In “The End of Gay Victimhood”, which appeared on Time.com Monday, conservative commentator Jonathan Rauch proposes packing the perpetually stalled ENDA into a crate and throwing it into the ocean. Why? Well, for one thing, he’s bored by it. No one seems to care enough to pass it, he says, and, well, that’s OK, because, “to be honest,” he shares “the public’s indifference” to the measure. But it turns out that Rauch isn’t just indifferent to the whole idea that gay, lesbian, and transgendered workers need workplace protection—he’s downright hostile to it.
His arguments in support of this conclusion are so outrageous that they hardly need point-by-point refutation. But it’s important to go through the exercise anyway, as we can be sure that Rauch’s contrarian views will be picked up and espoused by ENDA opponents of every stripe: “See, even Rauch thinks ENDA isn’t necessary.” (Cue up the conservative talk show appearances.) So his arguments, which are, to be blunt, offensive, need to be dissected.
Rauch’s central premise is that we should be focusing on responsibilities, not rights. We gays (he’s one himself, by the way) have done a good job of showing how we can be just as responsible as the next citizen—in the military and in family matters (importantly including marriage), especially. In fact, we’ve done such a good job that we shouldn’t be reiterating and reinforcing the “victimhood” narrative through ENDA or any other rights-based model. Doing so, he carps, is buying into the civil rights model, which “cast us as victims who need the state’s protection, and … encouraged us to think of ourselves that way.” There’s more. This approach, he says, has “bolstered the stereotype of the weak homosexual.”
Where to start? How about with the obvious point that the same criticism could be leveled at any group that has sought the protection of civil rights laws. We do need the state’s protection, just as other beneficiaries of these laws have needed that shield. As Justice Anthony Kennedy memorably stated in Romer v. Evans, “Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply.” In that 1996 case, the Supreme Court rejected an amendment to the Colorado state constitution that forbade the state or any of its municipalities from enacting anti-discrimination laws on the basis of sexual orientation. The court understood, as Rauch does not, that laws of this sort are an important part of the project of equality, not as a marker of weakness in the members of the protected class. (Is Rauch really arguing against all anti-discrimination laws that enumerate protected classes? If so, he should be clear about that.)
Setting aside the obvious criticism that Rauch has sought to infantilize anyone seeking legal redress for documented acts of discrimination, there’s a deeper problem: Rauch’s world view is astonishingly naive. He says, without a shred of support, that “the right to file federal lawsuits is unlikely to make a big difference in gay people’s lives.”
Although one should scarcely need to point this out, in many parts of the country, LGBT people continue to live in fear of losing their jobs for coming out. Just a few days ago, I was speaking to a group of graduate students about current legal developments affecting the community when one student—a public high-school teacher—volunteered that he’d been told he’d be fired if the kids found out about his sexual orientation. That’s a threat his superiors can carry out with impunity, because Pennsylvania offers no protection against job discrimination based on sexual orientation. So this guy has developed a sophisticated lie to divert his students from probing too deeply. Of course, this example could be effortlessly expanded into the many thousands, but Rauch waves the problem away with the unsupported statement about how ENDA wouldn’t “make a big difference.” Not to him, anyway. He surely doesn’t need this kind of protection.
But Rauch doesn’t trouble himself with specific examples, much less with statistics, because doing so would challenge the simple narrative he’s constructed: We’re either victims or empowered, either “seeking the burdens of adulthood [or] running to Mommy.” (Yep, he really said that.)
The more complex truth, though, is that people sometimes need legal rights in order to embrace responsibilities. The public school teacher is assuming responsibility (educating the nation’s youth) but needs legal protection in order to ensure that he can continue to do so. What he’d like is not, primarily, whatever legal remedies ENDA would contain, but the law’s deterrent effect: He’d be much less likely to get threatened or fired in the first place were legal protections in place.
The compelled closeting effect of the lack of legal protection also explains why it’s so hard to get good data about the true incidence of workplace discrimination. Many people avoid getting fired or harassed by keeping their sexual orientation or gender identity a secret. As Zack Beauchamp put it, in a piece for Think Progress:
[T]he core of the debate is about whether employers should have the right to determine whether their employees can be out in the workplace. … Allowing employers power to fire employees who come out … subjects LGBT employees to immense coercive pressure. Their most basic right to conscience, the right to express a core part of their identity, is obliterated.
In Rauch’s terms, though, they just want to be able to run to Mommy.
Conversely, he describes the march of marriage equality as one of seeking greater responsibilities. But that’s also only half the story: Many of the responsibilities were already being assumed by same-sex couples, even absent marriage equality; the right to marry was in part needed to validate and cement those responsibilities. So for some—those who want to marry or join the military—rights and responsibilities go hand in hand, while for others—who simply want to work without fear of being fired for no good reason—they don’t. Go figure.
It’s telling, too, that Rauch uses the old-school term gay rights to describe the movement, rather than the generally accepted LGBT (or LGBTQ). This choice isn’t just rhetorical. Doing so allows him to efface the transgendered community completely. (In fact, the piece contains not one instance of the terms transgendered or gender identity.) But these are often the people in greatest need of workplace protection, in order for them to be able to live openly and with respect. He can’t identify with gays and lesbians who might actually be fired, and he can’t even name transgendered people who might be.
This isn’t the first time Rauch and I have clashed over one of his proposals. Exactly three years ago, he argued for a broad religious exemption to civil rights laws. When I responded with a long riposte, Rauch offered this brief, respectful comment: “Thanks for this thoughtful, and thought-provoking, response. This is just the sort of discussion that the gay rights movement needs to have.” But that was it. Rauch never engaged me in any substantive way, and this latest piece suggests that he doesn’t really care to think about the harsh realities of the positions he advocates.
It really does seem that he has difficulty seeing other people’s lives and the challenges they face. And that’s too bad.