Queering the Courts

Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement by Joanna Wuest. The University of Chicago Press, 304 pages. 2023.

In 2005, the New York Times posed an important question: “Straight, Gay or Lying?” Thus ran the headline on a story summarizing a study in which, after showing porn to self-identified homosexual, heterosexual, and bisexual men, and measuring the blood flow to their penises, the researchers concluded that, actually, bisexuality didn’t really exist.

Not so fast. The American Institute of Bisexuality’s president, venture capitalist John Sylla, disagreed, so he raised the money needed to support additional study, and six years later, the lead author of the original study and three other researchers published “Sexual Arousal Patterns in Bisexual Men Revisited,” which determined that test subjects who reported bisexual attraction actually did display corresponding genital arousal patterns. Bisexuality does, in fact, exist—it can be measured.

This and other tales of fraught science populate Joanna Wuest’s new book Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement. Wuest, a professor of politics at Mount Holyoke College, is best known for writing in The Nation and The Boston Review, often about the financial forces driving culture war cases to the Supreme Court. Born This Way clarifies and extends some of this writing to explore how LGBTQ+ advocates and activists have, over the last seven decades, wielded science as a tool to advance the cause of civil rights in the courts. In it, she argues that the sanctification of the idea that queers are “born this way” in the annals of science and the law was by no means inevitable; it was the result of concerted effort. Throughout, Wuest draws on scientific papers, board meeting minutes, court filings, and amicus briefs, while generally ignoring street actions and broader cultural shifts, to paint a portrait of how powerbrokers in politics and science worked to make “born this way” logic dominant—and the consequences it has wrought.

Early on, Wuest frames the American Psychiatric Association (APA) debates about the “cause” of homosexuality as a disagreement within the field of psychology between psychoanalysts and reform-minded scientists. In the early 1950s, APA leadership castigated biologists like Alfred Kinsey and his early work about the diversity of sexual expression in American life; the psychoanalysts stressed that, as Wuest puts it, the “prevalence of loveless heterosexual intercourse and homosexuality alike were social maladaptations produced by” modernity. Kinsey, laying the groundwork for the “born this way” thesis, argued that homosexuality was not a pathology; it was a natural variant of human sexuality. This ran counter to the 1952 Diagnostic and Statistical Manual of Mental Disorders, which identified homosexuality as a “sociopathic personality disturbance.”

As these debates raged, so-called “homophile” groups such as the Mattachine Society formed to combat the prevalence of anti-queer arguments in professional and mainstream life. These activists targeted not only anti-sodomy laws but their underlying social and cultural basis, the pernicious idea that homosexuality was a “contagion” and thus a major public health hazard to be contained, if not eliminated.

In turn, scientists like Kinsey found new voluntary patients for study. Offering their “bodies and psyches to the construction of a competing medical paradigm,” members of homophile groups deepened relationships with scientists like Evelyn Hooker, whose 1956 and 1957 studies provided compelling evidence that homosexuality was not, as the APA establishment believed, a personality disorder. The male-dominated Mattachine Society and its female counterpart, Daughters of Bilitis, hoped that triumphs in the clinic, however minor, would eventually translate a “new science of sexuality into law, policy and public opinion.” As a consensus began to form, homophiles and their scientific experts came, as Wuest writes, “to fashion a liberal pluralist orientation—one that depicted gays and lesbians as just one minority cultural group among many in American society.” As such, they adopted a strategy used by other minority groups: seeking redress and incremental reform through the courts.

The possibilities of a legal and rhetorical approach grounded in science began to reveal themselves in California in 1951, only a year after the Mattachine Society formed. Two years earlier, vice squads had descended on the gay-friendly Black Cat Cafe in San Francisco, leading the state to revoke their liquor license, claiming the bar was a “disorderly house for purposes injurious to public morals” that harbored “persons of homosexual tendencies.” The bar’s owners appealed to the state Supreme Court, which reinstated their liquor license in 1951, arguing that the bar’s gay-friendly reputation didn’t necessarily mean untoward activity occurred there, as it might at a brothel. Homophile groups understood this ruling as differentiating homosexual status from behavior—the mere existence of a homosexual, then, did not present a social hazard.

In 1959 California struck down a new law that sought to punish bars with a reputation for being “resorts for illegal possessors or users of narcotics, prostitutes, pimps, panderers, or sexual perverts.” Nearly a decade later, in 1967, the Society submitted the expert testimony of sexologist Dr. Wardell Pomeroy, a coauthor on Kinsey’s famous studies, in a case before the New Jersey Supreme Court that ultimately reiterated the ruling from California. The justices scolded the state liquor authority for failing to provide an expert to back up its spurious claims of homosexual contagion. Slowly—and not without setbacks—the laws legitimating homosexuality as a contagious mental illness began to fall.

In the wake of the Stonewall Riot in 1969, however, more assertive activist groups like the Gay Liberation Front rejected the fetishization of scientific authority and court rulings. These radicals, as Wuest writes, believed “any cooperation with scientific experts—any small concession to the authority of another” would weaken their position as disruptors of heteronormative society. Perhaps surprisingly, Wuest invokes these radicals to offer a corrective to the historical record around queer activism: she argues that, rather than an outright refusal of scientific authority, the often incoherently organized liberationists opposed “only certain taxonomic schemas” of gender and sexuality, while imposing their own versions of a stable queerness, derived from their belief that their identities were “products of socially imposed repression.” As Wuest writes, these radicals, even in their skepticism of authority, would still use scientific arguments when they could to reinforce “claims to autonomy and the looming gay horizon.”   

The next legal opening for the liberal pluralist agenda came from the Supreme Court. In 1973, the Court ruled in Frontiero v. Richardson that sex is “an immutable characteristic determined solely by the accident of birth,” like race or national origin, positioning it under the equal protection clause of the Constitution. The immutability standard and “accident of birth” language provoked legal-minded activists to make same-sex desire and behavior similarly legible to the court. “For some civil rights lawyers,” Wuest writes, the Frontiero ruling “appeared to beckon biology for proof.”

After the ruling, “born this way” logic continued to gain financial and political investment from groups like PFLAG and the National Gay Task Force—and later GLAAD and the Human Rights Campaign. If only the Supreme Court would rule that sexuality was an accident of birth, their thinking went, then equal rights would be secured. “If the path toward constitutional equal protection required evidence that sexual orientation was innate,” Wuest writes, “then litigators would pursue such cases with bold pronouncements about sexuality’s deep roots in the first few months of life, in utero, or even in an individual’s genetic code.” Decades later, equal protection under the law has not come to pass, and rights for LGBTQ individuals remain inconsistent and incomplete. In 2013’s Windsor v. United States, which found the Defense of Marriage Act unconstitutional, Justice Anthony Kennedy punted on the question of whether the equal protection clause extended to sexuality. His majority opinion in Obergefell v. Hodges, which struck down bans on same-sex marriage two years later, did little to revise that elision, relying on “strange doctrinal moves” that appealed, instead, to vague notions of dignity. Wuest notes that only “time will tell” if Kennedy was on the “fringe or frontier” of constitutional thought with his argument in Obergefell.

It’s from here that Wuest shifts into a critique of the hegemony of “born this way” logic. When she writes about developments of the “gay gene,” she approvingly invokes the work of John D’Emilio, a fellow historian of the social constructivist mold who founded the National Gay and Lesbian Task Force’s Policy Institute. In 1993, he led a discussion titled “Nature or Nurture: Are We Not Queer?” in which he urged his colleagues to argue “from justice rather than nature.” Queers, he believed, deserved rights as human beings, rather than because science could identify an etiological basis for their existence. D’Emilio wished to historicize same sex desire as “an invention of the late nineteenth-century transformations in wage labor, urban geographies, and the decline of the agrarian family household” rather than something genetically determined. He warned his colleagues that a “born gay” narrative rested on “contested” scientific research. Wuest agrees; and her work can be seen as expansion of D’Emilio’s sociological work into explicit political theory and history.

At stake in this debate is the logic of social change. Were the claims of biologists and litigators about the immutability of sexual nature sufficient to defend against right-wing counter maneuvers? Or were they only sufficient to secure limited protections for a distinct set of mostly white, middle-class gay men? “Born this way” argues that the Constitution need only integrate science’s discoveries; it doesn’t challenge the underlying assumptions of the law, nor does it endeavor to expand the number of rights secured by the Constitution. It merely asks that the existing regime expand protections to a distinct class.

Given Wuest’s laser focus on the courts, liberationist groups like ACT UP and Queer Nation are given minimal attention. Whatever current mythologizing exists, Wuest suggests that by reenforcing the gay-straight divide, these groups sometimes fell into a trap not dissimilar from the logic of biological essentialism. Groups like Queer Nation promised to “terrorize” and “frighten” heterosexual “enemies.” Though to be queer for these activists was not to be a discrete biological kind, she writes, “their conception of identity certainly did at times crystallize into a solid taxonomic form, one that was then thrown into a presumably zero-sum survival of the fittest struggle with its heterosexual complement.”

While radical activists viewed “born this way” reasoning as a surrender to heteronormative forces that dominate American society, in Wuest’s view, litigators were pragmatic in weaponizing “born this way” logic as a shortcut to constitutional legibility. Wuest sidesteps a more radical critique, but, in her view, “born this way” has served as a rational means to achieve a form of legal protection within state institutions while deflecting accusations of pathology and contagion. That said, she retains a healthy skepticism of biological claims about human nature and desire, writing that “meaningful equality does not depend much on ‘knowing the true nature of desire or identity.’”

The challenge in critiquing “born this way” is then not to cling to stable identity categories, even in nonbiological terms, but to offer a different account of history, one D’Emilio began in 1993. It is true that “born this way” logic racked up a series of legal wins that radically transformed, and likely saved, the lives of millions of people. It is equally true those wins legitimated, once again, the structural flaws and limits of the American legal system.

Wuest then examines the attack on trans people across the country by advocates of “religious freedom,” who invoke a sort of “inverted pluralism” to bypass etiology in favor of a “‘competing’ or ‘conflicting’ rights narrative.” This argument has met a friendly reception in courts dominated by conservative judges. In response, many litigators and activists have turned to “born this way” logic to fight back the tide of anti-trans legislation—even as some have called for more nuanced work around sexuality and gender. As early as 1995, courts heard scientific testimony suggesting transsexuality may owe its origins to biology. A 2006 court filing by Lambda Legal asserted that “gender dysphoria may not be a psychiatric condition, but might, in fact, be caused by biological or physiological factors,” which echoes the debates around the medicalization of homosexuality.

Wuest offers several explanations for the persistence of “born this way” logic, among them that, for all its flaws, it offers a reasonable defense for many by appealing to a pluralist image of America. As such, ridiculous claims of a trans “contagion” or “craze” from the right have been met with the same sorts of biological defenses once used by homophiles. However, we have seen this maneuver has strict limits: conservatives have turned the tables, resurrecting fissures within the LGBTQ movement to undermine the scientific consensus of “born this way” logic by calling for “additional research.” While we wait, conservatives evince a desire for a minimal legal and regulatory action—by which they mean passing a deluge of legislation limiting access to gender-affirming care.

What’s more, conservative litigators have gone so far as to cynically cite people like Judith Butler as evidence that gender and sex are distinct categories, implying gender identity doesn’t fit the immutability standard. This strategy, which Wuest links to tobacco and oil industry campaigns to create uncertainty, challenges the self-assured scientific claims of queer litigators. The science blazing the trail to equal protection was always suspect—queer friendly litigators, Wuest argues, were known for overstating science’s claims or eliding debates; the right wing has just found a new way to weaponize this.

The way through this quagmire, for Wuest, should come as no surprise: social democracy. I’ll admit to finding this conclusion a bit pat. Yet rather than demanding revolution and shutting up shop, Wuest elaborates her version for what this social democracy might look like. Shifting into a more wistful register, she writes that, instead of an undead neoliberal order and its attendant sex panics, “what would be far more salubrious is a political economy that permits sexual and gender exploration, equivocation, and fulfillment.” Wuest imagines a social democracy that furnishes “the agency to live as one wishes” and fends off “inequality’s scapegoating tendencies.” She wishes for a politics that doesn’t search for “static truths” but rather one attuned to the “myriad ways that behaviors and status markers are codified into law, how blood and anatomy is classified by science” and how ordinary human beings make account of themselves. Sounds nice. Fine-tuning legal arguments won’t get us there.