Legal Equality, Gay Numbers and the (After?)Math of Eugenics

Implicit in Foucault’s concept is the notion that the exact moment these modes of governmentality are reproducing the relations of rule, they are also providing the vocabulary for the contestations to those relations of rule.
—Grace Hong¹

[LGBT-supportive policies] are linked to positive business-related outcomes including the corporate bottom line.
—Williams Institute²

Introduction

In recent decades, a legal equality or “rights” politics that focuses on same-sex marriage, anti-discrimination laws, hate crime laws, and military service has become the most visible and resourced politics opposing heterosexism. The demands of this politics have sometimes become prominent electoral concerns and significant legal cases have made headlines. According to the advocates of this agenda, important victories have been won. The legal recognition of same-sex marriages and the repeal of “Don’t Ask, Don’t Tell” have been heralded as important achievements for equality. Many states, cities, and counties have passed anti-discrimination laws and hate crime laws that include sexual orientation as a protected category and some have added gender identity or expression as well. In 2009, the federal hate crimes statute was amended to include crimes based on sexual orientation and gender identity or expression.

To achieve these ends, advocates of the legal equality agenda have increasingly produced statistical data to support their arguments for legal equality. Gay numbers have proliferated. Demographers and policy reformers have produced reports that provide empirical support for the agenda of same-sex marriage recognition and military inclusion and that aim to describe gay and lesbian or sometimes LGBT populations. Perhaps the most significant contributor to this trend of generating empirical support for legal equality projects is the Williams Institute (WI) at UCLA Law School. Its website describes its founding:

Mr. Williams’ inaugural donation of $2.5 million to create the Williams Institute was the largest donation ever given to any academic institution in support of a gay and lesbian academic program in any discipline. As the institute has grown, Mr. Williams has given over $13 million to support the organization’s programs.

The WI describes itself as a “nonpartisan” think tank. It produces reports focused on marriage, military, and related subtopics such as tax policies impacting unmarried same-sex couples, and adoption for unmarried same-sex couples. Some examples of topics explored in recent³ WI reports include:

• how providing legal recognition of same-sex marriage will increase revenue to particular states,⁴
• how same-sex couples pay more estate tax than different-sex couples because they cannot transfer wealth to a spouse untaxed before death,⁵
• a study that suggests that 20 percent of gay veterans kicked out of the military would go back if they could and describes the negative impact (for the military) of replacing them when they have been kicked out, including raising concerns that the military is having to “lower its standards” by enlisting “convicted felons.”⁶

The WI is a leading organization in the production of empirical data about gay and lesbian people, is often cited by courts and lawmakers, and has also been a vocal advocate for increasing collection of data about gay and lesbian people, recommending that the US Census and other key data collection mechanisms include questions about sexual orientation.⁷

In this article, we examine how statistical methods are being employed to produce an image of a rights-deserving gay and lesbian or LGBT population. We use existing critical analysis of legal equality campaigns and critical analysis of statistical methods to understand how the two are operating together in the context of gay and lesbian legal equality campaigns. We briefly examine how the use of statistics for defining populations is implicated in the history of eugenics in order to ask how today’s uses of statistical data in reform campaigns might still operate to mobilize racist national technologies of control. We argue that the explosion of new empirical data about gay and lesbian or LGBT people is not discovering the truth about an existing population; rather, it is formulating that population in order to frame it as a “deserving” population in the contexts of US racial norms. The production of this knowledge promotes legal claims to a certain kind of national citizenship sought by this particular strain of equal rights advocacy. In this way, we seek to expose a relationship between statistical methods and contemporary legal equality claims that is not limited to the context of lesbian and gay or LGBT rights politics but is particularly visible in that advocacy.

Critiques of Legal Equality Approaches

Many scholars and activists have critiqued legal equality–centered responses to homophobia and transphobia, raising concerns about the political formations producing demands for legal reforms, as well as the reforms themselves. Legal equality framings often operate to pacify, neutralize, and redirect movements seeking transformative change, shifting demands for significant redistribution and restructuring into narrow demands for symbolic inclusion and state declarations of equality that do not alter material conditions of harm and violence. Legal reform often transforms only enough to stabilize and preserve the status quo, containing the threat of change represented by disruptive social movements and alternative ways of life by very slightly altering legal regimes but preserving harmful outcomes.⁸ The concept of “discrimination” as it is framed by US legal equality regimes dehistoricizes and individualizes the harms of systems like white supremacy, settler colonialism, and heteropatriarchy by framing them as issues of individual prejudice and isolated bad acts. Such a framing makes it impossible to properly describe or remedy the harms of these systems, narrowing the scope of concern so severely that most conditions of harm and violence are not addressed. Because of the limits of legal framings, legal equality projects rarely meet the redistributive goals of populations in whose names they are created, and they can actually serve to obscure structural conditions of disparity.⁹

In the context of a growing racialized and gendered wealth divide in the US and globally, the expansion of criminalization and immigration enforcement systems and the “War on Terror,” critics charge that the cry for formal legal equality that has become synonymous with “LGBT rights” has produced victories that are little more than window dressing for racialized–gendered systems of violence and maldistribution that continue to shorten the lives of people impacted by homophobia and transphobia.¹⁰ The dismantling of welfare programs, the expansion of criminal punishment systems, the criminalization of social movement work that demands transformative change, and the expansion of non-profitization have effectively shifted the political terrain such that the range of legible political demands only extends to those reforms that slightly tinker with and ultimately strengthen projects of militarism, criminalization, and deregulation of labor, environment, and capital.¹¹

In this legal equality-centered politics, resistance to conditions of homophobia and transphobia has been narrowed in the last decades to an agenda that primarily seeks inclusion in systems and institutions that left movements have long identified as centers of state violence. Critiques of the ongoing criminalization of queer and trans life¹² are mostly ignored, crowded out by demands for increased criminal punishment in the form of hate crimes statutes, despite the lack of evidence that such laws prevent homophobic and transphobic violence.¹³ Longstanding feminist, anti-racist and anti-colonial critiques of marriage have been silenced by a loudly articulated request for entrance into the institution of marriage with all its duties and privileges.¹⁴ Critiques of the US military’s relentless violence, including its heteropatriarchal violence, are drowned out by celebration of the “right to serve” for “gay and lesbian Americans.”¹⁵ In the context of this equal rights politics, the legible demands have become centered on removing formal barriers to entrance to the key institutions that organize US life and sustain its colonial, racial, and gendered violence. Critics have raised concerns not only about how this legal equality agenda rehabilitates and redeems those institutions, but also how it fails to address the ongoing harms of homophobia and transphobia. As the vulnerability of people facing homophobia and transphobia, especially those targeted by police and immigration enforcement, and those without property, employment, or health benefits expands, increasing formal state recognition through marriage, anti-discrimination law, and military service offers little respite for those facing the most dangerous manifestations of homophobic and transphobic violence.

Additionally, legal equality campaigns have been critiqued for the ways that they tend to produce narratives of deservingness that divide constituencies facing harm and violence. Rights claims frequently include messaging about how the marginalized group “deserves” rights, and that deservingness rests on portrayals of the group as “normal,” “hardworking,” “law-abiding citizens,” and other such tropes. These frames of deservingness reify key divides in US culture and politics that establish and justify the marginalization, criminalization, and abandonment of people of color, prisoners, people with disabilities, people on public assistance, and other demonized populations. Deservingness is constituted through talking points that distinguish the rights-seeking group from those who are implicitly understood as undeserving. In the context of equal rights campaigns, these portrayals have sought to establish deservingness by portraying propertied same-sex couples who “deserve” children because of their wealth, monogamy, patriotism, and heteronormativity. The legal rights sought through these campaigns tend to match up to the deserving-constituency frameworks established. The reforms make adjustments that are most likely to benefit those whose lives match the image of the deserving rights-seeking couple and are very unlikely to change or improve the circumstances of those facing brutal homophobia and transphobia outside of the circle of deservingness.

In sum, critics of legal equality campaigns have identified at least four key concerns. Legal equality campaigns tend to achieve what Critical Race Theorists have called “preservation through transformation,¹⁶ transforming what the law says about a marginalized group but preserving the underlying status quo of maldistribution and state violence that group faces. Second, legal equality campaigns portray the problem as individual discrimination, obscuring the realities of systemic maldistribution and violence. Third, rights advocacy tends to produce narratives about institutions and systems in which advocates seek equality as good and fair systems that need only include the missing population so that they can join the exalted institution. Fourth, this advocacy produces binaries of deservingness and undeservingness in order to articulate belonging in exclusionary institutions and systems. The new rights tend to be crafted around these binaries, making them inaccessible for those in the worst circumstances. The mobilization of tropes of deservingess further demonize and endanger the most vulnerable members of the constituency.

Population and Normalization¹⁷

Some key concepts about how power works from the work of Michel Foucault are useful for unpacking the contemporary relationship between legal equality campaigns and the statistical methods. Foucault describes disciplinary and biopolitical modes of power as distinct from sovereignty, providing a framework that is particularly useful for examining the connections between how legal equality projects normalize the subject and how statistical methods normalize the population. Foucault describes sovereignty as power rooted in the “right to kill” (wielded against individual heretics or other disobedient people) or in “subtraction”—the power to take away. This subtractive power is wielded by the sovereign with the aim of obedience to the law and the maintenance of sovereign power itself.¹⁸ Discipline, on the other hand, establishes norms of good behavior and ideas about proper and improper categories of subjects. Foucault famously traces the invention of certain categories of sexual subjects—the homosexual, the reproductive couple, the masturbating child—as he argues that relations of power produce these identities through an explosion of discourse about sexuality in the Victorian period.¹⁹ Disciplinary practices congeal in certain institutional locations such as the school, the factory, and the clinic, where proper behavior is codified at the level of detail and subjects are formed to police ourselves and each other according to these norms.

Unlike sovereignty, and even discipline, biopolitics is concerned with population rather than individuals. Whereas sovereignty is defined by the right of the sovereign to kill, biopolitics is concerned with the distribution of life chances and the imperative to “make live,” to cultivate the life of the population.²⁰ Biopolitics develops as population grows and governments become concerned with counting birth and death rates, inventing public health initiatives and managing risks inherent in the population. Biopolitics emerges with new instrumental rationalities and new scientific methods for conceptualizing population, specifically statistics. As Grace Hong has described, “to create a population requires an apparatus that produces certain categories of statistical knowledge about that population.”²¹ From an American law perspective, the rise of (often administrative) population-level interventions that we can understand as serving a caretaking function signal this mode of power. Immigration enforcement, social welfare programs, or multi-dimensional campaigns like “welfare reform,” the “War on Drugs” or the “War on Terror” that mobilize a range of legal and administrative technologies (e.g., education policy, criminal punishment systems, methods of recordkeeping, family law doctrines, public housing regulations, surveillance technologies) are all examples of population-level interventions. These interventions are mobilized in the name of promoting the life of the national population against perceived threats, and they operate by sorting and producing regularities rather than by individual targeting. This regulatory mode of power is not concerned with obedience to law, but rather has multiple and diffuse aims.²²

Foucault suggests that the link between biopolitics and discipline is “the norm”:

In more general terms, we can say that there is one element that will circulate between the disciplinary and the regulatory, which will also be applied to the body and population alike, which will make it possible to control both the disciplinary order of the body and the aleatory events that occur in the biopolitical multiplicity. The element that circulates between the two is the norm. The norm is something that can be applied both to a body one wishes to discipline and a population one wishes to regularize.²³

Norms of behavior that operate at the individual level and that are incorporated by subjects into their self-understanding are essential to discipline. Biopolitics mobilizes norms at the population level through sorting technologies that produce structured security and insecurity for various populations in the distribution of life chances.

Foucault’s description of biopolitics as a form of power concerned with cultivating life, “making live,” raises the question of how genocide, massacre, and other killing can occur in the context of this life-giving biopolitical power. Foucault identifies “state racism” to answer this question. He explains that this population-focused power concerned with promoting life always includes the identification of threats and drains to the population, and that the destruction or killing of these threats in order to preserve and promote the life of the population is always present in biopolitics. Achille Mbembe describes Foucault’s notion of racism in the context of biopolitics by saying:

This control presupposes the distribution of human species into groups, the subdivision of the population into subgroups, and the establishment of a biological caesura between the ones and the others…. In Foucault’s terms, … the function of racism is to regulate the distribution of death and to make possible the murderous functions of the state. It is, he says, “the condition for the acceptability of putting to death.”²⁴

Importantly, Foucault explains that killing “do[es] not mean simply murder as such, but also every form of indirect murder: the fact of exposing someone to death, increasing the risk of death for some people, or quite simply, political death, expulsion, rejection, and so on.”²⁵ Thus, the function of biopolitical power is not the “right to kill” as in sovereignty, but the power to “make live and let die.”²⁶ This kind of power, and its specific concern with normalizing the population, relies heavily on the collection and analysis of standardized data, statistics, and statistical measure as a feature of biopolitics. Identifying and sorting the population and the environment in order to identify risks, threats, and drains becomes a central preoccupation of this kind of power.

Foucault explains that unlike sovereignty, which regards obedience to the law as its primary aim, governmentality is concerned with “the right manner of disposing things so as to lead to … an end which is ‘convenient’ to each of the things that are to be governed.” He writes, “… with government it is a question not of imposing law on men, but of disposing things: that is to say, of employing tactics rather than laws, and even of using laws themselves as tactics—to arrange things in such a way that, through a certain number of means, such and such ends may be achieved.”²⁷

This understanding of laws as tactics in the context of decentralized practices of governance, rather than as determinative, is useful for conceptualizing the limitations of legal equality and inclusion claims. It also provides a way of understanding how accounting contributes to the distributions that occur through certain vectors of population or identity. First, recognizing the prominence of technologies that sort the population through purportedly neutral, banal, and scientifically grounded administrative apparatuses and seeing that those are the locations at which life and death are distributed helps us to recognize state declarations of equality in the form of discrimination laws or hate crime laws as window dressing to material arrangements that actually shorten lives. The belief that declaring illegal explicit exclusion from employment, military service, or marriage on the basis of sexual orientation is a meaningful remedy for the harm done by heteropatriarchy is unsupportable when we recognize the significance of population-level operations of power. Further, Foucault’s and Mbembe’s descriptions of the processes of sorting the population into life that must be cultivated and life that constitutes a threat or drain, draws our attention to the significance of normalization and of the production of purportedly universal categories of “us” in whose name national resources are mobilized for various forms of killing.

This analysis provides a critical framework from which to examine the intertwined natures of legal equality claims and empirical claims. It suggests that the gathering and dissemination of statistical data and the articulation of demands for legal equality share a grounding in notions of citizenship and population that produce and maintain racialized–gendered national norms. The assertion of these norms and their production are in fact a central goal and strategy of the statistical projects being undertaken to support legal equality claims for “LGBT rights.”

1. Grace Hong, The Ruptures of American Capital: Women of Color Feminism and the Culture of Immigrant Labor (Minneapolis: University of Minnesota Press, 2006), 78. [↩]
2. M.V. Lee Badgett, Laura E. Durso, Angeliki Kastanis, and Christy Mallory, “The Business Impact of LGBT-Supportive Workplace Policies,” UCLA: The Williams Institute, May 2013. [↩]
3. This article was originally drafted in 2010-2011, but publication of the collection of articles it is part of was delayed. We have sought to update the information included here where needed and we believe the arguments remain relevant, but our choices of which WI studies to analyze is representative of the time period in which we were writing. Similarly, our decision to use Manhunt.com as the example web service in our alternative estimate of men who have sex with men was based on the popularity of that site at the time we were writing. [↩]
4. See, for example, Jody Herman, Craig Konnoth, and M.V. Badgett, “The Impact on Rhode Island’s Budget of Allowing Same-Sex Couples to Marry,” UCLA: The Williams Institute, February 2011; Angeliki Kastanis, M.V. Lee Badgett, and Jody L. Herman, “Estimating the Economic Boost of Marriage Equality in Iowa: Sales Tax,” UCLA: The Williams Institute, December 2011; Brad Sears, Christopher Ramos, and M.V. Lee Badgett, “The Impact of Extending Marriage to Same-Sex Couples on the New Jersey Budget,” UCLA: The Williams Institute, December 2009; Niraj Choksi, “Gay Marriages Could Generate Hundreds of Millions in First Year of Legalization for 11 States, Studies Find,” Washington Post, August 14, 2014, [↩]
5. Naomi Goldberg and M.V. Lee Badgett, “Tax Implications for Same-Sex Couples,” UCLA: The Williams Institute, April 2009; Michael D. Steinberger, “Federal Estate Tax Disadvantages for Same-Sex Couples,” UCLA: The Williams Institute, November 2009. [↩]
6. Gary J. Gates, “Effects of ‘Don’t Ask, Don’t Tell’ on Retention Among Lesbian, Gay and Bisexual Military Personnel,” UCLA: The Williams Institute, March 2007; Gates, testimony on “Don’t Ask, Don’t Tell,” US House of Representatives, Armed Services Committee, Military Personnel Subcommittee, July 18, 2008. [↩]
7. For example, on March 22, 2011, the WI announced that its executive director, Brad Sears, had testified on that date before the California Senate Committee on Government Organization about SB 416. “If passed, questions regarding sexual orientation, gender identity and gender expression, domestic partnership status, and the gender of a spouse would be added as voluntary demographic information in statewide surveys conducted or funded by the state…. Sears stated that the ‘collection of data on sexual orientation and gender identity is necessary because these are relevant demographic characteristics.’ He also said that ‘in the absence of such data, policymakers, businesses, and the public risk making decisions based on myths and stereotypes about LGBT people. The availability of this data would provide much needed information for state and local governments, businesses, social service agencies, community organizations, researchers, and the public.’” The Williams Institute is by no means alone in advocating for increasing government data collection about LGBT populations. Other national organizations such as the National Gay and Lesbian Task Force are actively advocating for a range of government data collection tools to add questions about LGBT identities. See, for example, “Demographic research on lesbians and gays emerges from shadows” or “Task Force launches next phase of Queer the Census campaign.” [↩]
8. Reva Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action,” Stanford Law Review 49.5 (1997): 1111–48; Angela P. Harris, “From Stonewall to the Suburbs? Toward a Political Economy of Sexuality,” William and Mary Bill of Rights Journal 14 (2006): 1539–82; Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law (New York: South End Press, 2011). [↩]
9. Alan David Freeman, “Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine,” in Critical Race Theory: The Key Writings that Formed the Movement, ed. Gary Peller, Kimberlé Crenshaw, Neil Gotanda, and Kendall Thomas (New York: The New Press, 1995), 29–45. [↩]
10. Anna M. Agathangelou, D. Morgan Bassichis, and Tamara L. Spira, “Intimate Investments: Homonormativity, Global Lockdown, and the Seductions of Empire,” Radical History Review 100 (Winter 2008): 120–143; Spade, Normal Life. [↩]
11. Dylan Rodríguez, “The Political Logic of the Non-Profit Industrial Complex,” The Revolution Will Not Be Funded: Beyond the Non-Profit Industrial Complex, ed. INCITE! Women of Color Against Violence (Massachusetts: South End Press, 2007), 21–40. Reprinted in this issue. [↩]
12. Ginia Bellafante, “Arrests by the Fashion Police,” The New York Times, April 5, 2013; Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer (In)justice: The Criminalization of LGBT People in the United States (Boston: Beacon Press, 2011); Sean Strub, “Think Having HIV Is Not a Crime? Think Again,” Huffington Post, October 29, 2013; Nicole Pasulka, “The Case of CeCe McDonald: Murder—Or Self-Defense Against a Hate Crime?,” Mother Jones, May 22, 2013; Eric A. Stanley and Nat Smith, eds., Captive Genders: Trans Embodiment and the Prison Industrial Complex (Oakland, CA: AK Press, 2011). [↩]
13. Ryan Conrad, ed., Against Equality: Prisons Will Not Protect You (Maine: Against Equality Press, 2012). [↩]
14. Conrad, Against Equality; Mark Rifkin, When Did Indians Become Straight?: Kinship, the History of Sexuality and Native Sovereignty (New York: Oxford University Press, 2011). [↩]
15. Conrad, Against Equality. [↩]
16. Siegel, “Why Equal Protection No Longer Protects,” n7; Angela P. Harris, “From Stonewall to the Suburbs?,” n7. [↩]
17. Portions of this section are adapted from Dean Spade, “Laws as Tactics,” 21 Colum. J. Gender & L. 442 (2011). [↩]
18. Michel Foucault, “Governmentality,” The Foucault Effect: Studies in Governmentality, ed. Graham Burchell, Colin Gordon, and Peter Miller (Chicago: University of Chicago Press, 1991), 103. [↩]
19. Foucault, The History of Sexuality, Volume I: An Introduction (New York: Pantheon Books, 1978). [↩]
20. Foucault, “Society Must Be Defended”: Lectures at the Collège of France 1975–1976, ed. Mauro Bertani, Alessandro Fontana, François Ewald, and Arnold I. Davidson, trans. David Macey (New York: Picador, 2003), 241. [↩]
21. Hong, Ruptures of American Capital. [↩]
22. “Government is defined as a right manner of disposing things so as to lead not to the form of the common good,… but to an end which is ‘convenient’ for each of the things that are to be governed. This implies a plurality of specific aims: for instance, government will have to ensure that the greatest possible quantity of wealth is produced, that the people are provided with sufficient means of subsistence, that the population is enabled to multiply, etc. There is a whole series of specific finalities, then, which become the objective of government as such.” Foucault, “Governmentality,” 95. [↩]
23. Foucault, “Society Must Be Defended,” 253. [↩]
24. Achille Mbembe, “Necropolitics,” Public Culture 15.1 (Winter 2003): 11–40, 17. [↩]
25. Foucault, “Society Must Be Defended,” 256. [↩]
26. Foucault, “Society Must Be Defended,” 241. [↩]
27. Foucault, “Governmentality,” 95. [↩]