The second day of Amy Coney Barrett’s confirmation hearings on Tuesday covered a huge range of topics, from abortion and the Affordable Care Act to her religious faith and the 2015 Supreme Court ruling on marriage equality.
The latter gave rise to yet another topic: Judge Barrett’s use of the term “sexual preference,” in reference to LGBTQ people, which she used in response to questions from Sen. Dianne Feinstein (D-CA) about whether or not she agreed with Justice Antonin Scalia’s and Justice Clarence Thomas’s recent criticism of the Obergefell v. Hodges ruling, which legalized gay marriage.
“I have never discriminated on the basis of sexual preference and would never discriminate on the basis of sexual preference,” Barrett said.
Right away, LGBTQ organizations and individuals — including George Takei, GLAAD and Lambda Legal — began calling out her use of the term, noting that it was a “dog whistle” to homophobic hate groups, as it implies sexual orientation (the proper term and legal term) is a choice and not worthy of protection from discrimination.
The correct term is sexual orientation. "Sexual preference" is a term often used by anti-LGBTQ activists to imply that sexual orientation is a choice. https://t.co/rT6g95gsG1— GLAAD (@glaad) October 13, 2020
IMPORTANT:— Lambda Legal (@LambdaLegal) October 13, 2020
Barrett used "sexual preference" (not "sexual orientation") when discussing her views on marriage equality.
This is a dogwhistle. The term "sexual preference" is used by opponents of equality to suggest that being #LGBTQ is a choice.#BlockBarrett #SCOTUSHearing pic.twitter.com/kkftq9l2l5
It’s not a sexual “preference,” Judge Barrett. A preference is something you choose. I’ll give you and example: “I have a preference for non-radical, non-fundamentalist justices on the Supreme Court.” Are we clear?— George Takei (@GeorgeTakei) October 13, 2020
“Sexual preference.” she’s a federal judge and she has no idea that that term went out of date 10+ years ago.— John Aravosis 🇺🇸🇬🇷🏳️🌈 (@aravosis) October 13, 2020
When Amy Coney Barrett refers to LGBTQ people with the term "sexual preference", that's intentional and it's doing two things:— Charlotte Clymer 🏳️🌈 (@cmclymer) October 13, 2020
1. It's referring to homosexuality and bisexual as a choice.
2. It's declining to recognize or affirm trans people.
And she'll keep doing this. Watch.
Hours later on Tuesday, as the hearing continued, both Sen. Mazie Hirono (D-HI) and Sen. Cory Booker (D-NJ) called Barrett out for her use of the term, prompting an apology from the judge.
“‘Sexual preference’ is an offensive and outdated term and I don’t think you using it was an accident,” Hirono noted. “Sexual orientation is a key part of people’s lives.” She added, “If it is your view that sexual orientation is merely a preference, the LGBTQ community should be rightly concerned whether you would uphold their constitutional right to marry. I don't think your use of the term ‘sexual preference’ was an accident.”
Further, Hirono said, “That sexual orientation is both a normal expression of human sexuality and immutable was a key part of the majority's opinion in Obergefell.”
Barrett responded, “I certainly didn't mean and would never mean to use a term that would cause any offense in the LGBTQ community. If I did, I greatly apologize for that.”
Later, Sen. Cory Booker also criticized her use of the term, prompting Barrett to once again apologize, adding, “In using that word I did not mean to imply that it’s not an immutable characteristic…”
The exchange left many people scratching their heads, so Yahoo Life reached out to GLAAD — which “rewrites the script for LGBTQ acceptance” as a “dynamic media force” — for further clarification.
“‘Preference’ is offensive because it implies a choice, and science shows it is not a choice, so this is inaccurate on those grounds,” Barbara Simon, GLAAD’s head of news and campaigns, tells Yahoo Life. “We get offended and alarmed because implying sexual orientation is a preference or choice is dangerous. Anti-LGBTQ activists have used the notion that sexual orientation is a ‘preference’ as a way to claim LGBTQ people can just change their mind, and/or go through dangerous, debunked conversion therapy to change something core to their identity. Conversion therapy not only doesn't work, as those who have undergone it attest, it's a form of abuse particularly against young people, increases suicidal ideation, and should be banned.”
Further, she notes, “Calling it a preference defies psychological research and scientific opinion that's long shown orientation is not changeable.”
Simon, pointing out that Barrett is 48 years old, adds that guidance on “sexual orientation” and other terms has been a part of the organization’s media guide “for at least 20 years.”
GLAAD’s full glossary definition of “sexual orientation” reads as follows: “The scientifically accurate term for an individual's enduring physical, romantic and/or emotional attraction to members of the same and/or opposite sex, including lesbian, gay, bisexual, and heterosexual (straight) orientations. Avoid the offensive term ‘sexual preference,’ which is used to suggest that being gay, lesbian, or bisexual is voluntary and therefore ‘curable.’ People need not have had specific sexual experiences to know their own sexual orientation; in fact, they need not have had any sexual experience at all.”
There’s been plenty of social-media pushback regarding the criticism of Barrett, of course, with right-leaning Twitter users pointing out that many on the left — including Joe Biden and the late Ruth Bader Ginsburg — have used the term. The difference, critics allege, is that Barrett made a conscious choice, rather than an innocent mistake, in using “sexual preference.”
Ruth Bader Ginsburg, who Mazie Hirono called "our champion" on Monday, used the term "sexual preference" in 2017. Hirono jumped on Amy Coney Barrett for saying it Tuesday, calling it "offensive and outdated." pic.twitter.com/8bHIQTSVFk https://t.co/JlcRA35g59— David Rutz (@DavidRutz) October 14, 2020
Still, some have opted to focus more on the substance, rather than style, of Barrett’s words — particularly the claim that she has “never discriminated on the basis of sexual preference,” which writer and lawyer Jill Filipovic pointed out as being “actually false,” as she “sat on the board of a school that refused to accept the children of same-sex couples.”
"I have never discriminated on the basis of sexual preference and would never discriminate on the basis of sexual preference." This is actually false: Barrett sat on the board of a school that refused to accept the children of same-sex couples. https://t.co/cHP7E92eh9— Jill Filipovic (@JillFilipovic) October 13, 2020
“She's associated with many groups that do [discriminate], and Judge Barrett herself may have directly discriminated against LGBTQ parents looking to enroll their children in school,” Simon adds. “I would love for her to be asked about this next.”
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