One of my most intense disagreements with another lawyer during nearly a decade of lesbian and gay rights litigation concerned social constructionism. The lawyer (a law professor, if truth be told) wanted to argue in an amicus brief to the United States Supreme Court that sexual orientation, like race, was a social constructed category. He reasoned that since the Court had condemned race discrimination even while recognizing the "socio-political, rather than biological" nature of race, it would similarly be willing to invalidate a measure discriminating against lesbians, gay men and bisexuals, even while recognizing the socially constructed nature of sexual orientation.
To me, the argument that sexual orientation was a social construct rather than a biological or otherwise deeply rooted, "natural" trait seemed potentially more dangerous to the plaintiffs' case than most of the arguments being made by our adversaries. My disagreement did not lie with the assertion that courts can and should remedy harms to members of socially constructed classes. To the contrary, I concurred fully with the underlying Foucaultian point that society, not nature, has accorded sexual orientation its significance.
Civil Rights and Discrimination | Law | Sexuality and the Law
Suzanne B. Goldberg,
On Making Anti-Essentialist and Social Constructionist Arguments in Courts,
Or. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/972