Covering.

• Author: Yoshino, Kenji
• Position: Discrimination and gay assimilation

1. INTRODUCTION

   Assimilation is the magic in the American Dream. Just as in our actual dreams, magic permits us to transform into better, more beautiful creatures, so too in the American Dream, assimilation permits us to become not only Americans, but the kind of Americans we seek to be. Justice Scalia recently expressed this pro-assimilation sentiment when he joined a Supreme Court majority to strike down an affirmative action program. Calling for the end of race-consciousness by public actors, Scalia said: "In the eyes of government, we are just one race here. It is American." (1) Packed into this statement is the idea that we should set aside the racial identifications that divide us--black, white, Asian, Latino--and embrace the Americanness that unites us all.

   This vision of assimilation is profoundly seductive and is, at some level, not just American but human. Surrendering our individuality is what permits us to enter communities larger than the narrow stations of our individual lives. Especially when the traits that divide us are, like race, morally arbitrary, this surrender seems like something to be prized. Indeed, assimilation is not only often beneficial, but sometimes necessary. To speak a language, to wear clothes, to have manners--all are acts of assimilation.

   This assimilationist dream has its grip on the law. The American legal antidiscrimination paradigm has been dominated by the cases of race, and, to a lesser extent, sex. The solicitude directed toward racial minorities and women has been justified in part by the fact that they are marked by "immutable" and "visible" characteristics--that is, that such groups cannot assimilate into mainstream society because they are marked as different. The law must step in because these groups are physiologically incapable of blending into the mainstream. In contrast, major strands of American antidiscrimination law direct much less concern toward groups that can assimilate. Such groups, after all, can engage in self-help by assimilating into mainstream society. In law, as in broader culture, assimilation is celebrated as the cure to many social ills. One would have to be antisocial to argue against it.

   So it is with great trepidation but greater conviction that I come to do so. For the past few years, I have been working on issues relating to sexual minorities. (2) That work has persuaded me that gays (by which I mean both lesbians and gay men) can proffer a new perspective on the relationship between assimilation and discrimination. I believe that the gay context demonstrates in a particularly trenchant manner that assimilation can be an effect of discrimination as well as an evasion of it. My goal here is to develop this idea in the context of orientation, and then to demonstrate the applicability of this insight to the race- and sex-based contexts.

   I believe gays may have theorized some dimensions of the relationship between assimilation and discrimination differently from either racial minorities or women. This is because gays are generally able to assimilate in more ways than either racial minorities or women. In fact or in the imagination of others, gays can assimilate in three ways: conversion, passing, and covering. Conversion means the underlying identity is altered. Conversion occurs when a lesbian changes her orientation to become straight. Passing means the underlying identity is not altered, but hidden. Passing occurs when a lesbian presents herself to the world as straight. Covering means the underlying identity is neither altered nor hidden, but is downplayed. Covering occurs when a lesbian both is, and says she is, a lesbian, but otherwise makes it easy for others to disattend her orientation.

   Of these three forms of assimilation, covering will probably be least familiar. The term and concept come from sociologist Erving Goffman's groundbreaking work on stigma. (3) Goffman observed that even "persons who are ready to admit possession of a stigma ... may nonetheless make a great effort to keep the stigma from looming large." (4) Thus a lesbian might be comfortable being gay and saying she is gay, but might nonetheless modulate her identity to permit others to ignore her orientation. She might, for example, (1) not engage in public displays of same-sex affection; (2) not engage in gender-atypical activity that could code as gay; or (3) not engage in gay activism.

   As Goffman realized, these modes of assimilation are not always easily distinguishable from one another. For example, Goffman recognized that the same action could be either passing or covering depending on the knowledge of the audience before whom it was performed. (5) A woman who refrains from holding hands with her same-sex partner may thus pass with respect to those who do not know her orientation but cover with respect to those who do. This does not mean that the modalities of assimilation are indistinguishable. Rather, it means that one must know not only the performance of the actor, but also the literacy of the audience, to make that distinction. The relational aspect of presentations of the self is a preoccupation of this Article, as it was of Goffman's work. (6) I recur repeatedly to the concept that assimilation is not a simple performance on the part of an agent, but rather a dialectic between an agent and her audiences.

   While I have not seen it explicitly theorized, I believe that much of contemporary antidiscrimination discourse operates on a model--which I call the classical model--that incorporates the three assimilationist demands of conversion, passing, and covering. The classical model can be distinguished from others through two assumptions. First, the classical model assumes that the demands operate independently of each other--that is, that one can cover without passing and that one can pass without converting. Second, the classical model assumes that the demands are rigidly ordered in terms of their severity, with conversion always being a more burdensome demand than passing, and passing always being a more burdensome demand than covering. This model of identity can be conceived as a set of concentric circles rippling outward from a core, with having a certain status (failure to convert) at the center, disclosing that status (failure to pass) in the first circle around the core, and signaling that status (failure to cover) in the second circle. The model can be represented as follows:

   I later revise this model by noting that some activities denominated as covering are often deeply constitutive of identity. Yet it is heuristically useful to develop the classical model before challenging it in this way.

   [FIGURE 1 OMITTED]

   The classical model of identity is also a model of discrimination. If individuals have multiple ways of modulating their identities, discrimination against them will take multiple forms, including the demands to convert, to pass, and to cover. The form of assimilation required of an identity will often be correlated to the strength of the animus against it. When discriminatory animus against an identity is particularly strong, it may require conversion. When that animus is weaker, it may permit individuals to retain the targeted trait, but require them to pass. (7) When the animus is weaker still, it may permit individuals to retain and disclose their trait, but require them to cover it.

   In Part II, I develop the classical model of discrimination in the context of sexual orientation. I retell the history of the gay rights movement as a history of the increasingly attenuated assimilationist demands placed on gays by mainstream society, in both nonlegal and legal contexts. I show that as the gay rights movement has become stronger, the assimilationist demands made on gays have become weaker, shifting in emphasis from conversion, to passing, to covering.

   A quick way of demonstrating that shift is to consider the gay-related issues that have figured in the mainstream press over the last decades. In the early 1970s, the press widely discussed the American Psychiatric Association's (APA's) deletion of homosexuality from its taxonomy of mental disorders. (8) The controversy over this deletion was a debate about conversion, that is, about whether gays were mentally diseased individuals who needed to change their orientations. In the early 1990s, the press debated the practice of outing (9)--the revelation of an individual's homosexuality against her will--and the military's "don't ask, don't tell" policy. (10) These topics pertained not to conversion, but to passing, that is, to whether a gay individual could or should self-identify as straight. Finally, at the turn of the millennium, the press has been devoting much of its gay-related coverage to same-sex marriage. (11) The tight of gays to marry is a question of covering, as it pertains not to the ability of gays to be gay or to self-identify as gay, but to their ability to signal that identity beyond the simple act of self-identification. (As I demonstrate below, marriage can also paradoxically be seen as an act of coveting, by those who take it to be a form of domesticating gays into straight norms.) (12)

   Again, the demand to cover may be the least intuitive. A recent example may clarify how gays are increasingly encountering covering demands. In 1990, a lesbian lawyer named Robin Shahar was fired from her job at the Georgia Attorney General's Office. (13) Her employer emphasized that he had not fired Shahar for being a homosexual or for saying she was a homosexual, but for flaunting her homosexuality by engaging in a same-sex commitment ceremony. (14) Thus Shahar was terminated not for failing to convert or to pass, but for failing to cover. As time progresses, I posit that more and more discrimination against gays will take the form of covering demands, rather than taking the historical forms of categorical exclusion or "don't ask, don't tell."

   Part II describes this shift in much...