Most gay people will tell you that they have very little choice in the matter of who they are attracted to and who they love. But most also remember clearly the moment that they chose to call themselves gay or lesbian. What makes this distinction so important is that both sides in the Perry v. Schwarzenegger trial–which ended with closing arguments yesterday in San Francisco–agree that the plaintiffs’ case is stronger to the extent that it can be shown that gays and lesbians are a discrete group with distinctive traits on the basis of which California has restricted the right of marriage.
Therefore a fair amount of time in the trial has been spent on the extent to which homosexuality is a fixed, ascriptive trait or rather a claimed social identity. And here is where things get tricky. The preponderance of the evidence suggests that the degree to which one is sexually attracted to those of the same sex (which for expository convenience I call “homosexuality”) is fixed at birth or in early childhood, and that this is difficult to change. But by contrast, there is really no other way to consider the _identity_ of being lesbian or gay except as an affirmative choice made by some who are endowed with the fixed trait of homosexuality. Some make this choice and “come out,” but many others do not.
Recent research suggests that homosexuality is associated with long-term individual characteristics, including “personality”:https://www.researchgate.net/publication/6874950_Sexual_orientation_and_personality, as well as physiological traits such as “brain structure”:http://www.sciencemag.org/cgi/content/abstract/sci;253/5023/1034?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&author1=levay&andorexacttitle=or&andorexacttitleabs=or&andorexactfulltext=or&searchid=1&FIRSTINDEX=0&sortspec=relevance&fdate=7/1/1880&tdate=1/31/2010&resourcetype=HWCIT,HWELTR, “left- or right-handedness”:http://psycnet.apa.org/journals/bul/126/4/575.pdf and even “hair-whorl rotation”:http://www.ias.ac.in/jgenet/Vol83No3/251.pdf. Many people who ultimately identify as gay report that they experienced confusion–often at a very early age–as they realized that they were different from their heterosexual peers. And in fact, interviews with self-identified gay people find most describe their sexual orientation as unalterable. In 2007, my colleagues Murray Edelman, Ken Sherrill and I conducted a survey with a “nationally representative sample of gays, lesbians, and bisexuals (LGBs)”:http://www.nyu.edu/public.affairs/pdf/hunter_college_poll_report_complete.pdf. Among this population, we found very little ambivalence or confusion about sexual orientation: nearly all disagreed with the statement that they were “not entirely sure” that they were LGB, and in fact very few said that they wished they could change from being LGB to being heterosexual. Taken as a whole, these findings indicate that (in contemporary American culture, at least) the degree to which one experiences oneself as homosexual is nearly immutable trait that manifests itself prior to any identity that one adopts in response to it.
But if homosexuality is experienced as unchangeable, research indicates that whether one responds to this trait by acquiring a gay identity is subject to a fair amount of individual choice and cultural and temporal variation. Currently, it appears that about 3 to 4 percent of American adults have made this choice, as we are discovering from questions about gay identity that have just begun to appear on nationally representative sample surveys in recent years (including the “ANES”:http://sda.berkeley.edu/cgi-bin/hsda3?sdaprog=describe&var=v083209&sdapath=%2Fvar%2Fwww%2Fsdaprogs%2Fsda&study=%2Fvar%2Fwww%2Fhtml%2FD3%2FNES08new%20%2Fvar%2Fwww%2Fhtml%2FNpubvars%2FNES08new&varcase=lower&subtmpdir=%2Fvar%2Fwww%2Fhtml%2FTMPDIR and the “GSS”:http://sda.berkeley.edu/cgi-bin/hsda3?sdaprog=describe&var=SEXORNT&sdapath=%2Fvar%2Fwww%2Fsdaprogs%2Fsda&study=%2Fvar%2Fwww%2Fhtml%2FD3%2FGSS08%20%2Fvar%2Fwww%2Fhtml%2FNpubvars%2FGSS08&varcase=upper&subtmpdir=%2Fvar%2Fwww%2Fhtml%2FTMPDIR).
Like all identities, gay identity is a “social construction”:http://books.google.com/books?id=tSJkCFH11YcC&printsec=frontcover&dq=greenberg+construction+of+homosexuality&source=bl&ots=n_z_5aTgqf&sig=KgMtAqEvec70j-1gbdg0hFNiGdg&hl=en&ei=Zt9hS5CmLIqXtge6h7nYDQ&sa=X&oi=book_result&ct=result&resnum=2&ved=0CA8Q6AEwAQ#v=onepage&q=&f=false that is particular to our place and time. A main goal of organized gay advocacy efforts—-which have existed in the United States only since the 1950s-—has been to transform society’s understanding of homosexuality from a deviant behavior to an acceptable identity. Many people who are attracted to others of their sex or engage in homosexual activity still consider themselves heterosexual. A typical finding comes from a 2003 “telephone survey”:http://www.annals.org/content/145/6/416.full conducted with a representative sample of New York City residents aged 18 or older, in which 11.6 percent of the males in the sample reported having sex exclusively with men in the previous year but only 5.6 percent of males in the sample identified as gay or bisexual.
To put this all in perspective, we might consider the extent to which two traits regarding which the Constitution has been interpreted to guarantee strong protections–race and religion–are fixed. Certainly, the phenotypic characteristics associated with race–and the fact that we tend to be brought up by people who share our race–makes racial identity a fairly fixed notion in American culture. By contrast, religion is much more identity than trait, even if many experience it as fixed and immutable–as we do when we speak of discovering an “inner light;” believing we were “lost,” but are now “found;” or simply having no choice but to “answer God’s call.”
Thus it might be fair to say that gay or lesbian identity falls somewhere between race and religion on the extent to which it is a fixed trait. In a sense, being gay is both trait and choice; immutable and elective. These anomalies create more than a bit of a quandary for equal protection law, and the questions raised here will no doubt continue to shape the arguments and rulings in the Prop. 8 case in the months and years to come.