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77 N.Y.U. Ann. Surv. Am. L. 1 (2022)

handle is hein.journals/annam77 and id is 1 raw text is: THE FULL PROMISE OF LIBERTY: A PLACE FOR IDENTITY RHETORIC IN POST- BOSTOCK JURISPRUDENCE SASHA KAWAKAMI Table of Contents I. Introduction ......................................... 1 II. Sex, Marriage, and Dignity: Obergefell's Fundam ental Rights ................................. 4 III. Bostock, Title VII, and the Power of Identity Rhetoric .................................... 12 A. Inherent Identity Arguments .................... 14 B. Expressive Identity Arguments ................... 18 C. The Employers' Argument....................... 23 IV. The Opinion: A Textualist Approach to Equal Rights......................................... 25 V. Conclusion: The Future of Identity Rhetoric ......... .30 I. INTRODUCTION [We demand that sex speak the truth . . . and we demand that it tell us our truth, or rather, the deeply buried truth of that truth about our- selves which we think we possess in our immediate consciousness.1 In the first volume of The History of Sexuality, French philoso- pher Michel Foucault wrote of a discursive explosion of the 18 and 19 centuries that changed the way society discussed and inter- acted with aberrate sexualities, particularly with regard to homosex- uality.2 He called this the perverse implantation: the moment at which the nineteenth-century homosexual became a personage: a past, a case history and childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology.3 In other words, homosexuality as a concept came to be recognized not just as a physical act or set of actions-it became inextricably tied to identity. Discourse was 1. MICHEL FOUCAULT, THE HISTORY OF SEXUALITY, VOLUME I: AN INTRODUC- TION 69 (Robert Hurley trans., 1978). 2. Id. at 38. 3. Id. at 43. 1 Imaged with the Permission of N.Y.U. Annual Survey of American Law

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