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2009/03/15補充:

今天下午我去師大公園參加「彩虹鬥陣--大聲說出我們的希望」記者會,在這次大安區立法委員補選前夕,國內同志與性別團體聯合「彩虹公民性動聯盟」,就各候選人過去對同志議題的關切程度與實際表現、此次參與補選的政見與是否對聯盟所提六項政見予以回應並簽署承諾書等三項指標,建議推選民進黨周柏雅及綠黨溫炳原兩人為此次補選同志團體予以支持之候選人,並號召居住於大安區之居民與同志選民,踴躍投票。我想起兩年多前寫的這篇短文,有一些想法與大家分享,並且思考歷來同志團體推選的候選人或同志候選人未來在同志人權保障與同志運動的位置。

發言逐字稿

智偉:謝謝拜坊的朋友。接下來我們要歡迎的是,常常會在報紙的社論看到他的佳作,而他自己也出了一本關於同志婚姻法的專書,我們歡迎張宏誠。

張宏誠:各位大家好,我是張宏誠,其實也不知道能夠跟大家特別分享什麼事情,不過站在我們學法律的立場,大家可以看到這六項政見其實都跟法律息息相關,只是說我十年前寫社論的時候呼籲大家重視法律,可是十年後我回來台灣,好像還是看到在講這些問題。

最近在我自己的部落格寫了一章有關老年同志的權利保障,特別是老年同志跟法律之間的關係,有些朋友就有感觸寫信給我,讓我感覺到,很多事情並不是同志沒有辦法做或是沒有想到,而是說,他們不知道怎麼從法律或是可能的方式去獲得他們應有的尊重或資源。

其實法律,不是單純立法者通過、然後寫在書上,而是每一個人都要知道自己在法律上的權益在哪裡。就像旭寬講到,好像你什麼事情都不要做、不要違法之類的,但是問題是,當我們權利受到侵害的時候,我們怎麼樣透過法律可以給我們最大的保障?這部分是最近有媒體希望我能夠寫的一些東西,我第一天就想要寫:讓社會看見同志、讓法律看見同志,但同志也應該要看見法律。就是希望透過這樣的努力,慢慢告訴大家一些淺顯的法律常識。當你在路上看到警察隨便來敲你的門,要你拉下車窗檢查,你在酒吧裡面喝酒,甚至是在家裡面開性派對,警察突然衝進來臨檢,你其實有權利跟他說不的。只是說很多人不知道怎麼說不。希望透過這樣的努力,透過這樣的政見發表機會、這樣的場合,讓大家慢慢地學習到,其實法律沒有那麼艱澀,它不單純只是寫在書上的東西,而是可以實現在我們的生活裡的。謝謝大家。

_____________________________

“Coming Out” and to Be Represented:
Affirmation Action, Social Identity and Gay Rights Politics

Maurice Hong-Cheng Chang

“There are no days in our kingdom, only nights. As soon as the sun comes up, our kingdom goes into hiding, for it is an unlawful nation; we have no government and no constitution, we are neither recognized nor respected by anyone, our citizenry is little more than rabble.”[1] [Emphasis added.]


Intorduction: The Problems of Invisibility and Identification of Gay Rights Politics

The worldwide gay rights movements can be seen as the struggle for visibility and the process of identification. Different with racial civil rights or women rights movements, gay rights movement does not have those visible characteristics, such as color of skin or gender. Because of lacking visibility, it is very difficult for communities of lesbians and gay men to establish networks of supporting and resources for movements. The bias and stereotypes of homosexuality still exist due to no communications and understanding. The “heterosexualization” of the society also makes the lesbians and gay teenagers confused and not easy to find out their own identities. For this reason, lesbians and gay men, like other disadvantaged groups, may also want to be represented by “descriptive representatives” – the “coming out” individuals who are visible in the society and share same experiences, which they might reasonably expect to promote loyalty to interests of lesbians and gay men. To achieve the function of increasing the representation of minorities in areas of employment, education, corporate and other public forums from which they have been historically excluded, affirmation action is the popular policy for this aim in different countries in the world. In this essay, I argue that many of the conditions that justify current affirmation action policies would also justify their extension to lesbians and gay men, no matter in diversity or in terms of compensation for historical prejudices, mistreatments or injures suffered. In particular in gay rights politics, affirmative action policies may present the constructing of social identity with “gay icons” and increasing the de facto legitimacy for lesbians and gay men in society.

Should Homosexuals Represent Homosexuals?

American lesbians and gay men used to argue that why there are nine Justices in the Supreme Court of the United States instead of ten. By saying this, they meant that, according to the so-called “ten percents of homosexual population,” there should be one “homosexual” Justice if there are ten Justices in the U.S. Supreme Court. Yet, in the case of gay porn and male nude magazines in Canada[2], the defendant claimed that there should be a different constitutional standard in reviewing on gay male porn products. It is because most judges are heterosexuals, and heterosexuals cannot determine what is obscene from the homosexual point of view. In other words, a “gay judge”[3] should determine this kind of case concerning homosexuality. This is what Jane Mansbridge called the two meanings of “descriptive” representation of political affirmation action policies: visible characteristics and shared experiences.[4] In short, we can ask two questions of representation in gay rights politics: how to make lesbians and gay men openness, coming out from the closet without internally emotional fears and externally social threats, and become role models for gay communities, i.e. the substantive and symbolic representation.

For most of lesbians and gay men, their gender role identities are defined in terms of object sexual choice with homophobia, such as anti-gay hatred and “demonization of homosexuality.”[5] This is particularly in the case of gay men. There is a stereotype of most early gender role instruction that being a homosexual or a sissy man means to be weak and feminine. The threat of losing one’s masculinity is especially dramatic in the case of many male teenagers who recognize the male bonding inclination on themselves. Therefore, within the dominant cultural myths of the society, where “the demonization of homosexuality is a means of continuing to define oneself as male,”[6] coming out from the closet or the openness in society is still a taboo for many lesbians and gay men. It is reasonably expected that lesbians and gay men would “choose” not to be open about their sexual orientation. A very important result of the lacking of gay icons coming out in the societies is that it deprives lesbians and gay men the political access to the mechanisms of the state in determining the most important aspects of their lives. In other words, they are excluded in the deliberate democracy. With the fear of coming out publicly, either individually or in a group, many lesbians and gay men also do not involve themselves with gay rights movements. Positive steps taken by affirmative action policies in gay rights politics will help to distribute the role models in our societies and promote to establish identities of lesbians and gay men.

Meanwhile, the suppression of gay history and culture completely ignores about the reality of lesbians, gay men and their communities. This ignorance has allowed, and continues to allow, “the grossest of false images to be projected about gay people, because there is no background of reality against which to judge them and find them fraudulent.”[7]

How Affirmation Action Applies to Gay Rights Politics?

From point of view of descriptive or substantive representation and the theory of role models, it is necessary to apply affirmative action polices in gay rights politics. Nevertheless, does these affirmative polices apply to gay rights politics significantly different with which of blacks and women? If so, how to apply them?

Compensatory Discrimination[8] against Heterosexism

A historical argument for affirmative action in gay right politics can be made on the basis of needs for compensation for prejudices and mistreatment because of legal discrimination based on heterosexism, stigmatization of religious, scientific and medical studies and segregation caused societal environment. For example, in United States, the history of legal discrimination of lesbians and gay men extends back to the earliest colonial days, in which the punishment for homosexual behaviors was death. It was the religious tradition hesitated from European immigrants and colonists. The legal tradition of “sodomy law” even existed in twenty-first centuries until the U.S. Supreme Court abandoned it in Lawrence v. Taxes.[9] Lesbians and gay men are in danger of dismissal from their positions in the military – so-called “Don’t ask, don’t tell” policy and other workplaces, merely for their sexual orientation – for their “status”, and not for their liable “behavior.” Same-sex partnerships are not legal recognized in most states. Lesbians and gay men don't have the couples’ rights even when their partner is dying in the hospital. Moreover, in some local levels, laws have been enacted or proposed which prohibit even antidiscrimination laws in favor of lesbians and gay men[10] from being “discrete and insular minorities.”

Because of lacking of recognizability, homosexuals likely to be “safe” and successful in their positions will be those “who daily engage in an elaborate ruse about their private life, possibly to the exclusion of any real one, and certainly at great cost to themselves psychologically and emotionally.”[11] In other words, lesbians and gay men live with “two faces.” The majority of lesbians and gay men will be excluded from any social institution may also because there is great under-representation of gay icons in political, military or business institutions. In fact, the fear of discrimination if they are coming out in their lives means that lesbians and gay men are often forced to choose between personal/private life and public activities. Actually, outside of cities, there is usually not anything like an open, identifiable, or public gay community that can provide a supporting network for them against the ravages of heterosexism and homophobia.

The Problem of “Creamy Layer” of Lesbians and Gay Men

One important aspect of affirmative action is to compensate for those who are economic weakness. Some may argue that for lesbians and gay men, most of them are well-educated, occupied good positions in society. In other words, they are not educationally, socially or economically disadvantaged due to their backward classes. Yet, this is just another stereotype of “gay beauty,” and ignored the fact that lesbians and gay men are nothing else but ordinary members of our society. They may also be poor, ugly, without sense of arts and just human beings. Joseph Sartorelli argued that the injure suffered by lesbians and gay men is a “deficit in self-esteem.” The government and affirmative action polices should be concerned with improving the self-esteem of citizens with economic distribution. By quoting John Rawls’ view, Sartorelli explained that

“the deficit is the key to making the system of “distribution of material means” part of an overall system of justice that self-respect be secured, at least to the level where it would be if citizens were to live their entire lives under a system which legally affirmed their equal status.”[12]

Another question might be thought that lesbians and gay men can easily hide their membership in the group and pass as members of the majority and thus avoid the ravages of discrimination. But this may be well at the additional great personal cost of not having a private life, or of “acting” always as if one did not. Being forced to hide one’s personal life, which is something on one would desire to do, is itself a loss that needs to figure into this “compensatory discrimination.”[13]

Beyond Quota and reserved seats

As I argued in previous section, affirmation action policies applied to gay rights politics should more functionally promote integration[14], i.e. achieving the benefits of social identity and legitimacy, rather than mechanically distribute quota and reserved seats. Applying affirmation action policies that distribute job benefits and positions in connection with schools and political institutions actually provides role models for lesbians and gay men at motivations to the achievement of excellence and happiness by the improvement of self-esteem. Besides, these benefits should be distributed with effecting openness about sexual orientation, and it therefore significantly helps to improve the self-esteem of lesbians and gay men and reduce discrimination and bias around them.

In fact, the most effective way of reducing discrimination, prejudices or bias is to increase personal interaction with coming-out lesbians and gay men. The gay icons in the society also means the improvement of self-esteem, both in those who are openly gay and in others who are not yet coming-out but who saw the openness of others.[15] In turn, the role model strategy helps to induce more lesbians and gay men to come out, in particular for those who are just developing an awareness of their sexual orientation and sexual identity. Because the strategy would “reduce the likelihood of severe injury to their self-esteem or disruptive interference with their self-development, and it would increase the likelihood of their being open about being gay.”[16] As lesbians and gay men, with increased openness, learn how to integrate themselves honestly and completely into the society, they will begin to savor the benefits of full and equal citizenship in the country, and of equal opportunity in the pursuit of a good life.

Furthermore, affirmative action policies applied in gay rights politics regarding openness, as Sartorelli pointed out, would have an aspect of “repayment in kind” for at least one of harms suffered by lesbians and gay men. The policies therefore should include “inducement, even by higher pay, to openness on the job and in general.”[17] However, this kind of inducement to openness in order to provide role models for lesbians and gay men ought to have some steps taken in the area of support for those who do come out and in the area of education to reduce ignorance of their existence in society. Given motivations and conditions for coming out of lesbians and gay men, even a very few role models in places of high visibility and influence may have a powerful effect against the greatest discrimination and bias.[18]

To Build A “Queer Nation”?: Concluding Remarks

In U.S., the early 1990s saw the birth of a new queer style and social identity. Queer Nation, one of the gay rights movement organizations, was founded in 1990 in New York City.[19] Its main aim was to challenge the fixed categories of identity but meanwhile to advocate a “queer national” identity. It demonstrated both the promise and the limits of a non-identification politics in the sharpest fashion since the days of radical gay rights movement.[20] Although Queer Nation endured for less than two years, more and more people who continue to insist that they are “queer” rather than “gay,” “lesbians,” “bisexual,” or “transsexual,” testified to the enduring significance of the queer identity movement. The gay rights politics would take identity as a start point rather than a final destination. Few successes of gay rights are on the basis of similarities in their relations to the dominant constellations of power in the society. But to maintain and achieve the full equality of gay rights, it would need to promote a new vision of citizenship, articulating a model of belonging that neither embraced marginalization for its own sake nor surrendered the aim of social transformation. It might not be necessary to build a “Queer Nation” for those minorities, but do urgently create a gay-friendly “Day Kingdom” by affirmative action policies in politics and other areas. Then lesbians and gay men will be proud to say:

“We’re here; we’re queer! Get used to it!”

References

Barry, Brian. Culture and Equality. Cambridge: Polity press, 2001.
Epstein, Steven. “Gay and Lesbian Movements in the United States: Dilemmas of Identity, Diversity, and Political Strategy,” in Barry D. Adam, Jan Willem Duyvendak and André Krouwel eds., The Global Emergence of Gay and Lesbian Politics: National Imprints of a Worldwide Movement 30-90. Philadelphia: Temple University Press, 1999.
Fullinwider, Robert. “Affirmation Action,” Stanford Encyclopedia of Philosophy, March 4 2005. Available at: (as of 23 Nov. 2005).
Kennedy, Duncan. Sexy Dressing Etc. Essays on the Power and Politics of Cultural Identity. Cambridge: Harvard University Press, 1993.
Lacey, Nicola. “The Constitution of Identity: Gender, Feminist Legal Thoery, and the Law and Society Movement,” in Austin Sarat ed., The Blackwell Companion to Law and Society 471-486. Oxford: Blackwell Publishing, 2004.
Mansbridge, Jane. “Should Blacks Represent Blacks, and Women Represent Women?
A Contingent ‘Yes’,” Kennedy School of Government Politics Research Group Working Papers No. 16, Harvard University (1998). Available at: (as of 23 Nov. 2005).
Moran, Leslie J.. “Sexuality in Law and Society Scholarship,” in Austin Sarat ed., The Blackwell Companion to Law and Society 487-505. Oxford: Blackwell Publishing, 2004.
Sartorelli, Joseph. “Gay Rights and Affirmative Action,” 27(3/4) Journal of Homosexuality 179 (1994).
Valdes, Francisco. “Culture, “Kulturkampf,” and Beyond: The Antidiscrimination Principle under the Jurisprudence of Backlash,” in Austin Sarat ed., The Blackwell Companion to Law and Society 271-290. Oxford: Blackwell Publishing, 2004.

Notes

[1] Pai Hsien-yung, Nie-zi (Crystal Boys) 1 (trans. Howard Goldblatt, 1990).
[2] Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120. Available at: (as of 23 Nov. 2005).
[3] To increase the visibility of lesbian and gay judicial officers so as to serve as role models for other lesbian and gay people and to bring to the attention of the general public the prominence of these judicial officers, there were twenty-five lesbian and gay judges and judicial officers met in suburban Washington, D.C. and formed the “International Association of Lesbian and Gay Judges” in April 1993. Those twenty-five came from California, the District of Columbia, Florida, Indiana, Massachusetts, Missouri, New York and Oregon. Official website available at: (as of 24 Nov. 2005).
[4] See Jane Mansbridge, Should Blacks Represent Blacks, and Women Represent Women?
A Contingent ‘Yes’, Harvard University Kennedy School of Government Politics Research Group Working Papers No. 16 (1998). Available at: (as of 23 Nov. 2005).
[5] See Joseph Sartorelli, Gay Rights and Affirmative Action, 27(3/4) Journal of Homosexuality 179, at 205 (1994).
[6] Id. at 206.
[7] Id. at 207.
[8] I don't agree the terminology of the “compensatory discrimination.” It is because for these groups, the affirmative action polices are not just “compensations” for formal prejudices or what they really lost themselves. The police is a reflection of what the equality requests under the ideas of “anti-subordinated” or others. It is true that in U.S. people used to call it “reverse” or “benign” discrimination which is focused on it's characteristic.
[9] 539 U.S. 558 (2003).
[10] Romer v. Evans, 517 U.S. 620 (1996).
[11] See Sartorelli, Gay Rights and Affirmative Action, supra note 3, at 188.
[12] Id. at 200.
[13] Duncan Kennedy addressed a “cultural pluralism” argument for affirmative action in political case that “we should be a culturally pluralist society that deliberately structures institutions so that communities and social classes share wealth and power.” Cultural pluralism, at a minimum, means that “we should structure the competition of racial and ethic communities and social classes in markets and bureaucracies, and in the political system, in such a way that no community or class is systematically subordinated.” See Duncan Kennedy, Sexy Dressing Etc. Essays on the Power and Politics of Cultural Identity 40-41 (1993).
[14] For the integration argument for affirmative action, see Robert Fullinwider, Affirmation Action, Stanford Encyclopedia of Philosophy, March 4 2005. Available at: (as of 23 Nov. 2005).
[15] This is also true in cultural and artist areas, such as coming-out actors, actresses and singers. Therefore, governments all over the world are aware of the importance of gay/lesbian film festivals and subsidize these events without fail. However, Holland is the exception. The Dutch government claims that nowhere else is the gay community as integrated as in Holland, and therefore there is no need to propagate their (own) film culture in a festival. See René Zuiderveld, Pink Short Film Days: Small Things Thrill, 95 Gay and Night Magazine 50-51 (2005). Available at: (as of 23 Nov. 2005).
[16] See Sartorelli, Gay Rights and Affirmative Action, supra note 3, at 212.
[17] Id. at 212.
[18] For example, the mayor of Paris, Mr. Bertrand Delanoe and mayor of Berlin, Mr. Klaus Wowereit.
[19] See Steven Epstein, Gay and Lesbian Movements in the United States: Dilemmas of Identity, Diversity, and Political Strategy, in Barry D. Adam, Jan Willem Duyvendak and André Krouwel eds., The Global Emergence of Gay and Lesbian Politics: National Imprints of a Worldwide Movement 30-90, at 60 (1999).
[20] Id. at 64.

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