Mazie Hirono grills Amy Coney Barrett for describing sexual orientation as a ‘preference’

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WASHINGTON – As Supreme Court nominee Amy Coney Barrett faced her second day of Senate confirmation hearings Tuesday, Sen. Dianne Feinstein, D-Calif., grilled the judge on whether she would “vote to roll back hard-fought freedoms and protections for the LGBT community.”

“I have no agenda,” Barrett replied. “I do want to be clear that I have never discriminated on the basis of sexual preference and would not discriminate on the basis of sexual preference.”

That choice of words prompted swift pushback from some critics, who said that the phrase “sexual preference,” as used by Barrett, suggested that same-sex attraction is simply a choice – one that can be changed under enough pressure.

Among those raising concern was Sen. Mazie Hirono, D-Hawaii, who accused the judge of using the phrase intentionally, instead of the more widely accepted “sexual orientation.”

“It’s used by anti-LGBTQ activists to suggest that sexual orientation is a choice,” the senator said in an exchange that swiftly went viral. “It is not. Sexual orientation is a key part of a person’s identity.”

Barrett was quick to apologize. “I certainly didn’t mean and would never mean to use a term that would cause any offense in the LGBTQ community,” she said.

Plenty of figures on the left – including Democratic presidential nominee Joe Biden and the late Justice Ruth Bader Ginsburg, whom Barrett is hoping to replace on the high court – have also used the phrase, which was considered acceptable as recently as a decade or two ago.

But in a heated, highly polarized confirmation process that has brought questions of religion and gender into the forefront, LGBT advocates and Supreme Court watchers said her word choice may have been more telling than it seemed.

As Hirono pointed out, part of the court’s 2015 decision in Obergefell v. Hodges rested on the idea that “sexual orientation is both a normal expression of human sexuality and immutable.” Just weeks earlier, two justices had said they do not support that ruling, which made same-sex marriage the law of the land.

On Tuesday, some viewers said Barrett was deploying a kind of anti-LGBT dog-whistle that signaled she felt the same way – or, at least, lacked an understanding of the issues.

By the time Barrett offered her apology, much of the Internet had already made a pointed analysis. In using an outdated phrase like “sexual preference,” which evokes smears like “the gay lifestyle,” she seemed to critics to be proving that President Donald Trump had made good on his promise to appoint a justice who would act on her socially conservative views.

“As a gay man, I do not have a ‘sexual preference’ any more than I have a racial preference or an ethnic preference,” wrote Ritchie Torres, a Democratic Congressional candidate in the Bronx. “I have a sexual identity. Amy Coney Barrett’s view on sexuality, much like her judicial philosophy, is a relic of the past.”

Charlotte Clymer, a writer and activist, noted that the phrase intentionally referred to homosexuality and bisexuality as a choice while “declining to recognize or affirm trans people.”

Conservatives soon shot back, complaining that neither Biden nor Ginsburg had faced criticism for their use of “sexual preference,” and pointing out that – until earlier on Tuesday – mainstream institutions like Merriam-Webster reportedly defined “orientation” and “preference” interchangeably. On Fox News, Tucker Carlson slammed Hirono, too, arguing that by her reasoning, gender was also a choice.

William Leap, professor emeritus of anthropology at American University, told The Washington Post that the term is part of an evolving vocabulary where words regularly come in and out of favor. Like many others – “queer,” “homosexual,” even “gay” itself – the most correct phrase has changed as society has shifted from seeing same-sex attraction as a pathology to treating it as an aspect of identity like gender or race.

“These things are always in the process of developing, and it’s particularly true for a language that affects so many people so personally,” said Leap, who studies gay and lesbian linguistics and authored the book, “Language Before Stonewall.” “When people say ‘prefer,’ the implication is that you can ‘un-prefer’ and choose something different.”

In the early 1900s, doctors spoke of “sexual inversion” and “sexual anomaly” to refer to “inverts” who engaged in same-sex behavior, he said. But as those individuals pushed for legitimacy and the government and military attempted to start identifying them, “homosexuals” and their “sexual preference” became the most commonly accepted terms.

As people have moved further away from a clinical approach and intended to speak more affirmatively about sexuality, “preference” has become stigmatized in favor of “orientation,” Leap noted.

But some resistance has remained, including on the Supreme Court.

As Slate’s Mark Joseph Stern noted, Scalia declined to include the phrase “sexual orientation” in his dissents to the court’s first four rulings affirming gay rights. Instead, Barrett’s late mentor wrote about “homosexual ‘orientation’” – with scare quotes – or spoke of people who “engage in homosexual conduct.”

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