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“Astonishing Plasticity” of sexual orientation in women
Walker asks, isn’t everything socially constructed?
Cooper: No fundamental difference between gender distinction and orientation distinctions.
We raised the very difficult issues surrounding sexual orientation and its effectively indefinable nature and the simple fact that it is not immutable. Our submission is that sexual orientation is not an immutable trait, that is an accident of birth.
Cooper: Says he means “accident of birth” in the way that . . .
Walker: Brings up religious discrimination, not a category by birth.
Cooper: Yes, but heightened scrutinty springs from First Amendment not 14th Amendment in case of religion. Race, of course, the central concern of the 14th amendment, in Loving a key point was that the central concern of the 14th amendment was to eliminate all invidious racial discrimination and here that is not the case.
The 9th Circuit said that orientation is not an immutable characteristic. That’s a quote. Measured against the Supreme Court’s decision we submit that is plainly right. We are aware of no case that has applied heightened scrutinty on the 14th amendment to sexual orientation classification.
The case before you evidence shows characteristics do not apply: it is not only difficult to define, almost all the experts testified that there are at least 3 definitions: behavioral, attraction, self-identity and depending on which one you use there is a wide variety of people in that class. Not just that its amorphous definitional situation is the fact that the plaintiffs’ witnesses were quite candid that sexual orientation does change over time. Apparently it changes especially in women. “Astonishing plasticity” in sexual orientation in women. Perhaps the most vivid is an APA study that indicated over a ten-year period for women who identified themselves as homosexual some 2/3 had changed their sexual orientation at least once over the course of their lifetime. And a third, more than once. This does go directly to Supreme Court test of “immutability” is it an “accident of birth.” Quotes Ginsburg.
Comments
John K. Noe
June 16, 2010
5:05 pm