Exporting Identity Sonia Katyalt I. INTRODUCTION ............................................................................................ 98 II. FROM PRIVATE TO PUBLIC ......................................................................... 102 A. Bowers v. Hardwick: Towards Identity Based Protections......... 103 B. From Conduct to Identity: The Substitutive Model ...................... 108 C. Social Construction: Challengingthe Substitutive Model ........... 114 III. THE GLOBALIZATION OF A GAY IDENTITY ............................................... 119 A. The Zimbabwean Book Fair ........................................................ 123 B. Implicationsfor Globalizing Gay Rights .................................... 125 IV. A 'TRANSFORMATIVE' MODEL: TRANSGENDERAL HOMOSEXUALITIES.. 133 A. The Construction of the TransformativeModel of H om osexuality ............................................................................. 134 B. The Collision of the Substitutive and TransformativeModels in Thailand................................................................................... 136 C. Gender Identity and Sexual Orientation in Global Civil Rights.. 142 V. HOMOSEXUALITY WITHOUT IDENTITY: 'RITUALIZED' AND 'ADDITIVE' M O D ELS ............................................................................................... 14 8 A. Ritualized Homosexuality: Age-StructuredRelations Between M en .............................................................................................. 14 9 B. Challenging Compulsory Identification in India ......................... 152 1. The Additive Model of Sexual Identity and Conduct ............. 153 2. Implications for Globalizing Gay Rights ............................... 159 VI. REFRAMING SEXUAL AUTONOMY ............................................................ 168 VII. CONCLUDING THOUGHTS ........................................................................ 174 t Leslie Misrock Fellow, Fordham University School of Law; Associate, Covington & Burling, 2001-02. Previous versions of this paper were presented at the Mapping Genders, Mapping Histories: Rethinking South Asia Conference held at the University of California at Santa Cruz in May, 2001; and at the Annual Meeting of the Association for the Study of Law, Culture and Humanities held at the University of Pennyslvania Law School in March, 2002. The author wishes to thank the participants at both conferences for helpful commentary and conversation, as well as Amy Adler, Anjali Arondekar, Mary Becker, Ruth Colker, Debanuj Dasgupta, Katherine Franke, Nicole Fritz, Gayatri Gopinath, Judith Halberstam, Jennifer Higgins, Nan Hunter, Neal Katyal, Surina Khan, Allegra McLeod, Linda McClain, Martha Nussbaum, and Javid Syed. The author also wishes to particularly acknowledge the generous research support and encouragement of the International Gay and Lesbian Human Rights Commission during the fall of 2000, especially Kamal Fizazi and Daniel Lee; and Fordham Law School during the spring of 2002. This article is dedicated to Esther Lucero. Copyright 0 2002 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism [Vol. 14: 97 I. INTRODUCTION Now is the ideal time to study the limitations and possibilities of a global gay rights movement. The term "gay" has been borrowed into Japanese, Portuguese, Spanish, Thai, Turkish, and other languages, signifying its increasingly perceived universality.' Gay and lesbian organizations now exist in virtually every continent and in many major urban centers throughout the world.2 A growing number of legislators and judges have taken up the cause of gay civil rights, and have actively supported protections based on sexual orientation in a host of areas, such as adoption, employment, domestic partnership, and immigration. 3 Throughout these global developments, American activists, scholars and media figures have played a visible role, one commentator to characterize gay pride as "America's leading at least 4 global gay export.", Nevertheless, although the struggle for gay rights has attracted enormous global attention in the past decade, it has also encountered many challenges.5 A number of governments, particularly across the developing world, have mounted vocal, and often violent, attacks against nascent gay and lesbian movements within their borders. For example, in Namibia, just last year, Home Affairs Minister Jerry Ekandjo told the National Assembly that the existence of homosexuality was entirely attributable to Western influences, observing "[w]e take everything [from Western culture] lock, stock, and barrel without carefully analyzing what is good and what is harmful to us. Today it is homosexuality, tomorrow the right to walk naked, the day after it will be the right to abuse drugs. At the end the so-called rights will lead to our own 1. Stephen 0. Murray, Increasingly Gay Self-Representations of Male-Male Sexual Experiences in Thailand, in LADY Boys, TOM Boys, RENT Boys: MALE AND FEMALE HOMOSEXUALITIES IN CONTEMPORARY THAILAND 82 (Peter A. Jackson & Gerard Sullivan eds., 1999); Deborah P. Amory, Mashoga, Mabasha, and Magai: 'Homosexuality' on the East African Coast, in BOY-WIVES AND FEMALE HUSBANDS: STUDIES OF AFRICAN HOMOSEXUALITIES 70, 76 (Stephen 0. Murray & Will Roscoe eds., 1998). 2. Oliver C. Phillips, Constituting the Global Gay, in LAW AND SEXUALITY INTHE GLOBAL ARENA 17 (Carl Stynchin & Didi Herman eds., 2000); Barry D. Adam, Jan Willem Duyvendak, & Andre Krouwel, in Introduction to THE GLOBAL EMERGENCE OF GAY AND LESBIAN POLITICS: NATIONAL IMPRINTS OF A WORLDWIDE MOVEMENT I (Barry D. Adam et al. eds., 1999). 3. See generally THE GLOBAL EMERGENCE OF GAY AND LESBIAN POLITICS, supra note 2 (detailing worldwide developments). 4. FRANK BROWNING, A QUEER GEOGRAPHY 24 (1998). See also Dennis Altman, Global Queering, 5 AUSTRALIAN HUMANITIES REV. 2 (1996) (observing that the modem gay identity in Jakarta and elsewhere is influenced by Western trends and the marketing of gay culture internationally.); Neville Hoad, Between the White Man's Burden and the White Man's Disease, 5 GAY & LESBIAN Q. 559, 563 (1999) ("There is a certain banal truth to allegations of U.S. cultural imperialism particularly in regard to gay male identity in South Africa (and, arguably, in much of the world). Gay culture.., like Coca-Cola, Madonna, and Calvin Klein underwear, has become a potent American export."). 5. Amnesty International lists at least eighty-three countries where homosexuality or sodomy is explicitly condermned in its criminal code. See Anissa Helie, Hatred, 328 NEW INTERNATIONALIST 21 (2000). 2002) Exporting Identity extinction.,,6 In this leader's view, "so-called gay rights can never qualify as human rights" because they are "inimical to true Namibian culture, African culture, and religion."7 Such commentary represents the point of view shared by some political leaders that indigenous homosexuality fails to exist in non- Western countries, and that the formation of gay communities is an undesirable byproduct of foreign influence and globalization. As we realize that the struggle for gay civil rights is becoming more global, we must necessarily also confront an uncomfortable reality: for many politicians, the identity "gay" or "lesbian" is perceived to be tantamount to a foreign threat. Yet rather than addressing the complex questions of identity, culture, and sexuality raised by the increasingly transnational posture of the gay civil rights movement, legal scholars have remained painfully silent. Their silence is vexing, particularly given the influx of recent anthropological and social constructionist scholarship that actively challenges the prevailing assumption that concepts of sexual orientation can be universally generalized across different cultures and behaviors.8 Even though the performance of same-sex sexual conduct has occurred throughout recorded history, the emergence of a tangible gay and lesbian identity is an extremely recent development. 9 As one author observes, in India, to commit a homosexual act is one thing; to be a homosexual is an entirely different phenomenon. 10 As this observation suggests, this divergence between identity and conduct raises the difficult question of whether sexual orientation itself is a culturally specific concept. 11 Such questions have undeniable legal consequences, particularly for the minoritizing discourse that animates the global gay civil rights movement. Traditionally, the law presumes that one's sexual orientation-heterosexual, homosexual, bisexual-is a fixed identity defined by the gender of one's chosen sexual partner. However, contrary to this view, some cultures view 6. Namibian Call to 'Eliminate' Gays, PLANET OUT NEWS, at http://www.planetout.comnews/article/2000.10.02/1 (Oct. 2, 2000). 7. Id. 8. See, e.g., GILBERT HERDT, SAME SEX, DIFFERENT CULTURES (1997); Ken Plummer, Speaking its Name: Inventing a Gay and Lesbian Studies, in MODERN HOMOSEXUALITIES: FRAGMENTS OF LESBIAN AND GAY EXPERIENCE 17 (Ken Plummer ed., 1992); ANTHROPOLOGICAL APPROACHES TO HOMOSEXUAL BEHAVIOR (Evelyn Blackwood, ed. 1986). 9. See Nii Ajin, West African Homoeroticism: West African Men Who Have Sex with Men, in BOY- WIVES AND FEMALE HUSBANDS, supra note 1, at 129, 138 (observing that the terms "heterosexuality" and "homosexuality" are modem cultural productions), citing David Halperin, Sex Before Sexuality: Pederasty, Politics, and Power in Classical Athens, in HIDDEN FROM HISTORY 37, 48 (Martin Duberman, et al. eds.,1989). 10. Rajesh Dhir,