The Legal Flattening of Queer Interracial Relationships In Law
- Logan
- Mar 13
- 33 min read
THE LEGAL FLATTENING OF QUEER INTERRACIAL RELATIONSHIPS IN THE LAW
Abby Leigh
Spring 2024
G.U.I.L.T.
INTRODUCTION
This work, as with much discourse on feminism, Queer Theory, and Critical Race Theory, stems from my intimate experiences and observations in the world. I am reflecting, writing, and critically engaging as someone with a gender-expansive mind. I am AFAB (assigned female at birth) and non-binary. I am white and in an interracial relationship in which my partner is Black and also non-binary. Although the world sees and treats us differently, my partner and I see each other for our truest, most authentic selves. As gender non-conforming people, to be seen as you see yourself is one of the greatest gifts. It is only when we begin to interact with the outside world that we encounter other people’s projections of us, stereotypes, and judgments filtered through racialized and gendered logic.
Queer interracial intimacies are the result of multiple layers of intersectionality. These relationships are a site of resilience as the individuals in them juxtapose normative expectations of race, gender, and sexuality simply by existing. Though there is a significant amount of scholarship on interracial relationships and queer relationships respectively, significantly less scholarship exists on queer interracial intimacies. Taking the analysis one step further, virtually no scholarship exists on how gender identity, gender presentation, and gender non-conformity traverse the lived experiences of queer interracial relationships. Observers often distill the nuance of these intimacies into monoracial, heterosexual, gender normative dynamics. In particular, gender non-conforming relationships (in which one or multiple people in the relationship exist outside the gender binary) challenge this distillation because gender and gender roles are not performed in a digestible hetero-normative manner. Interracial relationships also challenge normative constructions of intimate relationships as they transcend cultural boundaries. Simply by existing in normative spaces, queer interracial relationships challenge mono-racial, heterosexual, and cisgender norms.
My partner and I live in both our inner and outer worlds, cherishing the few people who see our relationship as it truly is and bracing ourselves for the everyday violence from those who do not. To feel safe and accepted in the world, it usually falls on those who are “othered” (in this case, us) to do the work of consciousness-raising. This intervention, often taking the form of small daily interactions, is an unrecognized form of invisible labor. It leaves queer interracial folks in a seemingly no-win situation: either feeling guilty for protecting their peace and not speaking up or, conversely, feeling exhausted for intervening and disappointed by the response. Even within our own communities, there are no safe spaces to rest from this exhaustion. Throughout my paper, I hope to explore the gaps in theory and law that produce this exhaustion and how the law’s normative interests in interracially, gender identity/performance, and sexual orientation are socially reinforced and reproduced.
In Parts I and II, I evaluate the legal landscape of queer intimacies and interracial intimacies, respectively. In Part III, I turn to the legal landscape of queer interracial intimacies and how the law has both analogized and overlooked these relationships. In Part IV, I root my analysis in Queer Theory and CRT and discuss the gaps left by both theories. In Part V, I turn to modern case law “wins” for the queer community. The history of queer interracial relationships and the current gaps in scholarship demonstrate how queerness, interraciality, and gender non-conformity do not sit easily together in the law and society. Looking beyond the rights granted, I critically analyze how the law produces and maintains normativity in these decisions and the implications for identities existing in the categorical margins. In Part VI, I explore the utopic possibilities of queer interracial relationships and the gender euphoria created by being seen by people who understand. I end with a brief reflection and conclusion.
Because language is important in constructing meaning and power, I attempt to diversify my language as much as possible. This is not to ignore the nuances of variation in vernacular but rather to be as inclusive as possible in addressing the range of non-cisgender queer identity. I use terms such as non-binary, transgender, gender expansive, gender non-conforming, non-normative, non-traditional, and multidimensional queer people, as well as other alternatives. However, many of the concepts I discuss are equally applicable to cisgender people and various other identity categories. Concerning race, I specifically chose to address Black/White interracial intimacies based on my personal experiences, though again, much of the scholarship applies to other forms of interracial intimacies.
THE LEGAL LANDSCAPE OF QUEER INTIMACIES
“If I wait for someone else to validate my existence, it will mean that I’m shortchanging myself.” – Zanele Muholi
Throughout U.S. history, the construction of queer people as “deviant” and “unnatural” has served as a rationale to implement anti-sodomy laws, gay marriage bans, and other anti-LGBTQ+ policies. In the 1970s, the U.S. began to repeal sodomy laws while simultaneously targeting same-sex intimacies for the first time. Largely, this shift was caused by an increase in social animus targeting queer people. It was not until 2003 that the Supreme Court overturned laws punishing consensual non-procreative adult sexual activities between two individuals in Lawrence v. Texas. Gay rights activists hailed the decision as a triumph, calling it a crucial milestone on the strategic journey toward achieving “marriage equality,” which was decided in Obergefell v. Hodges twelve years later.
Since the Obergefell decision, the same-sex marriage equality agenda has been criticized by critical scholars as a failed inclusion strategy. By constructing narratives and creating legal distinctions that classify those who “deserve to be included,” the movement also conversely draws exclusionary boundaries around those who do not deserve to be included. In this way, same-sex marriage reproduces and maintains hetero-normative marriage ideals. Logics such as “children need and deserve married parents” and “marriage is the most important relationship people can have” were embedded in the legal arguments used to justify marriage equality in Obergefell.
Spade and Willse argue that marriage is a tool of anti-black racism, colonialism, gendered social control, xenophobia, and immigration enforcement. Fundamentally, they characterize marriage as an institution that “maldistributes life chances” and controls marginalized populations by upholding notions of private property through traditional legal intimacy contracts. In contrast, some scholars push back on the classification of marriage equality as merely conservative and assimilationist. For example, Nejaim argues that same-sex marriage equality is useful for facilitating the expansion of intentional and functional parenthood for all families. Others describe the “emotional impact” of marriage equality, such as weakening social stigma and elevating equality frameworks. These “wins” are part of the normative transformation of marriage achieved by expanding the definition of marriage to include queer couples. Instead of labeling these outcomes as "wins," they can be viewed as manifestations of how heteronormativity is extended and perpetuated through the allocation of legal rights and privileges.
Despite these positive benefits achieved within the rights framework, the inclusion framework functions by punishing those who do not participate (i.e., queer people who do not get married); for example, by denying unmarried people medical benefits like hospital visitation rights and economically depriving them of tax benefits. This exclusion works to maintain marriage as the highest form of relational intimacy attainable through the law. Spade and Willse contend that “marriage will never set us free” because the legal marriage system “enforces the line between which sexual practices and behaviors are acceptable and rewarded, and which are contemptible and even punishable.” Within the policing of marriage, same-sex marriage is whitewashed and strays away from multidimensional people and politics within the gay agenda in favor of what is normative enough to be considered politically feasible. An alternative queer rights framework reorients the movement away from white capitalist heteropatriarchy and towards the radical possibilities of queerness that are ordinarily obscured by heteronormativity. Because multidimensional queer people have historically been systematically excluded from the normative ideals of marriage, they are better situated to challenge the norms and systems that exclude them.
Hammack, Frost, and Hughes lay out a seven-axiom queer paradigm to explain how queer people defy normative notions of intimacy within a historically and culturally contingent framework. They define normative intimacies as “privileged forms of intimacy [that] include heterosexual, married, monogamous, and procreative sex among individuals of the same generation.” Under this approach, queerness is defined expansively to include anything that challenges or deviates sufficiently from heteronormativity to historically warrant social or legal condemnation and/or political opposition. This includes challenging the normative notions of static and singular desire across one’s lifetime, monogamy, role play/power play, sexual/romantic attraction as a predicate for intimacy, and the biological nuclear family as the primary social unit. Overall, the paradigm resists the urge to normalize relational forms of queer intimacies through a normativity framework and stands in stark opposition to the current marriage equality model.
Unlike the majority of the same-sex marriage scholarship, which primarily focuses on sexual orientation and binary identities, the queer paradigm considers gender identity through the inclusion of transgender and non-binary intimacies. It is important to understand how the experiences of transgender and non-binary individuals in relationships diverge significantly from individuals in cisgender same-sex relationships. For example, gender non-conforming people experience continuous “minority stress,” characterized by “persistent vigilance about the possibility of stigma or rejection” of their gender identity and presentation. This framework can further be expanded to include gender non-conforming relationships, which are also subject to compounding structural violence.
However, even within the queer paradigm, most research focuses on transgender people who subscribe to the gender binary (i.e., transgender men or transgender women). The authors recognize the scarcity of research on individuals identifying as genderqueer, gender nonbinary, or gender fluid, and they refrain from filling these gaps with the experiences of those who identify strictly within the binary transgender spectrum. They argue that “to the extent that individuals in trans intimacies aspire to a binary gender identity, these relationships might assume what appears to be a normative form.” Missing from this discussion is a robust analysis that centers on the role of gender non-conformity in queer intimacies. For example, to combat misidentification and erasure of non-visible identities, queer people and couples often engage in normative resistance, explicitly identifying as queer to intentionally mark the relationship as nonnormative.” In what ways does the degree of one’s visible gender presentation and the social environment complicate normative resistance? How does interracially factor into normative resistance? Though race is mentioned passively throughout the paradigm as one of the factors influencing queer couples, it is not meaningfully expanded upon. Next, I will discuss how race further complicates this analysis.
THE LEGAL LANDSCAPE OF INTERRACIAL RELATIONSHIPS
"It is not our differences that divide us. It is our inability to recognize, accept, and celebrate those differences." — Audre Lorde
Laws prohibiting interracial marriage were first enacted in the U.S. in 1664, and at one time, they were codified in almost all states. The first successful challenge to state anti-miscegenation laws occurred in 1948 when the California Supreme Court decided Perez v. Sharp. The Court held the law banning interracial marriage “violate[ed] the equal protection of the laws clause of the United States Constitution by impairing the right of individuals to marry based on race alone and by arbitrarily and unreasonably discriminating against certain racial groups.” The U.S. Supreme Court later affirmed the fundamental right of marriage in Loving v. Virginia, where it unanimously ruled that interracial marriage violated the Equal Protection and Due Process Clauses of the Constitution. In a rare acknowledgment, the Supreme Court referred to interracial marriage bans as measures to embed and maintain “white supremacy.” Decades later, U.S. approval rates of interracial marriage have reached a new high of 94% compared with less than 20% when Loving was decided.
Although public opinion of interracial intimacies has overtly shifted, over time, the legal institution of marriage continues to regulate sexual practices, gender expectations, and racial dynamics that were not overcome simply by overturning anti-miscegenation laws. The concept of the habitus helps to explain the maintenance of these embedded legal hierarchies. Matsumura broadly describes the habitus as an invisible framework “of internalized structures, schemes of perception, conception, and action common to all members of the same group or class.” As applied to marriage, the marital habitus is “the framework through which people structure their personal relationships and comprehend all adult intimacy.” Shapiro defines the white habitus as a structure that maintains white racism. He defines white racism as “a narcissistic worldview, born of a carefully insulated white habitus, that impedes whites’ ability to maintain bonds across racial difference” due to their inability to “recognize BIPOC as distinct, autonomous, worthy subjects without undermining their whiteness and its associated privileges.” Interracial relationships are a visible site of disruption to the white habitus and marriage habitus by bringing heightened awareness to the internalized structures and perceptions that maintain covert racism and anti-miscegenation.
As interracial couples come into contact with the white habitus, they often employ “racework” to “maintain [a] close relationship[] across lines of racial stratification,” which “at best, [] involves acknowledging and bridging racial differences without the pretense of ‘transcending’ them.” For this to occur, white partners must learn to acknowledge and validate their Black partners’ experiences even when it risks shattering their white habitus and the comfort of white normativity. For example, this may include setting familial boundaries with white family members who micro-aggress their partner, selecting social settings that are comfortable and accepting of their partner, recognizing the everyday privileges of whiteness, and intentionally choosing not to reinforce them within the relationship. Without intentional “racework,” the white habitus and white supremacy are socially maintained and reinforced. For example, in the heterosexual dating scene, Rudder’s 2009 analysis of OkCupid found that users tend to rate Black men, Black women, and Asian men as less attractive than white and same-race users. Although several years later, OkCupid users expressed greater openness to interracial romance, there was no meaningful change to their dating practices. This study is an example of performative, superficial acceptance done without the necessary “racework” to meaningfully challenge the white habitus.
Onwuachi-Willig and Willig-Onwuachi discuss how law and society produce and maintain normative ideals of intimate couples as heterosexual and monoracial. Using McIntosh’s “invisible knapsack” and Crenshaw’s theory of intersectionality, the authors think through the unacknowledged monoracial and heterosexual-couple privileges embedded in everyday social and legal contexts. With a particular focus on Black/white interracial relationships, the authors demonstrate how housing discrimination laws do not protect interraciality as a category distinct from racial discrimination. By presenting the housing discrimination hypothetical, the authors describe how anti-discrimination housing laws implicitly presume all couples are monoracial. It forces the division of the interracial couple as a unit to receive legal protection (individually, they must assert discrimination by association, claiming separately and individually that, but for the race of their spouse, they each individually would have been treated differently). In doing so, the law fails to recognize the very existence of interracial relationships. According to the authors, the appropriate remedy is to expand the rights-based framework by explicitly recognizing interracial couples and families in housing discrimination statutes. This logic is another example of a normative intervention and limitation of the rights-granting framework, similar to the expansion of marriage rights to same-sex couples.
Onwuachi-Willig and Willig-Onwuachi also unpack the violence of assumptions, using a personal anecdote to illustrate how people assume interracial couples are not intimate partners. They discuss that in the grocery store, people often mistake Angela (who is a Black woman) for an employee who is helping Jacob (who is a white man) instead of seeing the two as a couple shopping together. The authors highlight the nuanced and contextual nature of these interactions by contrasting their experience in the grocery store with another example: shopping in an electronics store. In that environment, people would be less likely to believe that Angela is servicing Jacob, but they would be more likely to think so if the interracial couple were instead an Asian Pacific American male and a white female, based on racialized and gendered stereotypes. Thus, where these interactions are occurring is a key factor in the analysis. However, the piece does not mention that who the normative audience is in a particular space also influences the way interracial couples are perceived. How, for example, is perception impacted based on the race and sexual orientation of the observer? How is the perception of interracial couples further complicated when gender identity is not presented in a binary way?
In an attempt to avoid the everyday violence of assumption, the authors touch on the invisible labor inherent in navigating public spaces. They “try to plan where [they] will eat, play, or stay overnight as a means of avoiding discrimination.” Nonetheless, even the most carefully planned and intentional navigation of public spaces cannot protect interracial couples from blasé discrimination, such as the grocery store interaction. Careful deliberation is a necessary part of “racework” that interracial relationships implement to protect both parties. Although not mentioned explicitly, the constant level of intentionality and consideration that interracial couples must deploy in the public sphere easily extends into hypervigilance and anxiety, other forms of invisible harm.
As articulated by Childs, the issues that interracial unions bring to the surface (such as racialized and sexualized stereotypes, familial opposition, lack of community acceptance, etc.) are a reflection of the larger systemic issues that divide society. The social and legal reactions to interracial intimacies act as a mirror for these tensions, reflecting the external racial tension that many interracial couples internalize. Interracial relationships are viewed as a way to erase racial differences and as a sign of racial progression. Yet simultaneously, they are also perceived as the ultimate problem of race relations: “a symbol of racial impurity among whites or an internalization of racism among [B]lacks.” As delineated, most scholarly work has examined interracial intimacies through a heterosexual lens. I now examine the legal landscape of queer interracial relationships, with a particular focus on those that transcend the gender binary.
THE LEGAL LANDSCAPE OF QUEER INTERRACIAL RELATIONSHIPS
"You have to go the way your blood beats. If you don’t live the only life you have, you won’t live some other life — you won’t live any life at all." – James Baldwin
While attending a public interest scholarship award ceremony, my partner and I were repeatedly asked if we met in law school. The attorneys, mostly older white men, could not seem to fathom that my partner and I would meet anywhere else. Others were visibly surprised to hear my partner was “well educated.” As part of accepting the award, I was asked to give a speech about my commitment to social justice. As he was giving introductory remarks, the head of the organization repeatedly misgendered me, despite the fact that my pronouns were correctly written (and stated numerous times) in the biography he was reading from, which was also listed in the program. As he explained my work with the Haitian Bridge Alliance, a non-profit immigration organization that predominantly serves Black migrants, his wife leaned over and asked my partner, “Are you Haitian?” Her question unmistakably reflected her prejudices against Black people and stereotypes she internalized about interracial couples, such as the notion that the Black partner aims to enhance their status by being in an interracial relationship.
Throughout the evening, we experienced immense discomfort and were repeatedly struck by the profound irony of receiving a public interest scholarship in this violent context. After giving my speech, which was too progressive for the audience, my partner and I left to get ice cream and unpack our experience. Unknowingly, we had occupied space in a white environment that was overtly violent, racist, and transphobic. As Childs articulates, when asking white interviewees about their views on interracial relationships, they attempt to communicate race-neutral opinions while simultaneously distancing themselves and subliminally communicating opposition. Though the white attorneys at the event were facially accepting, their language, attitudes, and behavior communicated otherwise.
The perceived impossibility of interracial relationships is contextualized not only by the history of race relations in the U.S. but also by current discourse that portrays interracial relationships as deviant in the same way that queer relationships are characterized as deviant. Unsurprisingly, most scholarship focuses on interracial relationships or queer relationships, at most using them as comparison points but rarely examining queer interracial relationships. Even within the limited scholarship on queer interracial relationships, no discussion of gender non-conformity is present.
Recent data on interracial queer couples is not readily available. In 2012, only 1.7% of interracial lesbian couples and 2% of gay couples were Black/white pairs. No information on transgender or gender-nonconforming relationships exists in an interracial context. Although there is a lack of data, likely due to the relatively small sample size, scholarly comparisons between the anti-miscegenation precedent and the legal arguments for same-sex marriage highlight important intersections of race, sexual orientation, and gender identity. Scholars have often compared the fight for same-sex marriage to the fight for interracial marriage. For example, the use of anti-miscegenation precedent was invoked in same-sex relationship cases such as Baehr v. Lewin and Goodridge v. Department of Public Health. Eskridge explains how Baehr analogized Loving’s race-based discrimination to same-sex marriage discrimination:
“The state’s different treatment of white-black and black-black couples is race-based discrimination, because the regulatory variable, the item that changes the legal treatment, is the race of one of the partners; similarly, the state’s different treatment of female-female and female-male couples is sex-based discrimination, because the regulatory variable, the item that change[s] the legal treatment, is the sex of one of the partners.”
Similarly, Goodridge explicitly cites cases about interracial marriage as precedents for same-sex marriage: “In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance—the institution of marriage—because of a single trait: skin color in Perez and Loving, sexual orientation here.” Somerville articulates how the use of anti-miscegenation precedent in the fight for marriage equality erases the context through which anti-miscegenation was originally established and “helps us understand the extent to which the very production of prohibited forms of sexuality in legal discourse has been embedded in discourses of race.” For example, in 1964, the U.S. Supreme Court unanimously overturned laws against nonmarital interracial sex that presumed the offenders were heterosexual in the statutory language. This presumption entirely erased queer interracial relationships by failing to even consider the possibility within the legal framework. Although the analogy between same-sex marriage and interracial marriage is frequently invoked in legal battles, the comparison between same-sex and interracial sex is rarely invoked, as evidenced by the lack of interracial precedent used in defense of Lawrence.
“Like race” arguments appeal to queer legal advocates due to the distinctive argumentative power of race in Constitutional law and the strict scrutiny standard it invokes. In contrast, gender receives intermediate scrutiny, and sexual orientation has historically received the lowest level of protection under the rational basis test. Race, gender, and sexual orientation are constitutionally understood as having a three-tiered hierarchical relationship, despite queer rights advocates’ attempts to elevate the status of sexual orientation and gender identity to a stricter classification. Scholars have observed that one consequence of attempting to elevate sexual orientation and gender identity to the level of race is that, in practice, the identities are seen as mutually exclusive and are not discussed together in the same case. Eaton finds that “in the mass of [federal] judicial opinions concerning the equality rights of homosexuals, almost none refer to the race of the parties involved.” This sheds light on which identities are deemed significant and pertinent within the legal framework of discrimination claims, highlighting the neglect of intersectionality.
The pronounced invisibility of queer interracial intimacies in the law is mirrored in everyday interactions and public spaces, even in comparison to interracial heterosexual counterparts. Steinbugler discusses the navigation of public space in the context of “racework,” which encapsulates the efforts invested by interracial couples in managing interracial visibility that the public often fails to recognize as intimate or valid. In navigating their visibility, queer interracial partners engage in the construction of unique identities both for themselves and for their relationship, deliberately positioning themselves outside the confines of the negative stereotypes associated with interracial intimacies. This intentional construction serves as a form of resistance, existing in opposition to societal expectations and working towards dispelling preconceived notions about interracial unions.
Steinbugler’s exploration sheds light on the agency exercised by individuals in shaping their narratives, but it fails to address gender identity, gender performance, and the varying agency over visibility that queer interracial couples have, particularly when one or both partners identify outside the gender binary. The work also stops short of examining how queer interracial couples do “racework” in the context of their own communities as opposed to doing “racework” in the public eye. Roodsaz expanded upon Steinbugler’s “racework” and coined the term “genderwork,” which refers to the “set of everyday actions and strategies through which individuals establish and maintain bonds of trust, love, and communication across systems of [gendered] stratification.” Combining both terms, “race/gender work” can be defined as the intentional actions of queer interracial couples to maintain trust, love, and communication across systems of race and gender stratification. This expansive definition can be further modified to include other identities salient to the particular relationship, such as disability, socioeconomic status, body size, and more.
In contrast to “race/gender work,” Yoshino discusses the concept of covering, a process by which an individual tones down their disfavored identity to fit into the mainstream. Refusing to cover as an interracial queer couple means finding an equilibrium in the relationship that does not force assimilation on either person. It means living in a liminal space, one that is privately navigated with ease, but publicly it is constantly challenged. The mainstream is a myth, and yet, normative judgments about interracial queer relationships are pervasive in grocery stores, at scholarship award ceremonies, and everywhere else. Yoshino bases his argument (at least in part) on solutions outside the legal system. He encourages informal and intimate conversations where the people confronted with covering demands are emboldened to seek a reason for that demand, “even if the law does not reach the actors making the demand or recognize the group burdened by it.” Again, this solution requires invisible labor: one must intentionally decide to bring attention to and challenge assimilationist requests. That is to say, existing uncovered is also labor. Furthermore, to suggest that people call out covering demands, especially in circumstances where there is no guaranteed protection (legal or otherwise), is a strategy that fails to consider the inherent power dynamics between norm upholders and norm challengers.
Even in studies that include transgender perspectives in interracial scholarship, identities outside the binary are not well researched. For example, Shapiro discusses “intimate racism,” defined as the manifestation of inequitable practices of racialized desire within intimate encounters. He includes a robust discussion of race stereotypes that are prevalent in same-sex and heterosexual relationships. However, gender stereotypes such as those derived from gender identity and gender presentation are not addressed in the same manner. In fact, the study omitted data from ten non-binary couples, “the rationale being that ten cases would be far too few to draw generalizable conclusions about such couples.” Similarly, Yampolsky’s study of intimate racism from one’s partner in young intercultural couples included only two non-binary people. Ward’s work also mainly focuses on binary logic by studying femme/FTM sexual relationships and analyzing the “gender labor” that women do in relationships with transgender men to affirm their partner’s masculinity.
In contrast to the general lack of gender non-conforming research, Zamantakis studies how trans/non-binary people “negotiate their gender/race within intimate relationships and how gender negotiations are [an inherently racialized process.” The research contains a diverse array of queer interracial intimacies and experiences, unlike prior research. In contrast to “race/gender work,” which functions as shared intimate labor, Zamantakis discusses “anti-racist accompliceship,” where white partners work to reduce the labor load for their POC partners, thereby creating a multidimensional flow of labor. Zamantakis and others form a solid foundational base of scholarship; however, it is clear that more research is needed to expand upon the multidimensionality of queer interracial intimacies.
THE RELATIONSHIP BETWEEN CRT, QUEER THEORY, AND FEMINISM
“It appears that my worst fears have been realised: we have made progress in everything yet nothing has changed.” – Derrick Bell
Despite both Queer Theory and CRT originating from opposition to the status quo, they have not been fully integrated. As Ballakrishnen explains, “[a]lthough there is an increasing interest in sexuality and LGBTQIA+ issues within law and society scholarship, queer theory has not been used as a primary sociolegal lens within which to consider the experience of minorities.” Although queer identity is mentioned as “a category of subordination” and among discourse on intersectionality, CRT scholarship as a whole has not accepted queer analysis aside from a select few overlapping works of literature. Thus, QueerCrit is considered a micro-theoretical perspective of CRT rather than an independent, robust area of theoretical study. Even where CRT has intersected with feminism, it has mostly avoided focusing on gender expression and performance. Conversely, the CRT framework is often excluded from queer studies as a way to “interrogate the racialized and ethnicized dynamics of sexual orientation identities and issues as part of an evolving anti-subordination discourse.” Incorporating race and gender into respective analyses should not be additive or unilateral.
Given that Queer Theory centers around non-normativity and peripheral experience, POC perspectives are relevant and inherently interconnected. Pointing to these gaps in theory is not to say that all inequalities are comparable. Rather, centering non-normative and peripheral perspectives creates richer nuances that are useful for unpacking interracial gender-expansive intimacies and their connections to the law. Ballakrishnen offers a new way of thinking about Queer Theory and CRT: QuEer-CRT. Through this approach, the “CRT toolkit could benefit from integrating queer theory –interpreted here to be understood as a focus on the ‘interlopers who do not really belong’ and the periphery as a node of analysis, rather than a focus on sexual choice or individual identity category as subject.” More scholarship that uplifts these perspectives is needed to fully capture the nuance of identities outside those traditionally defined by the law.
These gaps in theory are reproduced not just academically but also socially and legally. As evidenced by Part V, legal analyses of queer intimacies and interracial intimacies fail to consider forms of compound discrimination and intersectionality inherent in queer interracial intimacies.
THE LEGAL FLATTENING OF QUEER RELATIONSHIPS IN MODERN CASELAW
"No pride for some of us without liberation for all of us." – Marsha P. Johnson
Next, I will conduct a critical analysis of victories for the queer community determined by the U.S. Supreme Court. Although these cases are categorized as “wins,” the language and logics reify existing habitus (ex. the marriage habitus, the white habitus) and fail to meaningfully queer the law. Instead, straight, white, normative logics have subsumed queer cases, effectively flattening queer intimacies and utopic possibilities. Examining these “wins,” we uncover how the law, viewed through a historical white cis-hetero lens, often simplifies the rights it bestows. When we look beyond these rights, we can begin to imagine queer utopic possibilities that do not hinge on assimilation into existing habitus.
Obergefell v. Hodges
In 2015 the Supreme Court ruled that same-sex couples are guaranteed the fundamental right to marry under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. While championed as a landmark LGBTQ+ rights case, a deeper probing into the background and language of the decision reveals the underlying normative principles upon which the decision rests and reaffirms. Obergefell is the consolidation of six lower-court cases, originally representing sixteen same-sex couples. Notably, most of the couples are White (only one Black lesbian couple and one gay interracial White/Asian couple were included), though several couples have mixed-race families.
The plaintiffs discussed in the majority opinion were undoubtedly selected intentionally based on their race, gender, class, profession, and other normative aspects of their stories. For example, the lead plaintiffs, James Obergefell and John Arthur, filed suit to allow Obergefell to be shown as the surviving spouse on Arthur’s death certificate after he was diagnosed with amyotrophic lateral sclerosis and later passed away. Together for twenty-two years, the couple was married in a medical transport plane on the tarmac in Maryland, where same-sex marriage was legal. Their touching story of love and loss is a strong argument in favor of extending heterosexual privileges to same-sex couples that conform to heteronormative relationship dynamics. As a sympathetic couple, Obergefell and Arthur were intentionally selected as lead plaintiffs because their particular intersection of identities (male, white, monogamous) perpetuates the “just like us” narrative that proponents mobilize to justify the inclusion of queer couples in the institution of marriage.
Plaintiffs April DeBoer and Jayne Rowse are white lesbians, middle-class nurses, and parents to special needs children. The couple was denied the right to jointly adopt their children based on Michigan’s laws restricting adoption to heterosexual couples and single parents. The couple, who had been together twelve years before starting their legal journey, is described in a news article as “an ordinary family who would do anything to protect [their] kids.” Another article calls them “accidental activists,” suggesting their involvement with the case was a happenstance resulting from their attempt to create a normative family.
Plaintiffs Ijpe DeKoe and his partner Thomas Kostura, a white gay male couple, were legally married in New York shortly before DeKoe was deployed to Afghanistan. DeKoe is a First Class Army Reserve Sergeant who was stationed in Tennessee, a state that did not recognize the couple’s marriage. As their lawyer describes, “[DeKoe] is denied the very freedom, liberty, and equality that he risked his life to protect.” In the Obergefell decision, the Court refers to Stg. DeKoe’s military service to emphasize the severity of the harm he has suffered: “DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.”
The plaintiffs play a pivotal role in shaping the foundation of Obergefell, with the depicted narratives presenting the couples as deserving of marriage based on the heteronormative nature of their relationships. They are white, middle-class, elderly, military members, and parents. Their identities reinforce the marital habitus and the white habitus by failing to disrupt the dominant heteronormative narrative of marriage. By covering non-normative aspects of their identities (or by failing to select non-normative plaintiffs altogether) the narratives depicted in Obergefell still fall within traditional, mainstream relational frameworks. The potential to incorporate queer logic into the law through cases like Obergefell is significantly hindered by this rights-based inclusion strategy. In turn, Obergefell relies on the law to legitimize queerness that is sufficiently “respectable” and trusts “Courts [to] exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” Modernizing the institution of marriage is acceptable, but even with new additions of “deserving” groups, the institution fundamentally remains unchanged.
The Court relies on four principles to establish that the fundamental right of marriage must apply with equal force to same-sex couples. Within these principles, the Court delineates the boundaries to which the institution will extend. As long as same-sex marriage is viewed as an extension of individual autonomy, the right to choose same-sex marriage is protected by the Constitution. In protecting this choice, the Court reaffirms that the right to marry is “fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” That is, non-monogamous queer relationships are outside the marital habitus that the law seeks to protect.
The Court also articulates the connection between children, families, and marriage. According to the Court, marriage creates the most legally cognizable form of “stability and predictability,” without which it inevitably leads to harm and humiliation for children of same-sex couples. To the extent that same-sex couples seek to construct a family within a heteronormative framework, they are granted access to marriage as a mechanism to protect their family unit. The last principle the Court recognizes is that marriage is a keystone of the Nation’s social order. As Matsumura articulates, the marital habitus is continually reinforced through the law by the benefits and social prestige that are attached to it. The Court even admits that “the State itself makes marriage all the more precious by the significance it attaches to it…” and thus “exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects.” Thus, the habitus is reinforced both by what is done and what is not done. To break free of the habitus is to, in the words of the Court, “be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.” To live outside the marital habitus is, according to the Court, an unimaginably lonely life. The Court reifies not only the marital habitus and the white habitus but also the ideal normative white couples who participate in the creation of these legal relations.
Lawrence v. Texas
The Supreme Court also maintains normative white cis-hetero ideals through the regulation of sex. In Lawrence v. Texas, the Court ruled that criminal punishment of private, consensual non-procreative adult sexual activities between two individuals (commonly known as sodomy laws) is unconstitutional. Although the case is widely recognized, it is less commonly acknowledged that the plaintiffs were interracial (although the full extent of their relationship status was not widely known). However, this detail was largely omitted from most legal documentation. This omission is particularly notable because police were summoned to the plaintiffs’ apartment due to a false report that a “black male was going crazy in the apartment and he was armed with a gun.” This erroneous report stemmed from the caller’s blatant racism, as no gun was ever found at the scene. Race also likely played a role in the arrest and (potentially fraudulent) police reports, given that at least one of the responding officers was from a socially conservative and religious background. The officer’s reactions to the sight of a Black man about to engage in a “morally objectionable sexual act” with a white man were likely exacerbated by his perception of the Black man playing the receptive role to the White man during sex.
Despite the potential for a separate racial discrimination claim or at least an explicit acknowledgment of how race influenced preceding events, the case is devoid of any meaningful discussion on race. Instead, the case erases all racial nuance:
“[O]fficers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act.”
While some allege Lawrence was a test case, other scholars refute these allegations, pointing to the plaintiffs’ prior criminal histories, their lack of status as queer activists before the case arose, and the precarity of the circumstances leading to their arrest. As Carpenter explains, “[H]ad gay activists wanted to set up a test case, it is unlikely they would have chosen Lawrence and Garner as the defendants. “Instead, they would likely have chosen two people in a committed relationship who could articulately plead their case to the media.” Contrasting this case with Obergefell, which reifies normative queerness as centered around whiteness, marriage, and traditional family structures, Lawrence and Garner epitomize non-normative queerness given their casual queer interracial intimacy. The plaintiffs’ actions did not affirm the marital habitus nor the white habitus as they defied both racial norms (dating within one’s race) and marital norms (sex and intimacy reserved for committed relationships in pursuit of the ultimate goal of marriage). Thus, attorneys made a strategic decision to omit certain key facts by erasing any discussion of race or interraciality, the 24-year age gap between Lawrence and Garner, and the plaintiffs’ relationship status (or rather, lack thereof). The Court defines the case by what it is not, rather than what it is:
“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
Despite the radical potential, Lawrence did little to expand the queer interracial legal framework. Upon close inspection of the case, notions of “dignity” and “liberty” are constrained by and framed around monogamy and intimacy. The Court merely extends pre-existing “privacy” protections for married couples to other marriage-like relationships it finds worthy. In doing so, the Court assumes the presence of a romantic relationship centered around domesticity, fidelity, and traditional hetero-normative commitment, even though clear evidence to the contrary existed. Additionally, the decision significantly confines liberty interests based on the private nature of the actions. The Court acknowledges “that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.” Facially, the decision appears to eliminate legal moralism, but below the surface, the Court is practically reinforcing societal disapproval of non-normative intimacies outside the confines of private spaces. Instead of focusing on sexual liberation, the decision heavily rests on the plaintiffs’ dignity. This dignity is derived from the depiction of Lawrence and Garner’s relationship as “respectable,” an inherently “moral judgment about the proper context of sexual relations.”
Now, over twenty years later, the rights “granted” in Lawrence v. Texas are on shaky ground as the conservative majority Supreme Court has indicated it may soon reconsider cases such as Lawrence that were grounded in the Substantive Due Process right to privacy. Given the continued legal persecution of queer people, it is clear that it did not eradicate legal moralism but merely extended morality to a very specific form of queer intimacy.
Bostock v. Clayton City
On June 15, 2020, the Court ruled in a 6–3 decision that Title VII discrimination protections apply to gay and transgender persons. The Court held that “When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.” Though other factors may also contribute to the employer’s adverse action, the Court clearly states that “the plaintiff’s sex need not be the sole or primary cause,” it just has to be one of the reasons. The decision also forecloses any potential defense that an employer is not liable individually because “it treats males and females comparably as groups.”
The Court attempts to disaggregate sex, sexual orientation, and gender identity in its decision. In (poorly) doing so, the Court exclusively focuses on binary gay and transgender expressions of identity, failing to consider identities and expressions outside the gender binary. By only referencing gay and transgender people, other identity groups are left to imply their inclusion in the holding. Scholars point out the irony that bisexual people (and other omitted identities) are encouraged “to overlook the literal text of the Bostock holding,” although Bostock is a textualist-embracing opinion to an extreme. Though the majority does state that “Title VII prohibits all forms of discrimination because of sex, however, they may manifest themselves or whatever other labels might attach to them, suggesting that the identities explicitly referenced are not an exhaustive list of those protected under Title VII. Nonetheless, those not explicitly named in Bostock are left to explain their own erasure when seeking Title VII protections.
The Court’s well-meaning attempt to modernize Title VII is indicative of the law’s larger failure to account for identities that do not fit into defined categories. As evidenced by the three plaintiffs –who all have binary gender identities– the Court struggles to understand gender expansivity or fluidity. The decision offers “very little context around any of the plaintiffs’ lived experiences, the circumstances behind their claims, or the impact the discrimination had on their daily lives.” Furthermore, the decision is devoid of any discussion of the plaintiff’s race. Like Lawrence, the Court intentionally erases these key facts, obscuring an important discussion on the racialization of sex stereotypes and the intersectional nature of discrimination.
In addition to flattening the potential to explicitly include identities in the categorical margins, the logic of Bostock does not neatly apply to non-binary/gender non-conformity, bisexuality, pansexuality, asexuality, and other similarly situated identities. The lack of explicit recognition leaves scholars to debate the implications of Bostock for these individuals. For example, the majority invokes hypotheticals that only recognize men and women, in addition to repeatedly using language such as “the other sex” and “opposite sex,” which further supports a binary logic. Justice Alito’s dissent also presents a harmful framing of gender non-conformity and the ongoing bathroom debates by arguing that based on the majority’s ruling, a “gender fluid … person who has not undertaken any physical transitioning . . . [can] claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time.” However, in other portions of the case, the Court uses “of a different sex” which can be construed as recognition beyond the binary.
Additionally, the Court’s broad interpretation of the “but-for” causation test for discrimination recognizes that multiple explanations for discrimination claims may exist. The Court’s insistence that gender identity/sexual orientation must only be one of the reasons the employee was fired may create more space for legal recognition of compound discrimination faced by intersectional identities.
Furthermore, some scholars also suggest that Bostock offers the normative potential to increase queer self-worth. However, I believe a healthy dose of skepticism is justified in suggesting we should derive self-worth from external sources, especially those that are as precarious as the law. I further question who has access to this normative self-worth and how other compounding forms of discrimination erase this potential for gender non-conforming people.
On the plus side, formal legal recognition of discrimination protection for trans people and queer people of color (POC) generally improves professional workplace environments and helps combat economic insecurity for queer POC employees who often face compound discrimination in workplace settings. Unlike Obergefell and other prior queer rights cases, the protections offered by Bostock “can be accessed without enhancing state supervision of queer relationships….” Regardless, queer people, particularly those who fall outside the defined identities listed in Bostock, must still endure the labor that comes with explaining their identities in a manner consistent with the Court’s interpretation of sex, sexual orientation, and gender identity.
IMAGINING QUEER INTERRACIAL UTOPIA
“I live proudly in a body of my own design. I defend my right to be complex.” – Leslie Feinberg
I write this paper as I am about to graduate from law school. I recognize the deep irony of critiquing the legal system’s failures to hold space for any kind of alterity while I simultaneously choose to become a part of the system. I find myself sitting somewhere between the uncomfortable position of recognizing the law is not enough, and yet, acknowledging it is the system I will work with(in).
Critiques of our civil rights-based legal system present an opportunity to imagine more inclusive possibilities outside our current framework. For example, scholars have begun to reevaluate the primacy of the civil rights framework and the dependency it creates for disparate groups who must rely on the shifting patchwork of allocated rights. However, rights-based frameworks are a double-edged sword. As Kapur explains, “Human rights are universal and necessary tools that we cannot not want… even though they cannot give us what we do want—that is, freedom.” Other scholars also critique the “formal equality” provided by our current legal system. Professor Fineman argues that current models of “equality” fail to protect vulnerable individuals and instead, reflect an inadequate mechanism to racially disrupt systemic discrimination. Instead, Fineman advocates we reorient our discrimination framework around “Vulnerability Theory,” which would move “away from assessing the individual characteristics of designated groups within society to see if they are the subjects of animus” and instead focus on addressing societal hierarchies that privilege certain groups but not others.
Similarly, Yoshino also advocates for a new civil rights framework. Because the law is only interested in protecting certain kinds of identities, it will not protect people from assimilationist demands because these demands are directed at the behavioral aspects of personhood. Simply put, civil rights law protects being but not doing. Yoshino advocates for a new civil rights paradigm, one that is not based on old-fashioned category-based identity politics but instead focuses on universal liberty rights. The starting point for this new framework is to accept that the mainstream (defined as “a shifting coalition” that “none of us is entirely within”) is a myth. The ultimate aspiration is for us to be free to develop our human capabilities without the “impediment of witless conformity.” However, Yoshino also recognizes that the law is an inadequate remedy and calls upon culture to fill the remaining gaps.
I lean towards Kapur's portrayal of the rights-based framework as crucial yet also constraining true liberation. Anything less than a case-by-case analysis written by judges with lived experience and highly specialized knowledge of gender, race, class, disability, and other salient factors will likely fall short of our utopic desires. Even then, it is unrealistic to expect any one person or institution to possess all the necessary knowledge to set us free. Instead of continuing to pursue pseudo-legal alternatives, perhaps there is something elusive and highly individualized about gender-expansive identities that the law will never fully capture. How then do we approach true progress?
Utopic changes in habitus are deeply personal, interactional, and slow-moving. As some scholars articulate, the habitus can only be changed by bringing awareness to the “unconscious, routinized activity that marks the habitus.” Similar to Yoshino’s suggestion to confront covering demands in everyday interactions, Matsumura advocates for a reflective process that fosters awareness of the principles driving individuals' actions, thereby facilitating a conscious transformation of both the habitus within themselves and in the world around them.
We should not underestimate the impact of daily conscious shifts in the habitus. For example, my aunt, who is in her late 60s, knew nothing of non-binary identities or gender-neutral pronouns until I opened up to her about my identity. Despite the hardwired gendered logic embedded in her brain, she has made a conscious effort to learn a new way of speaking and relating to my partner and me. Though not perfect, her process of unlearning and relearning gender identity and pronouns disrupts the unconscious, routinized activity that maintains the habitus. These minor shifts in behavior can have a major impact. Farrow, Bravo, and Galupo describe such actions as “microaffirmations,” which they define as “small, interpersonal interactions that communicate validation for an identity.”
Most of the scholarship on non-traditional identities and relationships focuses on the challenges these individuals face. However, it is important to leave room for the joys and celebrations unique to queer interracial relationships. Positive aspects of non-normative identities often manifest in intimate relationships through affirmations. In turn, interpersonal bonds are strengthened by these moments of authentic recognition. Recognition means seeing all parts of someone, not just the parts that are easiest to see or the parts society values. This can take the form of prioritizing comfort, holding space to process challenges, using one’s privilege to advocate or create space, and acting and speaking intentionally. This is not to say that interracial queer relationships transcend race, but rather, authentically showing up has the radical potential to create incremental change on individual and relational levels.
CONCLUSION
"When you put love out in the world, it travels, and it can touch people and reach people in ways that we never even expected." — Laverne Cox
By tracing the history and legality of queer interracial relationships, I hope to shed light on how inclusion/exclusion flattens the potential for queer interracial intimacies. The law’s interests in interraciality, gender identity, and sexual orientation are socially reinforced and reproduced through case law, notably in cases that are perceived as “wins” for the queer community. The persistent gaps between CRT and Queer Theory help to explain the normalization of these shortcomings in theory and practice.
There are no perfect solutions; even if there were, norms will grow and shift, leaving new alterities in their wake. Instead of offering more imperfect solutions, this paper aims to capture the invisible, the unspoken, and the otherness that our system overlooks. By giving voice to my own experiences, I actively take part in expanding awareness and normative resistance. Navigating identity through race/gender work is an intricate, nuanced, and ever-evolving process. It requires self-awareness and a willingness to sit with discomfort. Though it is often painful to live between categories, there is also a unique richness and beauty. As gender non-conforming creative Alok says, “There’s magic in being seen by people who understand—it gives you permission to keep going.”
