Gay Rights as Human Rights

This is the first of a three-part series on the consequences of invisibility and the power of visibility. The author delivered these remarks at a forum hosted by the University College London Jurisprudence Review.

Have you seen old maps? Beyond the edges of explored territory, the maps bore a legend warning, "Here there be monsters!" Whatever was unknown was dangerous, monstrous.

And what do we think of unknown people? The monsters emerge: Myths of gay men as sexual predators, transgender people as inherently deceptive and dangerous. The city commissioners in my hometown dared to pass an ordinance barring discrimination based on gender identity. Extremists put the ordinance up for majority vote. To promote their campaign they papered people's parked cars with cartoons showing men lurking in women's bathrooms to attack young girls. They added racism into the attack by broadcasting staged video scenes of dark men sneaking into playground restrooms following blonde little girls.

Never mind that transgender people are overwhelmingly the targets of violence, not its perpetrators. Never mind that gender identity nondiscrimination ordinances have existed since the 1970s without triggering violence. Never mind that the town sheriff opposed overturning the nondiscrimination ordinance. Lambda Legal joined the local LGBT-rights campaign, and in the end, my hometown voted to keep the ordinance, but that ballot-box success story is unusual. Putting minority rights to majority vote is frequently a recipe for disaster. A primary reason: it's easy to conjure demons when real people are invisible.

Scholar Jane Schacter coined the term "coerced invisibility." She wrote, "Coerced invisibility is a principal form of anti-gay discrimination. Far from being a benign safety net, the closet reflects the particular way... gay men and lesbians are coerced to... participate in maintaining the circumstances that sustain their own inequality."

And scholars William Adams Jr. and Bill Eskridge have noted that government silencing of gays in the 1950s created a severe political handicap because it prevented lesbians and gays from publicly -- that is, visibly -- refuting inaccurate stereotypes or engaging in political activism to fight discrimination.

They were writing about the United States government in the 1950s, but six decades later, "Don't Ask, Don't Tell" -- our national policy of anti-gay discrimination -- has governmentally imposed gay invisibility in our military. Not only has it ended distinguished careers, but it's also invaded all other areas of gay military members' lives. For example, it has held back divorcing service members from making the strongest arguments they could for custody or visitation with their children. They were understandably concerned that if evidence of their sexual orientation came up in papers filed in their divorce case, that might be considered "telling" their sexual orientation, breaking the invisibility law -- and they'd lose their jobs and their ability to support their children as the perverse consequence of trying to maintain contact with them.

The federal government cannot rightly embrace or expect a culture of inclusion while it forces gay and lesbian service members into the closet. The contrary messages it sends to LGBT people across the country are insupportably damaging.

The American LGBT civil rights movement paid the price for coerced invisibility with seventeen additional years of discrimination leading up to our Lawrence vs. Texas case. In Lawrence, Lambda Legal won a Supreme Court ruling declaring laws that criminalized private, consensual, noncommercial, adult sodomy laws unconstitutional. We won Lawrence in 2003. But 17 years earlier, the case of Bowers vs. Hardwick had raised the same issue to the Court, and our side had lost. And here's the invisibility point: a justice who could have swung the Bowers decision retired soon afterward, and publicly admitted he should have voted for us. And he said, "But I didn't know any gay people." But that was not true. One of his clerks at the time was gay. But he was not out to the justice. And so gay people were invisible to the crucial deciding vote.

None of us should be asked or forced to live our lives invisibly. Schools, employers and governments that impose invisibility continue to feed the fear of the unknown -- and the well-documented and often tragic consequences that follow.

Read part two.