Ari Ezra Waldman | Jason Collins | Law - Gay, LGBT

Jason Collins and the Legal Power of Identity


Yesterday, Jason Collins walked out of the closet, beaming and proud. All smiles in his cover photo on Sports Illustrated and alternating between jocular and serious during his interview with George Stephanopoulos on Good Morning America, Jason oozed the relaxed happiness that many of us who have come out feel right after we speak those first three words: "I am gay."

Sportsillustrated_collinsThat Jason is a gay, black NBA star is important to a lot of people: to young gay athletes, to gay black men, to the entire gay community. Martina Navratilova was correct when she said that Jason's coming out "will save lives." Andrew Sullivan was correct when he said that Jason has "single-handedly increased the level of oxygen gay athletes can breathe." Frank Bruni took a more nuanced, longer view, noting that Jason is rightfully getting so much attention because the discriminatory world in which we live makes being gay a big deal, even though most of us would much rather not have to lead with our personal lives.

The truth is that identity plays a necessary, multi-faceted role in the sometimes difficult march toward full equality. There's a social paradigm called the "contact theory" that suggests that the best way to reduce prejudice between two groups is to increase interpersonal connection. In other words, professional sport needs openly gay athletes because once heterosexual athletes know and respect an openly gay teammate, homophobia will disappear. Similarly, middle America needs everyday gays and lesbians to come out so they can put a real face to what they used to consider an "other" or different or confusing.

But identity plays a greater role than just influencing others, as important as that might be.

As gay persons, we have a political and legal identity thrust upon us by a world in which our identity is the basis for discrimination. Denial of the centrality of that identity perpetuates the legitimacy of the discrimination by belittling its devastating impact.

Jason could have continued on his way, hiding his sexuality, and instead focusing on his intelligence (he went to Stanford), his religion, and his family. But, as he tells it, to do so was to deny the most important thing about him today. In 2030, that the New York Giants may have a gay wide receiver or that the San Francisco Giants have a gay starting pitcher should be the antithesis of newsworthy. But today, Jason's sexuality is the only thing that's news. He has given voice to a gagged minority mightily struggling to be honest while yearning to be judged purely on their contributions on the field. It took a man willing to be the gay athlete so they could just be athletes.


Follow me on Twitter at @ariezrawaldman.

Many people construct their identities on a host of social ties, from their families, religions, genders, socioeconomic status, national heritage, wants, desires, professions and professional goals, and so on. The list is endless. But, for almost everyone, there is usually one -- or two or three -- of their community ties that are more important than others. For some, however, the most powerful social identity is the one that is subject to hate or discrimination from the outside world. That is, women tend to see themselves more as women voters than men see themselves as men voters, in part because historic discrimination against women forced them to organize together. The same is true for most black voters and Hispanic voters.

PrideFor many of us, being gay and subject to discrimination as gay persons defines our political identities. We may not always want it this way, but the challenges we face because others discriminate against us is an identity thrust upon us. Surveys of gay voters show lopsided skews toward liberalism in politics, but when asked how they would feel about this or that economic issue or this or that candidate in a future world where there is zero sexual orientation discrimination, suddenly our community becomes politically diverse.

That's the world we want. But it's not the world we have.

In the world we have, coming out as gay is an essential step toward full equality and, therefore, coming out is constitutionally protected as political speech. This is what the Supreme Court and several court federal and state courts have said for years, protecting so-called "coming out speech" from prior restraints and ex post retaliation or punishment. For example, the Court has said that gay students at public universities are free to host and publicize a panel discussion about sexuality and an attendant social event because coming out is political speech: it goes right to the core of a newsworthy issue of the day. Since then, courts have protected student and non-student coming out speech for the same reason.

Jason_collinsJason Collins' coming out is clearly newsworthy. It's newsworthy not because we want it to be, but because it has to be. And this doubles Jason's bravery. It is undoubtedly brave to be the first man to come out as gay in one of America's most popular four sports. We have no idea if he will get another job. We have no idea if he will receive threats. We have no idea if someone is going to attack him verbally or physically in the locker room. We have no idea what is in store for him and his decision to embrace that uncertainty so he could live an honest open life is the definition of maturity and is the kind of character we want to see in our role models. 

It is also brave to be willing to make the sacrifices necessary to be the first to come out in any context. Jason will be remembered as the gay athlete even though a cursory look at his stats as a center in the NBA gives us several reasons to remember him. It would be wonderful if phrases like "the gay athlete" or "the gay professor" or "the gay actor" were erased from our lexicon. But until then, we need men and women willing to be the gay. And for that, we thank Jason Collins.


Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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  1. "his intelligence (he went to Stanford)".

    Does the columnist consider his students at NYLS to be uniformly unintelligent (or less so) because they are not attending an Ivy League school?

    Posted by: tcw | Apr 30, 2013 11:24:46 AM

  2. Well-stated Ari. Thank you.

    Posted by: Alex Parrish | Apr 30, 2013 11:28:29 AM

  3. Jason, I think it is great that you recognize Martina, she is my hero too. Knowing that there were ones who walked before you makes that road less taken all the better, because you know you are not alone. Welcome to the journey my brother, may it be as fun as mine has been.
    Rees Cramer

    Posted by: Rees Cramer | Apr 30, 2013 11:30:56 AM

  4. @tcw, Are you implying that Stanford is an Ivy League school?? Guess you didn't attend one.

    You seem to be willfully missing Ari's point. But since you brought it up: Standford is a highly selective school, which requires high academic achievement and high test scores for admission. So yeah, it is reasonable to assume that it has an intelligent student body.

    Posted by: Lars | Apr 30, 2013 11:35:50 AM

  5. Well said, Ari. You've perfectly situated this event in the larger political and social context. Cogent.

    Posted by: drew | Apr 30, 2013 11:48:48 AM

  6. "Surveys of gay voters show lopsided skews toward liberalism in politics, but when asked how they would feel about this or that economic issue or this or that candidate in a future world where there is zero sexual orientation discrimination, suddenly our community becomes politically diverse."

    There's nothing "diverse" about so-called "Conservatism."

    Yhe "lopside" is the right side.

    Posted by: David Ehrenstein | Apr 30, 2013 12:41:17 PM

  7. It's fascinating to read Towleroad today and see how polarized America still remains. The preceding story about the Texas AG proclaiming that domestic partner benefits are in violation of the Texas constitution, followed by this incredibly positive and encouraging outline.

    When I read about Texas or Chic-fil-a or some rightwing mouthpiece spouting off, all I can feel is... absolute pity for them as society, regardless of how bad the right keeps touting they have the upper hand, that society is surely proving these fringe elements with their narrow vision are being left in the dust.

    Posted by: Rad | Apr 30, 2013 1:24:54 PM

  8. God everybody calm ur tits down, he just said he's gay ._____.´

    Posted by: MArk | Apr 30, 2013 5:18:12 PM

  9. Has he mentioned that he was engaged to a woman named Carolyn Moos? "It's very emotional for me as a woman to have invested 8 years in my dream to have a husband, soul mate, and best friend in him. So this is all hard to understand." He can come out to the world, but not her? TMZ He wants his 15 minutes of fame.

    Posted by: Ed | Apr 30, 2013 10:23:31 PM

  10. @Ed

    One, among many, of the things that having actors, athletes, politicians and other high-profile people come out will do is reduce the pressure to form opposite sex relationships in order to deflect speculation that you are gay.

    That's not to defend someone for stringing someone along, but it doesn't happen in a vacuum.

    Coming out as a high-profile gay athlete was going to generate the fame whether he did anything to direct it or not. Making sure it's a coordinated, positive process rather than a dark, sordid, shameful process is only sensible.

    Surely you're not trying to say that if he'd just come out without scheduling media appearances, the right-wing anti-gay machine wouldn't have noticed or remarked on it.

    Posted by: Lymis | May 1, 2013 9:16:23 AM

  11. Yes, if a couple has been together for nine years, as Miss Moos says, he had been "stringing her along." There is nothing noble about deceit. Forget the right wing, the real "gay machine" doesn't want to acknowledge that he would have any flaws --he's the new poster boy-- and of course our African American President, "has his back."

    Posted by: Ed | May 1, 2013 3:10:03 PM

  12. Please tell me Andrew Sullivan didn't really say this about Jason: "single-handedly increased the level of oxygen gay athletes can breathe." And what were they breathing before? Your words are lofty, but I'm sorry it's too late to be High School valedictorian Andrew..

    Posted by: GB | May 1, 2013 3:26:09 PM

  13. @GB You wrote: "Please tell me Andrew Sullivan didn't really say this about Jason: 'single-handedly increased the level of oxygen gay athletes can breathe.' And what were they breathing before?"

    um...Sullivan is using a metaphor.

    @ Ed You wrote "if a couple has been together for nine years, as Miss Moos says, he had been "stringing her along." There is nothing noble about deceit."

    I agree with you that there is nothing noble about deceit. However, the deceit he engaged in is precisely the deceit that those on the far right would encourage. Think of all the conservatives disparaging Collins because he's making his sexuality public instead of keeping it to himself. Think of all the proponents of reparative therapy who think that gay people can--and need to--"cure" themselves by entering into heterosexual unions. Think of all the people on the far right who argue that marriage equality isn't necessary because gays currently have the same right to marry a person of the opposite sex that straight people have.

    Jason Collin's behavior with his fiance was precisely what those on the far right would wish, and I think it is to his credit that he put an end to the charade and spoke out. So, no, there is nothing noble about his past deceit. But there is a great deal of nobility in his putting that deceit in the past. Particularly since he did it *before* he married her, *before* he was caught in a sex scandal, and *before* he was outed by the press.

    Posted by: Clayton | May 1, 2013 6:19:12 PM

  14. And, I know what a metaphor is. Mine are not so blatantly over the top as Sullivan's. He's proud of his brain gas.

    Posted by: GB | May 1, 2013 7:31:01 PM

  15. You've got to get beyond "The Far Right" Let them go and live your life.

    Posted by: Ed | May 1, 2013 7:33:07 PM

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