Sexual Orientation and the Law Outline
Fall 2013
McGowan
Introduction: Basic Documents
I. Sexuality: How to count who is “gay” “lesbian” and “transgender”
a. Sexuality and Global Forces: Dr. Alfred Kinsey and the SCOTUS (P.1)
b. The Social Organization of Sexuality: What is Sexual Orientation or Sexuality?
i. The Myth of 10% and the Kinsey research
1. Sexuality is multi-dimensional. The Kinsey research failed to look at all the dimensions.
2. Multi dimensions and they all exist on scales.
a. Sexuality is fluid
ii. What is Sexual Orientation? An intersection of:
1. desire
a. What you would like to do
2. attraction, and
a. What you might find appealing
3. behavior
a. What you actually do
b. Kinsey focused only on behavior – his numbers don’t reflect identity.
4. Identity
a. Includes what people self-identify as
iii. Other ways to define Sexuality
1. There’s no “right” way to answer how to define LGB: it depends on what you want to reflect – the lived experiences of people? the sex of peoples partners?
a. What is the goal?
2. Factors to consider:
a. Desire/Attraction
b. Identity
c. Biological/Hormonal/Genetic
d. Gender behavior/presentation/performance
i. Twin Study
1. twins with radically different gender presentations, suggesting different sexual orientations.
ii. Whether someone’s Gender presentation or performance is congruent with someone’s sex
iv. If when you are looking for a partner, it is important to find someone who is congruent on certain factors – then that could be your sexual orientation. For example whether you are someone who is/is looking for :
1. monogamous or not
2. does sex = love or does sex=behavior
a. Whether someone can have casual sex
3. Mutual Attraction
4. Fetishes
5. Links between violence and sex
6. into Multiple partners at once?
7. Into public sex?
8. Your boundaries or comfort level.
a. Your willingness to experiment
9. Only want to have sex with a certain age?
a. Pedophilia, attraction to older people, sex with minors, young men and older men etc.
10. Level of Sex Drive
a. asexual or sex addict?
v. However Marriage is the organizing block of social order, and makes us look for factors other than congruent sexual factors
1. For example: inheritance, who is going to be a good parent, legal recognition, family connections etc.
vi. Binary Sex, Binary Gender
1. What sex you were told you what you could do, and even what your life opportunities are.
a. ex. if you can have sex outside of marriage and still have a reputation.
2. Gender roles are prescribed onto sex roles: Our sexual orientation is bound up with our gender roles.
c. lesbian “sex” (P. 14)
i. Hypothetical: You’re a bouncer at a lesbian club who is only supposed to let lesbians in. How do you identify who is lesbian?
1. Cannot just go based on gender on driver’s license as this can be changing/changed
2. Is someone’s very feminine appearance going to count against them?
3. To answer the question you must first answer “What is a Lesbian” and also how gender/sex effects it.
a. so: What is female?
d. What makes people gay?
i. gay gene discovery
ii. Male sexual orientation is completely inborn, women’s sexual orientation is more fuzzy
1. Men are only aroused by porn that mirrors their sexuality, while women are just aroused more in general.
iii. “whatever causes sexual orientation is strongly influenced by prenatal biology”
iv. Hypothetical: You are a guard at a prison and it is your job to segregate the gay male prisoners. How will you do this?
1. Self-Identification
a. People will lie because they may be put in danger if they tell the truth.
2. how look out for opportunistic sex? People who will have sex with men only while in prison.
3. What does it mean to be “gay”
a. Willing behavior + Identification?
b. What about gender presentation? People who are straight but more feminine.
4. Important question to ask is: What is the motive of this? Reduce HIV, Sex, and violence? Then have to focus on behavior – willingness to have sex with men (not necessarily gayness)
5. This question is difficult because of the power dynamics. Don’t want to do ongoing sorting and seem like you’re bullying, and at the same time people won’t be honest to you.
e. How many people are LGBT, Gary Gates (TWEN)
i. Only about 3.5% self-identify as LGB. (About half LG and half Bisexual)
ii. More than half of women that said they’re LGB said that they are Bisexual.
1. 3% are transgendered
iii. Slightly more women than men id themselves as LGB (53% of LGB are women).
iv. Among people who identify as LGB 33% are nonwhite, as compared to 27% of the straight population.
v. Gary Gates uses Identity as the measure: What do people self-identify as?
vi. People’s Sexual Orientation changes over the course of time
f. Why is there a shift in how the same sex population has been measured over time?
i. Looking at behavior à Identity
ii. Now we are giving people the agency to self-define.
iii. The LGBT population is out: Before it was just a behavior of shadows.
1. Before if asked people what they identified as they might not have sa
hat are socially constructed, so this could work for sexual orientation as well.
i. Counter to Social Construct Argument: Transgender/Intersex research challenges this notion that sex is biological and gender is socially constructed: Seems as if gender is very inborn and goes beyond your biological makeup. People who were assigned a gender at birth and given hormonal treatment very early to feel comfortable with that gender feel as if they should be the opposite.
3. If it is an essential category, what is it?
a. Take emphasis off self-identification and put it in terms of behavior, attraction, and desire.
b. However, at what point is someone gay enough to be gay?
iii. Argument for Social Construction
1. This is the idea that has been embodied in most civil rights discourse. That Categories are imposed on humans. Sexual Orientation is just one of those categories and in a way it’s a very artificial category.
a. We categorize humans and things in order to make sense of the world around us.
b. The argument is akin to that of the women’s rights movement – that these norms imposed are socially constructed but who they are isn’t a choice.
i. The Classic line was: sex is biological and gender is socially constructed.
ii. Women’s rights movement’s message was that laws that regulate women/men behavior are based on socially constructed ideas of femininity and masculinity. They were fighting the idea that certain behaviors are normal for each gender and that there is something deviant about stepping out of the norm of masculinity or femininity.
iii. The idea is that everyone possesses masculine and feminine traits and that these norms have to do with how we are raised and the expectations we have on how other people ought to behave and what is right for a girl or a boy.
iv. Sexual Rights Movement aimed to make gender identification a choice and not exclude people based on their biological sex.
1. Your biological sex shouldn’t lock you into a certain gender performance.
2. There are certain immovable aspects of sex: in some regards sex is fixed and biological.
a. aka out of your control
3. But Masculinity and Femininity are socially constructed.
