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"Covering" and the Law

by ROBERT JENSEN

For very different reasons, personal and political, Kenji Yoshino’s beautiful book on a new approach to civil rights is painful and important to read.

On the personal: In a society saturated with confessionals, Yoshino’s story of coming to terms with being gay and Japanese-American in a straight, white world is elegantly honest, infused with a critical self-reflection that avoids the all-too-common self-indulgence of the genre. The honest struggle he conveys not only touches but teaches, which gives the book its power; it is joyfully painful to read.

On the political: Yoshino seems to be trying to reach the most privileged people in the United States — a society not known for its ability to empathize with those it subordinates — by pointing out that we all “cover,” or hide some aspect our ourselves. But this attempt to find a common experience to ground a new conception of civil rights is dangerous because of its potential to obscure the power differentials at the heart of this society. That’s a painful reminder of the insidious nature of the hierarchies in which we live.

The title of Covering: The Hidden Assault on Our Civil Rights borrows from sociologist Erving Goffman’s observation that people who have acknowledged some sort of stigma will still work “to keep that stigma from looming large.” Yoshino observes that this covering — the way in which people hide or modify some aspect of themselves to fit into the dominant culture — is widespread, practiced at some level by virtually everyone. Declaring that “the mainstream is a myth,” Yoshino describes the myriad ways people hide (to the degree possible) their deviations from that presumed center.

Yoshino seems to hope the concept of covering can engage those with relatively more privilege and power to recognize a common humanity. This is where his argument is painful in the political sense. Is there reason to believe that people with privilege and power will be moved to see a common humanity through understanding this experience of covering in their own lives?

I am skeptical, for the simple reason that while we all may cover, our covering is not equivalent. Yoshino is not suggesting it is, but he runs the risk of giving privileged people an opening to trivialize the nature of the core oppressive systems in contemporary U.S. society. It’s a cliché to say we shouldn’t “rank oppressions,” but how can we not? Do we really want to suggest that all the various deviations from the mainstream are created equal or experienced equally?

For example, Yoshino points out that the metaphor of the closet has lost its uniquely gay meaning, citing references in the news to closet “poets, Republicans, gamblers, artists, and fans of the Tampa Bay Devil Rays.” He writes, “We all have secret selves.” However true that may be, it’s difficult to see how the concept of covering can be meaningful if it is attached to such a wide range of identities and behaviors — from the relatively trivial hiding of one’s love of poetry in certain non-poetic spaces to the more life-shaping covering demands faced by racial and ethnic minorities, women, or lesbians and gays.

Here, Yoshino’s own taxonomy of the gay experience is instructive. He writes about the progression from demands for “conversion” to “passing” to “covering.” Gays have been asked to convert (renounce that part of their identity and become straight) and to pass (be gay in some private settings if you must, but avoid public identification) before the contemporary demand that they cover (be openly gay if you like, but eliminate any behavior that is at odds with heterosexual norms). No straight people ever experience that range of pressures around their sexual orientation. Just as no men (outside of prison) deal on a day-to-day basis with the threat of rape. Just as no white people deal with the association of their skin color with inferiority.

Yoshino’s analysis is most valuable on the issues of conversion and passing. On the former, he points out that even in this post-gay liberation era, conversion demands of various kinds are still made on “sexual waverers, individuals whose sexuality seemed ambiguous or unformed.” He writes that it was not until he “came out broadly” — that is, stopped giving any hint of wavering — did the conversion pressure ease. Once he made that move, he writes, “angels and demons alike looked for other quarry.”

Yoshino points out that children are the classic waverers, which means that “gays will not achieve full equality until the ultimate orientation of wavering children is a matter of state and social indifference.” The key question, he writes, is: “Who will change? The gay son or the straight parents? The homosexual or the homophobe?”

Yoshino moves on to point out that a shift from demanding conversion to passing was at best a minor victory, because the two rise or fall together. “So long as there is a right to be a particular kind of person, I believe it logically and morally follows there is a right to say what one is,” he concludes.

The precision of Coverings analysis gets murkier, however, when Yoshino addresses the authenticity claims that are implied within his framework. To suggest gays are sometimes asked to cover is to imply there is a gay essence that is abrogated when a gay person “acts” straight. But beyond the biological sex of one’s partner, is there anything we can say is definitively — and authentically — gay? Is a “straight-acting” gay inherently covering, or simply a gay who authentically prefers to behave in ways that are stereotypically associated with heterosexuality? The same question is ever-present in the discussion of non-white people who are said to “act white.”

Yoshino writes, “If conversion divides ex-gays from gays, and passing divides closeted gays from out gays, covering divides normals from queers.” He defines normals as “openly gay individuals who embrace a politics of assimilation” and queers as “gays who emphasize their difference from the mainstream.” But does that mean that there is some “real” gayness that is in inherent opposition to heterosexuality? If one says gay people are covering when adapting themselves to heterosexual norms, it implies that there is a distinctly gay way of being in the world. Is there an “authentic” identity we can find in any category?

Here a feminist analysis would be helpful. In some ways, for example, gay men’s common (but not universal, of course) rejection of traditional monogamous values that are identified with mainstream heterosexual culture is thought by many to be a defining characteristic of gay identity. But what if this stereotypical gay acceptance of promiscuity is not a gay thing but a guy thing? What if in this regard gay men have more in common with straight men, the only difference being that heterosexual women are less inclined to participate with straight men in that game? What is seen by some gay men as a defining aspect of their lives as gay men is more likely simply an aspect of conventional masculinity in patriarchy. What if a gay man who approaches questions of sexuality and intimacy in ways that are straight-acting in this regard is not covering but is adopting a radical feminist sexual ethic? Who is most authentic in his choices?

Yoshino realizes he is venturing into confusing territory when he writes about a true or authentic self. His philosophy is deeply rooted in the concept of autonomy, and he accepts a distinctly individualistic notion of self that comes with such a project. He offers a commitment to “autonomy as a means of achieving authenticity, rather than to a fixed conception of what authenticity might be.” This is where his argument turns in on itself. Covering occurs when one hides a part of oneself that comes from a particular facet of one’s identity, such as being gay; identity is not individualistic in this sense but group-based. But at the same time, “authenticity will look and feel different for each of us,” he writes, implying there is no aspect of that gay identity that is intrinsic to being gay.

Yoshino tries to move out of this swamp to make a case for the future direction of civil-rights law, but by this time he is boxed in when offering prescriptions. He argues that group-based accommodations are the answer, and that the state and employers should shoulder the burden of justification when they demand that members of protected groups engage in covering behavior. But if the concept of covering encompasses an ever-growing list of groups, Yoshino argues, such a legal approach becomes unworkable: “The explosive pluralism of contemporary American society will inexorably push this country away from group-based identity politics — there will be too many groups to keep track of, much less to protect.”

Yoshino advocates that the “new civil rights” leave behind this “equality paradigm” in favor of a “liberty paradigm” rooted in the centrality of autonomy. That’s his solution to the courts’ general hostility to group-based accommodations and the society’s ever-exploding pluralism.

While Yoshino’s argument is intriguing, I fear is that it will be diversionary from what should be the core project — a redistribution of power and resources that can come when unjust systems are transformed through collective action. My fear is that Yoshino’s rejection of equality in favor of liberty as the defining concept for civil rights only further distracts from recognizing the core problem is the oppressive systems: white supremacy, patriarchy, and heterosexism, playing out in a world structured by the hierarchies of corporate capitalism and U.S. hegemony.

Yoshino is right to recognize that the existing framework of civil rights law is fraying and that a rethinking is due. He’s also right to point out that there are limits to what the law can accomplish as we move forward, and that solutions lie in other processes, institutions, and movements. This is fundamentally a political project that requires movement building, and rebuilding. It’s difficult to imagine much progress being made in the years to come without a holistic left/progressive politics that connects the way in which all these systems of oppression attempt to naturalize a hierarchy of domination and subordination. In the United States, we are only at the beginning of such a project.

But, even with those concerns about the fundamental basis of Yoshino’s philosophical and political project, this book is a beautiful mix of memoir, legal scholarship, and polemic. That the polemic is, in the end, not completely persuasive for me doesn’t detract from the value of the book; even when I’m not won over, I appreciate the elegance of Yoshino’s argument and his anticipation of counter arguments.

I stress the adjective “beautiful”; in a world in which there is so much writing that seems to be offered to the world without editing (blogs) or concern for gracefulness (most scholarly writing), such a book is a gift, one that eloquently forces us to confront not only the problems in our society but our own complex place in that society.

ROBERT JENSEN is a journalism professor at the University of Texas at Austin and a member of the board of the Third Coast Activist Resource Center. He is the author of The Heart of Whiteness: Race, Racism, and White Privilege and Citizens of the Empire: The Struggle to Claim Our Humanity. He can be reached at rjensen@uts.cc.utexas.edu.

 

 

Robert Jensen is a professor in the School of Journalism at the University of Texas at Austin and board member of the Third Coast Activist Resource Center in Austin. He is the author of several books, including the forthcoming Plain Radical: Living, Loving, and Learning to Leave the Planet Gracefully (Counterpoint/Soft Skull, fall 2015). http://www.amazon.com/Plain-Radical-Living-Learning-Gracefully/dp/1593766181 Robert Jensen can be reached at rjensen@austin.utexas.edu and his articles can be found online at http://robertwjensen.org/. To join an email list to receive articles by Jensen, go to http://www.thirdcoastactivist.org/jensenupdates-info.html. Twitter: @jensenrobertw. Notes. [1] Wendell Berry, The Unsettling of America: Culture and Agriculture, 3rd ed. (San Francisco: Sierra Club Books, 1996), p. 106. [2] Gerda Lerner, The Creation of Patriarchy (New York: Oxford University Press, 1986). [3] Fyodor Dostoyevsky, The Brothers Karamazov, edited and with a revised translation by Susan McReynolds Oddo (New York: W.W. Norton and Company, 2011), p. 55.

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