Gay Self-Identification and the Right to Political Legibility

Abstract

Over twenty years after the Sixth Circuit held that a bisexual public employee could be dismissed for coming out, courts remain split on the question of constitutional protection for gay coming-out speech. In addressing that question, this Article begins with a more fundamental one: What is the legal harm of suppressing coming-out speech? This Article suggests that a distinct legal harm follows from whether one conceives of coming-out as “persuasive,” “creative,” or “descriptive” speech—establishing a framework that applies to all minorities whose status is not readily apparent. Arguing that courts and scholars have adopted persuasive and creative conceptions of the value of coming-out, respectively, this Article advocates a descriptive conception: That coming-out is legally significant because it functions, in the context of the political process, as identity-reporting, allowing homosexuals to become “politically legible.”