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Outing: The Supposed Justifications
Published online by Cambridge University Press: 09 June 2015
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Outing is conceptually linked to the notion of the “closet”; “coming out of the closet” amounts to publicly acknowledging one’s homosexuality, or at the least one’s participation in sexual activities with persons of the same sex. Outing makes someone’s homosexuality public; they are forced out of the closet, so to speak. Richard Mohr has described it this way: “outing [makes] publicly acknowledged the sexual orientation of a homosexual without regard to whether the person is willing to have this information publicly acknowledged”. Leslie Green provides this definition: “the practice of publicly exposing someone’s presumed sexual orientation, against his or her will, in circumstances where the revelation may be damaging.”
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- Copyright © Canadian Journal of Law and Jurisprudence 1995
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The authors gratefully acknowledge the comments and suggestions provided by Richard Teixeira, Allan Greenbaum, Mark Austen, Blaine Rehkopf, and Richard Elliott. We are especially indebted to the editor, Leslie Green, for his constructive comments on an earlier draft. The authors take full responsibility for any errors which remain.
1. For example, the New York Times effectively outed Roy Cohn posthumously. As Larry Gross says: “after his death [from AIDS] the New York Times ran a front-page obituary that reported both the cause of his death and his attempt to conceal it. The lengthy obituary made Cohn’s homosexuality clear.” Gross, Larry Contested Closets: The Politics and Ethics of Outing (Minneapolis: University of Minnesota Press, 1993) at 47 (in note 41).Google Scholar Michelangelo Signorile outed Malcolm Forbes posthumously in “The Other Side of Malcolm” Outweek (18 March 1990).
2. Mohr, Richard “The Outing Controversy: Privacy and Dignity in Gay Ethics” in Gay Ideas: outing and other controversies (Boston: Beacon Press, 1992) at 11.Google Scholar
3. Green, Leslie “Outing: Is It Ever Right?” 175 Xtra (21 June 1991) at 25.Google Scholar
4. Unless otherwise stipulated, for the sake of brevity we use “gays” or “gay people” to mean lesbians, gay men, and bisexual women and men.
5. Former Gay Activist Alliance president Jim Zais says: “People’s sexual orientation is their business, and it would be a contradiction to what gay liberation stands for to consider that public business. That’s an ethical position, but there’s a more practical position, and that’s that once you start down the path of beginning to expose people, where does it end, and how many people suffer?”. From Bush, Larry “Naming Gay Names” Village Voice (27 April 1982).Google Scholar Reprinted in Gross, Larry supra note 1 at 183.Google Scholar See also Folayan, Ayofemi “Whose Life Is It, Anyway?” Outweek (16 May 1990).Google Scholar Reprinted in Contested Closets, supra note 1 at 248-49.
6. Signorile, Michelangelo “Gossip Watch” Outweek (8 October 1989).Google Scholar Reprinted in Contested Closets, supra note 1 at 195.
7. Miller, Andrew “Malcolm Forbes, Malcolm X and Me” Outweek (16 May 1990).Google Scholar Reprinted in Contested Closets, supra note 1 at 255.
8. Carr, C “Why Outing Must Stop”, Village Voice (19 March 1991).Google Scholar Reprinted in Contested Closets, supra note 1 at 274.
9. Homophobia here refers to “negative attitudes toward gay people and homophilic behaviour”. Fajer, Marc, “Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men” (1992) 46(3) Univ. of Miami L. Rev. 511 at 617 note 607.Google Scholar As Fajer points out, quoting Blumenfeld and Raymond, the term ‘heterosexism’ could be seen to be broader than homophobia, being defined as the “system by which heterosexuality is assumed to be the only acceptable and viable life option”.
10. Pollack, David “Forced out of the Closet: Sexual Orientation and the Legal Dilemma of ‘Outing’”, (January 1992) 46(3) Univ. of Miami L. Rev. 711 at 715 note 23.Google Scholar
11. It is difficult to know which word is most appropriate for the subject of this paper; each term—’orientation’, ‘preference’, or ‘choice’—differs subtly but in significant ways from each other yet each captures or emphasizes something important that the others do not. The term ‘orientation’ suggests essentialist immutability, whereas the term ‘preference’ emphasizes choice. The terms differ in the extent to which each suggests inevitability about sexual attraction to persons of the same sex, and there are currently extensive and intriguing debates on this question. It could be the subject of a paper of its own, the question of whether what is at issue is orientation, preference, or choice, or all three, or still a wider range of terms. Suffice it to say that any effort to represent the diversity of experiences of gays, lesbians, and bisexuals will run into the obstacle of the limits of the expressive power of language. We will use sexual orientation throughout the paper, but we intend that term to be inclusive of preference and choice.
12. Although the literature on outing rarely mentions bisexuals, they are clearly potential targets for outing as well.
13. One could argue that the increased visibility rationale could be seen in terms of political goals for the lesbian, gay, and bisexual movement, but it is not political in the same sense that the exposure of hypocrisy and the self-defense variations of the political rationale are.
14. It may be worth pointing out that bisexuals conceivably face being outed in two different respects. Within the larger heterosexual culture, a bisexual risks being outed as someone who is partly identified as gay or who at least participates in homosexual activity. Within the subculture comprised by lesbian and gay communities where homosexuality becomes the norm, so to speak, it could be said that a bisexual risks being outed as someone who is partly identified as heterosexual or who at least participates in heterosexual activity. It is certainly the case that in a society premised upon compulsory homosexuality, heterosexuals could be outed. It is not so clear whether heterosexuals or bisexuals could be outed in the same way in the context of a relatively powerless and stigmatized subculture. Some people have suggested the term ‘biphobia’ to signify the fear of intimacy and closeness to people who do not identify with either the heterosexual or homosexual category, which can be manifested as homophobia in the heterosexual community and heterophobia in the homosexual community. See Hutchins, Loraine & Kaahumanu, Lani eds, Bi Any Other Name: Bisexual People Speak Out (Boston: Alsyon Publications, 1991) at 369.Google Scholar See also Weinberg, Martin S, Williams, Colin J & Pryor, Douglas W Dual Attraction: Understanding Bisexuality (New York: Oxford University Press, 1994).Google Scholar
15. This paper will tend to focus on the moral issues surrounding outing rather than the legal issues. For extensive discussion of die intersection of tort and constitutional law relating to outing, see the following articles: David H. Pollack, supra note 10 at 711-750; Elwood, John P “Outing, Privacy, and the First Amendment” (1992) 102 Yale L. J. 747;CrossRefGoogle Scholar Grant, Jon E “‘Outing’ and Freedom of the Press: Sexual Orientation’s Challenge to the Supreme Court’s Categorical Jurisprudence” (1991) 77 Cornell L. Rev. 103;Google Scholar Wick, Ronald F “Out of the Closet and Into the Headlines: ‘Outing’ and the Private Facts Tort” (1991) 80 Georgetown L. J. 413;Google Scholar and Halley, Janet E “The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity” (1989) 36 UCLA L. Rev. 915.Google Scholar See also Warren, Samuel D & Brandeis, Louis D “The Right to Privacy” (December 1890) 4(5) Harv. L. Rev. 193.CrossRefGoogle Scholar
16. See Bush, Larry “Naming Gay Names” Village Voice (27 April 1982).Google Scholar Reprinted in Contested Closets, supra note 1 at 177. One of the useful features of Gross’ book is his collection of “Original Press Articles” organized chronologically into sections which place outing (of gays by gays) in historical context including: Before the Revolution, The Wall Springs a Leak, the Deluge, and the Insider’s Debate. Richard Mohr characterizes the Code of Silence as a “governing convention” of the gay community.
17. See Duberman, Martin “The Night They Raided Stonewall” (March 1993) 11(44) Grand Street 120.CrossRefGoogle Scholar This is a chapter from Duberman’s recently published book, Stonewall.
18. People who affiliated themselves with groups called Queer Nation——formed to raise awareness about antilesbian and antigay street violence and to protest inaction on AIDS along with ACT UP, among other things—were often among the first to argue for and undertake outing. The term ‘queer’ “ effectively combines references to gay men and lesbian women, along with bisexuals, transsexual, and transgendered people”; ultimately it means anyone who doesn’t fit into society’s confining sexual roles or play by society’s restrictive sexual rules. Contested Closets, supra note 1 at 82 (in note 64). Gross says that the adoption of the term ‘queer’ “underscores a generation gap within the gay community”. Ibid.
19. Mohr, supra note 2 at 18.
20. In the literature on coming out, there has been little discussion thus far on the coming out process for bisexuals. As Weinberg, Williams and Pryor write: “Bisexual identity formation is difficult, considering that bisexuals may experience alienation, to some extent, from both the hetero- and homosexual communities. They may have unique difficulties in the process of coming out owing to the absence of a well-defined bisexual community needed for sustaining a commitment to the [bisexual] identity.” Dual Attraction: Understanding Bisexuality, supra note 14 at 27.
21. See Green, supra note 3 at 25.
22. Mohr, supra note 2 at 41.
23. We owe this point to Richard Teixeira.
24. We thank Richard Teixeira for this way of putting the point, and for emphasizing that the next step after the fomenting of prejudice can be seen to be, and often is, actual physical harm in the form of gay bashing, even to the point of death.
25. Just how harmful it can be to be an out homosexual can be illustrated by the following incident, which is by no means an exceptional case: “In Springfield, Missouri... a man was stalked after leaving a gay bar in the early hours of September 23, 1993. He was grabbed by four men and driven out into the country, where his arms and legs were tied to stakes and he was gang-raped. The word HOMO was carved into his right buttock with a straight razor. Turning him over, his attackers carved FAG into his left cheek, in reverse, saying, “This way you’ll know what you are every time you look in the mirror”. Harris, Elise “Seizing the Initiative” (November 1994) Out Magazine 106.Google Scholar
26. Mohr, supra note 2 at 14.
27. Ibid, at 43,12. He also says that “a person living in the truth will out nearly everyone he or she knows to be gay”, at 39.
28. Ibid, at 39.
29. Mohr says: “if it were the case (as it currently is not) that the government was shooting gays, I would morally be expected to suspend my dignity temporarily so that the current and prospective dignity of others is made possible”. Ibid, at 34.
30. Ibid..
31. See ibid, at 41-42.
32. This can be seen in Mohr’s discussion of the case of Oliver Sipple, who lodged an invasion of privacy suit against the San Francisco Chronicle, whose columnist had implied that Sipple was gay. Both Pollack and Elwood discuss the harmful effects of the outing on Sipple. Sipple said that as a result of being outed, his family had abandoned him, and he had been exposed to “contempt and ridicule causing him great mental anguish, embarrassment and humiliation”. Elwood at 758. Pollack recounts that “the estrangement between Sipple and his father was so deep that when his mother died...Sipple was not welcome at the funeral in his father’s presence“ at 721 note 66. Significantly, Mohr does not mention the harms that were the basis of Sipple’s lawsuit in his discussion of newsworthiness. See Mohr, ibid, at 38-39.
33. Ibid, at 31,35.
34. Pollack, supra note 10 at 750.
35. Mohr, supra note 2 at 36.
36. Ibid, at 20.
37. See ibid, at 40-41.
38. Madsen, Hunter “Tattle Tale Traps” Outweek (16 May 1990).Google Scholar Reprinted in Contested Closets, supra note 1, 236 at 238.
39. As Pollack characterizes the legal dilemma of outing, he says it can be summed by two images: “the image of the closeted gay teenager, desperately in search of role models to help him develop a sense of self-esteem, and the image of the outed employee, stripped of his livelihood, his friends, and his right to determine the direction of his life”. Pollack, supra note 10 at 750. Note that Pollack characterizes the image which seems to favour outing in terms of the role model rationale, one which we have argued is unpersuasive as a justification, rather than the political rationale which is somewhat more persuasive.
40. Ibid.
41. Leslie Green points out that it is simply not the case thatanyone is out all the time. See Green, supra note 3 at 25. Some people are out some of the time, out to some people but not others, out in some situations but not others. Even Mohr recognizes that “all gays ‘pass’ as straight at least part of their lives, and nearly all gays ‘pass’ all their lives”. See Mohr, supra note 2 at 46. The spatial metaphor of the closet does not do justice to the complexity of lived experience.
42. Mohr, supra note 2 at 37. Morris Kaplan points out that Richard Mohr borrows the term from Vaclav Havel. See Kaplan, “The Last Liberal?” Review of Richard Mohr’s Gay Ideas: Outing and Other Controversies (1994) 1(2) GLQ: A Journal of Gay and Lesbian Studies 199 at 203.Google Scholar
43. According to Edward Stein this view was abstracted by Storms, Michael “Theories of Sexual Orientation” (1980) 38 Journal of Personality and Social Psychology 783.Google Scholar See Stein, Edward “Forms of Desire” in Stein, ed., Forms of Desire: Sexual Orientation and the Social Constructionist Controversy (New York: Routledge, 1990) at 337 note 22.Google Scholar Storm proposed the idea that bisexuals are attracted to their own sex to the same degree that homosexuals are, and also attracted to the opposite sex to the same degree as heterosexuals are. Storm’s work, in turn, is based on separate work done by psychologists Sandra Bern and Janet Spence on the independent nature of masculinity and femininity. The multidimensional view has also been suggested by, among others, Klein, Fritz et. al., “Sexual Orientation: A Multi-Variable Dynamic Process” (1985) 11 Journal of Homosexuality 35;CrossRefGoogle ScholarPubMed and Coleman, Eli “Assessment of Sexual Orientation” (1987) 14 Journal of Homosexuality 9.CrossRefGoogle ScholarPubMed
44. Judith Butler, among others, calls the construction of sexuality the performative character of sex and gender. See her Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990) at 134-41.
45. For example, Nordahl, R. “Ronald Dworkin and the Defense of Homosexual Rights”, in this issue.Google Scholar
46. If not consistently. He does categorically reject them, but certain passages seem to suggest otherwise.
47. Mohr, supra note 2 at 20–21.Google Scholar
48. See Simmons, A. Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979) at 138.Google Scholar
49. Ibid. Klosko, George in The Principle of Fairness and Political Obligation, says that one may, in certain circumstances, have an obligation to contribute to the production of “presumptively beneficial”CrossRefGoogle Scholar public goods, even when one does not consent to receiving their benefits. Klosko, , The Principle of Fairness and Political Obligation (Savage, Md.: Rowman & Littlefield, 1992).Google Scholar
50. Ibid.
51. Considerations of this kind really take the discussion way beyond consideration of the specific issue of outing, and thus beyond the scope of this paper.
52. Johnson, Dirk “Privacy vs. the Pursuit of Gay Rights” New York Times (27 March 1990) A21. Reprinted in Contested Closets, supra note 1 at 225.Google Scholar
53. Armistead Maupin, author, quoted in Warren, Steve “Telling ‘Tales’ about Celebrity Closets”, an interview with Armistead Maupin. Reprinted in Contested Closets, supra note 1 at 202.Google Scholar
54. Maupin, Armistead for example, says: “[i]f gay people themselves are ashamed of who they are, then the straight people around them have no choice but to believe that there must be something wrong with it”. Quoted in Contested Closets, supra note 1 at 202.Google Scholar
55. Contested Closets, supra note 1 at 23.
56. Nearly one-third of young homosexual men in the United States attempt suicide according to a study reported in Pediatrics, the Journal of the American Academy of Pediatrics. The study found that nearly thirty per cent of male homosexuals aged 14-21 and twenty percent of young lesbian women had attempted suicide. See “Nearly third of young gays tried suicide: study” Montreal Gazette (31 May 1991) A10. Suicide is the leading cause of death among young homosexuals. See “Gay MP [Svend Robinson] appalled over suicide rate” The Calgary Herald (12 November 1990) B5.
57. Madsen, Hunter “Tattle Tale Traps” Outweek (16 May 1990). Reprinted in Contested Closets, supra note 1, 239 at 240.Google Scholar Madsen also says: “one wishes that the nation’s many covertly gay ‘success stories’ had the gumption to do the right thing, drop their elaborate covers and come clean”. Ibid.
58. Ibid.
59. Folayan, Ayofemi “Whose Life Is It, Anyway?” Outweek (16 May 1990). Reprinted in Contested Closets, supra note 1 at 249.Google Scholar
60. Elwood gives this example: “the national gay periodical The Advocate published a story alleging that Department of Defense spokesman Pete Williamswas gay in order to call attention to the purported hypocrisy of the Pentagon’s policy of excluding homosexuals from the armed services. See Michelangelo Signorile, ‘The Outing of Assistant Secretary of Defense Pete Williams,’ The Advocate, August 27,1991, at 34”. John Elwood, supra note 15 at 748 (in note 4).
61. See Green, supra note 3 at 25.
62. It is an interesting question to consider who would be likely to claim the trust that has been betrayed—the antigay constituency who trusted the politician to consistently pursue an antigay agenda, including in his or her private life, or the progay constituency who trusted a gay politician, even a closeted one, to pursue a progay or at least not antigay agenda publicly.
63. Mohr, supra note 2 at 23.
64. Ibid, at 24.
65. Green, supra note 3 at 25.
66. Madsen, Hunter “Tattle Tale Traps” Outweek (16 May 1990). Reprinted in Contested Closets, supra note 1 at 241.Google Scholar
67. Ibid.
68. Such as Terry Dolan, of the National Conservative PoliticalAction Committee, who “routinely solicited funds for viciously antigay candidates and causes; he was also a homosexual man who died of AIDS.” Contested Closets, supra note 1 at 1. Another example is Robert Bauman, former Republican Congressman. See Contested Closets, ibid, at 3.
69. See Contested Closets, supra note 1, and Michelangelo Signorile’s, Queer in America: Sex, the Media, and the Closets of Power (New York: Doubleday, 1993).
70. Green, supra note 3 at 25.
71. Massachusetts Democratic Representative Barney Frank has said: “There is a right to privacy, but not hypocrisy. If politicians are gay or lesbian and then use that against other people, they have forfeited their right to privacy”. Quoted in Johnson’s, Dirk “Privacy vs. the Pursuit of Gay Rights” New York Times (27 March 1990). Reprinted in supra note 1 at 224.Google Scholar
72. As Congressman Barney Frank has said: “you cannot try to make sodomy illegal and then commit sodomy yourself”. Quoted by Charles Laurence, “After the Stars Went Out” Daily Telegraph (30 July 1991) at 15. Cited in John Elwood, supra note 15 at 773 note 214.
73. We thank Allan Greenbaum for his suggestions concerning the forfeiture argument.
74. Thus, some people argue that criminals forfeit their rights to liberty not only when they violate the liberty-rights of others (e.g., by kidnapping them), but also by assaulting them, stealing large amounts of their property, defrauding them, etc.
75. Jacobs, Lesley makes a point similar to this in Rights and Deprivation (New York: Oxford University, 1993) at 165–66.Google Scholar
76. Indeed, the self-defense rationale could be extended to include anyone in a position of power, for example, homophobic closeted gay professors, administrators, psychotherapists, priests, etc. Thus, it could also apply to “private” individuals. Thereason for focussing on “public” figures is that they tend to have the potential to do more harm.
77. Vito Russo asks this. See Mohr, supra note 2 at 37. Another way of putting it is the following: “Either being gay is OK or it isn’t. And allowing homosexuality to take its place as a normal part of the human sexual spectrum requires ceasing to treat it as a dirty little secret”. Beery, Steve “Liz Smith Mon Amour”, Outweek (May 16, 1990). Reprinted in Contested Closets, supra note 1 at 243.Google Scholar
78. See Green, supra note 3 at 25, for example.
79. Elwood recounts: “[i]n an interview last year, two outing practitioners (Mike Carson of ACTUP New York and Bill Dobbs of Queer Nation) could not point to any concrete political or social gains resulting from their activities”. John Elwood, supra note 15 at 767 (in note 159).
80. Mohr, supra note 2 at 47. Mohr acknowledges that even abolishing the closet is not sufficient for gay progress, but he insists that “no substantial gay progress will be made until the shameenhancing Secret is abandoned”. Ibid. Here he appears to be diluting, if not abandoning, his strictly non-consequentialist approach to the issue.