Elena Kagan, "Privacy," and the Closet

By FogCityJohn

President Obama's nomination of Elena Kagan to be the next associate justice of the United States Supreme Court has set off a round of speculation about Kagan's sexual orientation. Kagan, who is 50 and unmarried, now finds herself beset by questions about whether she's a lesbian.

One response to this speculation that has been common here on DK has been to say that questions about Kagan's sexual orientation are a violation of her "privacy" or that Kagan's "sexuality" and her "private life" are no one else's business. As a gay man, I have a somewhat different take on this issue. If you'll follow me below the fold, I will try to explain why I find this so-called "privacy" argument misdirected.

Briefly stated, a person's sexual orientation and a person's sexuality are two entirely different things. Keeping the former a secret is not about privacy as we ordinarily think of that term. Instead, it is about the thing we LGBTs know as "the closet." It is about isolating, shaming, and humiliating LGBTs into silence about who they really are. So if you're not afraid of the dark, have a look below as we explore the shadowy world of the closet.

I. The Closet and Its Role in LGBT Oppression

Most of us older LGBTs are familiar with the closet. Many of us have spent a significant portion of our lives there. Almost everyone has heard the phrase "in the closet" used in reference to a gay person. But we don't often stop to think about what exactly the closet is. When I speak of the closet, I am referring to a type of psychological prison that the majority (straight) culture has constructed for LGBTs. What keeps LGBTs inside this prison is, first and foremost, the social stigma created by homophobia and transphobia. LGBTs who venture outside the closet know they can be subjected to disapproval, discrimination, insults, and even deadly violence.

Unlike a physical prison, however, the closet requires the cooperation of its inmates to be effective. The closet is a place where the prisoners lock themselves in voluntarily. They do this because they have been taught, from a very early age, to be ashamed of who they are. In childhood, we LGBTs are indoctrinated with the idea of our own supposed inferiority. We are told that our true nature is deviant, disgusting, and abnormal. As children, we internalize these messages and become supremely ashamed of ourselves. Rather than be honest about who we are and risk the social opprobrium that would follow, we retreat into the desperate and mendacious secrecy of the closet, attempting to conceal our true nature from everyone around us, and often, even from ourselves.

The voluntary nature of confinement in the closet is the closet's most ingenious feature, but it is also its Achilles heel. When an LGBT person "comes out," he or she effectively refuses further participation in the closet's system of voluntary oppression. "Out" LGBTs renounce their shame and openly embrace their true selves as good and normal.

The closet has always played a very important role in the oppression of LGBTs. By shaming LGBTs into silence, it isolates us from one another. This isolation is fundamentally disempowering. One cannot take concerted action when one thinks one is all alone. In addition, by keeping openly gay people out of public view, the closet deprives other LGBTs of role models. It also keeps society at large from seeing LGBTs in high-profile positions, and it thus perpetuates the notion that LGBTs are not worthy or capable of making useful contributions to society.

Fortunately, the closet is becoming less powerful as more and more of its inmates abandon it. Nevertheless, it retains its power when it comes to the highest levels of our government. There are no open LGBTs in the Cabinet, in the Senate, or on the Supreme Court. And this is where Kagan comes in.





II. Mistaking Privacy: Sexual Orientation vs. Sexual Activity

If Kagan is a lesbian, knowing the simple fact of her sexual orientation would in no way compromise her privacy, at least not in any traditional understanding of the term. I can illustrate this in two ways. First, I've informed readers of this diary that I'm gay. Everyone reading it now knows my sexual orientation. But you know absolutely nothing about my private life. You don't know what I do in the bedroom, who I do it with, or indeed, whether I have a romantic or sexual life at all. In short, knowing my sexual orientation doesn't let you into my private life in any way. All it tells you is that if I were to fall in love or have sex, my partner would be male, not female. That's it.

Second, those making this "privacy" argument overlook the fact that straight people neither need nor demand privacy with respect to their sexual orientation. To the contrary, straight people in Elena Kagan's position openly advertise and celebrate their sexual orientation. They bring their husbands, wives, and children to the press conferences held when they are nominated, and their spouses regularly attend their confirmation hearings. At no time does anyone ask about the nominee's sexual orientation, because that orientation is an open book. It does not need "privacy," because being straight entitles one to the privileges that come with being part of the majority culture.

Those who argue Kagan has some sort of right to privacy in her sexual orientation (as distinguished from her private sexual conduct) are unwittingly confirming the idea that being a lesbian is something so shameful that Kagan is right to hide in the closet. The closet, of course, is where much of straight America wants LGBTs to be. Homophobia and transphobia do not admit of the notion that an LGBT person can be qualified for high office. So LGBTs who aspire to positions of great responsibility must keep their orientation "private" lest it bring down the whole homophobic/transphobic fiction that LGBTs are unworthy. If Elena Kagan were an out lesbian and were confirmed, it would show that being LGBT is no reason not to entrust her with one of the most important offices in the nation.

Interestingly, those arguing that Kagan has a right to keep her sexual orientation private are making an argument that Kagan herself is not. Kagan is not asking that her sexual orientation be kept private. To the contrary, she has friends, former roommates, and other people out there telling everyone how straight she is. Thus, Kagan herself doesn't demand "privacy" for her sexual orientation, so long as that orientation is straight. But why is her straight sexual orientation not considered a private matter, while her (possible) lesbian orientation is? The reason, as I have explained above, is because of the closet.

(By the way, just in case you're wondering, I don't advocate outing Kagan if she is a lesbian. As much as I would disagree with choosing to remain in the closet, I view coming out as a personal process that each LGBT approaches in his or her own way.)


III. Why I Hope Kagan's Not a Lesbian

The argument I am making here is relevant if, and only if, Kagan is truly a lesbian and is choosing to hide that fact. In such a case, she is harming all of us in the LGBT community by perpetuating the shame that is the closet. And defending her right to remain in the closet only reinforces the homophobic myth that being LGBT disqualifies one for high office. I think we ought to be well past the point of rushing to the defense of the closet. It's one of the most harmful constructs there is.

That's why I sincerely hope Kagan's friends are telling the truth about her. I very much hope she's straight. It may seem odd that I, a gay man, would hope that we're not getting a lesbian on the Supreme Court, even if we get one covertly. But if Kagan's a closeted lesbian, then it would strongly suggest that she has not yet rid herself of the internalized homophobia that keeps her in hiding. I could never be sure how that might affect her decision making in cases involving LGBT rights.

In conclusion, if Kagan is a lesbian (and I have no idea whether she is), and she is choosing to hide her orientation, then this is not about privacy. It is about the closet. Those are two entirely different things that should not be confused. Privacy is the right of a person to decide, of her own volition and free from outside pressure, what she wants to make public. The closet is a means of oppression and social coercion designed to humiliate, shame, and isolate LGBTs. I'm all for the former, but I'll never stop fighting the latter.