QD Conference Papers: Legal Perspectives: Carolyn Tyjewski

Legal Confusions: Hybridity and the Politics of Identity

In recent years, the United States’ court system has grappled with the question of who should and should not be protected under civil rights law. This question is not new for the court. And although, in the past, this question was primarily posed with regard to race, it has, in recent years, branched out to consider the rights of people who are Queer and/or Disabled. What has not changed, however, is who is bringing this question before the court. Or, more specifically, what particular sector of the minority community is bringing this question to bear and what the resulting decisions appear to be based upon.

My larger project concerns itself with the formulation of a theory of identity politics by examining how hybridity is represented within the United States. Today however, I will restrict my analysis to the comparison of three legal cases (Plessy v. Ferguson, Sutton et al. v. United Air Lines, Inc. and the Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati) and how identity, the law and hybridity combined in these three cases to create legal confusion concerning minority status and civil rights within the US.

This examination is based upon other scholars’ analysis of this phenomenon and utilizes JanMohamed and Lloyd’s idea of minority discourse theory. In their introduction to The Nature and Context of Minority Discourse, JanMohamed and Lloyd define the central task of minority discourse theory as,

drawing out solidarities in the form of similarities between modes of repression and struggle that all minorities experience separately but experience precisely as minorities. “Becoming minor” is not a question of essence (as the stereotypes of minorities in dominant ideology would want us to believe) but a question of position; a subject-position that in the final analysis can be defined only in “political” terms — that is, in terms of the effects of economic exploitation, political disenfranchisement, social manipulation, and ideological domination on the cultural formation of minority subjects and discourses (9).

In other words, the focus of minority discourse theory is to examine modes of repression and struggle for similar experiences across minority lines.

I have chosen the use of the term “hybrids” when referring to the group of individuals discussed for several reasons. Although all of the communities discussed have various names for those who can pass, each of these names tends to speak to only one specific identification category. Using just one of these terms would focus the reader’s attention, consciously or not, upon the one group associated with that particular term and to use more than one term would be problematic because it tends to create an unnecessary separation amongst these identity categories when looking at a mode of repression that affects all of them. This is not to suggest that these identity categories do not have differences amongst them that need to be acknowledged. Rather, it is a means of focusing on the mode of repression rather than on individual groups that mode is used upon. As bell hooks, Judy Scales-Trent, and others have noted, ableism, homophobia, racism and sexism are interconnected and inextricably entangled in this society. Although the term “hybrids” has its own problematic positioning within this society and culture, I am using this term because it is not associated with one specific identity category being discussed and, in terms of definition, is closest to clearly naming the group of people being described. As Ruth Colker points out, it

is an apt description of people who lie between bipolar legal categories. . . Their lives often constitute a unique set of traits and experiences not found at either end of the bipolar spectrum. Sometimes, they are considered exotic; other times, they are considered abhorrent; and yet other times, they are virtually invisible (xi – xii).

By blurring the lines, somewhat, amongst these categories, the problem (rather than the problematized) will come into clearer focus. By examining the common experiences of people who can pass as the normate, one can begin to see how society utilizes notions of exoticism, abhorrence and invisibility to control and/or negate the existence of hybrids and, in doing so, retain control of the predominant image of specific minority groups.

For example, in the Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati case, the court was deciding whether a section of a human rights ordinance could be rescinded so that gays, lesbians and bisexuals would no longer be covered. In its decision to uphold an anti-Queer initiative, the court stated,

. . . the reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics (95a0147).

In essence, the court was suggesting that the law could not protect individuals who could not be seen.

Ruth Colker points out, in Hybrids: Bisexuals, Multiracials, and Other Misfits under American Law, how the court’s decision not only suggests that homosexuals are invisible but also renders bisexuals non-existent (43-5). It did so by not mentioning them within their decision even though they are specifically mentioned in the initiative and the complaint (Colker, 43-5). She also demonstrates how the court’s suggestion that public displays of affection and proclamations of sexual orientation will remain along bipolar lines further negates the existence of bisexuals (44-5). In other words, according to the Sixth Circuit Court of Appeals, homosexuals are invisible and bisexuals are a figment of the imagination.

Although this case only concerned itself with sexual orientation discrimination, the bipolarity of gender in this country also comes into play in this case. More specifically the question, for example, of how someone who is intersexed would fit within this ruling if they refused to remain in the closet about being neither male or female? Given that female and male are the only two legally recognized genders in this society, how would one’s relationships be defined if one is intersexed within a court system that denies this possibility? What about someone who is transgendered? Although neither intersexuals or transgenders were specifically mentioned within the Human Rights Ordinance or the initiative, these questions need to be addressed because individuals who are intersexed and/or transgendered do exist and, right or wrong, this society does proscribe how people should interact sexually. Like the exclusion of bisexuals from the court’s decision, their invisibility within these documents is quite telling about our societal beliefs about the bipolarness of gender.

Because the Human Rights Ordinance truly intended to be an all-inclusive non-discrimination policy but the initiative did not choose to invalidate all non-discrimination policies within the ordinance based upon sexual orientation, a very peculiar and rather amusing result occurs from the passing of this initiative and the court’s decision. Technically, heterosexuals and anyone who does not fit within the identity categories of bisexual — being sexually attracted to both males and females — or homosexual — being sexually attracted to members of the same sex — are still covered under Cincinnati’s City Charter. In other words, heterosexuals, anyone who is attracted to individuals who are intersexed and/or transgendered and intersexuals and/or transgenders who are attracted to either males or females are all still covered by the Human Rights Ordinance in Cincinnati. Given the initiatives specific list of sexual orientations that would no longer be covered by the ordinance and our societal assumption that there are only two genders, it is relatively safe to conclude that the creators of the initiative did not intend this outcome. Like the writers of the law which instituted separate but equal railroad cars in the state of Louisiana in the 1800’s, they had a specific agenda of exclusion in mind.

Ruth Colker sarcastically suggests that it was the lack of knowledge of cases such as Plessy v. Ferguson that informed the court’s decision as to what constitutes a suspect class (5). I would suggest that it was not only a lack of knowledge of case laws and history that pertained it was also that the three-judge panel was more informed by the societal definitions of minority groups and ignored the legal definitions and the historical and present day “reality” created by these legal definitions of suspect classes.

In her analysis, Ruth Colker mentions Plessy v. Ferguson as a predecessor to the Sixth Circuit court’s confusion (Colker, 5). Most within this society would associate Plessy v. Ferguson with the upholding of “Jim Crow” laws or the phrase “separate but equal.” However, Plessy v. Ferguson also dealt with identity politics. According to the court’s documents, Plessy was not visually discernable as being of African decent and, as Mr. Plessy contended in his plea to the court, considered himself to be white (163 U.S. 537). In the court’s decision, however, they ignore both ocular evidence and Plessy’s self-identification by stating,

A statute which implies merely a legal distinction between the white and colored races — a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color — has no tendency to destroy the legal equality of the two races, or re-establish a state of involuntary servitude (163 U.S. 537).

Considering that even the court admitted Plessy was not visually distinguishable as being of African decent and given that the court felt that the separation of the races should be abolished when white men could no longer be distinguished “from the other race by color,” it is amazing the U.S. Supreme Court did not abolish Jim Crow at that moment in time. Like the Sixth Circuit Court’s later decision concerning homosexuality, the U.S. Supreme Court presumed that ocular evidence of identity is readily available in all cases while, at the same time, admitting that this was not true. The difference, of course, is that while one court chose to deny invisibility in order to retain discriminatory practices, the other promoted the idea of invisibility in order to attain the same goal.

If these were the only two court decisions that demonstrated this schism in logic, one could write off this event as a mere coincidence. However, as various scholars have noted, this is a reoccurring theme within the court system as it pertains to specific minority communities and, more specifically, the civil rights of said communities (Colker, 1996; Davis, 1991; Davis, 1995; Scales-Trent, 1995). This “confusion” within the court system covers not only race, gender and sexuality but disability as well.

In the case of Sutton et al. v. United Air Lines, Inc., two sisters, Karen Sutton and Kimberly Hinton, applied for positions as commercial airline pilots and their applications were rejected because they did not meet the company’s minimum requirement of uncorrected visual acuity of 20/100 or better — they both had uncorrected visual acuity of 20/200 or worse. Like Plessy, neither Sutton or Hinton self-identify as being a member of a minority community — although all three admit some connection to the particular minority group they are being associated with. In Sutton and Hinton’s case, they filed their suit under the Americans with Disabilities Act (ADA), a civil rights law prohibiting discrimination based upon disability or a perceived disability (42 U.S.C.12102).

According to court records, the sisters not only met the basic job qualifications for the position, they were both invited to interview for the position of commercial airline pilot (97-1943). It was at these interviews that both women were informed that someone had made a mistake in inviting them to the interviews because of their uncorrected visual acuity (97-1943). In order to establish whether an individual has a disability, one must look at the individual’s physical and/or mental impairment prior to accommodation to determine if it is substantially limiting to one or more major life activities — walking, talking, hearing, seeing, thinking, etc. (42U.S.C. 12102(2)(A)). Therefore, the sisters’ respective visual acuities, before correction, needed to be considered “substantially limiting” in order to be identified, by law, as disabled.

According to court records, both women had a visual acuity, without correction, of 20/200 or worse in both eyes (97-1943). To put this figure in perspective, one is considered blind in the US when one has a visual acuity, with correction, of 20/200 or worse in one or both eyes and/or has a visual field of 20 degrees or less because it is considered substantially limiting to the major life activity of seeing. Given this legal definition and their respective visual acuities without correction, Ms. Sutton and Ms. Hinton fell into the identity category of disabled because without the accommodation of glasses or contacts they had what was already established by the legal system as a substantially limiting visual acuity.

If society and the law did not consider seeing a “major life activity” or the subjective line denoting blindness was not set at 20/200 and/or Ms. Sutton and Ms. Hinton did not fit within this legal limit of blindness before correction — as is stipulated in the guidelines, there would have been no case. However, none of these alternative scenarios existed and the U.S. Supreme Court ignored the guidelines set forth by the law, the EEOC and the U.S. Department of Justice and came up with their own standard.

The U.S. Supreme Court felt that Congress did not intend to cover all persons with disabilities and that to consider each individual’s impairment, prior to mitigation, was to treat the individuals as members of a specific group. They also felt that the court system and employers should be allowed to decide whether an accommodation would cause any negative side effects to the individual with the disability. For the moment, I will ignore the U.S. Supreme Court’s paternalistic attitude towards people with disabilities needing someone to consider negative side effects of accommodations for them and focus, instead, upon the other misconceptions (stereotypes) relied upon by the court.

The first of these misconceptions is that Congress only intended to cover approximately 43 million people who have disabilities (97-1943). Given that, at the time of this hearing, the figure was already dated, the fixation the court had upon this particular number seems questionable logic, at best. Regardless, as with any law, what is now known as the ADA went through many revisions prior to becoming law. However, based upon who was involved in drafting and sponsoring the ADA — many of whom had “hidden” disabilities that did not affect their daily life activities but did affect how they were perceived by society, employers, etc. as being incapable — as well as the organizations that pushed for its passage — many of these organizations’ constituents had “invisible” disabilities — it is clear that those involved intended to include all people with disabilities, including hybrids (Shapiro, 105-41). Further, the only exclusionary clause within the ADA was added at the insistence of Senator Helms (Colker, 163). This “morality” clause was added to exclude sexuality and “other sexual behavior disorders” (42U.S.C.12211(b)(1)), creating, as Ruth Colker notes, “a new class of untouchables” (163). Although this clause does require further analysis as to how it reifies the bipolar categories of disabled/nondisabled, homosexual/heterosexual and female/male, it does not apply to the Sutton et. al. v. United Airlines Inc. case directly and, therefore, it will not be dealt with at this time other than to note it as the only exclusionary passage within the ADA. Because it is the only exclusionary clause within the ADA and because the legislative history surrounding the ADA is rife with examples of why and how hybrids would be covered under this legislation (U.S. Dept. of Justice, 7/2000), it appears the court disregarded the evidence so that they could continue to ignore that disabled could look/be able just as, in Plessy v. Ferguson, the court disregarded the intent of the 14th Amendment so they could continue to ignore that black could look/be white (163 U.S. 537; 97-1943).

The second misconception of the court is its belief that the definition of disability, specifically its use of the phrase “substantially limiting,” concerns solely an individual’s impairment and not how society is constructed. In other words, the court felt it was the inability to see normally, for example, that made one “substantially limited” and not that society had created an environment that was hostile toward those whose visual acuity was not considered the norm (97-1943). Had the court examined the legislative history concerning the ADA, they would have found that the testimony given involved account after account of the experience of living within a hostile environment in this country based upon the fact that people were seen as disabled and not how their individual impairment did or did not limit their present major life activities (Shapiro, 105-41). Had the court taken these testimonies or previous court decisions into account when determining what the ADA meant by “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment” (42 U.S.C. §12102(2)), they may have come to the same conclusion that Justices Stevens and Breyer came to within their respective dissenting remarks. Justice Stevens states,

In my view, when an employer refuses to hire the individual “because of” his prosthesis, and the prosthesis in no way affects his ability to do the job, that employer has unquestionably discriminated against the individual in violation of the Act. . . . (97-1943).

As Justice Stevens notes, the court’s majority decision creates a situation that essentially penalizes anyone with a disability who can and does use ameliorative accommodations that simply make it possible to live in this environment and, with regard to this case, more employable. Based upon Justice O’Connor’s examples of who the court felt should not be covered, they were objecting to those who, with or without ameliorative accommodations, could pass as nondisabled being acknowledged as having disabilities (97-1943). In other words, the court would protect an individual as long as they were obviously disabled or if they were nondisabled but were once obviously disabled but if one was like most people with disabilities and could pass as nondisabled, one had no protection under the law (97-1943). In effect, the court was telling those of us who can pass to choose one side or the other of the disabled/nondisabled paradigm. By drawing this subjective line between those who use accommodations which supposedly “cure” the impairment — thereby, denying disability — and those people with disabilities that, according to the court, cannot be accommodated to create an equal playing field (97-1943), the court attempts to make these bi-polar legal categories neat and clean.

As within Plessy v. Ferguson, the U.S. Supreme Court in Sutton et al. v. United Airlines, Inc. ignored the societal construction of minority status that created the need for this civil rights law. In other words, both courts presumed that one’s minority status was why one was excluded from society, denied one’s civil rights (163 U.S. 537; 97-1943). The courts based their decisions upon the stereotypical notion that being a minority in this country is a matter of essence and not upon the evidence that existed that clearly showed that “being minor” in this country is a socially and politically created event. To put it another way, these decisions were based upon societal stereotypes/definitions and not upon the law or legal definitions. In the process, both courts presumed the visibility and discreetness of these categories (black/white and disabled/nondisabled) even when faced with evidence that these categories were not insular or, necessarily, visible.

Like the decision of the Sixth Circuit Court of Appeals, both U.S. Supreme Courts were more informed by the societal definitions of the particular minority groups than they were by the legal definitions of these minority groups. And although the Sixth Circuit Court of Appeals seemed to be suffering from ignorance or selective amnesia with regard to legal history, the result of its decision does follow the legal history set forth in Plessy v. Ferguson and the later case of Sutton et al. v. United Airlines Inc. In all three cases, the courts appear to be attempting to prescribe the legal rights of a minority group by proscribing the actions of hybrids within said group. In essence, the court is forced to choose which side of the paradigm hybrids fall on because we do not fit neatly within both the legal and social definitions put forth within the United States.

Because the court is in a position that regulates human behavior, it can encourage hybrids to pass by suggesting that individuals who can hide their membership to a minority group should do so or blame their “indiscretions” for any prejudicial and discriminatory behavior they face. In her analysis of the Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, Ruth Colker concludes that, “The message from the Sixth Circuit is that gay, lesbian, and bisexual individuals do not need or deserve nondiscrimination protection because they have the choice of remaining closeted or, in the case of bisexuals, heterosexual” (45). Like both U.S. Supreme Court decisions, the court, in essence, is stating pick a side of the bi-polar paradigm — minority/majority — and stay there.

Works Cited

Americans with Disabilities Act of 1990. Public Law 101-336. 42 U.S.C.12102. CD-ROM. Vol. 1. U.S. Dept. of Justice. 7/2001

Bowers v. Hardwick. 478 U.S. 186. 1986

Clark, Sheree. “passing.” Pushing the Limits: disabled dykes produce culture. Ed. Shelley Tremain. Toronto, CA: Women’s Press, 1996. 166-7

Colker, Ruth. Hybrid: Bisexuals, Multiracials, and Other Misfits under American Law. New York, NY: New York UP, 1996

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hooks, bell. Yearning: Race, Gender, and Cultural Politics. Boston, MA: South End Press, 1990

JanMohamed, Abdul R. and David Lloyd. The Nature and Context of Minority Discourse. New York, NY: Oxford UP, 1990

Plessy v. Ferguson. 163 U.S. 537. U.S. Supreme Court. 1896. Online citation. 2 Aug. 2001. <http://laws.findlaw.com/us/163/537.html>

Russell, Kathy, Midge Wilson, and Ronald Hall. The Color Complex: The Politics of Skin Color Among African Americans. New York, NY: Anchor Books, 1992

Scales-Trent, Judy. Notes of a White Black Woman: Race, Color, Community. University Park, PA: Pennsylvania State UP, 1995

Sutton et al. v. United Airlines, Inc. 97-1943. U.S. Supreme Court. 1999. Online citation. 1 Aug. 2001. <http://laws.findlaw.com/us/000/97-1943.html>

Thomson, Rosemarie. Extraordinary Bodies: Figuring Physical Disability in American Culture and Literature. New York, NY: Columbia UP, 1997