Disrupting Sexual Categories of Intimate Preference

Luke A. Boso, University of California, Los Angeles

Abstract

When, if ever, are our intimate preferences more than simply “preferences” but a form of discrimination? Do our intimate preferences for a particular “sex” or “gender” constitute permissible preferences (or even hard-wired biological predeterminations) or something more harmful? And even if we were to theorize about whether our intimate preferences might constitute “discrimination,” what is the utility of such a finding, and how does the law play a role in the analysis?

In her work-in-progress, "Anti-discrimination Law as Disruption: the Emergence of a New Paradigm for Understanding and Addressing Discrimination," Professor Vicki Schultz proposes a novel legal theory - “the disruption model” - that might be useful in thinking of “discrimination” on the basis of a particular group identity in the context of the inherently non-neutral intimate context. In her article, Professor Schultz explains that the disruption model is a means by which we can disrupt difference-producing dynamics - dynamics in which differences are: "created and recreated on a more or less continual basis by the policies and practices of our institutions and by the social and psychic interactions that take place within them - all of which work together in a dynamic way to produce the very differences that are often regarded as innate or so deeply rooted in "cultural" practices or "societal" discrimination that they are impervious to change. She then argues that “the goal of law is not simply to protect preexisting groups, but rather to police against [these] practices that actually tend to divide people into dichotomous groups and to create (or at least contribute to creating) perceived and actual differences between those groups.” In short, the disruption model focuses on and seeks to disrupt the ways in which institutions - and, more specifically, the law - actually create and reflect the differences we learn to prefer, and those that correlate strongly with certain groups of people (e.g., women who legitimately claim to prefer “feminine” jobs). Disruption attempts to more progressively tackle discrimination at a macro level by focusing on large-scale causal forces rather than individual actors in a way that traditional theories of anti-discrimination regarding, for instance, intent and impact do not. Ultimately, disruption is both desirable and achievable because it would not take the form of a public campaign in which people lecture to others about how individuals should think and feel. Instead, it would be a subtle litigation and legislation-intensive project in which various areas of the law are overhauled in terms of the way they define categories and create the meanings that subsequently attach. Moreover, it is not the genuine intimate preference for a particular trait or type of person that is the impetus for concern. The object of disruption is not to eliminate preference altogether but to empower individuals in determining and exploring a variety of preferences. It is therefore the stifling way in which people and categories are currently defined that must be addressed.

Professor Schultz's disruption model is useful in the following two ways: (1) it helps reveal the mechanisms by which our preferences are institutionally and socially constructed, thereby diluting many of the claims suggesting that our intimate preferences are innate, static, and pre-determined; and (2) it makes the uncomfortable topic of intimate discrimination more digestible by diminishing our own culpability and placing the onus on forces far greater than the individual. The disruption model helps to explain how intimate discrimination is perpetuated by institutional actors - churches, schools, employers, and the law - and how those actors create and define the conceptions of sex, masculinity, femininity, and gendered racial expressions that pervade intimate desire. Application of the disruption model, therefore, supports the notion that sexuality has the potential to be more fluid and experimental rather than fixed and static as it is currently framed. “Sexual orientation” (the gay-straight-bisexual rubric) ceases to exist as a salient social categorizer given that “sexual orientation,” as this Article will discuss, is itself a bundle of reactions to constructed conceptions of sex, gender performance, and attraction.

This is not to suggest that, even in a world in which we successfully disrupt the ways in which institutions construct social categories, people would not inevitably have intimate preferences for particular traits. Rather, the disruption model may be useful in dismantling the law's construction and valuation of social categories as variables in a gendered power hierarchy that we internalize, pass on, and eroticize. Perhaps allowing individuals to define for themselves what it means to be a man, woman, masculine, feminine, gay, or straight would dull these artificial distinctions between groups, providing more room for intimate experimentation and actual choice. Perhaps it could even lead to the eroticization of individuality and power-equality, replacing our current fascination with domination and subordination.

In this Article, I will attempt to articulate my own analyses of (and often internal struggles with) intimate discrimination, whatever “discrimination” in this context may mean. Although we constantly make judgments and choices regarding our intimate associations based on many traits, I seek largely to examine discrimination on the basis of sex and gender, and to challenge “sexual orientation” as a coherent concept. In Part II, I will explore the term “discrimination,” and analyze whether it as understood in traditional theories of anti-discrimination accurately maps intimate preferences, or whether a new approach could better address intimate discrimination. Specifically, I seek to employ Professor Schultz's disruption model to provide an alternative, less agency-assuming strategy. In Part III, I will dissect “sexual orientation,” examining stated intimate preferences as they interact with various forms of attraction, sex, and gender expression. I will highlight several “theories of sexual orientation” and will discuss the impact of social forces on both the ways in which we develop attraction and the conflated categories to which we ultimately become attracted. Concluding that sexual orientation as a social identity category is itself a construction largely reflecting existing power structures, the potential for real intimate choice is thus contingent on our individual ability to assign value and meaning to traits and people - not by allowing the law to do it for us. In Part IV, I will provide examples of the various ways in which the law as an institution has created our understanding of sex and gender, particularly focusing on the male-female binary and the expectations of corresponding sex-typical performance. Jurisprudentially, the focus will be on sex-based employment discrimination, same-sex sexual harassment, employer grooming and dress codes, and certain miscellaneous legal regimes (military regulations, transgender marriage, and legal practices affecting members of the queer community). To conclude, I will reiterate the proposition that, while every decision we make regarding those with whom we choose to be intimate is biased, partial, and thus “discriminatory” in the traditional sense, to ascribe individual fault for our preferences is in vain. Only when the law ceases to reify and create rigid social categories and meanings will we be free to exercise real intimate choice.