony. In 1998, the court that upheld her termination emphasized this distinction, stating that Bowers had fired her not for her status as a gay person, but for her behavior.
Or take child custody. It used to be that gays were categorically banned from getting custody of children. So if a married woman came out, divorced her husband, and then sued for custody of her child, she would lose. Now the lesbian mother will sometimes prevail, so long as she covers. A Missouri court granted custody in 1998 to a lesbian mother after finding that she "never engaged in any sexual or affectionate behavior in the presence of the children." But a lesbian mother will generally not succeed if she flaunts. In denying a mother custody in 1990, a Louisiana appellate court cited her "open, indiscreet displays of affection beyond mere friendship" with a same-sex partner.
This shift represents an advance. Social attitudes toward gays have softened such that we are no longer treated as an undifferentiated, pathologized mass. Yet the demand to cover still exacts terrible dues. Many of the activities for which gays are punished -- speaking out on political issues, having a commitment ceremony, or engaging in a display of affection in the home -- are fundamental to human flourishing. When the state conditions our privacy, employment or parental rights on the surrender of those goods, it condones enduring second-class citizenship for gays.
The shift from the demand not to be gay to the demand to cover may be progress. But it is not equality.
Kenji Yoshino is professor of law and deputy dean of intellectual life at Yale Law School. He is a graduate of Harvard (1991), Oxford (1993), and Yale Law School (1996). He specializes in antidiscrimination law and constitutional law. His book, "Covering: The Hidden Assault on Our Civil Rights," was recently published by Random House. Look for more information on www.kenjiyoshino.com.
Discuss GLBT discrimination in our IRC forum
© 1995-2006 PlanetOut Interactive Services
*** FAIR USE NOTICE. This message contains copyrighted material the
use of which has not been specifically authorized by the copyright
owner. This Internet discussion group is making it available without
profit to group members who have expressed a prior interest in
receiving the included information in their efforts to advance the
understanding of literary, educational, political, and economic
issues, for non-profit research and educational purposes only. I
believe that this constitutes a 'fair use' of the copyrighted material
as provided for in section 107 of the U.S. Copyright Law. If you wish
to use this copyrighted material for purposes of your own that go
beyond 'fair use,' you must obtain permission from the copyright
owner, in this instance, Planet Out.
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