The Milo news is really making me think about FLUIDITY right now. (If you don't know what I'm talking about, go take a look and come back. I'm not gonna share his full name OR his bullshit on this page.)
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The Left doesn't have a good *narrative* around sexual and gender fluidity over time. The Left ignores people whose sexual orientation or gender identity shifts over time. The Left insists on a SINGLE "coming out" event and calls it a day. The Left sings "Born This Way."
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The Left has GOOD REASONS to ignore fluidity. Our legal system insists that communities articulate their commonality, their political powerlessness, their history of oppression, and importantly, their *immutability* to gain access to rights and protection from discrimination.
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Keep your eye on that word immutability. It means "unchangeability."
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Our legal system insists that a community meet all these criteria before letting that community sue a governmental entity for facilitating systemic or individual discrimination or preventing access. Our legal system focuses on access to RIGHTS, not access to JUSTICE.
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Ok, back to immutability. Immutability as a criterion to access RIGHTS is part of that set of criteria I laid out earlier.
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It's from the famous "Footnote 4" from a case called Carolene Products, in which SCOTUS justice Stone said that laws that discriminate against " "discrete and insular" minorities" should get a higher level of scrutiny--they should be looked at MORE CLOSELY than other laws.
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So what the fuck is a discrete and insular minority? Per usual, the Court is unwilling to, like, outright say what they REALLY mean. (If you're reading SCOTUS cases and you're like ???? you're not alone. Long winded and imprecise.) But here's Wiki's summary.pic.twitter.com/bhHmbUs043
![Criteria
The US Supreme Court has mentioned a variety of criteria that, in some combination, may qualify a group as a suspect class, but the Court has not declared that any particular set of criteria are either necessary or sufficient to qualify.[1]
Some of the criteria that have been cited include:
The group has historically been discriminated against or have been subject to prejudice, hostility, or stigma, perhaps due, at least in part, to stereotypes.[1]
They possess an immutable[2] or highly visible trait.
They are powerless[2] to protect themselves via the political process. (The group is a "discrete" and "insular" minority.[3])
The group's distinguishing characteristic does not inhibit it from contributing meaningfully to society.[4]](https://pbs.twimg.com/media/EwJQESEWYAcIG6S.png)
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So, to get this higher level of legal review, a community has to: 1) Have faced historical discrimination; 2) Have an immutable or highly visible trait; 3) Be politically powerless; and 4) Still be able to contribute to society (????)
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Ok, so how has SCOTUS defined "imutable" and how the FUCK does this relate to Milo and sexual fluidity??? I'LL GET THERE MOM CALM DOWN!!!! (also hi. how are you. you surviving the pandemic? do you want to hear more about milo and fluidity?)
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I should also add here that THIS IS A VERY LIVE DISCUSSION IN THE US!!!!! Legal scholars are like WHAT IS IMMUTABILITY??? Legal scholars are like IS IMMUTABILITY STILL HELPFUL??? (I'm a legal scholar. I guess I get to include myself in there.)
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From 2002. WHAT THE FUCK IS IMMUTABILITY http://blogs.gonzaga.edu/gulawreview/files/2011/02/Shapiro.pdf …pic.twitter.com/GKoqjJAezk
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From 2013 WHAT THE FUCK IS IMMUTABILITY IS GAY FOREVER https://madeinamericathebook.wordpress.com/2013/07/22/the-supreme-court-ducks-immutability/ …pic.twitter.com/ty5EF6rSnS
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In 2004 GAY IS FOREVER AND IMMUTABILITY IS IMPORTANT https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1252&context=clevstlrev …pic.twitter.com/lAkM6MRWip
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In 2015 IMMUTABILITY IS STUPID AND IT DISTRACTS FROM JUSTICE https://www.yalelawjournal.org/article/against-immutability …pic.twitter.com/a64XGcytEh
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To sum: in *theory* immutability, meaning unchangeability, is an important quality for a community to be able to show in order to be able to sue in federal court to get protection.
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So how do queer people show that queerness is "unchangeable?" When it's very obvious that, well, it's not. Like, all research shows that gender and sexual fluidity change, flow, evolve, and flux over time, across populations and within individuals. Queer IS fluid.
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How do we SHOVE the square peg of queerness into the round hole of "suspect classification" and "discrete and insularity"? (Please take this hackneyed phrasing any way you'd like to take it. WINK.)
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The answer to "how to we make queer immutable" is, well, BY IGNORING ALL EVIDENCE THAT IT ISN'T!! LOL!!! ISN'T THIS FUN!!!!!!
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The Left has spent the last 50 years smoothing, sanding, and shaping the square peg of queerness into something that better fits into a round hole. "We're just like the straights, but we both like men!" "We have houses too! And kids! And regular jobs!!"
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"We're born this way!" "I always knew I was gay!" "I always knew I was a girl!" The messy thing is, some of us didn't always know we were gay. We didn't always know we were girls.
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And that kinda fucks with the immutability argument, doesn't it. I have a short story, that I've told on here before. It's about Sandy Stier, one of the plaintiffs in the Prop 8 case in California that was going to re-ban marriage equality.
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The attorneys on our side, the equality side, had to argue that laws that discriminated based on sexual orientation deserved a CLOSE LOOK by the judges. And that meant they had to argue that sexual orientation was a "protected class," a "discrete and insular minority."
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Little problem. Sandy Stier had been previously married to a man. And if Sandy could get married to a man, then how was this law discriminatory? She can get MARRIED, just not to another woman! She's making a CHOICE. CHOICES aren't protected in US law.
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Well, the lawyers had to show that Sandy didn't have a choice. That her queerness was immutable. I don't have the transcripts in front of me, so I'll summarize.
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David Boies: Sandy, you were married to a man. Sandy Stier: Yes David Boies: Did you love him? Sandy Steir: I didn't love anyone until I met Kris Perry. David Boies: INTERESTING!!!!!! **turns meaningfully to the judge** Innnnnnteresting. **strokes chin** interesting.
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Now let me be clear, I am NOT saying that Sandy Stier DID love her husband. Or that she's bi or anything. I don't know Sandy. What I AM saying is that the lawyers in Prop 8 HAD TO show that Sandy was never ever ever ever straight and didn't love a SINGLE PERSON before Kris.
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And that's just NOT TRUE for many of us in the queer community. Some of us fell in love with someone of a similar gender after YEARS of love with someone of a different gender Some of us realized our own gender identity after DECADES of life in another gender identity.
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AND Some of us went back to loving people of a different gender after some time with a partner of a similar gender. Are we traitors? And some of us moved on in our gender transition. Moved on towards a gender more aligned with our gender assigned at birth. Are we traitors?
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And so where does that leave us? Where are we in the conversation around immutability?
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The answer is unclear, because, as I said up top, the greater Left and even the LGBT advocacy establishment lack a clear narrative around fluidity. And the Right knows this. And capitalizes on it. And here we have Milo, crawling back on to ANY STAGE he can find.
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Left: BORN THIS WAY!!! Right: But your own data shows that's not true? Left: BORN THIS WAY 4EVA Right: But, this person is saying they're not anymore? Left: THEY'RE LYING AND DELUDED Right: And this adult wants to access conversion therapy? Left: BOOORRNN THIISSSS WAY!!!!!
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The Right takes advantage of the Left's lack of a strong narrative to manipulate the evidence on sexual and gender fluidity to do two main things: CONTENT NOTE FOR FOLLOWING TWEETS
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