Nancy Leong’s “Negative Identity”

I saw a request for a summary of Leong’s paper, so as I’m reading I will be highlighting pieces I find of note (and discussing where I disagree or recommend further discussion).  Long, but very skimmable I hope.

I.  Defining Negative Identity

A. Identifying Negative Identity

I use the term to refer to an absence–an indifference to something society views a fundamental. (1361)

Although the Article earlier says “indifference or antipathy” (1359), I am interested in seeing if this continues to be simplified to indifference.

[…] in many ways, privileged identities.  In some instances, simply claiming the identity is a privilege. […] Moreover, all the negative identities I describe offer the opportunity to pass. (1362)

Context:  Talking about preferring to remain childfree or unpartnered, but being coerced by the economy, lack of access to birth control, etc.

There is a huge discussion to be had here, I think, around preference and identity and coercion by circumstances; around the privilege of access to identity, versus an experience itself being privileged.

I also want to trouble the idea that passing is always possible.  Leong suggests “one can remain vague about […] up to a certain age, one’s desire to remain childfree.”  I suggest age is far from the only factor affecting passability.  Vagueness is not always an acceptable answer, and even outright lying is not always believed when someone is not convincing enough to “pass.”  There are cultural and contextual differences that affect how much someone is pushed or believed.

1. Atheist

14% of people who call themselves atheists also say that they believe in God or a universal spirit; meanwhile, 7% of people say they do not believe in God or a universal spirit, but not all of them call themselves atheists. (1363, citing Lipka’s 5 Facts About Atheists)

Leong mentions Freedom From Religion, American Atheists, Atheist Alliance International, and Sunday Assembly.

For some it is an intellectual commitment; for others, a political orientation; for others, a source of values; for others, a source of community. […] Rather than merely the absence of religion, it is a fully developed identity with various customs, practices, political interests, intragroup diversity, and internal disagreement. (1364)

2. Asexual

Leong starts with saying asexuality has “biological, emotional, and social components, among others.”  Aromantic identity is mentioned as a subset of asexual identity, and a footnote on “compromise with respect to sex” in relationships “with sexual people” cites AVEN.

One feature uniting many asexual people is the belief that asexual relationships challenge cultural norms or reject them outright. […]  This conscious rejection of prevailing social assumptions about sex is central to many asexuals’ identity, as is a commitment to questioning assumptions about sex […]  Asexual people often conceptualize their sexual identity as an affirmative challenge to existing understandings of relationships and a commitment to the idea of individual understandings of sex.  (1366-7)

3. Single

Leong focuses in on “those who are permanently single by choice,” leaving aside those who don’t expect to continue to be.  I suggest this also leaves aside those who would like to be, but cannot (again, the question of privilege/access to identity).

Leong also contends that single identity is “no longer exclusively seen as pitiable or questionable, but rather as admirable, even enviable.” (1369)

This section relies a lot on “gender scarcity” in a “romantic market” and reads as extremely cis-heterosexual to me.  One footnote makes a good point, citing Ralph Richard Banks about how the incarceration of black men affects who black women are able to marry.

It also cites the traditional Mosuo culture of China as an idealized example of “relationships without social constraints,” suggesting that keeping sex separated from marriage/cohabitation/finances/child-and-elder-care results in greater sexual freedom.  (This relies on Judith Stacey’s Unhitched.)

The major problem facing many singles is the reaction from society rather than their singleness per se. (1368)

For many, the decision to remain unpartnered is at least in part a protest against existing social norms. (1369)

4. Childfree

A lot of sources and links, here.  Citations of Mary Anne Case and Katherine M. Franke arguing that workplace accommodations should not elevate childbearing above all else.  A host of reasons, including happiness, standard of living, freedom, environmental/population growth, focusing on community, and apathy or antipathy to children.

Central to the thinking of many childfree people is the idea that individual decisions about reproduction deserve universal respect. (1373)

B. Addressing Negative Identity Collectively

Negative identity is harder to describe.  It is arguably more nebulous, less tangible, and as a result, more likely to fall into cracks in discourse and in law. (1373)

Negative identity is also viewed–often incorrectly–as more fluid than positive identity.  ]…]  Many people see negative identity as unanchored by a socially important thing […] and thus more likely to change. (1374)

Relatedly, negative identity raises questions. If people know that someone is Protestant, gay, married, or a parent, it allows them to place that person in a category that does not immediately lead to additional questions.  Negative identity, on the other hand, always leads to more questions. […] Are they infertile? Do they want to have children? If not, why not? (1374)

Not sure about this — given the amount of inappropriate querying and you’ll-grow-out-of-it directed at bi/pan/polysexual people, for instance, or polyamorous people.

I’d love more discussion about this and what the difference is, if any.

And on 1377, Leong suggests the law is used to “tangible, concrete things–children, partners, gods, sex.”  I would like to see discussion of non-god-centered religions, such as Confucianism, Taoism, Buddhism, and how they interact with law.   And again, polyamory’s relation to the law.

II. Negative Identity and Animus

A. Negativity Toward Negative Identity

1. Atheist

Some interesting history involving John Locke, Harvard Law Review, polls (about voting, intermarriage, “vision of society”), Cecil Bothman, Boy Scouts, Freemasons, Elks.

Sociologists have identified a common belief in a “religious convergence” during the twentieth century, which posits America as a nation of diverse religious views that nonetheless yield consensus on basic values — what researchers have termed the “common creed.”  Under this theory, people express hostility toward atheists because they disrupt this emerging narrative. (1379; bolding mine)

2. Asexual

Marriage consummation, polls, closeted at work, State v. Dutton and corrective rape, pathologizing by doctors, dismissal by Dan Savage, stereotypes and compulsory sexuality, etc.

3. Single

A lot of concurrent conflicting views.  History of Martin Luther as anti-singledom, Elizabeth I never marrying, Mary Astell and respected spinsterhood, polls calling singledom “neurotic”/”immoral”, critiques of second-wave feminism omitting singles, present-day media and academic representation.

Multiple studies, showing bias as “immature”/”self-centered,” housing and employment favoring married couples, open admission to preferring married couples.  Mention of the “manosphere” and pick-up artists.

4. Childfree

Martin Luther again, and the recent advent of birth control.  Numerous workplace harassment/hostile environment cases under Title VII: “[plaintiff] and her husband had no children because they weren’t ‘right with God.’”  Extra work and fewer benefits/lower priority given to childfree workers.  Editorials on how childfree persons are destroying the economy by failing to provide future workers and depending on the state.

The framing of advocacy for children’s rights, and against discrimination toward parents (eg “no kids allowed zones are bias”), as erasing conflicting needs.

I’d like to see analysis of discrimination against people who “might get pregnant and need leave,” and the controversy around paternal leave benefits/accommodations and so forth.

B. Explanations for Negativity

The aversion directed at negative identity results from two diametrically opposed emotions. One is that a particular negative identity is so far outside a person’s understanding that they fear, distrust, and dislike those with that identity. The other is that a particular negative identity hits uncomfortably close to home. (1394)
Certainly some of this preoccupation with sexuality is the product of sexual desire, but much of it is intense anxiety about its lack. (1396)
So, “unthinkable” because of immense difference, or instead “causes them to question themself” and comparisons to closeted gay men as extra-virulent homophobes.

III. Negative Identity and Law

A. Why Negative Identity Deserves Protection

Leong borrows Emens’s criteria, but in addressing if any of these four identities are “too deeply rooted to ask people to alter” simply says most people do believe that unreasonable.  (A footnote mentions that asking conversion of a partner is considered reasonable.)  The only citations here are Emens (a “growing consensus” thinks no one “should be asked to change” orientation) and a survey on abortion.  This feels extremely weak to me.

Leong notes that the possibility of passing is un-controversially considered not a reason to remove anti-discrimination protection altogether.

B. Existing Legal Regimes

1. Atheist

Leong contends that both religious majorities and religious minorities are legally better situated than atheists.

Leong mentions the three interpretations of the Establishment Clause in order of frequency (government can engage in religion just not “establish” official religion; gov’t cannot distinguish among but can prefer religion over nonreligion; gov’t should not prefer religion to nonreligion).

Some court decisions in favor of atheists, such as Title VII protecting employees and Fair Housing Act prohibiting “discounts” to religious persons.  Many custody cases where religion was a factor.

2. Asexual

An interesting claim that the existence of so many laws (and court proceedings) centered around sex, detracts from energy/focus that could be spent on not sex.

Some laws specifically protect asexuals, but no cases have used them as of yet.  Leong suggests that if hate crime laws cover other sexual orientations, omitting asexuals is “unequal and worse treatment.”

Legal impotency, defined as “inability to engage in, or a lack of capacity for, normal sexual intercourse,” is grounds for fault-based divorce, and proof of pre-marital disclosure would rest on the defendant.

3. Single

Federally, Title VII and the Fair Housing Act do not protect single people/marital status, and less than half the states have laws that do.  Most of those laws came from unmarried couples and only coincidentally protect single people.

Landlords prefer married couples, but then prefer unmarried couples to singles or cohabitating friends.  The same is true for adoption and other parenting.  Joint returns, which have been discontinued in most other countries, always pay less than single returns, and there are frequently couple/family discounts for insurance, gyms, admission tickets, etc.  Leong contends this is an unregulated but legal issue of singles indirectly subsidizing non-singles.

4. Childfree

Leong suggests childfree people are unprotected by omission, in part due to advocacy having centered around women-as-mothers.  Very few statutes protect familial/parental status, and those have only been used by parents.

Leong contends that while parental leave is considered an entitlement, leave to care for anyone other than a child is not protected except in a few states with specific FMLA expansions (ie to guardians, siblings, or grandchildren).  The Article also suggests that parental leave has been accepted without explicit justification and is undertheorized, especially as a greater good than any other use of leave.

Employer benefits, from health insurance to tuition, are usually restricted to children (and perhaps spouse), which again Leong says could be characterized as a subsidy from childfree people.

IV. Legal and Policy Reforms

Here, Leong argues not for precise equality/sameness, but nuance:

Direct discrimination (targeted hostile mistreatment) should be treated the same for negative and positive identities, and in many ways protections need to be increased and better enforced all around.

Subsidy (transfer from X to Y something that both find equally valuable) contains the subset of accommodation (transfer of something that is substantially more beneficial to Y and less beneficial to X).  Leong suggests that deciding on the justifiability of subsidies and accommodations is highly contextual and requires holistic analysis — as does determining if something would be a subsidy or accommodation, or impermissible direct discrimination.

A. Direct Discrimination

Leong suggests prioritizing anti-discrimination work in housing, employment, and public accommodations.  More, that both federal and state level laws are appropriate (and not redundant but, rather, serve federalism and make more resolution mechanisms available).

Leong says hate crime enhancements should be applied equally… I fret about hate crime laws, as they are disproportionately enforced against people of color, and I feel they are a constantly misused tool for a biased justice system to add prison time.  Their practical damage outweighs their theoretical justness, for me.

Leong also encourages the courts to interpret existing laws like Title VII, the Establishment Clause, etc to protect negative identity.

B. Subsidy and Accommodation

Leong discusses lactation rooms, and how they could be characterized as accommodation (a designated room with great value to parents, little to others) or subsidy (everyone would benefit from a private room, but it is only going to one group).  The factors to weigh include (but are not limited to) the degrees of value and burden, the cost, possible alternatives, what the cost would otherwise be spent on, and impact on equality/dignity/liberty/etc.

…amusingly to me, Leong then looks at Viagra as accommodation (for only those with erectile dysfunction? for any cis guy who wants sex?) or subsidy from asexual people (but not, for some reason, from women and others who aren’t cis men).  No equality benefits, but low cost, but extremely difficult to qualify benefit… Conclusion?  It’s a hard decision.  (Sorry, sorry, not sorry — the pun is all mine.)

Overall, holistic and case-by-case analysis, and taking seriously the various competing concerns.

C. Policy

This brief section is about social stigma that the law cannot touch, and about how we all have the power to influence others’ attitudes by being thoughtful.  The law can help, but the law is not be-all end-all.


Unfortunately imo, Leong ends with a call to “protect opposites.”  (Not even sure A is a “negation” of B, much less its opposite…grumble, grumble, can’t we be different without Charting Positions)


Interesting citations and possible further reading:

  • Daniel C. Dennett, Breaking the Spell: Religion as a Natural Phenomenon.  (coiner of “brights” to include atheists, agnostics and secular humanists)
  • Nelson Tebbe, Nonbelievers.  (“nonbelievers” to include atheists, agnostics, secular humanists, freethinkers, and others)
  • Bella DePaulo, Singlism: What It Is, Why It Matters, And How To Stop It.  (on single and childfree identities)
  • Elizabeth F. Emens, Compulsory Sexuality.  (a legal text treating asexuality)
  • Laura Kipnis, Against Love: A Polemic.  (describing coupledom as “the tyranny of two”)
  • Natalia Sarkisian & Naomi Gerstel, Nuclear Family Values, Extended Family Lives: The Power of Race, Class, and Gender.  (analyzing marriage as destroying community)
  • Ralph Richard Banks, Is Marriage for White People? How the African American Marriage Decline Affects Everyone.
  • Leslie Green, Legal Positivism.  (law as social construction and the result of what has been posited)
  • James C. Turner, Without God, Without Creed: The Origins of Unbelief in America.
  • Richard Buel Jr., Joel Barlow: American Citizen in a Revolutionary World.  (one of America’s “first” atheists)
  • Penny Edgell et al., Atheists As “Other”: Moral Boundaries and Cultural Membership in American Society.
  • Will Gervais, In Godlessness We Distrust: Using Social Psychology to Solve the Puzzle of Anti-Atheist Prejudice.

One thought on “Nancy Leong’s “Negative Identity”

  1. “And on 1377, Leong suggests the law is used to ‘tangible, concrete things–children, partners, gods, sex.'”

    Well, mark this down as the first time I’ve ever heard of an academic article calling gods tangible and concrete.

    “Leong contends that both religious majorities and religious minorities are legally better situated than atheists.”


    This does not seem to account for how religion is racialized?

    Liked by 1 person

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