Forced to Fit

Rinku Sen

Yale Law Professor Kenji Yoshino has written a thought-provoking book that all advocates, organizers and attorneys should read. In Covering: the Hidden Assault on Our Civil Rights, Yoshino asserts that although government and the courts have outlawed explicit, intentional discrimination, they have refused to protect people from a more subtle and newly dangerous form, the demand that we mute those identities in order to fit into a public environment. The courts have drawn a distinction between immutable characteristics such as race, sexuality and gender (protected) and the behaviors associated with those identities (not). Yoshino starts by describing the problem for sexual minorities. How many times have we heard "I don't care that s(he's) gay, but does s(he) have to flaunt it by kissing in public/being flamboyant/wearing a pink triangle?" The courts have backed up that attitude when they upheld what Yoshino calls the "no promo-homo" statutes that prohibit teachers from being out at school and gave gay parents custody only if their lifestyle (celibate) won’t turn the kids gay too.

He then examines cases among other constituencies: a black woman fired for wearing corn rows, a white woman fired for not wearing make-up, another woman not promoted because she has a child, Latinos disciplined for speaking Spanish on the job. "American anti-discrimination law... too often conflates equality with studious non perception of difference," he writes. The law protects the "unchosen, but not the chosen" elements of identity.

Yoshino suggests that we expand the use of "accommodation" standards, which have worked for the disability and the religious rights movements. This might work in some instances - Make the Road by Walking uses that idea to force hospitals and public agencies to provide translation services. But Yoshino doesn't believe that American courts will ever go there. That puts the burden of liberating us from forced covering on the larger culture.

I would respectfully suggest that there is a third way that holds elements of both law and culture. Through organizing, communities challenge the status quo, both by pushing new policies and regulations, and by asserting the value of a particular identity. The Sikh Coalition is doing this by suing the MTA for forcing Sikhs to take off their turbans and by pushing a new religious discrimination law through the City Council. Aside from fighting for anti-discrimination policies, groups resist assimilation when they protest an imbalance of resources. Two local examples are Families United for Racial & Economic Equality's campaign to establish alternatives to a state regulation that would shut down up to 500 family day cares in Brooklyn, and Restaurant Opportunities Center of NY's work to challenge racial segregation in restaurant hiring. Public policy is our heavy lifting tool for protecting and promoting the right to be who we are, without rewards and punishments distributed on that basis. Organizing offers a way, less bound by inadequate laws and more open to possibility, to make sure that people can be who they are.