05/20/2010 05:01 pm ET Updated May 25, 2011

Is Kagan's Sexuality Fair Game?

Elena Kagan's nomination to the Supreme Court has provoked some interesting discussion of non-traditional sexuality in high places. Überblogger Andrew Sullivan has been asking crucial questions concerning whether Elena Kagan's sexuality is a legitimate issue for public scrutiny. Slate's William Saletan compared Kagan's sexuality to Robert Bork's religious views (Bork was nominated in the 1980s; Saletan argues that both issues should be off limits). Maureen Dowd wants to know why men are "single" but women over a certain age are "unmarried." Meanwhile, the White House has put their foot in it by claiming that rumors about Kagan's possible lesbianism amount to "false charges."

Really? Can one be "charged" with lesbianism these days? If so, are we talking felony or misdemeanor?

In the midst of all this, one passage from Sullivan's piece defending his right to ask about Kagan's sexuality really jumped out at me:

I am not seeking to expose anyone in this way at all, because I know at first hand how brutal it can be. I seek no cruelty at all. I want to know no details or specifics. But I do think a simple answer to a simple question about a core part of someone's identity should be possible.

Sullivan wants a simple answer to the question: Are you gay or not? This seems "simple" to him because he's thinking like a man -- a man who has always known he was gay.

Some men and women are born gay. According to the science available, it seems that more men than women experience their sexuality in this defined, determined way. But others are less definitive about their sexual orientation. For many women (and some men), sexual attraction is more about the individual they're attracted to than his or her gender.

Sexologist Lisa Diamond spent over a decade studying the ebb and flow of female desire. In her book Sexual Fluidity, she reports that many women see themselves as attracted to specific people, rather than to their gender. Sex researcher Meredith Chivers agrees, writing, "Women physically don't seem to differentiate between genders in their sex responses, at least heterosexual women don't."

Psychologist Richard Lippa teamed up with the BBC to survey over 200,000 people of all ages from all over the world concerning the strength of their sex drive and how it affects their desires. He found an interesting inversion of male and female sexuality: for men, both gay and straight, higher sex drive increases the specificity of their sexual desire. In other words, a straight guy with a higher sex drive tends to be more focused on women, while higher sex drive in a gay guy makes him more intent on men. But with women -- at least nominally straight women -- the opposite occurs: the higher her sex drive, the more likely she'll be attracted to both men and women. Lesbians showed the same pattern as men: a higher sex drive means more women-only focus. Perhaps this helps explain why nearly twice as many women as men consider themselves bisexual, while only half as many consider themselves to be exclusively gay.

What if Kagan is one of the millions of women who have had intimate relationships with men and women, but who doesn't consider herself bi-sexual? What if she's currently in a long-term relationship with a woman, but considers herself to be heterosexual? What if she's asexual, or pansexual, or mostly homosexual, but with exceptions? In other words, what if an honest answer to Sullivan's "simple question" requires precisely the "details" and "specifics" he claims he doesn't want to know and admits are nobody's business?

While I agree with Sullivan and others that it's high time an openly gay person could be nominated to the Supreme Court (or any other job) without his or her sexual orientation being of any more import than religion or ethnicity, it's important to remember that when it comes to sexuality, simple questions don't always imply simple answers.


Some of this material appears in Sex at Dawn: The Prehistoric Origins of Modern Sexuality.