Uncovering covering

Northwestern University Law Review

Volumn 101, Issue 4, 2007, Pages 1809-1849

  Robinson, Russell K ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 37749053077     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (254)

1. Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002).
2. As Yoshino says, "Nothing has convinced me of the power of words as much as the experience of coming out the first few times-one ends the sentence a different person." KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 13 (2006) [hereinafter COVERING].
3. Yoshino also quickly learned that the celebration of coming out was "premature" as "even individuals who knew [he] was gay imposed a fresh set of demands for straight conformity." Id. at 16-17.
4. 539 U.S. 558, 574 (2003)
5. (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)).
6. See ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 102-04 (1963), As Yoshino acknowledges, Goffman used the term "covering."
7. See COVERING, supra note 2, at 18. Yoshino, however, gives the term greater prominence and elaborates on its contemporary meaning.
8. COVERING, supra note 2, at ix.
9. In describing COVERING, I follow Yoshino's use of "gay" to mean "LGBT," or lesbian, gay, bisexual and transgendered. I nonetheless find the term "gay" troubling in that it reflects the tendency to assume that (typically white) gay men can represent or stand in for other queer people. For that reason, I also use the more inclusive term "queer" to refer to all non-heterosexuals. When I use the term "gay" and do not cite to Yoshino, I refer solely to gay men.
10. See COVERING, supra note 2, at 31-49.
11. See id. at 50-73.
12. See id. at 69-70.
13. I put the word "demand" in quotes throughout this Essay because I am critical of Yoshino's use of it, as I explain in Part III, infra.
14. See COVERING, supra note 2, at 76-79.
15. See id. at 78.
16. See id. at 79-82.
17. See id. at 82-85.
18. See id. at 87-88.
19. See id. at 89-91.
20. This is not to deny that some people of color have passed as white, see, e.g., Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709, 1710-14 (1993), but phenotypic constraints foreclose this as an option for most.
21. COVERING, supra note 2, at ix-x.
22. Id.
23. See id. at 111-41.
24. See id. at 154-58 (describing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). Yoshino also discusses a more recent related case brought by Darlene Jespersen, a bartender who, after being fired for refusing to wear makeup, lost her legal challenge in the Ninth Circuit.
25. Id. at 159-60;
26. see Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir, 2006) (en banc).
27. COVERING, supra note 2, at xi.
28. Id. at 23. Yoshino also briefly discusses people with disabilities and religious minorities.
29. See id. at 168-83.
30. I use the term "outsider" to refer to disadvantaged and subordinated social groups, including queer people, people of color, and women. I use "insider" to refer to relatively advantaged and powerful groups, including heterosexuals, white people, and men. Of course, a person may be an insider vis-à-vis one trail and an outsider vis-à-vis another.
31. COVERING, supra note 2, at ix.
32. Id.
33. Id. at 24-25.
34. Id. at 24-25, 186.
35. Id. at 25.
36. See id. at 183 ("Americans are already sick to death of identity politics; the courts are merely following suit").
37. Id. at 25.
38. Id.
39. Id. at 26.
40. See id. ("I do not argue categorically against assimilation.").
41. Id.
42. Id. at 26-27. Yoshino does make clear that one reason-animus-is never a legitimate reason to require assimilation.
43. See id. at 27.
44. Id. at 27.
45. See, e.g., id. at 55-61 (describing how Yoshino came out to his parents). After coming out, Yoshino says, "I felt cameras shifting, as if I were no longer the bit player in someone else's story, but finally the hero of my own."
46. Id. at 60.
47. See Russell K. Robinson, Perceptual Segregation, COLUM. L. REV. (forthcoming Spring 2008).
48. COVERING, supra note 2, at 24.
49. Id. ("Law is also an inadequate remedy because the covering demand extends beyond traditional civil rights groups.").
50. For instance, Yoshino has "relatively little interest in the law." Martha C. Nussbaum, The Prohibition Era, NEW REPUBLIC, Mar. 20 & 27, 2006, at 21, 26.
51. Yoshino defines "simple animus" as a belief that "one group is considered less worthy than another." COVERING, supra note 2, at 27.
52. Id. at 26.
53. See Kimberly A. Yuracko, Trait Discrimination as Race Discrimination: An Argument About Assimilation, 74 GEO. WASH. L. REV. 365, 390, 409-10 (2006) (suggesting that employers might attempt to invoke professionalism to justify excluding applicants wearing cornrows or blue hair).
54. See, e.g., COVERING, supra note 2, at 24 ("American equality law must be reformed to protect individuals against covering demands.").
55. See infra text accompanying notes 205-07 (discussing difficulty of determining what is "authentically black").
56. See infra Part II (describing norms of masculinity in gay male communities, norms which might not be known by many straight people).
57. See, e.g., Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259 (2000).
58. See RICHARD T. FORD, RACIAL CULTURE: A CRITIQUE 98-101 (2005) (critiquing Covering mide).
59. See also Richard T. Ford, Race as Culture? Why Not?, 47 UCLA L. REV. 1803, 1810 (2000) (warning of the possibility that "widespread rejection of the idea of legal protection for traits and behavior will poison the delicate but real consensus in favor of legal guarantees against overt status discrimination").
60. For instance, Yoshino's effort to "press us toward thinking of civil rights less in terms of groups than in terms of our common humanity" strikes me as a sound goal. COVERING, supra note 2, at 187.
61. See id. at ix-x (citing Martin Sheen, Ben Kingsley, Rosie O'Donnell, Mary Cheney, Margaret Thatcher, Kirk Douglas, Jerry Lewis, and President Franklin Delano Roosevelt as examples of people who have covered aspects of their identities).
62. Id. at 22;
63. see also id. at 27 ("In America today, all outsider groups are systematically asked to assimilate to mainstream norms in ways that burden our equality.").
64. See, e.g., id. at 177 ("Covering demands are the modern form of... subordination: racial minorities must 'act white' because of white supremacy, women must hide parenting responsibilities at work because of patriarchy, gays must hide displays of same-sex affection because of heteronormativity ....");
65. id. at 23 ("This covering demand is the civil rights issue of our time. It hurts not only our most vulnerable citizens but our most valuable commitments . . . [, including our] commitment against racism , ...").
66. Id. at 177.
67. The first 164 pages largely address queer people, people of color, and women. Pages 167 to 183 then briefly address people with disabilities and religious minorities.
68. COVERING, supra note 2, at ix.
69. Id. at 186.
70. Id.
71. Id. at 190; .
72. see also id. at 23 ("My commitment here is to authenticity, as experienced by the individual . . . .").
73. Id. at 190-91.
74. See id. at 146-47.
75. Having said that, growing up in Ohio, 1 was repeatedly expected by white peers to rap and play basketball. I doubt that my experience is wholly atypical.
76. Again, there is room for doubt here. The proliferation of media images highlighting flamboyant men, drag queens, and other stereotypical images - and the almost complete absence of masculine gay male characters - seems to reflect and cultivate (straight) public demand for certain stereotypical queer performances. Similarly, although lesbians are often stereotyped as either "lipstick" or "butch," the "lipstick" stereotype appears to predominate in media representations, such as The L Word, since it appeals to heterosexual male viewers.
77. Although these terms are useful heuristics, I recognize that they are artificial and reductive. I do not mean to reify the prevailing cultural notion that "black" equals "straight" and "gay" equals "white." See Devon W. Carbado, Black Rights, Gay Rights, Civil Rights, 47 UCLA L. REV. 1467 (2000).
78. For a more exhaustive list of "ghetto" behaviors, consult one of the many "You Might Be Ghetto If . . . " lists circulating on the Internet. See, e.g., Ghetto Fabulous, You Might Be Ghetto If ... , http://thrasher.www.50megs.com/ghetto.html (last visited on Apr. 21, 2007).
79. See Devon W. Carbado & Mitu Gulati, The Fifth Black Woman, 11 J. CONTEMP. LEGAL ISSUES 701, 717-19 (2001) [hereinafter Carbado & Gulati, The Fifth Black Woman] (noting that black employees may trigger stereotypes of insubordination by wearing dreadlocks and other Afrocentric grooming choices).
80. See, e.g., Heather M. Dalmage, Interracial Couples, Multiracial People, and the Color Line in Adoption, in ADOPTIVE FAMILIES IN A DIVERSE SOCIETY 210, 219 (Katarina Wegar ed., 2006).
81. See, e.g., Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139.
82. See Dwight A. McBride, Can the Queen Speak? Racial Essentialism, Sexuality, and the Problem of Authority, in BLACK MEN ON RACE, GENDER AND SEXUALITY: A CRITICAL READER 253 (Devon W. Carbado ed., 1999).
83. For a typical example of this view, which was promoted with the headline "Why Don't Our Black Men Want Us?", see Taigi Smith, Deadly Deception, ESSENCE, Aug. 2004, at 148. That these types of articles often use the term "our black men" is telling. They reflect a sense that the black community owns these men and has the right to exact certain duties from them, regardless of the costs to the individual.
84. Even people who are classified as white may have to negotiate racialized norms. A Jewish friend told me how he was teased for having "nappy" hair as a child and learned to cut his hair short to mitigate this perception. For an enlightening discussion of covering in the Jewish community, see Nussbaum, supra note 43, at 22, 24.
85. See, e.g., DWIGHT MCBRIDE, WHY I HATE ABERCROMBIE & FITCH 113-17 (2005) (surveying personal ads from one site);
86. COVERING, supra note 2, at 81 (noting ads commanding gay men to "Be straight acting").
87. On general norms of masculinity in personal ads, see Dan Savage, The Other Love That Dares Not Speak Its Name, in This American Life: Sissies (Public Radio International broadcast Dec. 13, 1996), available at http://www.thislife.org/Radio_Archive.aspx?year=1996.
88. See Stephen Ellingson & Kirby Schroeder, Race and the Construction of Same-Sex Sex Markets in Four Chicago Neighborhoods, in THE SEXUAL ORGANIZATION OF THE CITY 93, 96 (Edward O. Laumann et al. eds., 2004) ("Different components of gay culture - from the social rituals of cruising and the use of clothing and mannerisms to signal availability, to definitions of masculinity (e.g., the clone of the 1970s or the muscular or 'cut' body of the 1990s), to a rich literature of fictional and nonfictional works on what it means to be homosexual - sanction and celebrate a transactional orientation toward sexual partnering,").
89. See, e.g., DAVID NIMMONS, THE SOUL BENEATH THE SKIN: THE UNSEEN HEARTS AND HABITS OF GAY MEN 82-90 (2002) (arguing that most gay relationships are not monogamous and are thus healthier). Yoshino indicates that he may be sympathetic to this view.
90. See Yoshino, supra note 1, at 846-47 (suggesting that promiscuity is part of gay identity);
91. cf. COVERING, supra note 2, at 83 (recounting a story of a gay man who took his mother to Fire Island in New York to introduce her to his "culture of sex and camp and whimsy" and "naked torsos shining with their business").
92. If it is true that twice as many gay men as straight men are celibate, as one study indicates, see NIMMONS, supra note 77, at 81, then there is a sizable chunk of the gay community (twenty-four percent, according to the study) that is clearly falling short of this hypersexual gay ideal.
93. MCBRIDE, supra note 74, at 88.
94. See id. at 125 (describing the central organizing rule of the dominant gay marketplace of desire as the supremacy of whiteness-"Whites know they have it, others know they will never have it, and virtually everyone wants it");
95. see also Ellingson & Schroeder, supra note 76, at 94 (finding that whiteness determines sexual opportunity in Chicago communities).
96. See MCBRIDE, supra note 74, at 123 (describing the "racial pandering game-cultivating a certain affect, dressing in a certain way, talking differently when necessary").
97. Cf. FORD, supra note 51, at 65 ("[Gay] men may well conform in order to get along in the social milieu that offers them social support in a homophobic society and the best prospects of getting laid.").
98. In general, Yoshino's treatment of race in the book seems incomplete. When he describes covering in the gay community, it is as if race drops out of the picture. Moreover, the book's failure to explore the massive governmental effort to coerce Native Americans to assimilate to white norms is another missed opportunity. See generally ROBERT CLINTON ET AL., AMERICAN INDIAN LAW: NATIVE NATIONS AND THE FEDERAL SYSTEM 30-36 (4th ed. 2003).
99. MCBRIDE, supra note 74, at 88.
100. The insertion of the word "Gay" is my clarification of McBride's quote; see also URVASHI VAID, VIRTUAL EQUALITY: THE MAINSTREAMING OF GAY AND LESBIAN LIBERATION 274-76 (1995) (recounting the racism and sexism the author faced as head of an LGBT organization because she was not the expected "nice white man with a cute ass"),
101. This conflation of conduct and identity tends to obscure the fact that there are many people who engage in same-sex conduct but see little value in gay culture, and there are even people who strongly identify with gay culture but lack sexual desire for people of the same sex. Moreover, among those who reject the label of "gay" are (1) men who identify as bisexual; (2) men who have relationships with women and men but keep the latter secret (if such men are black, they are said to be on the "down low;" if they are white, like the romantic leads of Brokeback Mountain, they are more likely to be seen as victims of the closet); and (3) men of color who openly acknowledge their relationships with men but endorse labels such as "same gender loving" because of the whiteness implied by the term "gay." These men may be motivated by very different reasons, some of which are legitimate, but oversimplified identity narratives suggest that they are running away from their "true" identities, cf. Benedict Carey, Straight, Gay or Lying? Bisexuality Revisited, N.Y. TIMES, July 5, 2005, at Fl (describing a study suggesting that bisexuality in men does not exist);
102. Yoshino, supra note 1, at 845 (suggesting that "straight-culture focused" gays are covering).
103. Like Yoshino, I do not think that all pressure to assimilate is illegitimate. It is hard to imagine how coherent social groups could exist without the transmission of social norms and the disapproval of those who transgress them.
104. See, e.g.. COVERING, supra note 2, at 81 (discussing gay "demands" for masculinity);
105. id. at 147 (discussing African-American "demands" for "acting black").
106. Yoshino relates his experiences with racial covering and reverse covering primarily in discussing coming out to his parents and in the chapter called "Racial Covering." See id. at 55-61, 113-41.
107. See FORD, supra note 51, at 64-65 ("External definition comes from everywhere: our families, friends, spouses and romantic partners have expectations that are as powerful and prescriptive as those of any boss or coworker.").
108. COVERING, supra note 2, at 190-91 ;
109. see also id. at 93.
110. See supra p. 1819.
111. Cf. COVERING, supra note 2, at 17 (stating that having to engage in "'straight-acting' behavior" did not bother Yoshino because "much of [it] felt natural to [him]").
112. The doo rag is a "simple piece of cloth tied at the back, used to cover the head," which was initially associated with African-American men. Do-rag, in WIKIPEDLA, http://en.wikipedia.org/wiki/Durag (last visited on Apr. 21, 2007).
113. See RANDALL KENNEDY, SELLOUT: THE POLITICS OF RACIAL BETRAYAL (forthcoming 2008).
114. Although whites have occasionally questioned my blackness, I have found such attacks to be easier to brush off because whites lack racial standing in this regard.
115. Because I grew up as the child of a doctor in a mostly white suburb, I might be especially sensitive to charges of "selling out," unlike, say, a black person who grew up in the inner city. This demonstrates that even within an outsider group, people will disagree as to which norms are viewed as most oppressive.
116. See Nussbaum, supra note 43, at 26 (finding it odd that "a book by a law professor. . . seems to have relatively little interest in the law").
117. COVERING, supra note 2, at 26-27.
118. Nussbaum, supra note 43, at 27.
119. COVERING, supra note 2, at 26-27.
120. See Id. at 183 ("I believe we should adopt a group-based accommodation model to protect traditional civil rights groups from covering demands. I believe with equal conviction, however, that courts are unlikely to adopt this course.");
121. id. at 191 ("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.").
122. See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1242-43 (1991) (discussing emergence of identity-based political organizing and the criticism that it reinforces differences rather than transcending them).
123. COVERING, supra note 2, at 183.
124. 539 U.S. 558 (2003).
125. 541 U.S. 509 (2004).
126. See, e.g., Lawrence, 539 U.S. at 564 ("We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.").
127. At the outset of the Court's opinion, it said: "The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct." Id. at 562. The Texas statute applied only to a person who "engage[d] in deviate sexual intercourse with another individual of the same sex."
128. Id. at 563. At the time of the decision, thirteen states criminalized sodomy, but four of those thirteen states criminalized only same-sex sodomy.
129. See id. at 573. The Lawrence decision suggested that all of these laws are invalid.
130. 478 U.S. 186(1986), overruled by Lawrence, 539 U.S. at 578.
131. 541 U.S. at 523.
132. See Yoshino, supra note 1, at 931 (stating that his willingness to acknowledge the covering of insiders "differs according to whether I am thinking about a legal context or a broader social one");
133. Kenji Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 COLUM. L. REV. 1753 (1996). Yoshino's Assimilationist Bias article suggested refining the test for heightened judicial scrutiny by jettisoning the flawed and widely criticized immutability/visibility factor and homing in on the political powerlessness factor.
134. See Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell, " 108 YALE L.J. 485, 563-68 (1998) [hereinafter Yoshino, Assimilationist Bias].
135. Yoshino rejected an unthinking "animus" toward efforts to expand judicial protection to classes beyond race and sex, but he did not commit to giving such an extension to any group other than gays, See id. at 568 (voicing no objection to "disenfranchised prisoners, the illiterate, or the mentally disabled" securing protected status if they can make their case under his proposed standard).
136. See Yoshino, Assimilationist Bias, supra note 110, at 564-65.
137. See id. at 564.
138. See id. ("Groups such as whites, men, and the legitimate would all be denied heightened scrutiny."). Although Yoshino warned that he had not worked out the specifics of his proposed test and "set it forth only in its broadest outlines," he indicated no ambivalence regarding his suggestion that whites and men be denied the protections of heightened scrutiny.
139. Id.
140. COVERING, supra note 2, at 25.
141. Id.
142. Id. Given the continuing lack of progress on many basic civil rights issues, one could take Yoshino to task for blaming the civil rights movement for not using its sparse resources to advocate for straight white men.
143. See id. at 184-86 (citing work of D.W. Winnicott).
144. See id. at 186.
145. Gary Blasi, Jerry Kang, Linda Krieger, and others have made critical contributions to the legal literature. See, e.g., Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. REV. 1241 (2002);
146. Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005);
147. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995);
148. see also John F. Dovidio & Samuel L. Gaertner, Aversive Racism, 36 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 1 (2004) (summarizing psychological studies on implicit bias). Charles Lawrence wrote an early influential article which drew on a different body of psychological scholarship.
149. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987). Jerry Kang provides this explanation of the IAT;
150. The IAT examines how tightly any two concepts are associated with each other. In a typical experiment, two racial categories are compared, say "Black" and "White." Next, two sets of stimuli (words or images) that correspond to the racial meanings (stereotypes or attitudes) associated with those categories are selected. For example, words such as "violent" and "lazy" are chosen for Blacks, and "smart" and "kind" for Whites. Participants are shown a Black or White face and told to hit as fast as possible a key on the left or right side of the keyboard. They are also shown words stereotypically associated with Blacks or Whites and again told to hit a key on the left or right side of the keyboard. In half the runs, the Black face and Black-associated word are assigned to the same side of the keyboard (schema-consistent arrangement). In the other half, they are assigned opposite sides (schema-inconsistent arrangement). The same goes for the White face/White-associated stimulus combination. Tasks in the schema-consistent arrangement should be easier, and so it is for most of us. How much easier-as measured by the time differential between the two arrangements-provides a measure of implicit bias. Kang, supra, at 1510 (emphasis omitted; citation omitted);
151. see generally Project Implicit, https://implicit.harvard.edu/ implicit/ (last visited Apr. 16, 2007).
152. Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CAL. L. REV. 945, 958 (2006);
153. see also Leslie Ashbum-Nardo et al., Black Americans' Implicit Racial Associations and Their Implications for Intergroup Judgment, 21 SOC. COGNITION 61, 61 (2003).
154. See Greenwald & Krieger, supra note 120, at 956.
155. See, e.g., David J. Allen & Terry Oleson, Shame and Internalized Homophobia in Gay Men, 37 J. HOMOSEXUALITY 33 (1999);
156. Edward Lafontaine, Forms of False Consciousness Among Professional Women, 10 HUMBOLDT J. SOC. REL. 26, 32 (1983) (finding that sixty-eight percent of ninety-five professional women who were surveyed made a response either denying or misunderstanding existence of gender discrimination);
157. Helen A. Neville et al., Color-Blind Racial Ideology and Psychological False Consciousness Among African Americans, 31 J. BLACK PSYCHOL. 27, 30 (2005) (arguing that some African-Americans adopt a color-blind framework that undermines their interests).
158. See Gary Blasi & John T. Jost, System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, 94 CAL. L. REV. 1119, 1128-29 (2006)
159. (citing John T. Jost & Mahzarin R. Banaji, The Role of Stereotyping in System Justification and the Production of False Consciousness, 33 BRIT. J. SOC. PSYCHOL. 1 (1994)).
160. See id.
161. See id. at 1130 ("[Especially stark forms of inequality can create a discrepancy between the need to justify the system and the need to feel good about oneself and one's fellow group members.").
162. See id. Examples of justifications by professional women who responded to one survey included declarations that discrimination no longer exists because "[i]t's against the law," that "[a] lot of women are treated unfairly because they ask for it," and that women could evade discrimination if they just became "one of the boys."
163. Lafontaine, supra note 122, at 33, 34, 36.
164. See Blasi & Jost, supra note 123, at 1130.
165. Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2420 (1994) [hereinafter Sunstein, Anticaste Principle];
166. Cass R. Sunstein, Social Norms and Social Roles, in CHICAGO LECTURES IN LAW AND ECONOMICS 154-57 (Eric A. Posner ed., 2000);
167. see also Russell K. Robinson, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, 95 CAL. L. REV. 1, 63-64 (2007).
168. See Sunstein, Anticaste Principle, supra note 128, at 2420;
169. see also FORD, supra note 51, at 62-63 (describing the process whereby society inscribes gender roles upon people who eventually come to espouse them as natural).
170. To learn more about the show and see photos of the racially disguised characters, see FX Networks, Black.White., http://www.fxnetworks.com/shows/ originals/blackwhite/main.html (last visited Apr. 19, 2007).
171. Such marriages are named after Brokeback Mountain, the Oscar-nominated 2005 film about a romance between two men who were married to women.
172. See Katy Butler, Many Couples Must Negotiate Terms of 'Brokeback' Marriages, N.Y. TIMES, Mar. 7, 2006, at F5.
173. See id. at F7.
174. Id.
175. Id.
176. See id. Beyond sexual orientation, some interracial mating preferences may reflect social conditioning. Consider the following examples from an article on interracial dating. "I'm just not attracted to Asian guys,' says Reesa, a 32-year-old Filipin[a] American who lives in Northern California. 'I don't know why. I just never have been. I've just always dated white or European guys.'" Tony, a Japanese-American man interviewed for the same article, says: '"I've never been attracted to Asian women .... My type is a blonde-haired girl.... Blondes have caught my eye for some reason.'" Dating Outside the Color Lines, AUDREY: ASIAN WOMEN'S MAGAZINE, Aug.-Sept. 2005, http://www.audreymagazine.com/Sep2005/Features03.asp, 2-3 (last visited Apr. 19, 2007). Although the racialization of sexuality shapes dating and mating patterns in the aggregate, it cannot be assumed that any particular interracial couple was inspired by these social forces.
177. See Eric Gorski, Haggard Says He's Not Gay, DENVER POST, Feb. 6, 2007, at A1.
178. See Yoshino, supra note 1, at 911.
179. Id. (emphasis added).
180. Id. at 912.
181. Id. at 911.
182. Cf. id. at 927 ("Gay individuals must first struggle to be gay against the demand to convert. After they accept themselves as gay, they must resist the demand to pass. Finally, even after coming out, gays must grapple with the demand to cover.").
183. See FORD, supra note 51, at 64 ("[W]e can't assume that the identity that an individual brings from home is a product of freedom; in fact we can be pretty sure that it isn't.").
184. See COVERING, supra note 2, at ix.
185. 145' See id. at x. Of course, the brothers likely considered more than race or ethnicity in deciding whether to use the "Sheen" name. Identifying as Martin Sheen's son may have opened doors for Charlie that were not open to Emilio.
186. Id.
187. The two brothers look similar. They are three years apart in age, and both could pass for white. They both attained mainstream success in the mid-1980s. Compare Charlie Sheen, Internet Movie Database, http://imdb.com/name/nm0000221 (last visited June 23, 2007) (Charlie Sheen's career biography), with Emilio Estévez, Internet Movie Database, http://imdb.com/name/nm0000389/ (last visited June 23, 2007) (Emilio Estévez's career biography).
188. COVERING, supra note 2, at 192-93. Late in the book, Yoshino acknowledges that covering "demands" come not just from the state, employers, and strangers but also from "my own internal censor." Id.; see also id. at 82 ("Like many covering demands, this voice was internal - no colleague ever imposed it on me."). Although Yoshino fleetingly acknowledges self-covering, he fails to analyze it.
189. Yoshino, by contrast, uses the word "hidden" to signify that the "assault on our civil rights ... has swaddled itself in the benign language of assimilation." Id. at xi.
190. See infra note 153 and surrounding text.
191. See, e.g., COVERING, supra note 2, at 131 (discussing Rogers v. American Airlines, 527 F. Supp. 229 (S.D.N.Y. 1981)).
192. I do not mean to suggest that simply because a norm is unarticulated it is not real or is not rigid. Certain norms are deeply entrenched, even as they are rarely articulated, such as the social expectation that employees wear clothes to work.
193. Id. at 17 (internal quotation marks omitted).
194. Yoshino notes that an unspecified number of colleagues "echoed the sentiment in less elegant formulations," but he also describes his law school as a "vigorously progay environment." Id. These statements reveal the complexity of detecting a norm when people within an organization hold very different attitudes.
195. It is possible that Yoshino had a harder time securing tenure and had to engage in significant identity work because he refused to "cover" his interest in sexual orientation, but his book does not suggest this, Yoshino does not discuss any costs of not covering his true scholarly interests, In any event, I do not mean to suggest that ultimate success (e.g., obtaining tenure) necessarily implies that there was no covering "demand" - it might instead be that the outsider successfully negotiated the norm, but at significant personal cost.
196. See, e.g.. Jia-Rui Chong, Beauty and the Bleach, L.A. TIMES, July 26, 2005, at A1 (reporting that some Asian women in Southern California don umbrellas, wear "special 'UV gloves" and "wraparound visors that resemble welder's masks" in order to preserve pale skin complexions); id. at A13 (describing how one woman, Theresa Lin-Cheng, endured various cosmetic procedures to try to look as white as her "idol," Nicole Kidman); Thomas Fuller, A Vision of Pale Beauty Carries Risks for Asia's Women, N.Y. TIMES, May 14, 2006, at 3 (reporting authorities' concern about popularity of illegal and potentially dangerous skin bleaching agents across the Asia-Pacific region); Lisa Jervis, My Jewish Nose, in BODY OUTLAWS: REWRITING THE RULES OF BEAUTY AND BODY IMAGE 63, 64 (Ophira Edut ed., 2003) (discussing Jewish women whose families "coerced and shamed" them into having nose jobs).
197. See, e.g., Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 383-84 (discussing pressure on black women to "comply with the tastes or preferences of others" in styling their hair).
198. Cf. id. at 384 (describing the political significance of the Afro).
199. Yoshino also uses the idea of a "demand" to try to escape the serious problem of essentializing or stereotyping identity. When people object that his theory will lead to scrutinizing anyone who does not "flaunt" their identity and accusing them of covering, he responds that "I am much more likely to contest a covering demand by a homophobe than a covering performance by a gay individual . . . ." COVERING, supra note 2, at 92. Since there will rarely be something concrete enough to be called a "demand," this approach would leave most covering uncontested.
200. See Carbado, supra note 66, at 1501-07.
201. See, e.g., Allen & Oleson, supra note 122, at 34 ("Internalized homophobia has been seen as the most important roadblock to the adjustment to a positive homosexual identity.").
202. See Carbado & Gulati, supra note 50, at 1294.
203. See COVERING, supra note 2, at 60.
204. See Carbado & Gulati, supra note 50; Yoshino, supra note 1; see also Devon W. Carbado & Mitu Gulati, Conversations at Work, 79 OR. L. REV. 103 (2000) [hereinafter Carbado & Gulati, Conversations]; Carbado & Gulati, The Fifth Black Woman, supra note 68.
205. See, e.g., Tristin K. Green, Work Culture and Discrimination, 93 CAL. L. REV. 625, 651 n.109, 652-53, 666 n.177 (2005); Angela Onwuachi-Willig, Undercover Other, 94 CAL. L. REV. 873, 883-85 (2006).
206. They explain at the outset that "[t]he primary project of this Article is to flesh out the kinds of work outsiders often feel pressured to do because of negative assumptions about their identities." Carbado & Gulati, supra note 50, at 1262.
207. See id. at 1270-71.
208. See. e.g., Carbado & Gulati, The Fifth Black Woman, supra note 68, at 725.
209. Carbado & Gulati, Conversations, supra note 164, at 110-12 (discussing ways in which employers consciously and unconsciously exploit outsiders' vulnerabilities); see, e.g., id. at 109 ("[A]n employee's sense of constraint vis-à-vis her workplace conversations is likely to be a function of the stereotypes she perceives as applying to her.").
210. Outsiders may find, by contrast, that the discrimination at work follows them home. See generally Zachary A. Kramer, After Work, 95 CAL. L. REV. 627 (2007) (discussing spillover effects of discrimination on home life).
211. See Carbado & Gulati, supra note 50, at 1276-77.
212. Id. at 1277.
213. See id. at 1277-78 (discussing a hypothetical Asian-American law professor who avoids commenting on sensitive racial issues, such as diversity in hiring, and in so doing is perceived as passive and timid).
214. See generally Gowri Ramachandran, Intersectionality as "Catch 22:" Why Identity Performance Demands Are Neither Harmless Nor Reasonable, 69 ALB. L. REV. 299 (2005).
215. See Carbado & Gulati, supra note 50, at 1291 ("[T]he outsider not only has to perform, but she has to perform well."); id. at 1300 ("Performing one's outsider status in a way that satisfies requires care. As with acting, the ability to negotiate different institutional cultures takes skill."). As the discussion in Part II suggests, outsider employees must cope with expectations from other outsiders, as well as from insiders at times, that they emphasize their outsider identities. For instance, a law firm might simultaneously expect the black associate not to lunch primarily with other blacks in the workplace and yet to mentor more junior black associates, as well as be photographed for the law firm's promotional materials and speak at recruiting events in order to demonstrate the firm's commitment to diversity.
216. Although the famous example of such an employee is Ann Hopkins, the plaintiff in the Price Waterhouse gender stereotyping case, Hopkins likely represents many more outsider employees who failed to walk the tightrope of identity expectations in their workplaces. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). For an explanation of how outsiders who rise to the top of organizations are likely to be adept at negotiating these pressures, see Devon W. Carbado & Mitu Gulati, Race to the Top of the Corporate Ladder: What Minorities Do When They Get There, 61 WASH. & LEE L. REV. 1645 (2004).
217. See Carbado & Gulati, supra note 50, at 1277; see also id. at 1288-89 ("Beyond a certain point, an outsider's efforts to make insiders feel comfortable can translate into a denial of the outsider's self, or at least the outsider's idealized sense of self."), Carbado and Gulati distinguish between two conceptions of identity, although they recognize that the conceptions are interrelated: "[(1)] 'sense of self identity (how we define and perceive ourselves) and [(2)] 'attributal' identity (how others define and perceive us)." Id. at 1261 n.2.
218. Id. at 1289.
219. See id. at 1295-96.
220. See id. at 1290-91; id. at 1296 ("Racial comfort strategies make white people comfortable because the corollary of racial comfort is deracialization.").
221. Yoshino's Covering article touched on the workload concerns. See Yoshino, supra note 1, at 885-86.
222. See, e.g., COVERING, supra note 2, at 177 ("Covering demands are the modern form of [] subordination: racial minorities must 'act white' because of white supremacy, women must hide parenting responsibilities at work because of patriarchy, gays must hide displays of same-sex affection because of heteronormativity .. ..").
223. See Yoshino, supra note 1, at 931 ("I believe that what makes covering on the basis of race, sex, or orientation different from many other forms of covering is that Americans - as a matter of popular legislation or articulated constitutional principle or both - have enumerateo or begun to enumerate these axes as being of special legal concern.").
224. See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996) (stating that government may not rely on "overbroad generalizations about the different talents, capacities, or preferences of males and females"); Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1999).
225. See, e.g., Price Waterhouse, 490 U.S. at 250-51.
226. The fact that the law does not regulate these contexts certainly does not suggest that discriminatory acts in these contexts do not inflict harms. Society has made the judgment, in some cases, that the harms are lesser than those inflicted by discrimination that is regulated, or at least that the competing interests in privacy and liberty counterbalance the harms.
227. See Carbado & Gulati, supra note 50, at 1289.
228. See id.
229. Id. at 1289-90 (internal citations omitted). The term "Sapphire," which originated from a character in the Amos 'n ' Andy television show, has been used to invoke a "tough, domineering, emasculating, strident, and shrill" black woman. See Regina Austin, Sapphire Bound!, 1989 WIS. L. REV. 539, 539-40.
230. I do not mean to suggest that work is the only realm where social norms can be overly coercive. Parents and spouses, for example, may exert undue influence as well. See FORD, supra note 51, at 64.
231. COVERING, supra note 2, at ix.
232. See Carbado & Gulati, supra note 50, at 1261 n.2; see also id. at 1308 n.132.
233. See id. at 1261 n.2, 1308 n.132.
234. Id. at 1308 n.132.
235. COVERING, supra note 2, at 24.
236. Id. at 25.
237. See Yoshino, supra note 1, at 931 ("I believe that what makes covering on the basis of race, sex, or orientation different from many other forms of covering is that Americans - as a matter of popular legislation or articulated constitutional principle or both - have enumerated or begun to enumerate these axes as being of special legal concern.").
238. See Carbado & Gulati, supra note 50, at 1302 n.132 ("[O]ur answer is typically that the amount of extra work is likely to be a function of the type of stereotypes at play[,] . . . [and] the extra identity work that outsiders do is substantial.").
239. Cf. FORD, supra note 51, at 138-39 (distinguishing systemic discrimination from unjust treatment that is "sporadic, episodic or individualized"). I acknowledge that in rare cases men are faced with sexual harassment by both women and other men, see, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), but this risk pales in comparison to the likelihood that a woman will face harassment.
240. COVERING, supra note 2, at 24-25.
241. Carbado & Gulati, supra note 50, at 1307.
242. See id. at 1308 n.132 (drawing an analogy to the "bitter complaints that are often made by insiders about the burdens and constraining effects of sexual harassment laws and 'PC-ness' - that both over-regulate and constrain their workplace interactions; both prevent them from being who they are and saying what they would like. The burdens and constraints that women and minorities face on a daily basis are akin to those, except magnified many times over.").
243. See, e.g., Carbado & Gulati, Conversations, supra note 164, at 131-34 (distinguishing the impact of workplace dynamics on outsiders from that affecting insiders).
244. For instance, the content and likely the number of racial stereotypes about white men differ. Moreover, the white professor would have a much easier time leaving his employment and finding a comparable position in a predominantly white setting. The black professor's options for comparable work in a black setting would be more sharply circumscribed.
245. See, e.g., Ford, supra note 51, at 1810 (warning of possibility that "widespread rejection of the idea of legal protection for traits and behavior will poison the delicate but real consensus in favor of legal guarantees against overt status discrimination").
246. See id. at 1810-11.
247. See FORD, supra note 51, at 74-77 (critiquing Regina Austin's critique of Chambers v. Omaha Girls Club, 834 F.2d 697, 704 (8th Cir. 1987)). Consider, for example, Justice Brennan's disturbing, if well-intended, claim that the use of profanity is part of black culture and thus not considered obscene by black people. See FCC v. Pacifica, 438 U.S. 726, 776 (1978) (Brennan, J., dissenting); see also COVERING, supra note 2, at 83-85 (suggesting that Fire Island, New York represents authentic gay culture); Yoshino, supra note 1, at 845-47 (suggesting that the notion of gay identity includes promiscuity, allying with other sexual '"deviants'" such as pedophiles, and "gay drugs").
248. See Ford, supra note 51, at 1810-11. But see Leti Volpp, Righting Wrongs, 47 UCLA L. REV. 1815 (2000) (characterizing as overstated Ford's claim that protecting outsider identity-related traits creates a slippery slope, arguing instead that judges are already defining race and gender and that failing to protect traits would leave much discrimination without a remedy); Kimberly A. Yuracko, Trait Discrimination as Race Discrimination: An Argument About Assimilation, 74 GEO. WASH. L. REV. 365 (2006) (providing a doctrinal framework for redressing the harms of trait discrimination but responding to Ford's concerns). As my discussion in Part II suggests, I am sympathetic to Ford's concerns about regulating the identity of individual outsiders and requiring them to adhere to particular conceptions of "authenticity."
249. COVERING, supra note 2, at 24-25; id. at 190 ("[T]he True Self is not susceptible to specific definition, as its nature differs for each of us.").
250. Cf. K. Anthony Appiah, Stereotypes and the Shaping of Identity, in ROBERT POST ET AL., PREJUDICIAL APPEARANCES: THE LOGIC OF AMERICAN ANTIDISCRIMINATION LAW 61 (2001) ("It would be a mistake to allow the centrality of a project to my individuality by itself to trump your interests in such cases: Do we want the centrality of anti-Semitic hatred to my life to entitle me to keep Jews out of my hotel, for example?"). The inclusion of racial epithets is my addition to the hypothetical. Although Yoshino states that the man is "angry" and hostile to Yoshino's ideas, he does not expressly state that he is racist.
251. Yoshino states that animus is never a legitimate reason to require assimilation See COVERING, supra note 2, at 27.
252. Cf. Nussbaum, supra note 43, at 25 (stating that Yoshino and Winnicott's conception of the "True Self is "vague and amorphous").
253. The "angry straight white man" could not plausibly argue that his use of racial epithets is necessary to rebut a racial stereotype.
254. See Carbado & Gulati, supra note 50, at 1306 (discussing briefly "selling out" and "buying back").