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Article Title

Queering Bostock

Authors

Jeremiah A. Ho

Abstract

I. INTRODUCTION

Regarding queer identities, the enduring misconceptions about sexual and gender identities underscore precisely why queer lived experiences are critically salient for understanding and remedying instances of discrimination. Without substantively acknowledging the lived experiences of discrimination, one danger is that the dominant establishment more easily retains the posture of redressing discrimination as a means for preserving a discriminatory status quo. For instance, where anti-subordination approaches might better detect and address the inequalities of a marginalized groups lived experiences than anti-classification approaches, scholars have noted that the establishment’s choice to maintain anti-classification approaches allows the status quo to reify its dominant values especially when such formal equality treatments replicate structural hierarchies favoring the status quo. Likewise, when comparing different equality approaches used to conceptualize and redress discrimination against queer minorities, Russell Robinson and David Frost urge that “[j]udges should make decisions with a full understanding of LGBT people’s lives, not just the slivers that lawyers sometimes choose to serve up to them.” Relying on a singular perspective that does not fully contextualize LGBTQ experiences could be “problematic if presented alone, because isolating one [perspective] or the other fails to represent the whole of sexual minorities’ lived experiences.” Specifically, when sameness arguments are used to justify legal advancements, Robinson and Frost allude to some significant distinctions amongst LGBTQ experiences that are often obscured: “As LGBT people, we may have the same basic desires and life goals as heterosexuals and yet face unique forms of stress as we seek to achieve those goals. These barriers extend far beyond the availability of a marriage license, and courts should know that.” In this way, they observe that limited reflections of the LGBTQ experience in recent marriage cases contributed to “the judicial struggle to enforce equal protection while minimally disrupting the status quo and extricating the courts from extended structural reform.”

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