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From the beginning of the LGBT civil rights movement, there has been an intracommunity debate concerning strategies and tactics to effect legal and social change. On one end of the spectrum, the lesbian and gay organizations of the 1950s—the Mattachine Society and the Daughters of Bilitis—advocated an assimilationist strategy that sought tolerance rather than full acceptance and integration. The tactics to affect this strategy are best described as conservative and conventional—to look and act as “straight” as possible in order to convince courts, legislatures, and the public that lesbians and gay men should be left alone rather than fired from their jobs and criminalized for their intimate conduct. On the other end of the spectrum, the protesters at the Stonewall Inn on June 27, 1969, advocated for liberation along many axes—gender, race, sexual orientation, gender identity, class. The Gay Liberation Front, inspired by the Stonewall Riots and formed shortly thereafter, embodied this liberation-based strategy. Its tactics are best de- scribed as confrontational, intersectional, and anti-assimilationist. This Article will refer to these two approaches as Conformist and Visionary.
Presumably, both the Conformist and the Visionary approaches shared the general end goal of equality for LGBT people; what equality looked like to each group reflects the differences between them. The differences between their strategies and tactics can be generalized as ones of imagination and vision.
The Conformist and Visionary divide has permeated the LGBT community’s civil rights campaign through the present day, as has the debate among scholars and advocates about the “best” approach to effect lasting change. While most scholars discuss the benefits and drawbacks of these two approaches vis-à-vis the law and society writ large and propose that one take precedence over the other, this Article explores how this decades-long intracommunity divide—the conversation among activists and scholars within the LGBT community—might shape the future of the movement. Rather than attempt to settle on the “best” approach, then, this Article instead focuses on the impact of the dynamic created by the intracommunity debate vis-à-vis the law and society writ large. It asks and answers the questions: What work did the Conformist and the Visionary approaches do to support the rise of LGBT rights in the United States? And, what work do they continue to do today, so that we may anticipate the growth and impact of LGBT rights on education law and employment law in the future? In doing so, it does not make a normative or strategic judgment concerning either approach. Rather, its goal is to expose and explore what this Article calls the transcommunity dialogue—a communicative pathway between the LGBT community and society at large, which is informed by the Conformist-Visionary dynamic.
The Article proceeds in four parts. Part I describes the historic trajectory of the Conformist and the Visionary approaches. It then sketches the scholarly debate concerning these approaches. Part II frames the Article within social science literature on the importance of intragroup disagreement in social justice movements, which necessarily implicates intergroup dynamics. Part III traces these approaches to two current-day LGBT legal issues: (1) Title VII’s promise of pay equity as illustrated by the U.S. Women’s National Soccer Team pay equity lawsuit1 and Title VII’s promise of nondiscrimination as illustrated by the sexual orientation and gender identity (“SOGI”) lawsuits currently pending at the United States Supreme Court, and (2) Title IX’s promise of educational equity “on the basis of sex” as illustrated by the legal battles over transgender elementary school children seeking to access sex-segregated facilities that align with their gender identity. Part IV adds to the scholarly conversation about this intracommunity de- bate by interrogating the dynamic created by the intracommunity debate itself and its relationship with and impact on these contemporary Title VII and Title IX legal battles. The Article concludes by predicting that both the Conformist and the Visionary approaches will continue to contribute to equality gains for the LGBT community. It attempts to telegraph the work that these approaches have done in the past to the work that they might do in the future.
Kyle C. Velte*
* Associate Professor, University of Kansas School of Law. Many thanks to the Univer- sity of Richmond Law Review for organizing this important symposium and for including me among the outstanding scholars, activists, and practitioners who presented. Thanks also to my research assistant, Delaney Hiegart. This Article is dedicated to the Conformists and Visionaries who came before us; the arc of the moral universe may be long, but it is bending toward justice faster because of your work at a time when that work was tremendously risky, scary, and difficult. We stand on your shoulders.