Is Gay Equality Equal?

A few days ago the Israeli Supreme Court issued a decision that forces the Jerusalem Municipality to fund the Gay Rights March organized by the local glbt (gay, lesbian, bisexual, and transsexual) organization - the Jerusalem Open House (Ynet report here, the full decision in Hebrew as a pdf file here). This decision is great news, I think, for anyone who supports glbt rights and equality. However, when I read the decision I felt troubled by it. In pragraph 54 of the decision, Justice Amit mentions that "the Israeli law regarding the gay community and its members reflects the changes that the Israeli society had gone through over the years. The Israeli society believes that the law must be indifferent to sexual orientation..." (my translation). Then Justice Amit goes over important milestones in the history of the gay struggle for legal equality in Israel and concludes, in paragraph 55, that "there's no wonder that scholars described the 1990's as the 'gay decade'... it should be mentioned that Israel's approach towards its gay population is one of the ways in which it proves it is a democratic and liberal state, unlike all other near and far states in the Middle East..." (again my translation).
Without addressing the motives of Justice Amit to compare Israel to its neighbors where such a comparison is completely irrelevant, these comments made me feel like Justice Amit, writing for the court, doesn't see glbt equality as a matter necessitated by a basic principle of justice. Rather, it is an expression of a public opinion that should be praised for its liberalism and acceptance. It should be appreciated.

And if you think that this is only an Israeli thing - yesterday the U.S. Senate voted against a bill that would allow to repeal the 'don't ask don't tell' policy of the U.S. armed forces (here). What I found amazing is not that the bill was repealed but that the bill itself made the repeal of the policy dependent on the outcome of a poll conducted by the Pentagon to survey the opinions of soldiers and find out if the change of policy would not hurt troop morale.

Somehow, glbt equality seems to be perceived as different from women's equality or racial equality. There were always people against them - but I don't think that those supporting them felt like they are doing someone a favor or that such equality depends on public opinion or the willingness of the voters to accept such equality. Is equality something that everyone deserves or does equality depend on the current beliefs of the crowd? Cause if equality should only be given to those who the public sees as equal - doesn't that make equality redundant? I mean, equality is worth something only if the political institutions are forced to provide equal rights to those that the public desires to discriminate. Otherwise, is equality a protection against discrimination at all? Is it even a right?

Transracial

Back in the beginning of the 20th century, many of the United State's Southern countries adopted some kind or another of the 'one drop' rule, determining that any person with any kind of African ancestry - 'one drop of black blood' - is black. I guess that made sense for those who tried to keep the white race 'pure'. But surprisingly enough, the same rule - although long abolished from the law - is still used as a determining test by those today who try to define what 'black' is, even (and perhaps most prominently) by those who consider themselves to be black.
It's interesting, because 'black' is a completely socially invented classification. I mean, if 'black' would have referred to dissent, as does 'African American', I'd assume that in a non-racist world one would have been referred to as what one is, or at least as what one is more. That is, a person with one African American grate-grandparent and seven European grate-grandparents should be referred to as 'bi-racial', since that person is of 'mixed dissent'. And indeed the term 'bi-racial' does exists, but no one really uses it, nor does society refer to such a person as 'white' either. Bi-racial people are 'black' even when they have more 'white blood' running through their veins. (and watch Wanda sykes's comments on President Obama's race at the 2009 White House Correspondents' Dinner.)
So 'black' isn't really about genes or ancestry. It's really much more about life experience, social background, and self-identification. If taking President Obama as an example once again, he writes in his book, Dreams from My Father, that he adopted the African American identity (meaning, the 'black' identity) only as a young adult, after encountering racism and deepening his knowledge of the story of slavery and emancipation in the United States. Thinking about it, Obama isn't 'black' at all in the regular sense of the word. His mother is 'white' and his father was an African student living in the United States. None of his ancestors were brought to America by slave owners, or lived through decades of discrimination. He is partly of African dissent; and he's American; but he chose to adopt the 'black' identity.
So can anyone adopt a 'black' identity? Of course, this is a question about all kinds of racial identities., and not just the 'black' one. Can someone opt-out of his or her race? The first answer that comes to mind might connect racial identity with the color of your skin. Well, Michael Jackson took care of that, didn't he? Did that make him 'white'? Is it just a matter of a simple operation and, much like transexuals, the question of racial identification can be solved on the slab?
Honestly, I think the answer is no, but only because I don't think it should be left to medicine to determine who and what we are. A few years back, legal and social discourse made the clear distinction between 'sex' and 'gender'. Sex is what reproduction organs you have; gender is who you feel that you are. Maybe the same distinction should be made with regards to 'dissent' and 'race'. My dissent is determined by my parents dissent, and their parents' before them. Nothing can change that. But my race? Completely up to me, to the social story I identify with, and to my choices in life. Personally, this is why I never tick the box next to 'caucasian' when asked for my race. I feel much more like an 'other'.

Cross-Defining and Trans-classifications

As Robert Cover said in his famous article "Nomos and Narrative," law is a world of definitions, which give everything and anything a meaning. The more you look at the law, the more you realize that Cover is right. A legal system is a collection of definitions - what is property, what is a binding contract, what is a citizen, what is illegal possession and so on. The law works through classifications - it creates terms and define them, then it collects together all the acts, things, and people that fall under these classifications. For example, in order to enforce a sign that prohibits the use of vehicles in the park, the law must define what is and what isn't a vehicle. Such a law would usually look like this:

"Sec 1: All vehicles are prohibited from entering the park.
Sec 2: A vehicle is a means of carrying or transporting something."

This law creates the classification 'vehicle', defines it, and then the system (usually the court which enforces the law) would apply that classification to specific objects that are involved in cases brought before it.

In certain cases and in certain legal systems, the statute might avoid a generally applicable definition of what a vehicle is, and in stead would give some examples for what it means. It could look like this:

"Sec 2: A vehicle - including cars, trucks, and motorcycles."

This is, of course, a different kind of definition. Rather than defining the term, the statute starts the process of classifying, with the intention that those who use the law (such as citizens, police officers, and courts) would inductively understand what other things can be defined as vehicles and continue the process of classification.

It's true that, even after reading the sign and the law that backs it, we might still find ourselves standing in the park, not knowing if what we are about to take onto its grounds is allowed or not. Does the sign prohibit riding bicycles in the park? And what about a monument for car accident victims, in the form of a wrecked car? Are those things vehicles? We might not know the answer to these questions, yet we know how to answer them: we must look at the thing at hand, determine whether it is part of the group of things the law is referring to, and classify it accordingly. (Now, there might be disagreement as to how to make that classification, and when such deliberation is even required. The sign in the park example was first used by H.L.A Hart and Lon Fuller in their famous debate in the 1958 Harvard Law Review, regarding the morality of law, and the way to understand it. Hart claimed that while we might not know if some things are vehicles or not, it is mostly clear to us what the law talks about when it refers to a vehicle. Fuller, on the other hand, claimed that any kind of classification requires interpretation, and that the term 'vehicle' means nothing until we look into the particular law's purpose in order to learn what it meant to say. Either way, though, we will end up with one group of things that are 'vehicles' and one group of things that are not.)

So, to sum it up, this is how the law works. It creates a classification (vehicles), and then tells us what to do or not to do with it (not let it in the park). Then anyone who uses the law (citizens, police officers, and courts) looks at the specific case that requires the application of the law and apply that classification to it (a car is a vehicle, therefore it is not allowed in the park. A bag isn't a vehicle, therefore it is allowed). This, of course, doesn't apply only to vehicles and parks. The law defines what is a 'narcotic drug' and by that divides all substances to things that are narcotic drugs and things that are not. It defines what 'rape' is, and by that divides all sexual acts to rape cases and consensual sex. The law defines rights in real property and by that classifies who is and who isn't a 'tresspassor'.

But should every human interaction be defined and classified in such a way? Should every thing in life be described as a part of a group of similar things? Could it be done at all? Think about it for a moment. Defining something by a specific term strips it - even if only for the purposes of that sentence - of everything else that thing is. It also strips us of any other classification that could be used to describe the range of things we are trying to classify. For example, saying that 'Ron is a male' strips Ron of everything else that he is: kind, student, short, brown-eyed, Dutch, vegetarian, etc. It also steals from us the distinction between different kinds of things that are all 'male' but are in reality very different from each other. If Ron is 25 years old, his male-ness is quite different from that of a year old infant who is also a male. If Ron is a homosexual it could be argued (as some do) that his male-ness is also different from that of a straight person who is also a male. But in the range of classifications that the classification 'male' is part of, these kinds of differences disappear, eventhough they are of the same metter. On this scale, one is either a 'male', 'female', or 'intersexual'. We simply do not offer any other classification, and those we offer are not enough.

There are ranges in which language has adopted a much more reasonable approach. When speaking of religions, for instance, people usually refer to themselves or others as 'Christian' (rather than 'a Christian') or 'Jewish' (rather than 'a Jew') . In the sentence 'Ron is Christian', the word 'Christian' serves as an adjective (yea yea, it might not be an adjective grammatically, but you get what I mean). It describes Ron rather than defines him. 'Ron is a Jew' sounds much more blunt that 'Ron is Jewish', that in turn leaves Ron room to be a lot of other things as well.

My point is that maybe it's time for the law to adopt a similar approach. Instead of categorizing things by defining them, perhaps the law should create a plain of categories, and then a plain of things - acts, objects, people. These plains would not mix - things won't be classified as part of categories. Rather, law would stretch a link between the thing and the category, and by that describe one attribute of that thing, leaving the thing itself undefined. Defining and classifying are attached to the object and might follow it to other contexts. So if we classify bikes as vehicles, we will have to deal with the question if they should be allowed on sidewalks (after all, other vehicles aren't) and if they should require a permit and age limit (after all, other vehicles do). And if bikes shouldn't be allowed on the side walk but shouldn't require a permit, what kind of a vehicle are they?! On the other hand, leaving aside definitions and asking just what things should be treated like when we stand at a park's gate seems a lot easier. Bikes are like vehicles in that they disturb people lying on the grass or striding in the paths. Therefore their use should be prohibited in the park. We don't know if bikes are vehicles, and we don't care. What we do know is that bikes have one vehicle-ish attribute to them, and that leaves them outside the park's premises.

This all becomes much more acute when we start talking about gender (cause really, bikes were only the introduction). If Ron was born in a man's body but identifies as a woman, is Ron a man or a woman? The law answers that with a clean cut - you are what your body is. The even less liberal answer is, of course, you are what you were born as. And that could lead to cruel and unusual results. Nonetheless, in certain instances gender cannot be disregarded altogether. By classifying Ron as either a man or a woman the law is unable to answer the complexity of the situation. However, by not asking that question, and asking instead 'how a person should be treated in a certain case', we can avoid the useless definition of what Ron is. For example, in legal issues related to sexual conducts a person should be treated according to the way he or she defines her or himself. That is, if one sees oneself as a male regardless of female genitalia, than one is not impersonating another when introducing himself as a male to potential sexual partners. (Unfortunately, courts tend to rule otherwise. See here in two pages and here in much more.) At the same time, when sentencing one to prison, it might be best to incarcerate all those who show a complex gender-identity with other women, rather than with other men, regardless of self-definition, in order to protect their safety. That doesn't mean they are women, it only means that in this case they should be treated the same way women do. On medical records, however, people should be registered according to their physical gender, in order to receive the appropriate treatment in case of emergency. This too doesn't mean they are what they are registered as in those records. Only that they would be treated as such if and when the need arises.
The world is too complex to be seen only through traditional legal eyes. Definitions and classifications change according to circumstances and in time, and the law must be responsive to these changes. If human existence is complex and diverse, the law should accommodate this diversity in order to reflect real life, rather than limit it into its self-created boxes.

And this is really interesting too.