Born that Way? Not a Choice?: Problems with Biological and Psychological Arguments for Gay Rights

Abstract

Many people, especially legal and political advocates for gay rights, believe that it would be good for gay rights if sexual orientations were innate, inborn, or chosen. The central legal context for the born that way and not a choice arguments for gay rights is the immutability factor in equal protection jurisprudence. Although many in the legal academy have argued against the significance of immutability, recently two state supreme courts, as part of denying claims for the legal recognition of same-sex relationships, invoked immutability as a condition for heightened scrutiny under the Equal Protection Clause and held that the gay plaintiffs had failed to satisfy this condition. This Article argues that there are serious problems with legal, ethical, and political arguments for gay rights that make use of scientific theories of how sexual orientations develop. On this basis and others, this Article concludes that advocates should avoid biological, psychological, and other scientific arguments for gay rights.