Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [81]
I have literally lost sleep over this criticism. But in my waking hours, I take it more as a caution than as a wholesale indictment. I agree that we must not assume that individuals behaving in “mainstream” ways are necessarily covering. My ultimate commitment is to autonomy as a means of achieving authenticity, rather than to a fixed conception of what authenticity might be. (Here I follow Winnicott, who observes the True Self is not susceptible to specific definition, as its nature differs for each of us.) In talking about classic civil rights groups, I have focused on the demand to conform to the mainstream because I think that for most groups (except women) these are the demands that most threaten our authenticity. But I am equally opposed to demands that individuals reverse cover, because such demands are also impingements on our autonomy, and therefore on our authenticity.
In practice, I expect the liberty paradigm to protect the authentic self better than the equality paradigm. While it need not do so, the equality paradigm is prone to essentializing the identities it protects. Under an equality paradigm, if a woman who wore a lot of makeup were protected by a court because makeup is an “essential” part of being a woman, this could reinforce the stereotype that women wear makeup. But if the same woman were given the liberty right to elaborate her own gender identity in ways that did not impinge on her job performance, she would be protected from demands to be either more “masculine” or more “feminine.” Marsha Wislocki-Goin would be protected for wearing “too much makeup” and Darlene Jespersen would be protected for not wearing it at all. Each woman would then have the full panoply of options from which she could fashion her gender identity. And in protecting that range, the law would not articulate any presupposition about what an “authentic” or “essential” woman would look like. Authenticity would be something these women, and not the state or employer, would find for themselves.
Group-based identity politics is not dead. As I have argued, I still believe in a group-based accommodation model for existing civil rights groups. This is in part because I believe we have made a commitment to those groups to protect them from such covering demands. The statutory language of the Civil Rights Act and the Americans with Disabilities Act already protects racial minorities, religious minorities, women, and individuals with disabilities as groups against covering demands. It has been the courts that have erroneously limited the ambit of those protections. Such a group-based equality paradigm is completely consistent with the individual liberty paradigm. In fact, the equality and liberty strands of antidiscrimination law are inextricably intertwined.
Moreover, even if we shift the focus of civil rights law away from equality to liberty, identity politics will still be crucial. If it weren’t for the gay rights movement, or the disability rights movement, cases like Lawrence or Lane would never have made it to the Court. But I’m sympathetic to the Court’s desire to frame these cases not as “gay” or “disability” cases, but as cases touching on rights that, like a rising tide, will lift the boat of every person in America. Ironically, it may be the explosion of diversity in this country that will finally make us realize what we have in common. Multiculturalism has forced us to vary and vary the human being in the imagination until we discover what is invariable about her.
While I have great hopes for this new legal paradigm, I also believe law will be a relatively trivial part of the new civil rights. A doctor friend told me that in his first year of medical school, his dean