Race and Sexual Orientation in Legal Scholarship

Remarks of Elvia R. Arriola


Lesbian and Gay Section of the Association of American Law Schools Meeting

Friday, January 9, 1998, San Francisco, California

Good Afternoon. I feel I have been trying to have this conversation for such a long time. I can't help but feel emotional as I stand before you to have this discussion on race and sexual orientation in legal scholarship. I have been writing about and been involved as a feminist latina lesbian scholar for so many years. And for so many of those years, as I think back upon the environments or the conditions surrounding my work, I can't help but remember how alone I often felt because of the intersectional nature of my identity, as not only lesbian and feminist but also Latina. I remember for example, when I was

writing my very first law review article2--as I was coming out as a lesbian and also budding as a civil rights lawyer in the early eighties in New York City. At times I felt very connected to the gay and lesbian civil rights community I was coming to know personally and professionally through my progressive contacts. For awhile, after my post- graduate fellowship at the ACLU ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 5--------------------------------------- National Headquarters, I volunteered my legal services for Lambda Legal Defense and met wonderful people who helped me feel proud of the fact that I had the courage to come out publicly as a lesbian. But so many other times I felt disconnected completely from these same people; I felt the conspicuousness of my brown skin and Spanish surname when I sat in huge conference rooms as the lone minority among over two dozen other lawyers and activists, deliberating, for example, the litigation strategies for the then upcoming hearing by the Supreme Court in the Bowers v. Hardwick3 . I can't say that I completely understood then all of the reasons for my feeling disconnected from the mostly white male and a few lesbian lawyers seeking social justice in the courts. So I can't blame anyone other than myself, or the external forces of oppression that define this society in general, for my past experiences of alienation. When I look back on those years, I see myself as a talented budding constitutional lawyer who was very immersed in a "white studies" mentality, not really feeling the need to be aware of her Latina consciousness, and not sufficiently surrounded by people in her profession who shared her identity as a latina/woman of color and lesbian, to make me seriously consider the need to explore intellectually my lack of consciousness of myself as a Latina lesbian. I remember for example, a gentle critique a friend offered of my manuscript for my first law review article article, which advocated a move in the direction of emphasizing more for legal strategy equality-based theorizing as opposed to the risky right to privacy. She said to me, "I think it would be even better if you talked more about class." I both understood her critique and at the same time I didn't. Some part of me knew that she was right, that by emphasizing class I could get at issues of race and sexual orientation, but even if she was right--at the time, 1985, I didn't feel confident of being able to put all of that into words in a world that was still struggling with just possibly recognizing that homosexuals were people and that sodomy laws effected unjust discrimination.

So when I say I've been disconnected, I get uncomfortable because I am taken back to the years of loss, that were still very recent, and then I have to access memories that painfully remind me that in my white studies mentality I might have once thought I could ignore in my work the linkages between race, class, gender and sexuality, but in my life experiences I could not. It has been powerful institutional settings within which the rules of white male supremacy have been played out that reminded me--while I might closet the sexual orientation part of my self and escape some discrimination that way, I can rarely, if ever, escape discrimination because of my race and and my ethnicity.4 Even more than the wonderful writings on"intersectionality,"5 it has been those painful experiences of mistreatment because of the multiplicity of factors that define who I am that have taught me that becoming comfortable with the idea of multiple consciousness6 is a learned process in itself. Thanks to my recent involvement in Lat/Crit theory I feel I have been able to come home to that part of myself, and to be resolved that I can never approach any subject, on gender or sexuality or whatever, without a relentless commitment to the ways in which those subjects intersect with race and class.

Of course, while it may be obvious that I as a Latina lesbian feel the need to embrace the perspective of multiple consciousness, one might legitimately ask for this panel today, why is it important to non-minority gay and lesbian scholars? Simply, it's a matter of statistics and social justice. Claims are being made that by the early part of the next century, this nation will be about forty percent minority. If those projections are accurate, our scholars of gender and sexuality need to be asking themselves---are the materials we use today, or the models of analysis we rely upon when we talk about sexuality, gender and sexual orientation, or the categorizations of history, theory and identity we have become comfortable with, adequate for preparing our future lawyers to handle the legal and social problems of a nation that is so racially defined? My sense is that some of you might be able to say "yes, I think I am preparing my students/future lawyers for that kind of world." But my guess is that most of us in this room cannot say yes. That is because the perspective of multiple consciousness, as I have stressed above, essentially requires that one get out of his/her comfort zone, meaning learning to juggle the discourse and the feelings surrounding the web of intersections that we are, that life is, that our identitites manifest in our relationships, in the classroom, our professional associations, and in our scholarship.

Well, quite obviously, this is not an easy task, although I do think that the more we explore the interconnections within our personal identities and some of our most significant relationships the task becomes easier. Multiple consciousness may mean ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 6--------------------------------------- accessing my /our experiences of interconnection to everything I see as being the parts/selves in me--for example, my class, my education, that of my parents, my religious/cultural/moral/spiritual values, my race/color/ethnicity, my current professional status, my privileges and disadvantages as a woman, of color, lesbian, professor, wage-earner, property owner, citizen, voter and so on. While potentially daunting, it can also be quite entertaining as one comes to terms with the consequence of accessing one's multiple selves--a more whole sense of one's self. Here I must offer the powerful words in Natashia López's poem Trying to be Dyke and Chicana7 when she says: Dyk-ana/Dyk-icana/what do i call myself/people want a name/a label a product/what's the first ingredient/the dominant ingredient/.... call me Chicana/walking with whiteness/ into more whiteness/feeling my darkness/ call me Chicana/annoyed with being called Spanish /wishing whiteness would understand/call me Chicana/call me Dyke/Chyk-ana. But as a matter of practice, for our teaching and our scholarship, what does it mean to commit oneself to a relentless view of sexuality as intimately connected to issues of race, class, gender, abilities, culture, and so on? What does it mean to present one's work with at least a modicum of sensitivity to that need for a relentless view of interconnectedness? How does this question affect my own identity? How does it affect how I relate to others in this profession, this academic community, this work I do as an activist lawyer, teacher and/or scholar? Let me offer the example of the classroom setting. These kinds of questions are always close by when I teach a seminar called gender, sexuality and the law. If my enrollment is higher on white than on women of color (as it is becoming so with the impact of Hopwood8 at the University of Texas), I know I'm going to have a really tough time when I am working with a syllabus that is stressing the importance of race. My students may manifest an unconsciousness resistance to the material and/or to my own identity. Whereas when I have a more racially and sexually diverse group of students the reading materials and the ability of students of color to identify with the issues help us all carry an easier load as we discuss the potentially divisive discourse of race and sexuality.

I think these questions also encourage us to look at the aspect of privilege. Ask yourself, what is the perspective that dominates the discourse on gender and sexuality now? It is a discourse that speaks to my experience and that of others who are gay, lesbian, transgendered people of color? I know that the question of privilege as applied to this subject is bound to trigger for many of us in this room uncomfortable feelings, possibly defensiveness. To speak the truth does engage those risky emotions. And yet this critique is not about trying to alienate those who have been so important to my professional development, or those whom I see as my coalitional allies. I am reminded here, for example, of the importance of this perspective when I was asked to prepare materials for a panel on race and sexual orientation for the 8th annual Critical Race Theory workshop. In that setting, a similar issue was being raised, but now it was about the heterosexual dominance of the race critique having to confront the ways in which "the queer question" kept being sidetracked, derailed, or subverted because race-crits needed to have their consciousness raised around sexuality and the cultural fear of public sex talk. 9 Well for us here today, the privilege we have to confront is about race, about whiteness, and although it too can trigger discomfort and defensiveness for people, we are fortunately not without tools and models of self-critical analysis--offered by scholars like Peggy McIntosh who introduced the grid of white privilege,10 or Fran Ansley's "whose above and below the line"11 as a teaching tool in the classroom, or the work of Stephanie Wildman on the importance of revealing privilege12 in the legal academy.

Because the subject of sexual orientation and the law has "made it" in recent years, we can celebrate the fact that we don't have to hide the subject behind titles like "human rights law." But the question for our future work centers on whether or not we are in our litigation, our writing and our teaching truly addressing the totality of the experience of those who do not have the privilege of being at the forefront of "queer theory and law." Does your work, for example, speak to the intelligent, well-read activist person of color who might be male or female and lesbian or transgender? And for this we have to ask, what is the starting point of analysis for those who are at the forefront of that kind of law?

If we look at this question from the perspective of privilege, we must know that the starting point of analysis of the lawyer, the academic and the lobbyist is vastly different from that of the activist, or the person on the streets, or the health care practitioner of color helping clients of color in a community clinic, even though there may be common grounds upon which the activist and the academic stand. Think of the critical activist saying to you, "As you write, please look at your privilege and the assumptions ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 7--------------------------------------- you make from your own perspective." If you cannot write or do not speak of their experience, at least adopt the scholarly convention of acknowledging that one's work may be limited by the choice of a narrow framework of experience, topic, or the perspective of the author's personal identity. What I am talking about here is confronting the cognitive dissonance that may resonate in our imagined person of color who is queer and activist and who then picks up our materials, or decides to visit our class one day. If they look at our materials and don't see themselves or their experiences, then our teaching materials are limited. If the assumptions a writer or teacher makes about any point on gender and sexuality does not create the possibility for their experience---if, for example, I cannot feel myself reflected in the writings as a Chicana lesbian, then those materials are limited; and our challenge is not to discover who is wrong and who to blame, but rather, how can we change that?

Our task is then, to ask ourselves how we should define our grids of analysis when we do our teaching and our writing about either race or sexual orientation. If the person of color would have to say, "you don't know my world," then that scholar is disadvantaged in the relevant, Latina/o studies, Asian-American studies, Transgender studies, African-American studies, Native-American studies, and so on, in order to fix that. And if you are writing about issues that do affect queer people of color, but the assumptions you make in your analysis don't speak to the person of color, then you are in no position for uttering the word "we" when talking about the "gay and lesbian or queer community."

I was recently urged to reconsider the critical sense of this problem when I learned of a recent case which is being battled by a mostly Latina lesbian- managed and organized arts center in the city of San Antonio, Texas, which was recently the subject of a homophobic campaign by members of the Christian Coalition to have the City Arts Department cut their funding. As a multicultural organization the Esperanza (Hope) Center dedicates the arts to empower youth, gays and lesbians and poor women of color, especially the working poor who are sometimes refugees of violence in conflict-ridden parts of Latin America. They were targeted for distributing "pornographic" literature as they promoted a gay and lesbian film festival which focused heavily on the productions by and for lesbians of color. Here's the intersection dilemma which arose: the homophobic campaign was led not only by the Christian Coalition but supported by significant members of the wealthy white gay male owners of the San Antonio gay newspaper, who have been trying to displace Esperanza from the prominent leadership role it has had in the gay and lesbian community for over ten years. How's that for a theoretical question on how to draft a First Amendment/Romer v. Evans 13type of complaint? It is a targeting that is not just about an unpopular political group because of its association with gay politics, but an intersectional problem based on race, class, gender and sexual orientation. It is a tragic example of the divisiveness that will be exacerbated as long we pretend that the discourse of sexuality can be separated from the discourse of race, class and gender.

So let us be leaders in the political struggles of oppression by tending to these questions about the intersections between race and sexual orientation, so that we aid in those scholarly inquiries that will produce healing, community and a commitment to coalition, not divisiveness in the politics of identity.

1 Translate: Breathing freely.

2 Elvia R. Arriola, Sexual Identity and the Constitution, Homosexual

Persons as a Discrete and

Insular Minority, 14 Women's Rts. L. Rep. 263 (1988, 1992).

3478 U.S. 186 (1986).

4See Elvia R. Arriola, Welcoming the Outsider to an Outside Conference: Law

and the ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 8---------------------------------------

Multiplicities of Self, 2 Harvard Latino L. Rev.397 (1997).

5Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A

Black Feminist

Critique of Antidiscrimination Doctriner, Feminist Theory and Antiracist

Politics, 1989 U. Chi.

Legal F. 139 (arguing against the notions that subordination can occur ,or can be analyzed, along

a single categorical axis such that legal theory erases the identity of

individuals who

experience discrimination at the intersection of race and sex, e.g., "black

woman." )

6 Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan.

L. Rev. 581 (1989)

(urging multiplicity as a way to enhance the essentialist voices in

feminist theory that tend to

silence the perspective of women of color).

7 in Carla Trujillo, ed., Chicana Lesbians: The Girls Our Mothers Warned Us

About (1991).

8 Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996) cert. denied ___

U.S. ___ (1996), 116

S.Ct. 2581 (1996).

9 Frank Valdes, [recent essay on public sex talk], 1 Univ. of Iowa J. of

Gender, Race and Justice

___ (1997).

10 Peggy McIntosh, White Privilege and Male Privilege: A Personal Account

of Coming to See

Correspondences Through Work in Women's Studies , in Leslie Bender and Daan ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 9---------------------------------------


Power Privilege and Law: A Civil Rights Reader 23 (1995).

11 This is a teaching tool Fran Ansley offered at a Society of American Law


Conference in the fall of 1993.

12 Stephanie Wildman, Privilege Revealed (1996).

13___ U.S. )___ (1996).