Sexual Orientation (and Gender Identity): Is That a “Thing”?
Tuesday evening, Houston’s Equal Rights Ordinance (HERO) went down in flames as citizens of that fair city streamed to the polls, with-record breaking early voting, to make their displeasure known. They resisted having the phrases “sexual orientation” and “gender identity” added to their city’s equal rights law. Non-Houstonians know about this law’s dust-up because that city’s out-and-proud lesbian mayor demanded her city’s pastors dutifully submit, as her diktat stated, “all speeches, presentations or sermons” related to HERO to her for approval.
Other cities and locals are working to have sexual orientation/gender identity (SOGI) nondiscrimination ordinances passed in their cities and states. Along with Houston, the citizens of Idaho, Wyoming and North Dakota said “no thanks” to such proposals. Massachusetts Congressman Joe Kennedy III is strongly pushing his state’s effort to open up – by force of law - all public facilities to any person who believes he/she is really a she/he.
Such efforts are deeply ill-advised for so many reasons, but one of the main things is that sexual orientation and gender identity are not actual things. Consider that there are no agreed upon scientific or legal definitions of either, even among LGBT activists and allies.
- What does “sexual orientation” actually include and exclude?
- How is one’s “gender identity” determined and legally ascertained?
Neither of these are objective, measurable personal characteristics like race, sex, color, ethnicity, pregnancy or disability, but they are assumed as such in laws like this. There’s great trouble when we assume we are all talking about the same thing here but in fact are not. Let’s see how this is precisely the case we have today.
Gender theorists confidently explain what gender is with this clever ditty: “Sex is what’s between your legs. Gender is what’s between your ears.” He’s a man purely because he understands himself as such, regardless of what his original physical factory settings may indicate. She is a woman for the very same reasons. And no one can say otherwise. Does a better example of subjectivity exist? But this understanding is far from settled among leading scholars.
Take Bruce for instance. We are told that Jenner is actually a woman and always has been. Disagree at your own peril. But when was it that Bruce Jenner became Caitlyn? At birth? When he came to terms with it himself? When he first announced his news to the world? When he legally changed his name? When he appeared on the cover of Vogue? Did the Olympic Committee violate his rights in 1976 when they had him compete as the man he apparently wasn’t?
Bruce is the only one that can tell us for sure. And this is true for every individual. Can Caitlyn really be Caitlyn if she still has Bruce’s penis? Would Caitlyn be Cait if she chose to keep a beard? What if she retained a total outer appearance suitable for the cover of GQ? Of course she would because her gender, according to current gender philosophy, exists solely in what’s between her ears, her own understanding of herself, regardless of how she chooses to display it to the world. It is her business, but we all have to honor it.
There is no objective measure under such laws for determining what “gender identity” is or is not.
Our culture uses the term “sexual orientation” with absolute confidence in its definition that to even raise the question would peg one as embarrassingly dull-witted. But this, even among LGBT leaders, is not clear at all. Professor Randall Sell, one of the leading scholars researching the nature of sexual orientation, observes:
At present it is clear that researchers are confused as to what they are studying when they assess sexual orientation in their research. …Today’s preferred terms and the term “sexual orientation” itself have a wide variety of definitions in the literature…
The serious student of this topic need only enter “definition of sexual orientation” into a search engine to prove the fact. For instance, the most authoritative organizations on the subject offer these definitions:
Human Rights Campaign: “An inherent or immutable enduring emotional, romantic or sexual attraction to other people.”
American Psychological Association: “An enduring pattern of emotional, romantic and/or sexual attractions to men, women or both sexes. …[O]ne's sexual orientation defines the group of people in which one is likely to find the satisfying and fulfilling romantic relationships that are an essential component of personal identity for many people.”
Psychology Today: “Sexual orientation is a term used to describe our patterns of emotional, romantic, and sexual attraction—and our sense of personal and social identity based on those attractions. A person's sexual orientation is not a black or white matter; sexual orientation exists along a continuum.”
WebMD; Sexual orientation is a term used to refer to a person's emotional, romantic, and sexual attraction to individuals of a particular gender (male or female).
PFLAG: “Emotional, romantic, or sexual feelings toward other people…. One’s sexual activity does not define who one is with regard to one’s sexual orientation; it is the attraction that helps determine orientation.”
GLAAD: “Simply put: sexual orientation is about who you are attracted to and fall in love with; Sexual orientation describes a person's enduring physical, romantic, and/or emotional attraction to another person.”
The words “emotional”, “romantic” and “sexual” in relation to “attraction” and “feelings” seem to be the common characteristics in these various definitions. But these constancies do little to answer the question any attentive person should ask:
Precisely what kinds of “emotional, romantic and sexual attractions” denote what a “sexual orientation” actually is and isn’t?
Many, but not all, assumptively confine it to being gay, straight or bisexual. But others in the LGBT community and elsewhere contend that these are given only because they are the main players on the current stage of sexual diversity. They contend there are more “sexual orientations” still. A stark example demonstrates the problem.
Salon recently published a provocative piece by a man who says his pedophilia is his orientation. Now we can imagine a sea of eyes roll at the supposed ridiculousness of his claim that his deal is an orientation. But under what criteria should it be excluded?
Certainly not because this sexual attraction is repulsive. No current definition of the phrase makes that qualification. If one’s emotional, romantic and sexual attraction has to be socially approved in order to be a bona fide sexual orientation than when did bisexuality or homosexuality hit that critical tipping point in its public acceptance? Has it currently? The subjectivity in all this is obvious with just the slightest bit of thought.
Just as there was significant political pressure on the American Psychiatric Association decades ago to take homosexuality off the list of psychological illnesses, similar pressure was applied not to follow suit with pedophilia.
A professor in the school of psychiatry and behavioral sciences at Johns Hopkins, writing in The Journal of the American Academy of Psychiatry and the Law, explains that the APA removed the “orientation” designation “in the face of significant criticism” and not because of a misprint. This professor explains that for important clinical reasons “removing the term in response to public criticism would be a mistake.” He contends that “experiencing ongoing sexual attractions to prepubescent children is, in essence, a form of sexual orientation…” Agree with him or not, but his article — as well as the journal’s editorial board’s decision to publish it — demonstrates it’s not just perverts seeking legitimacy who contend it’s an orientation. How exactly can these SOGI ordinances exclude Mr. Pedophile?
But pedophilia is not the only romantic, emotional and sexual attraction confounding our assumed sureness of what an orientation is. The polys claim their place under the banner too. This, of course, would also be true of polygamists. If you hold that polys and polygs are mistaken in this, prove it by the definitions above or any that you can find. You’ll be frustrated.
Respected law professors working for LGBT causes indeed contend that polyamory is indeed a “sexual orientation.”
The most prominent, Columbia Law School’s Elizabeth Emens, contends with all seriousness that as our national debate over same-sex marriage expands our understanding of intimate relationships, it is her hope “that everyone will take this opportunity to question monogamy” as a preference over non-monogamy. She holds that one’s predilection for polyamory should legally be accepted as a sexual orientation because many polys report this is simply who they are; they were not made for monogamy.
The second scholar contending polyamory is an orientation is Ann Tweedy, a professor at Hamline University School of Law. In an article, crisply titled “Polyamory as a Sexual Orientation”, she also argues for polyamory being recognized as a legal category in employment discrimination statutes because it is an orientation. Tweedy notes, and enlists the voices of other scholars who agree with her, that the current usage of the term sexual orientation is “somewhat arbitrary”, “inherently unstable” and “artificially limited.”
She holds that “nothing in the definition of ‘sexual’ or ‘orientation’ suggests that the term ‘sexual orientation’ should be limited to identifying the sex of the people to whom one is attracted.”
We are increasingly socially and legally compelled to honor and respect each person’s self-determined orientation and self-expressed gender identity. Of course, this inherent subjectivity raises profound practical and legal concerns for adherence to and enforcement of these so-called SOGI “human rights” ordinances, particularly when violators are subject to significant personal fines and a tidal wave of social ridicule. The subjectivity of all this makes it ripe for an explosion of unanticipated lawsuits from people who refuse to play along with the illusion. Of course, the implications here stretch far. Consider this statement from this summer’s Supreme Court’s majority opinion in Obergefell,
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. (p. 13)
Whatever their sexual orientation…