American law presumes that all persons are born either female or male, and rests a surprising number of legal entitlements on this presumption. Persons’ legal rights to express their identity at work, to use public accommodations, and to retain legal parenthood status with respect to their children may all depend on whether they are female or male. Yet we, as individuals, generally have no choice regarding whether we are legally designated female or male, just as people had no choice as to whether they were designated “colored” or “white” under past racial discrimination schemes. The American legal system plays a significant role in the construction, maintenance, and coercive enforcement of the binary gender system that requires people to conform their identities in distorting ways to be included politically. By sustaining the gender system, legal institutions unnecessarily undermine human well-being, and unjustly and disrespectfully constrain individual liberty. The United States and state governments should re-examine laws that use sex or gender as a category by adapting the Law Commission of Canada’s methodology in Beyond Conjugality. In this fashion, American law can begin to move gradually away from the creation, maintenance, and enforcement of the gender system.
In the aftermath of the Supreme Court’s recent decision in Obergefell v. Hodges, constitutional jurisprudence will have to more clearly define sexual orientation itself. The Obergefell majority describes sexuality as binary and suggests that any sexual orientation is immutable, normal, and constitutive of individual identity. Other scholars have shown how the kind of binary created by Obergefell excludes those with more fluid sexual identities and experiences from legal protection.
This Article illuminates new problems with Obergefell’s approach to sexuality by putting that definition in historical context. While describing sexuality as a matter of orientation may now seem inevitable, this Article shows that nothing could be further from the truth. In the 1970s, leading GLBTQ activists considered and rejected the language of sexual orientation. Instead, movement members battled for civil-rights laws banning discrimination on the basis of sexual or affectional preference.
The rhetoric of preference gained support for reasons that remain relevant to sexualorientation jurisprudence today. Drawing on the history of debates about sexual orientation, this Article proposes a definition that protects individuals on the basis of actual or perceived sexual orientation. A perceived-orientation approach addresses problems mentioned in leading studies as well as those spotlighted by activists in over time. First, this strategy will make it harder for discriminators to separate conduct and status. This approach also protects those who do not fit within established heterosexual or homosexual categories, but does not depend for its success on the rejection of those entrenched binaries. Perhaps most importantly, a perceived-orientation approach promises relief to all victims of orientation-based stereotyping, not only to those who can prove their “true” status.