Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [31]
After Stonewall, the assimilation required of gays has shifted in emphasis from conversion to passing. From a gay rights perspective, that shift marks progress. It suggests some sectors of American society have accepted homosexuality to the point where they will accept silence in lieu of transformation. No matter how bad it is to live in the closet, it is preferable to electroshock treatment.
But because conversion and passing overlap, the shift from one to the other does not always represent an advance. Take the United States military’s policy on homosexuality. The military used to be governed by 1981 regulations stating that homosexuality was “incompatible with military service.” This was a formal conversion regime, under which gays technically had to convert to heterosexuality to serve. By the early 1990s, the exclusion of service members based on their homosexual status alone had come under fire. In 1993, Congress and the Department of Defense responded with the “Don’t ask, don’t tell” policy, which is still in effect. Under “Don’t ask, don’t tell,” gays can no longer be excluded just for being gay, but can be excluded for coming out. The shift from the 1981 policy to the 1993 policy marks a shift from a conversion demand to a passing demand. Military and media voices touted this shift as palpable progress for gays.
But was it? The new policy hasn’t changed life for gays, as closeted gays have always served in the military. It hasn’t changed life for homophobes, who can still avoid confronting gays in their midst. Nor has it changed life for bisexual or questioning service members, who continue to lack role models who might make same-sex sexuality a viable way of life for them.
We could stop with the observation that “Don’t ask, don’t tell” is not much better for gays than its predecessor. Or we could go further, with law professor Janet Halley, and say the new policy is “much, much worse.” While her contention may sound extreme, the numbers bear her out—in the years after the promulgation of “Don’t ask, don’t tell,” the number of gays forced out of the military increased. I attribute this jump in discharges in part to the spin control accomplished by the new policy. Courts that would have struck down the old policy have accepted the new one because it is swaddled in a story of progress. Once upon a time, gays were asked to convert. Now, in more enlightened days, we are asked only to pass.
The military is banking on the fact that the passing demand sounds more reasonable than the conversion demand, without being so. We must call it on this bluff. Because conversion and passing are intricately intertwined, I believe they must 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. When the military says it is not against homosexuality but only against avowed homosexuality, I sense an inconsistency that calls the first part of the claim into question.
For this reason, the First Amendment should protect individuals for self-identifying as gay. The Supreme Court has not yet pronounced on this right, but the highest court to speak on this issue has rejected its existence. In 1984, a federal court of appeals confronted a case in which a guidance counselor, Marjorie Rowland, had been terminated by a public school for coming out as bisexual. Under controlling precedents, the court had to balance her interest in speaking on an issue of “public concern” against the school’s interest in promoting efficient service. The court found Rowland’s “coming out” speech failed to rise to the level of “public concern,” as she was speaking “only in her personal interest.” The court upheld Rowland’s dismissal.
More recently, a lower court in a different jurisdiction disagreed with the Rowland court’s contention that coming out was a private matter, sensibly observing that if so many individuals cared about a gay employee’s revelation, her speech was of public concern. As courts reach different results, it becomes