Judge Amy Coney Barrett stepped into a queer hornet’s nest during her confirmation hearings to become the next Supreme Court justice. Asked about her views on discrimination against LGBTQ people, she replied: “I have no agenda, and I do want to be clear that I have never discriminated on the basis of sexual preference and would not ever discriminate on the basis of sexual preference.”
Then the internet erupted in flames. That’s because Barrett used two words—sexual preference — that LGBTQ people find offensive, and which takes a blind eye to all the credible scientific research showing that sexual orientation is not a preference or a choice. It is an immutable part of our identity, and that’s true whether a person is straight or gay.
Funny enough, I recall having a similar discussion with my parents several years ago. My folks, then on the cusp of becoming octogenarians, earnestly wanted to understand the distinction between “sexual preference” and “sexual orientation” since they had two LGBTQ children. I explained to my father, a lifelong journalist, that the New York Times, the Bible in his house, had recently updated its style guide to say: “Never sexual preference, which carries the disputed implication that sexuality is a matter of choice…. Use sexual orientation instead.”
‘We’ve always been this way’
To further the distinction, I reminded my mother that she preferred orange marmalade to any kind of jam; ditto when it came to their views on pets—they preferred dogs, especially spaniels, to cats. “That’s your choice,” I continued, adding that who I’m attracted or have sex with is not a choice. “I was born this way.”
I could see they remained puzzled so I asked them a question: When did you know that you were heterosexual? As though ringing the buzzer on Jeopardy, they answered simultaneously: “We’ve always been this way.” Exactly, you did not choose to be straight.
And I did not choose to be gay. Ditto for the millions of LGBTQ people in this country who find “sexual preference” highly charged and who were shocked by Barrett’s use of the term, especially after refusing to tell Senators whether she would uphold the Supreme Court’s 2015 ruling, known as Obergefell v. Hodges, which affirmed the constitutional right to same-sex marriage.
Jim Obergefell, the plaintiff in that landmark case, told me in an interview soon after that it disturbed him to hear Barrett use the phrase because it “leads me to believe [she] chooses to ignore the scientific proof that sexual orientation and gender identity are normal, innate parts of the human condition, not choices…. I believe this is further proof of her antipathy toward the LGBTQ+ community.”
In fact, “sexual preference” is what’s considered a dog whistle, coded language to a specific audience. For instance the anti-LGBTQ Alliance Defending Freedom regularly uses “sexual preference” instead of “sexual orientation.”
So yes, words matter.
So, too, does Barrett’s actual record. In previous years she’s spoken five times to the ADF. “Were you aware of the ADF’s decades-long efforts to recriminalize homosexuality?” Vermont Sen. Patrick Leahy asked the nominee. In response, she claimed not to know all of their positions. And while Barrett said she had never discriminated against LGBTQ people, from 2015-2017 she sat on the board of directors of an Indiana school that opposed same-sex marriage then and still does now.
Barrett should have known better
Did she simply make a goof at her hearing? Of course, that’s possible. And Barrett did offer a meek apology later in the day when pressed. “I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBTQ community. So if I did, I greatly apologize for that,” she said.
Was it willful ignorance? Indeed her prep time has been rushed to ensure her nomination is voted on before Election Day. Still, ignorance is a hard card to play since a woman’s right to abortion, the Affordable Care Act and LGBTQ rights are the hot-button issues of these hearings. At the top of her handlers’ list of “LGBTQ 101 issues” would be this admonition: Do not use the term “sexual preference.”
I think back to my parents who at 80 didn’t fully understand changing terminology, even though they fully supported my lesbian sister in her marriage, and mine as well. It only took me one shot — with that orange marmalade analogy — to convince them that “sexual preference” was offensive. But Barrett is 48 years old and graduated from Notre Dame Law School first in her class; she came of age with the LGBTQ rights movement and is book smart. Even if she says she didn’t know, she ought to have known.
Perhaps if I knew what Barrett’s favorite jam is — explaining that is a choice, while her opposite-sex attraction to her husband is a core part of her identity — I could help drive home why so many are outraged by her language, and fear for our marriages and other rights.
Steven Petrow, a writer on civility and manners and a member of USA TODAY’s Board of Contributors, is the author of five etiquette books. His new book, “Stupid Things I Won’t Do When I’m Old,” will be published in June. Follow him on Twitter: @StevenPetrow