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Cornell Law Review, July 2000 v85 i5 p1358
"Gay rights" for "gay whites"?: Race, sexual identity, and equal protection discourse. Darren Lenard Hutchinson.



The issue of gay and lesbian legal "equality" remains unresolved and highly contested.(1) Despite the vigorous efforts of gay and lesbian activists and theorists and the recent, apparent broadening of public support for protecting gays and lesbians in formal civil rights structures,(2) the legal status of gay, lesbian, bisexual, and transgendered individuals remains largely Unequal and unprotected...

While the resolution of the problem of gay and lesbian inequality will ultimately turn on a host of social, legal, political, and ideological variables, this Article argues that the success or failure of efforts to achieve legal equality for gays, lesbians, bisexuals, and transgendered individuals will depend in large part on how scholars and activists in this field address questions of racial identity and racial subjugation. Commonly, these scholars and activists currently discuss race by use of analogies between "racial discrimination" and "sexual orientation discrimination," or between "people of color" and "gays and lesbians." On one level, the "comparative approach" to race and sexuality may have some validity because it can create empathy with the oppression experienced by gays and lesbians. It also might help link the question of gay rights to existing equal protection precedent and civil rights laws that emerged from a context of racial subjugation and resistance.(9) Ultimately, however, this approach impedes the quest for gay and lesbian equality.(10)

Specifically, the comparative approach marginalizes (or treats as nonexistent) gays and lesbians of color, leading to a narrow construction of the gay and lesbian community as largely upper-class and white.(11) Such a comparative discussion of race and sexuality in pro-gay and lesbian discourse reflects a broader marginalization of persons of color (and women and the poor) who are excluded from essentialist queer theories and politics.(12) Opponents of gay and lesbian equality employ a similarly narrow construction of the gay and lesbian community in political discourse and judicial opinions; scholars, activists, and jurists contest the "morality" and necessity of extending civil rights protections to gay and lesbian citizens by depicting the gay and lesbian community as largely white, privileged, and unharmed by any discrimination they face.(13).....


A. Pro-Gay and Lesbian Discourse

Race is often invoked by pro-gay and lesbian scholars who make comparisons between people of color and gays and lesbians. Scholars have criticized such comparisons for treating "people of color" and "gays and lesbians" as mutually exclusive groups, omitting gays and lesbians of color from analysis, and therefore implying a population of white gays and lesbians and heterosexual people of color.(53) The race-sexuality analogies also distort differences in power between oppressed groups. For example, they obscure the effects of racial subordination when they equate the experiences of white gays and lesbians with those of persons of color. By focusing exclusively on the sexually subordinate position of white gays and lesbians, the analogies mask the pervasive racial privilege that supplies social benefits to white individuals regardless of their sexual identity and practice.(54)

The race-sexuality analogies reflect a broader failure to include racial, class, ethnic, and gender diversity within gay and lesbian discourse. Gay and lesbian essentialism, as a budding intellectual movement observes,(55) has led to the proposal of inadequate pro-gay policies. In particular, gay and lesbian political activism focuses much of its resources on securing formal equality rather than on pursuing substantive equality, or a more even distribution of material resources, for gay, lesbian, bisexual, and transgendered individuals....


The work of Audre Lorde, the late black lesbian writer, contains many important lessons for progressive theorists and activists. In an influential essay, Lorde warns critical theorists and activists not to reproduce the mechanics of oppression in their own work. Lorde has a powerful, yet seemingly obvious, message: "the master's tools will never dismantle the master's house."(144) Contemporary gay, lesbian, bisexual, and transgendered theorists and activists can benefit from Lorde's vision, for there exists a harmful congruence of pro-gay and anti-gay discourses: both marginalize people of color and the poor and depict a gay and lesbian community privileged by race and class. Gay and lesbian essentialism, in addition to exacerbating the invisibility of the poor and people of color and leading to theories that fail to challenge their oppression, legitimizes a conservative racial discourse that seeks to deny the protections of civil rights structures to all gay, lesbian, bisexual, and transgendered people. This same discourse is invoked by jurists in equal protection litigation to justify the denial of judicial solicitude to gay and lesbian people.

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