From almost five years ago ---even more important today ---

June 16, 2001 - New York Times

Making a Case for the Right to Be Openly Different
By KRISTIN ELIASBERG

Janet Durrans for The New York Times

Coerced assimilation is discriminatory, says Kenji Yoshino, a Yale law professor, because it forces a person to hide his identity.
http://www.kenjiyoshino.com/

When the United States Supreme Court ruled last year that the Boy Scouts of America could exclude gays, Justice John Paul Stevens said that the majority had made a mistake. The real issue in the case, Justice Stevens wrote in his dissent, was that a respected longtime scout had decided not to hide his sexual orientation. "His openness is the sole and sufficient justification for his ostracism," Justice Stevens wrote, which amounts to "a constitutionally prescribed symbol of inferiority."

His reasoning was based in part on an article by Kenji Yoshino, a 32-year-old gay Asian-American law professor at Yale whose work is
influenced by queer theory and postmodernism and who is shaking up the legal establishment's approach to discrimination cases.

Arguments that African-Americans have traditionally used to win civil rights cases may not be the best fit for gays and for other groups facing
discrimination, Mr. Yoshino says. After all, an African- American scout would be able to talk about being black without fear of reprisal.

The idea that civil rights has to "trickle down" from race to sexual orientation is "bad for both groups," Mr. Yoshino said in an interview in his Yale office. His familiar black jeans have recently been replaced by natty suits (after a Barney's warehouse sale). "It's bad for gays to have
to fit their claims into paradigms that were made without their participation, but it's also bad for women and blacks because gays have
something to give back to the civil rights movement."

What they have to give back, Mr. Yoshino argues, is a different approach to discrimination that grows out of their own experience. Since the anti-segregation cases of the late 1950's, courts have generally required proof that a person was being denied the law's equal protection because of an immutable trait, one that was inborn or could not be changed. Women, ethnic groups, the disabled and gays have each tried to
demonstrate that their situation resembled that of African-Americans in the 1950's, that they were discriminated against because of who they were instead of what they did. Success has been mixed. Homosexuality, for example, is so far not considered an immutable trait by the courts.

But Mr. Yoshino says that by focusing on immutable traits, the race model obscures other forms of discrimination that all groups - even blacks - may be subject to but that are not forbidden by the law. Instead of sidestepping behavior, he says, lawyers should call attention to it, starting with assimilation.

"Groups that can assimilate aren't protected" by the courts, Mr. Yoshino writes in a forthcoming article in the Yale Law Review, "because they are thought to be able to engage in the self-help of assimilation." In other words, conform. For gays this has meant masking overtly gay behavior: not talking about being gay in the workplace, not publicly supporting gay rights, and not living with a same-sex partner if you are divorced and want child custody.

But what if coerced assimilation is itself discriminatory? Do you really have rights if they are protected only when you hide your identity, but
not when you reveal it?

In the article, Mr. Yoshino describes the history of demands to assimilate in society and in the courts: Minority groups experience pressure to change their identity, to convert, for example, from Judaism to Christianity; to pass, as when light-skinned blacks present themselves
as white, or homosexuals are closeted; and finally to try to cover or play down their identity, as when a divorced lesbian mother safeguards
her custody of her child by not engaging in observable lesbian behavior.

To Reva Siegel, a Yale law professor who specializes in gender and constitutional law, this article "could disrupt foundational or settled
ways of thinking about what counts as a discrimination claim."

Mr. Yoshino says that today's race and gender cases are more and more coming to resemble sexual-orientation cases. As overt discrimination becomes unacceptable, the pressure to assimilate replaces it. He points to recent cases about a black woman who was fired because she wore her hair in cornrows, a Latino who was refused a seat on a jury because he was fluent in Spanish and a woman denied promotion for being insufficiently aggressive..

Darren Hutchinson, a professor of law at Southern Methodist University, says these cases show "the inability of law to deal with identity as an
active concept, where speaking Spanish is different from being of Hispanic descent, as if the two things can be separated."

"The court says that an employer discriminating on the basis of cornrows is not race discrimination, it's something else, about enforcing dress
codes or something," he added. But Mr. Hutchinson and Mr. Yoshino argue that behavior - language, hair style, sexual orientation - makes you who you are and therefore deserves the law's protection.

The idea isn't new. Many legal scholars and others have theorized in this area of identity. What distinguishes Mr. Yoshino's work, Mr. Hutchinson explains, is that he is doing the nuts-and-bolts work, taking the theory and applying it to the law's conception of equal protection. Katherine Franke, a professor at Columbia University Law School, said that Mr. Yoshino's approach could help dislodge what she describes as a "logjam in the racial discrimination cases."

But she adds a note of caution. "For all stigmatized groups it's extremely important to recognize the discriminatory injury of closeting or passing, and that is what Yoshino is doing with this argument," she said. But "I would hate to think that the only lesbians and gays who get protection are those who conform to the grossest stereotypes - the butch or the queen.."

Prof. Rick Hills of the University of Michigan Law School points to a bigger hurdle: a lack of constitutional grounding for theories that try to establish equal protection on the basis of conduct or behavior. "Equal protection doctrine has never been very good at dealing with the claim that difference should be recognized and respected. What courts usually say is that differences - like race and gender - should be ignored. So a claim that accommodation should be made for difference doesn't sit well in the equal protection tradition."

He adds that "a lot of this will boil down to if the conduct is essential to your identity or not. How do you try to prove that? Judges can't make a ruling on whether something is an important part of your identity. I have a lot of respect for Yoshino's work, but I think he tends to overestimate what judges will accept."

Whether the courts will ultimately agree with Mr. Yoshino's arguments is not certain, but he is not easily discouraged. He remembers his interview for a clerkship with a federal judge when he was a second- year law student. Noticing that he had taken a course called "Queer Theory," the judge asked him what queer meant. Assuming the judge knew the answer but was testing him, Mr. Yoshino replied that it was a term originally used to denigrate homosexuals but had been co-opted by the gay rights movement, much as the pink triangle that the Nazis had forced homosexuals to wear had been. The judge then asked what the pink triangle was.

"I had this feeling of total shock," Mr. Yoshino recalled. "I remember trying to rationalize, thinking, `Well, he's from a different generation.' But then I saw that he had just decided a case denying gays equal protection. One of the things you consider in equal protection cases is whether there is a history of discrimination. How far can you get into the history of discrimination against gays without encountering the pink triangle, the absolute symbol of that discrimination?"

Mr. Yoshino ended up clerking for a different judge, but that interview stayed with him. "That's when I decided I really wanted to write in this area, the moment when I felt like, `My god, even someone at my level of experience has something useful to say to a decision maker who is making extremely consequential decisions.' "

That sense has pushed him to test the accepted thinking. "I think many scholars have a self-critical voice within that says, `You're being too
utopian, no one is going to listen,' " he said. "And it is good to hold oneself accountable but not good to rein yourself in because you can't predict what people will pick up. It may not only be limiting to think no one will listen, it may be wrong."