Covering
Kenji Yoshino
I. Introduction.......................................................................
771
II. Concept
A. Gay Conversion
1. Cultural Contexts
a. The Freudian Period (1870-1938)
b. The Gilded Age of Conversion Therapy (1938-1969)
c. The Post-Stonewall Period (1969 to the Present)
2. Legal Contexts
B. Gay Passing
1. Cultural Contexts
2. Legal Contexts
C. Gay Covering
1. Cultural Contexts
2. Legal Contexts
a. Civil Service
b. Custody and Visitation
c. Precocity of These Contexts
D. The Performative Turn
III. Convergence
A. The Antidiscrimination Schism............................................... 784
B. Race-Based Covering............................................................ 787
1. Cultural Contexts............................................................ 788
2. Legal Contexts................................................................ 790
a. Grooming.................................................................. 790
b. Language.................................................................. 790
3. The Performative Turn in Race....................................... 790
C. Sex-Based Covering.............................................................. 790
1. Cultural Contexts............................................................ 790
2. Legal Contexts................................................................ 790
a. Pregnancy................................................................. 790
b. Demeanor and Grooming—The Double
Bind
Revisited.................................................................... 790
3. The Performative Turn in Sex.......................................... 790
D. Synthesis............................................................................... 790
IV. Critiques
A. The Questionable Primacy of Orientation
1. Passing and Conversion in the Contexts of Race and Sex
2. The Case of Religion
B. The Unarticulated Benefits of Assimilation
C. The Problem of Essentialization
V. Conclusion...........................................................................
790
Assimilation is the magic in the American Dream. Just as in our actual dreams, magic permits us to transform into better, more beautiful creatures, so too in the American Dream, assimilation permits us to become not only Americans, but the kind of Americans we seek to be. Justice Scalia recently expressed this pro-assimilation sentiment when he joined a Supreme Court majority to strike down an affirmative action program. Calling for the end of race-consciousness by public actors, Scalia said: “In the eyes of government, we are just one race here. It is American.”[1] Packed into this statement is the idea that we should set aside the racial identifications that divide us—black, white, Asian, Latino—and embrace the Americanness that unites us all.
This vision of assimilation is profoundly seductive and is, at some level, not just American but human. Surrendering our individuality is what permits us to enter communities larger than the narrow stations of our individual lives. Especially when the traits that divide us are, like race, morally arbitrary, this surrender seems like something to be prized. Indeed, assimilation is not only often beneficial, but sometimes necessary. To speak a language, to wear clothes, to have manners—all are acts of assimilation.
This assimilationist dream has its grip on the law. The American legal antidiscrimination paradigm has been dominated by the cases of race, and, to a lesser extent, sex. The solicitude directed toward racial minorities and women has been justified in part by the fact that they are marked by “immutable” and “visible” characteristics—that is, that such groups cannot assimilate into mainstream society because they are marked as different. The law must step in because these groups are physiologically incapable of blending into the mainstream. In contrast, major strands of American antidiscrimination law direct much less concern toward groups that can assimilate. Such groups, after all, can engage in self-help by assimilating into mainstream society. In law, as in broader culture, assimilation is celebrated as the cure to many social ills. One would have to be antisocial to argue against it.
So it is with great trepidation but greater conviction that I come to do so. For the past few years, I have been working on issues relating to sexual minorities.[2] That work has persuaded me that gays (by which I mean both lesbians and gay men) can proffer a new perspective on the relationship between assimilation and discrimination. I believe that the gay context demonstrates in a particularly trenchant manner that assimilation can be an effect of discrimination as well as an evasion of it. My goal here is to develop this idea in the context of orientation, and then to demonstrate the applicability of this insight to the race- and sex-based contexts.
I believe gays may have theorized some dimensions of the relationship between assimilation and discrimination differently from either racial minorities or women. This is because gays are generally able to assimilate in more ways than either racial minorities or women. In fact or in the imagination of others, gays can assimilate in three ways: conversion, passing, and covering. Conversion means the underlying identity is altered. Conversion occurs when a lesbian changes her orientation to become straight. Passing means the underlying identity is not altered, but hidden. Passing occurs when a lesbian presents herself to the world as straight. Covering means the underlying identity is neither altered nor hidden, but is downplayed. Covering occurs when a lesbian both is, and says she is, a lesbian, but otherwise makes it easy for others to disattend her orientation.
Of these three forms of assimilation, covering will probably be least familiar. The term and concept come from sociologist Erving Goffman’s groundbreaking work on stigma.[3] Goffman observed that even “persons who are ready to admit possession of a stigma . . . may nonetheless make a great effort to keep the stigma from looming large.”[4] Thus a lesbian might be comfortable being gay and saying she is gay, but might nonetheless modulate her identity to permit others to ignore her orientation. She might, for example, (1) not engage in public displays of same-sex affection; (2) not engage in gender-atypical activity that could code as gay; or (3) not engage in gay activism.
As Goffman realized, these modes of assimilation are not always easily distinguishable from one another. For example, Goffman recognized that the same action could be either passing or covering depending on the knowledge of the audience before whom it was performed.[5] A woman who refrains from holding hands with her same-sex partner may thus pass with respect to those who do not know her orientation but cover with respect to those who do. This does not mean that the modalities of assimilation are indistinguishable. Rather, it means that one must know not only the performance of the actor, but also the literacy of the audience, to make that distinction. The relational aspect of presentations of the self is a preoccupation of this Article, as it was of Goffman’s work.[6] I recur repeatedly to the concept that assimilation is not a simple performance on the part of an agent, but rather a dialectic between an agent and her audiences.
While I have not seen it explicitly theorized, I believe that much of contemporary antidiscrimination discourse operates on a model—which I call the classical model—that incorporates the three assimilationist demands of conversion, passing, and covering. The classical model can be distinguished from others through two assumptions. First, the classical model assumes that the demands operate independently of each other—that is, that one can cover without passing and that one can pass without converting. Second, the classical model assumes that the demands are rigidly ordered in terms of their severity, with conversion always being a more burdensome demand than passing, and passing always being a more burdensome demand than covering. This model of identity can be conceived as a set of concentric circles rippling outward from a core, with having a certain status (failure to convert) at the center, disclosing that status (failure to pass) in the first circle around the core, and signaling that status (failure to cover) in the second circle. The model can be represented as follows:
Figure 1.
I later revise this model by noting that some
activities denominated as covering are often deeply constitutive of identity.
Yet it is heuristically useful to develop the classical model before challenging
it in this way.
The classical model of identity is also a model of discrimination. If individuals have multiple ways of modulating their identities, discrimination against them will take multiple forms, including the demands to convert, to pass, and to cover. The form of assimilation required of an identity will often be correlated to the strength of the animus against it. When discriminatory animus against an identity is particularly strong, it may require conversion. When that animus is weaker, it may permit individuals to retain the targeted trait, but require them to pass.[7] When the animus is weaker still, it may permit individuals to retain and disclose their trait, but require them to cover it.
In Part II, I develop the classical model of discrimination in the context of sexual orientation. I retell the history of the gay rights movement as a history of the increasingly attenuated assimilationist demands placed on gays by mainstream society, in both nonlegal and legal contexts. I show that as the gay rights movement has become stronger, the assimilationist demands made on gays have become weaker, shifting in emphasis from conversion, to passing, to covering.
A quick way of demonstrating that shift is to consider the gay-related issues that have figured in the mainstream press over the last decades. In the early 1970s, the press widely discussed the American Psychiatric Association’s (APA’s) deletion of homosexuality from its taxonomy of mental disorders.[8] The controversy over this deletion was a debate about conversion, that is, about whether gays were mentally diseased individuals who needed to change their orientations. In the early 1990s, the press debated the practice of outing[9]—the revelation of an individual’s homosexuality against her will—and the military’s “don’t ask, don’t tell” policy.[10] These topics pertained not to conversion, but to passing, that is, to whether a gay individual could or should self-identify as straight. Finally, at the turn of the millennium, the press has been devoting much of its gay-related coverage to same-sex marriage.[11] The right of gays to marry is a question of covering, as it pertains not to the ability of gays to be gay or to self-identify as gay, but to their ability to signal that identity beyond the simple act of self-identification. (As I demonstrate below, marriage can also paradoxically be seen as an act of covering, by those who take it to be a form of domesticating gays into straight norms.)[12]
Again, the demand to cover may be the least intuitive. A recent example may clarify how gays are increasingly encountering covering demands. In 1990, a lesbian lawyer named Robin Shahar was fired from her job at the Georgia Attorney General’s Office.[13] Her employer emphasized that he had not fired Shahar for being a homosexual or for saying she was a homosexual, but for flaunting her homosexuality by engaging in a same-sex commitment ceremony.[14] Thus Shahar was terminated not for failing to convert or to pass, but for failing to cover. As time progresses, I posit that more and more discrimination against gays will take the form of covering demands, rather than taking the historical forms of categorical exclusion or “don’t ask, don’t tell.”
Part II describes this shift in much greater detail in the hope of accomplishing four goals. First, I seek to provide a new way of thinking about gay rights. To my knowledge, no account of gay history has described it as a series of increasingly attenuated demands for assimilation. By providing this account, I aspire to develop a new taxonomy of the forms anti-gay animus can take, not only historically, but in our contemporary moment. I believe that many individuals intuit a difference among current attempts at reparative therapy (the demand to convert), “don’t ask, don’t tell” (the demand to pass), and opposition to same-sex marriage (the demand to cover). I wish to provide some analytic distinctions to rationalize that intuition.
My second reason for spending some time describing this shift is to show its messiness and contingency. Synoptic accounts like the preceding vignettes from the media may give the impression that one assimilationist demand has neatly replaced another in an inexorable teleology in which gays are moving ever closer to full equality. I emphasize my disagreement with that view. No historical moment has existed in which one demand has categorically supplanted another, as suggested by the coexistence of all three demands today. I thus am not arguing that we have definitively moved into a covering phase of anti-gay discrimination in which conversion and passing are no longer at issue. To the contrary, I believe that one of the challenging aspects of being gay today lies in the very multiplicity of the assimilationist demands that gays encounter. Moreover, the attenuation of assimilationist demands made on gays in the past few decades does not mean this shift is inexorable. The ascendance of the demand to convert in medical circles in the years after Freud’s death is but one of many examples of how fragile progress in this area has been. The qualified progress narrative I tell here is not presented as an iron law of history.
My third goal in this Part is to describe some relationships between law and society with regard to conversion, passing, and covering. I have divided the discussion of each demand into its cultural and legal manifestations.[15] In doing so, I consider how the law both converges with and diverges from a broader culture of gay assimilation. In some crude sense, every cultural demand for gay conversion, passing, or covering finds voice in the law. Through translation into legal argot, however, the demands are also transformed. The ways culture gets refracted when articulated as law are not easy to describe systematically, and I have erred here on the side of being a witness rather than a theorist. Yet I pay particular attention to the dimension of time—to how legal discourse sometimes harks back to older cultural discourses and at other times reifies nascent ones.
My fourth and final goal is to use this history to enter an important qualification to the classical model of identity. The classical model assumes that the assimilationist demands (1) are always independent, such that one can cover without passing and pass without converting; and (2) are rigidly ordered in terms of severity, with conversion being the most severe, then passing, then covering. If we adopt this model, gay history can be told as an unqualified progress narrative, as the demands for assimilation have shifted in emphasis from conversion to passing to covering.
Any real engagement with gay history, however, shows that in some instances, the shift from conversion to passing or covering can be experienced by gays as no shift at all. One such shift is the military’s movement from its 1981 policy, which excluded gays on the basis of their homosexual status, to its 1993 “don’t ask, don’t tell” policy (still in effect), which excludes gays on the basis of homosexual self-identification[16] or homosexual conduct. The 1981 policy was a conversion policy, as it required gays to convert to heterosexuality to serve. The “don’t ask, don’t tell” policy is popularly understood as a passing policy (as its moniker would suggest) and is defended by the military as a covering policy. This shift thus appears to represent progress for gays—no longer will they be excluded for their status, but only for their self-identification or conduct. Yet this shift has not improved the material or dignitary conditions of gays in the military, as homosexual self-identification and homosexual conduct are sufficiently central to gay identity that burdening such acts is tantamount to burdening gay status. Indeed, exclusions under the new policy have skyrocketed,[17] suggesting that the shift is the reverse of a progress narrative for gays.
Qualifying the progress narrative should lead us to qualify the classical model that frames it. The instance of sodomy subverts both assumptions underlying the classical model. It shows that assimilationist demands are not always independent, in that a demand to cover can be tantamount to a demand to convert. Relatedly, it also demonstrates that we cannot assume that acts of covering are always less severe than acts of conversion. I am therefore led to propose a modification of the classical model that I call the weak performative model. The weak performative model, which draws on the work of Judith Butler, suggests that statuses can be partially constituted by acts. This model suggests that acts denominated as acts of covering might simultaneously be denominated as acts of conversion.
My hope is that Part II provides a free-standing contribution to an understanding of gay rights. As I seek to show in Part III, however, the lessons of this new assimilationist paradigm extend far beyond the context of orientation. Distinguishing among conversion, passing, and covering allows us to speak more precisely about how gays are like and unlike racial minorities and women.[18] In particular, the paradigm suggests that the claims of all three groups converge around covering.
I begin Part III by describing the distinctions that civil rights discourse often draws between gays on the one hand and racial minorities and women on the other. Two posited distinctions are that gays can convert and pass, while racial minorities and women cannot. To a significant extent, the antidiscrimination jurisprudence arising under the equal protection guarantees of the Federal Constitution and Title VII of the Civil Rights Act of 1964 has accepted these distinctions, maintaining that racial minorities and women are more deserving of legal protection in part because they cannot convert or pass. Such jurisprudence embodies an assimilationist bias. It maintains that groups that can assimilate are less worthy of protection than groups that cannot. It further suggests that the only acceptable defense to a demand for assimilation is the inability to accede to it. In doing so, the jurisprudence reflects and reinforces a schism between gays on the one hand and racial minorities and women on the other.
I seek to demonstrate that even if we accept these distinctions for the sake of argument, gays can still find common cause with racial minorities and women. Conversion and passing do not exhaust the forms of assimilation. There is also covering. And while racial minorities and women may be differently situated from gays along the axes of conversion and passing, all three groups are similarly situated along the axis of covering.
Like gays, racial minorities and women cover, and are asked to cover, all the time. The African-American woman who stops wearing cornrows to succeed at work may be covering.