Full Disclosure?

Andy Towle discusses calls for Elana Kagan to out herself, if she’s gay. I don’t know about you, but my gaydar isn’t very good. I have no idea of her sexual or affectional orientation, and she hasn’t said.

There are times when I grimace at someone in the closet who is widely rumored to be gay; folks, often in entertainment, who could come out with very little consequence. But then, it’s easy for me to say. I’m cis and het and looking in at their lives from the outside.

Kagan is in an even more precarious position, because she’s not in entertainment. She’s a Supreme Court nominee, and she needs Senate confirmation. The stakes for her personally and for the administration and the country are big, and it has got me thinking about the calls for disclosure.

The poltics of the closet within the GLBT community are complex, but for het folks I think it’s a conceit of those who view themselves as in the sexual mainstream to call for disclosure. I say this as someone who is outside the sexual mainstream, and who writes under a pseudonym for that reason. The less people understand and have thought through what sexual and romantic issues they would want disclosed, the easier it is to call for it. If we were serious about determining what disclosure obligations public figures had, I think it would give people a lot of pause, and the right conclusion is that there are not any, with the possible exception of hypocrites who legislate against their own conduct while living in the closet.

What, after all, is it about sexual orientation that makes it disclosure-worthy? Is it because there are GLBT issues coming before the Court, and a lesbian justice would be personally affected? But civil rights and voting rights cases come before a court with black justices, and abortion rights cases come before a court with women on it … and why does being in the minority affected by decisions bring with it more bias than being in the privileged group, anyway? Thomas, Alito and Scalia have a stake in abortion rights, as men, that could bias their views as much as Ginsburg and Sotomayor; what is at stake for them is a piece of their privilege. And anyway, politics is not always derivable from identity. So while stances on the issues are fair game for confirmation hearings, personal stakes abound, and singling out one while ignoring the others has little to recommend it.

Leaving the issues that may come before the Supreme Court aside, some folks might just think that sexual orientation is so important as a matter of demographics and background that we need to know it to fully understand the nominee. That view might work for people with a very simplistic and binary view of sexual orientation, but won’t survive any real analysis.

Are we talking about sexual orientation, or affectional orientation, then? If orientation is behavior, is a lifelong celibate asexual? (There are real asexuals; I don’t want to dump a bunch of people into that category as if it were an empty set.)

If we’re talking about affectional orientation, do we care what people’s sexual conduct is if they don’t form romantic bonds? Some folks get laid plenty and never settle down. Other folks do partner, but perhaps not in anything that is really a romantic way. I think there are a lot of people who are really in love with their work, for whom companions and sex partners come and go and are not of great importance. I think there’s a lot of that in official Washington, actually. Do we all get to evaluate whether those political couples are love matches or just alliances? And do we really care about such folks’ sexual behavior, if don’t themselves care that much?

And the sex of one’s romantic partners is not the only big-deal personal identity that we can’t always see. Should trans people have to disclose their history? As a practical matter, it would probably come up anyway even for people who transitioned young, but what about intersexed folks? Some people would say that’s a big thing to know about a person, but it might not come out unless a nominee disclosed it. Should that be fair game, though disclosing it exposes people to violence? What about BDSM? For some of us, it’s an identity, a part of who we are, and yet especially those of us who do it largely or only with our life partners and in private, if we don’t tell anyone, it may never come out. Should all of that be fair game, even if what we do could expose us to prosecution or child custody challenges in some places?

Conversely, do we ignore whether or to whom people want to partner for life and what they consider matters of identity, in favor of knowing who and how (or if) they like to fuck? In that case, why are we giving a pass to all these folks who are married to people of the opposite sex? Who knows what those folks are up to! Ensign and Sanford and Edwards fuck other women; Foley and Craig appear to fuck men — except that Craig says he doesn’t, and nobody believes him — and all over Washington, people end up in beds with people other than their spouse. Roger Stone is an asshole and a conservative ratfucker, but at least we can be sure that whosever bed he landed in, he didn’t hide it from his spouse. And who else in politics can we say that about?

If the thing people think we have a right to know is not who people partner with but what they do to get off, then the disclosure obligation is endless. Some folks are het, bi, pan, heteroflexible … some marriages are open in various ways, some people are poly, some swing, and people label their conduct all kinds of things which others may or may not agree with. Some folks have sex with one group of partners but do kinky things with others; I know women who only sleep with women but will top men. Where is the box for that going to be on the disclosure form?

A principled stance that requires a nominee to say if she’s gay quickly becomes a principle that strips away all privacy and gives the public a look deep into every public person’s sexual identity, history and conduct. But when people do expose that much about themselves, if their lives are different from the mainstream, it hurts them. Just ask The Beautiful Kind.

What this comes down to is that a lot of people want Kagan out of the closet so they can have a set-piece battle over the first gay justice. Each side that wants to have that fight wants to have it because they think they’ll win it. The pro-GLBT folks think Kagan got through the Senate once and can’t lose; the antis see the set-piece battles in courts and referenda mostly going their way and think that the chances of stopping an openly gay Kagan are a lot better than a Kagan whose orientation is unstated. And some folks want her to keep her mouth shut because they don’t want this fight now.

I don’t care who is right about how the nomination goes, and though I’d rather see Kagan confirmed than not, I am very disappointed with the choice. But the way this gets handled sets the precedent, and prying is a road we don’t want to go down.