Excerpted From: Devon W. Carbado, Black Rights, Gay Rights, Civil Rights, 47 UCLA Law Review 1467 (August, 2000) (206 Footnotes) (Full Document Requested)


DevonCarbadoIn the context of the “Don't Ask, Don't Tell” controversy, some gay rights proponents argued that the military's historical discriminatory policies against blacks are like the military's current discriminatory policies against gays and lesbians. They insisted that the rhetoric the military employed to justify and legitimize the politics of racial segregation in the armed forces is the same as the rhetoric the military employs today to justify and legitimize the politics of “the closet” in the armed forces.

Several black antiracist proponents who joined the public debates about “Don't Ask, Don't Tell” challenged these black/gay analogies. Specifically, they argued that blacks are not like gays; therefore, the military's discrimination against blacks is not the same as the military's discrimination against gays and lesbians. This Article argues that the pro-gay rights employment of, and the responses of black antiracists to race/sexual orientation analogies marginalized black gays and lesbians. Both the deployment of the analogies and the antiracist responses privileged white homosexuality and black heterosexuality. Throughout the debates about “Don't Ask, Don't Tell,” black identity was represented as heterosexual and gay identity was represented as white.

The invisibility of black gays and lesbians in both gay rights and black antiracist discourses about “Don't Ask, Don't Tell,” raises serious questions about the legitimacy of civil rights agendas that fail to address intragroup differences. Not all black people are straight. Not all gay people are white. Both of these points seem obvious enough. Yet, black antiracism and white gay and lesbian civil rights advocacy continues to reflect essentialized notions of black and gay identity. This essentialism reifies the idea that, in fashioning a civil rights agenda, all of the black people (who matter) are straight and all of the gay people (who matter) are white. This Article challenges this essentialism. It constitutes an antihomophobic intervention into black civil rights advocacy and an antiracist intervention into gay rights advocacy. These interventions highlight what I call the politics of intracommunity differences --the political ways in which differences within a specific identity community are negotiated, politically expressed, and represented in the community's civil rights agenda.

There are several questions one might raise with respect to intracommunity differences. To what extent do such differences render the community politically or ontologically unmanageable? Does the negotiation of these differences systematically privilege the victim status of community members with particular identitities? Do certain kinds of differences operate to disqualify individuals from membership in the community or to diminish their civil rights standing? This Article does not give full treatment to all of these questions. I have explored some of them more fully elsewhere. My aim here is more limited: (1) to complicate the ways in which we conceptualize and articulate identity and identity-based communities and (2) to suggest that how we conceive of identity and identity-based communities both structures and determines how we perform civil rights work. I pursue both aims within a specific political and antidiscrimination context: gay rights and black antiracist debates about the military's “Don't Ask, Don't Tell” policy.

Part I situates black antiracist responses to race/sexual orientation analogies in the context of a broader discussion about the ways in which some black antiracist practices--politics and civil rights engagements--normalize heterosexuality. This normalization is reflected in two interrelated, though analytically distinct, arguments about the negative relationship between black identity and homosexuality: (1) Black identity requires heterosexuality--in other words, homosexuality is fundamentally unblack; and (2) Blackness and homosexuality are different--the former is biologically determined identity, the latter is a freely chosen lifestyle. These arguments did not occupy the same political or rhetorical space in the antiracist discourse about “Don't Ask, Don't Tell.” In fact, the notion that homosexuality is fundamentally unblack was rarely publicly articulated. But both arguments feed on each other politically. That is to say, each exists in a discursive field that makes the other possible. Thus, it is difficult to understand the vigor with which some antiracist proponents opposed race/sexual orientation analogies without having a broader understanding of how homosexuality is obscured, denied, and pathologized in some black antiracist discourses.

Part II shifts the analysis from black antiracist politics to white gay and lesbian civil rights activism. Here, I lay out and critique the race/sexual orientation analogies some gay rights proponents deployed to challenge the military's sexual orientation discrimination. In the context of this discussion, I advance two broad claims: (1) The analogies privileged white gay and lesbian identities, and they marginalized black gay and lesbian identities; and (2) The rhetorical force of the analogies derived, in part, from the ahistorical and essentialized ways in which gay rights proponents misrepresented black identity and gay and lesbian identities.

Part III focuses on a specific aspect of the gay and lesbian civil rights strategy: the representation of gay and lesbian victimization. It argues that gay rights challenges to the “Don't Ask, Don't Tell” policy created the misimpression that, with respect to a civil rights agenda, all of the gay and lesbian people who matter are white. In part, this impression was fostered by the fact that the gay rights advocates' representative gay man, the person they presented as the icon of gay victimization, was white. The strategy was to present a “but for” gay man--a man, who, but for his sexual orientation, was just like everybody else, that is, just like every other white heterosexual person. Moreover, to the extent that lesbians were featured in the gay rights discourse, they, too, were white. Notwithstanding that Perry Watkins, a black army sergeant, was the first openly gay serviceman to challenge successfully the military's discriminatory policies against gays and lesbians, gay rights activists did not, according to Watkins, solicit his participation. Nor did they meaningfully incorporate his story into their platform. Indeed, throughout much of the controversy about the “Don't Ask, Don't Tell” policy, Perry Watkins was invisibly out of the closet.

[. . .]

The starting point for this Article was the observation that how we conceptualize identity informs how we perform civil rights activism. For example, if black identity is conceptualized as male and heterosexual, or if male heterosexuality operates as a default subject position, civil rights efforts ostensibly on the behalf of the entire black community will privilege the victim status of black heterosexual men. Similarly, if homosexuality is conceptualized as white and male, or if white homosexuality operates as a default subject position, white gay male experiences will overdetermine the substance of civil rights efforts ostensibly on behalf of the entire gay community. Thus, civil rights proponents need to think carefully about not only how they conceptualize identity but also, correlatively, about how they define identity-based communities. More specifically, civil rights proponents need to account for and give content to identity multiplicity.

Yet, there are barriers to taking identity multiplicity seriously, not the least of which is current antidiscrimination law. Plaintiffs today have a hard time bringing compound discrimination claims--claims based on more than one aspect of a person's identity, for example, the fact that a person is black and female and lesbian. For one thing, certain identity categories (like sexual orientation) are unprotected under antidiscrimination law. For another, even to the extent that courts recognize compound discrimination, they employ a narrow framework to adjudicate the claim. Consider, for example, the sex plus framework. Under this framework, a plaintiff is permitted to assert that she was discriminated against based on her sex plus only one other protected identity category. To the extent that compound discrimination claims are not cognizable, are restricted, or are difficult to establish, there is no strong incentive for lawyers bringing civil rights actions to interpret the facts of a particular discrimination case as arising-- coconstitutively more than one identity category.

But not all civil rights engagements are court centered. Indeed, many of our most controversial contestations over equality take the form of public discourse--for example, press conferences, rallies, or marches. Whenever this is the case, there is an opportunity for civil rights proponents to educate the public about identity multiplicity and its relevance to civil rights advocacy. In this sense, black antiracist and pro-gay rights contributions to the debates about “Don't Ask, Don't Tell” reflected a failure on the part of both civil rights communities to complicate public conversations about identity and equality.

Complicating black identity does not, of course, require that in every context blackness be articulated with gender and sexual orientation specificity. Sometimes it is meaningful and politically useful to speak of the black community as such without further particularity, even if the term “the black community” always already presumes too much. Nor does the complication of gay identity require, in every context, that homosexuality be articulated with gender and racial specificity. Sometimes it is meaningful and politically useful to speak of the gay community as such without further particularity, even if the term the “gay community” always already presumes too much. What I am critiquing, then, is the discursive rendering of identity and community--the mobilization of terms like “black” and “gay” and “black community” and “gay community”--politically to authenticate, and thus privilege, certain identities and to inauthenticate, and thus marginalize, others. In the context of the “Don't Ask, Don't Tell” controversy, the politics of authenticity operated to exclude the identities and thus experiences of black gays and lesbians from black antiracist and gay rights agendas. Consequently, throughout the debates about “Don't Ask, Don't Tell,” black gays and lesbians were invisibly out.

Acting Professor, UCLA School of Law. B.A., 1991, UCLA; J.D., 1994, Harvard Law School.