The Yale Law Journal

January 2002


Kenji Yoshino
111 Yale L.J. 769 (2002)

In this article, Professor Yoshino considers how the gay civil rights movement might enright the American civil rights paradigm, which he takes to be predicated on the paradigm classifications of race and sex. He posits that gays may be able to contribute a more robust theory of the relationship between assimilation and discrimination, a theory that takes assimilation to be an effect of discrimination as well as an evasion from it. Yoshino believes that gays may be more attuned to the discriminatory aspects of assimilation because they are capable of assimilating in more ways than racial minorities or women. Either in fact or in the imagination of others, gays can assimilate in three ways - conversion (in which the underlying identity is changed), passing (in which the underlying identity is retained but masked), and covering (in which the underlying identity is retained and disclosed, but made easy for others to disattend).

Yoshino first elaborates his taxonomy of assimilationist demands in the context of orientation. He demonstrates that as discriminatory animus against gays has become weaker, so too have the demands for assimilation, which have shifted in emphasis from conversion through passing toward covering. At the same time, however, Yoshino questions whether these shifts in emphasis are substantive or merely rhetorical, positing that covering demands that target traits or behaviors constitutive of identity are tantamount to conversion demands. Deploying a postmodern theory of status performativity, Yoshino suggests that a commitment to protect certain statuses might also require the protection of traits or behaviors that might partially constiute those statuses.

Yoshino then applies his theory to the contexts of race and sex. He demonstrates that antidiscrimination discourse often distinguishes between racial minorities and women on the one hand and gays on the other, in part because of the relative inability of racial minorities and women to assimilate into mainstream society. Yet Yoshino maintains that racial minorities and women are not as immune to assimilationist demands as their general inability to convert or pass may suggest, as such groups are routinely asked to cover. Indeed, Yoshino argues that enforced covering is the contemporary form of discrimination to which racial minorities and women remain the most vulnerable. Yoshino thus contends that resistance to the covering demand in the legal and political spheres is an issue around which racial minorities, women, and gays might make common cause.