What if we weren’t born that way?

The immutability of sexual orientation and gender identity has been the cornerstone argument for LGBTQ2S+ rights. The trouble is that not everyone fits that mold

In 1989, my best friend in second grade gave me a diamond necklace and asked me to marry him. (I don’t think it was a real diamond—was it, Raymond?) My mom made me return it and decline his offer. In 1992, I unzipped my friend’s jumpsuit as we were standing in line to go to lunch. I remember the feeling of the tab between my finger and thumb. She was horrified. I got sent to the office. 

Two years later, I lay in my bed every night and whispered my crush’s name, hoping he’d hear me across the kilometres of city street noise between us. And in 2002, in my college apartment above a pizza shop and full of strange feelings for my best girl friend, I wondered to myself: “Am I bisexual?”

I am bisexual. But was I bisexual in 1989? In 1992? In 1994? Was I born bisexual? Did I come out of the closet, or did my identity evolve? 

Does it matter? 

My identity and experience, after all, aren’t uncommon. More than half of LGBTQ2S+ adults in America are bisexual, according to a recent Gallup survey. And increasing percentages of people, especially young ones, are finding words beyond “gay” and “straight” to define their sexuality, such as queer, pan, ace and so on (and, like me, they are similarly embracing non-binary gender identities, too). 

Last summer, actor Niecy Nash married musician Jessica Betts. Nash’s two previous marriages were to men and she had happily considered herself straight, until she fell in love with Betts. Yet Nash has refused to call this a “coming out.” “I wasn’t anywhere to come out of,” she said. “I wasn’t living a sexually repressed life when I was married to men. I just loved them when I loved them. And now, I love her,” she said of Betts. 

These kinds of expressions of sexual fluidity and change might not align with the popular narratives of being born either gay or straight, or of coming out as queer after a miserable existence within the closet, but they are no less real. For many of us, the why of our sexuality just isn’t as important as the how: How can we live as we are with autonomy, safety and joy? 

To those on the anti-LGBTQ2S+ right, however, the why does matter. A lot. And that’s a problem.

Back in 1938 (no, this part isn’t about me and my crushes), U.S. Supreme Court Justice Harlan Stone wrote a seemingly innocuous note in a case deciding whether the federal government could intervene in the regulation of the transport of milk products—a footnote that would change U.S. law. 


Yes, wrote Justice Stone, Congress could absolutely regulate interstate commerce without worrying about infringing on companies’ due process rights. But, he added, the court would look very closely at any laws that would have an impact on a “discrete and insular minority,” rather than a corporation. In other words, legislation that infringed upon the civil rights of minority groups could be subjected to higher scrutiny by courts to ensure those rights were upheld. 

With those four words, Justice Stone paved the way for both landmark legal victories in the U.S., such as Brown v. Board of Education, and landmark legislation, including the Civil Rights Act and the Americans with Disabilities Act. In the past 30 years, this higher level of legal scrutiny has been the basis for the federal litigation that has enshrined marriage equality and nondiscrimination protections for LGBTQ2S+ people in the U.S. 

“If being gay couldn’t be changed, the reasoning went, then gay people deserved protections and rights.”

But in the process, U.S. jurisprudence incidentally established a legal mechanism for civil rights that relies on a key term: Immutability—a quality or attribute that is fixed and cannot be altered. In order to qualify as a “discrete and insular minority,” the court said in another case, a group must meet certain criteria, such as having faced historical discrimination based on a shared characteristic and not having access to traditional methods of political power. And, most significantly for my argument, the shared characteristic must be immutable. 

And so, when gay, lesbian and, to some extent, bisexual people began to seek legal protection from discrimination on the basis of sexual orientation in the U.S. and elsewhere in the 1980s and 1990s, they picked up the “born this way” baton to attempt to prove that sexual orientation is an immutable trait. If being gay couldn’t be changed, the reasoning went, then gay people deserved protections and rights. 

In 2010, for example, during a trial to overturn Proposition 8, a 2008 ballot initiative that banned same-sex marriage in California, lawyer Ted Olson led plaintiff Sandy Stier through an explanation of her relationship history. Stier was partnered with a woman whom she hoped to marry, but previously had been married to a man. 

In order to show that prohibiting marriage equality was discriminatory, Olson felt he had to establish that Stier would be harmed by being able to only marry people of a different gender. But how could that be true if she had already married a man? Why couldn’t she just marry another man and be happy? 

Let’s look at how the line of questioning sets up a gay-straight binary, and posits Stier’s marriage to a man as something inauthentic compared to her authentic feelings for her female partner:

Olson: Are you saying that you weren’t in love with your husband?

Stier: I was not in love with my husband, no.

Olson: Did you think that you were at some point?

Stier: I had a hard time relating to the concept of being in love when I was married to my husband. And while I did love him when I married him, I honestly just couldn’t relate when people said they were in love. I thought they were overstating their feelings and maybe making a really big deal out of something. It didn’t really make sense to me. It seemed dramatic.
. . . 

Olson: How convinced are you that you are gay? You’ve lived with a husband. You said you loved him. Some people might say, “Well, it’s this and then it’s that and it could be this again.” Answer that.

Stier: Well, I’m convinced, because at 47 years old I have fallen in love one time and it’s with Kris. And our love is—it’s a blend of many things. It’s physical attraction. It’s romantic attraction. It’s a strong commitment. It’s intellectual bonding and emotional bonding. For me, it just isn’t love. I really, quite frankly, don’t know what that would be for adults. I don’t know what else to say about it.
. . . 

I’m not saying that Stier loved her husband more than she admitted, nor am I saying that she is bisexual. But I do know people who have deeply loved men and then went on to deeply love women (and vice versa), and those people should have the right to marry whomever they want, whatever their gender. Olson’s line of questioning, however, places bisexuality and fluidity as enemies of the freedom to marry, as inconveniences that might threaten a careful legal strategy. 

(It’s worth noting alternative judicial thinking when it comes to the matter of immutability. In 1995, the Supreme Court of Canada ruled in the landmark Egan v. Canada, which established sexual orientation as a prohibited basis of discrimination under section 15 of the Canadian Charter of Rights and Freedoms. On the question of whether rights should only be extended on the basis of immutable characteristics, Justice Gérard La Forest wrote, “I have no difficulty accepting the appellants’ contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.” In other words: The cause or source of one’s identity is irrelevant in deciding whether rights should be extended.)

The result of hitching our rights to the idea that our identities are fixed is that the immutability of sexual orientation (and, likewise, gender identity) has now been solidly entrenched in our cultural milieu. National Coming Out Day celebrates a singular event, while ignoring the reality of prolonged and multiple experiences of coming out, of shifts back into closets of safety and of changes in sexual orientation and gender identity over time. It’s still common to hear queer people speak of their sexuality as something they wouldn’t have picked for themselves if they had had a choice—a fairly damning and depressing view of our vibrant communities. After all, what’s wrong with choosing queerness? 

As long as there have been expressions and experiences of desire outside the hetero norm, there have also been forces bent on eradicating them: From prayers and exorcism, shame and rejection to institutionalization, imprisonment and violence. It’s understandable, then, that for some gay rights advocates—especially those who feel their own sexual orientation is innate—that the best case to make for tolerance and acceptance was to argue that homosexuality was natural and inherent, not an aberation but a variation.  

The problem is that many LGBTQ2S+ activists invested far too much in an argument that is both false and a dead end: Queerness isn’t immutable for all of us. Queerness can be beautifully fluid. 

There’s plenty of evidence to back this up. In her 2008 study on the fluidity of sexual orientation, American psychologist Lisa Diamond found that 67 percent of sexual-minority women changed the label of their sexual orientation over a period of 10 years. And LGBTQ2S+ health researcher Sabra Katz-Wise, in a similar study, found that 64 percent of women and 52 percent of men surveyed reported a change in their attraction to other people. “Sexuality is fluid,” one queer woman in the study told Katz-Wise. “I just happen to go for particular genders at particular times, and I feel like that’s pretty normal. Plus, of course I’ll feel more gay if I’m dating a woman than if I’m dating a man, that’s just how that works.”

“Now that the U.S. Constitution grants every individual the unfettered liberty to choose same-sex relationships, it simply does not matter whether they were influenced by genes, hormones, society or chance.”

But can the law also be fluid in how it recognizes the reality of sexual orientation? Some legal scholars and judges have explored the flexibility of immutability, to coin a phrase. Does immutability insist on the inability to change, or, as one judge has phrased it, on “traits that are so central to a person’s identity that it would be abhorrent for a government to penalize a person for refusing to change them, regardless of how easy that change might be physically”? In other words: Is an immutable characteristic one that a person is unable to change, or one that it would be wrong to force someone to change?

Diamond and law professor Clifford J. Rosky are at the forefront of a movement to transform how sexual orientation is understood in law. They wrote a paper in 2016 that laid bare the flaws of immutability: It’s unscientific, it’s unnecessary to protect from discrimination and it implies that some forms of attraction are less valid than others. To Rosky and Diamond, “now that the U.S. Constitution grants every individual the unfettered liberty to choose same-sex relationships, it simply does not matter why these choices are made and whether they were influenced by genes, hormones, society or chance.”

It’s worth noting here that many other commonly protected characteristics and identities are not immutable in the “unchangeable” sense of the word. For example, discrimination on the basis of religion is prohibited, including toward those who have converted to a religion. Disability status can change multiple times over a lifetime, and there exist protections for disabled people. And, finally, race, which is a protected characteristic, is itself a social construct that white supremacists have an investment in maintaining and expanding or contracting in order to keep the sanctity of whiteness.

Yet the supposed immutability of sexual orientation still rests at the heart of the legal strategy to expand the freedom to marry and guarantee protections from discrimination. Consider this quote from U.S. Supreme Court Justice Anthony Kennedy’s opinion in Obergefell v. Hodges, which brought marriage equality to the United States: The “immutable nature [of sexual orientation] dictates that same-sex marriage is their only real path to this profound commitment.”

And so we have two diverging roads: The reality of fluidity in sexual orientation (and gender identity), and the legal necessity of relying upon the unscientific construct of immutability in order to further rights and protections for LGBTQ2S+ people.

Here’s why we need to be wary: The anti-LGBTQ2S+ conservative movement is watching all of this very closely. In 2019, Peter Sprigg, of the fundamentalist Christian lobby group Family Research Council, wrote a paper titled “Evidence Shows that Sexual Orientation Can Change: Debunking the Myth of ‘Immutability.’” In it, he facetiously “endorses the call by pro-LGB scholars Lisa Diamond and Clifford Rosky to ‘abandon the immutability argument once and for all.’”

Sprigg doesn’t support Diamond and Rosky’s positions in any way other than to agree that “immutable” is an improper descriptor for sexual orientation. But Sprigg has nefarious ends—including denying LGBTQ2S+ people civil rights and advocating for conversion therapy. According to him, the fluidity of sexual orientation means that it should not be a basis for protection under law, and conversion therapy should be widely practiced. His reasoning is that if sexual orientation can change over time, people should be able to work with a therapist to facilitate that change. 

But all the therapists that Family Research Council supports believe that everyone should only change one way: Toward being straight. And to get their clients there, these therapists use “non-affirming” techniques, including, in some cases, literal torture. 

Rhetoric like Sprigg’s is finding sympathetic ears, including from those who are transphobic and opposed to transgender rights and gender critical parents of trans children, who wish to suppress their children’s identity through non-affirming therapies.  

Another Christian right-wing activist, Glenn Stanton of Focus on the Family, has used the results of the recent Gallup survey on LGBTQ demographics to make a similar case against queer and trans rights. Writing in The Federalist, a mainstay Christian-right publication, he says, “The new data tell us people are simply becoming more elastic in how they view their sexuality and gender. And if sexuality is elastic, that has huge implications.” 

“As long as the foundation of our rights is the belief that everyone’s sexual orientation and gender identity are inherent and fixed, there will be gatekeepers of our identities.”

What are these huge implications? That’s an excellent question that Stanton doesn’t answer, aside from warning ominously that it is “becoming increasingly fashionable to be seen as sexually experimental today, evidenced in the fact that 55 percent of those who told Gallup they were ‘LGBT’ said they were bisexual.” 

And this is exactly why the “born that way” case for rights is a dangerous one—because it leaves people with fluid identities vulnerable to discrimination, exclusion and harm. As long as the primary legal and moral argument for queer and trans rights is based on immutable and either/or characteristics, it will exclude those who are fluid, bisexual and non-binary. As long as the foundation of trans and queer rights is the belief that everyone’s sexual orientation and gender identity are inherent and fixed, there will be gatekeepers of our identities. 

Some of that gatekeeping will be judgement and derision within our own communities. And some of it will come from courts, educational institutions, governments, religious organizations and hate groups. If LGBTQ2S+ rights are only recognized on the basis of immutable characteristics, then Christian conservative groups and other anti-queer and anti-trans forces will continue to make headway by arguing that if people can change they should. Those of us who are able to prove we were, indeed, “born that way,” might be okay, but those of us who can’t—or won’t—will be in danger of being forced into conversion therapy, denied affirming health care or refused civil rights protections. 

In the face of the current anti-trans and anti-queer onslaught in the U.S. and across the globe, it might be tempting to lean into the immutable characteristic argument to demand our right to be free from discrimination, but we must resist. Instead, the solution is to assert, as Diamond and Rosky do, that it simply does not matter whether our orientation or gender identity is influenced by genes, hormones, society, chance—or even God. We should fight for all people to be housed, clothed, fed, loved and kept healthy and well, regardless of who they are and how and why they got that way. 

This is the foundation of justice: Not “tell the court why you shouldn’t be kicked out of your house,” but “we, as a society, believe that everyone should have a house.” After all, why should we have to prove our legitimacy to the state in order to obtain basic human rights, such as freedom, equality, safety and dignity? 

And yet, the state continues to control its citizens in ways that prevent us from surviving or thriving. As Andy Izenson, the legal director of the New York-based Chosen Family Law Center, notes, “The state seeks to control the bodies of its constituents: Whether they are caged or free, where they may go, what they are, how they are used, what they are understood to be for.” 

Izenson points to examples such as punitive incarceration; non-consensual surgeries on intersex infants; restrictions on reproductive health care; the rigidity of a particular gender narrative required to access insurance coverage for affirming medical care; interpersonal violence against visibly gender nonconforming individuals; and the capitalist devaluation of care, sex and home work.

“Embodying fluidity,” Izenson says, “is one tactic in resisting control.” What better way to reestablish autonomy and agency than to reject imposed and rigid definitions of identity? What better path to freedom than to embrace expansiveness and possibility of change and choice? And what better way for a democracy to protect its residents than to denounce binaries in favour of justice? 

As new generations lead the way towards embracing identities that are more fluid and less fixed, legal systems must follow suit or risk entrenching discrimination against LGBTQ2S+ people. A broad and nuanced understanding of sexual orientation and gender identity would defang support for conversion therapy and against nondiscrimination protections. 

A fluidity-inclusive ban on conversion therapy, for example, would acknowledge that many people experience shifts in their gender identity or sexual orientation over time, and that any effort to suppress that fluidity or direct someone towards a cisgender, heterosexual identity are unethical. A fluidity-inclusive nondiscrimination law would assert that everyone has a gender identity and a sexual orientation, and that we all have a right to be free from discrimination based on those characteristics, regardless of how we might identify at any time. 

Immutability is a trap with immeasurable power; it’s a trap with the tantalizing allure of a life without discrimination, but it’s a false promise. As long as some of us are seen as inauthentic or illegitimate, we are all at risk of being denied our rights and our humanity. We are not a monolith; not of race, religion, family creation, ability, class, sexuality or gender. Our strength is in our diversity and our way forward is to insist upon equity, not deservingness. 

Heron Greenesmith is an attorney, author, analyst and advocate. Find their work at Political Research Associates, Teen Vogue, Bitch, Rewire.News, TruthOut and elsewhere.

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