The era of civil rights law is over. The innovation of Thurgood Marshall, the fire of Clarence Darrow, and the perseverance of Julius Chambers are long past. Echoes of their arguments and of their passion can be heard occasionally in the rhetoric of politicians who try to evoke the ethos of these men, but all those efforts produce are worn slogans and a whiff of nostalgia. Current civil rights scholarship builds off of the foundation that was laid in that era, but attempts to recreate that fervor of invention often end up treading the same, tired ground.
For those reasons, Kenji Yoshino’s new book, Covering: The Hidden Assault on Our Civil Rights (Random House, 2006) comes like a bolt from the blue. His manifesto—for that is what it is—does not follow the familiar path of most current civil rights scholarship by building arguments off of a framework built thirty years ago. Instead, it carves out a new battlefield for civil rights legislation by focusing on the societal and legal pressure on minority individuals to “cover” their differences in front of others.
Say, for example, a black, gay lawyer is fired from his job after ten years of loyal service. According to traditional civil rights precedent, if this decision was made because he was black, he has ample grounds to sue the company. Recent cases even give him precedent to sue if he was fired because he came out to his coworkers. In contrast, he has no legal recourse if he was fired because he did not “act straight enough.” Yoshino argues, however, that this pressure should be grounds for a legal challenge. In his argument, race and sexual orientation and gender are not just things that one is. Rather, they are also things that one does. While blatant denial of equal treatment on the basis of race or sexual orientation are obviously more egregious transgressions on a person’s civil rights, Yoshino contends that the pressure to cover can also constitute a breach of the 14th amendment.
Yoshino lays out his case meticulously, and with some success. He takes us through three steps of civil rights evolution: conversion, passing, and covering. In the first step, current civil rights law prohibits discrimination and unequal treatment on the basis of attributes that one cannot change. Race, gender, ethnicity and, we believe, religion, all fall into that class of attributes from which we cannot expect “conversion.” Following that model, gay legal activists have therefore been forced to make the argument that homosexuality is not a mutable characteristic before claiming protection under the current system.
However, Yoshino argues that immutability should not be the basis for protection because such a claim leaves open the possibility of countless loopholes. Moreover, this system implicitly suggests that characteristics that are considered mutable do not deserve similar protection. Thus, under this framework, our gay lawyer might be allowed to work, as long as he successfully hides his offensive characteristic and “passes” (as in the army’s policy of ‘Don’t ask, don’t tell’). A woman may be hired to a prestigious job, as long as she doesn’t “act too feminine.” An Asian man might be tolerated at an exclusive club, as long as he doesn’t have an accent. As Yoshino ironically notes, “Times have changed, and I suppose you could call it progress that a Chinaman, too, may now aspire to whiteness.”
While this pressure is more nebulous and harder to identify than blatant denial of rights on the basis of race or sexuality, Yoshino makes an effort to meticulously define what “covering” is and how demands for it have hurt individuals. For example, the Supreme Court ruled that discrimination against a pregnant woman because of her pregnant status is not sex discrimination. The rationale was that, unlike her sex, she chose her pregnancy. The Georgia State Supreme Court ruled that a lesbian could be fired from her job not for being a lesbian, but for flaunting her sexuality by coming out to her coworkers.
Yoshino’s next step stands on more tenuous ground. He calls for legal action on the basis of the pressure that individuals face to cover, but he is unclear about how we should define such pressure. Is it pressure to cover when a lesbian woman is expected not to talk about her partner? What about talking about what they do in bed? While most of us can recognize the distinction, in trying to pin it down, we run the risk of making another catastrophic definition based on the “I know it when I see it” standard.
Yoshino also chooses not to make his argument in purely political and legal terms, but rather, to blend memoir and argument. This decision enriches the argument in some ways and detracts from it in others. For example, he describes the stages of civil rights law by chronicling his own life, in an attempt to find the universal in the particular. Parts of Covering read like a cathartic confession of past sins and betrayals, which, while interesting, sometimes distracts from the argument. But perhaps it is just that I, too, have bought into the societal directive that says the academic integrity of a woman writing about gender discrimination or of a gay man writing about sexual orientation discrimination should be subject to greater scrutiny than the white man writing about anything.
One of Yoshino’s most salient points is that in passing or covering, minorities are making a contract with white, straight male society. The terms of the contract are restrictive: If you will let me into the chambers of power, I will not act too ethnic. If I do not have an accent, you will accept me at prestigious institutions. If you allow me to become a producer of culture, I will not mind the whiteness of television casts. In this way, Yoshino strikes at the heart of why it feels somehow dirty to pass and to cover. It feels like a deal with the devil.
When I found myself (much more thoroughly than usual) picking up every point Yoshino made, examining all sides of it, shaking it to see if it rattled, and pulling at it to see if it would disintegrate, I realized that I was doing this because I wanted him to be right. I wanted him to be able to protect me from being forced to act feminine but not too feminine, Asian but not all Asian, white but not as though I actually were, in order to succeed in my life.
I don’t know if Yoshino’s sort of argument will hold up in court, but if the legacy of civil rights law can provide any clues, it will at the very least take a lot of time. In an era where we are still fighting open discrimination on the basis of sexual orientation, gender, and even race, a time when our right to act our identities freely will be protected under the law seems a long way off. Yet whether or not our current society will find sympathy for Yoshino’s argument now, what governs his opinion gets right to the heart of any struggle for human rights: “a desire for authenticity, our common human wish to express ourselves.”
No comments:
Post a Comment