05/28/2010 07:52 pm ET Updated May 25, 2011

Why Talking Too Much About Kagan's Sexuality Fuels Gender Policing

Over the weekend, Washington Post fashion reporter Robin Givhan chided Elena Kagan for sitting with her legs open, and Salon Broadsheet blogger Tracy Clark Flory responded with a blog accusing Givhan of subtle homophobia. "It feels like Kagan is, however indirectly, being indicted over her sexuality -- once again," Flory wrote. Taking issue with a photo caption in the Post article, which read "UNUSUAL: Most women, including Sen. Amy Klobuchar, cross their legs when sitting, but not Kagan," Flory suggests, "Maybe because she's an "unusual" lesbian."

Why is Kagan's refusal to "sit like a lady" being linked to homosexuality? Isn't this more a case of sexism than homophobia? Last I checked, there are a whole lot of straight ladies out there who keep their hair spiky, don't wear makeup, play (gasp) softball and, yes, sit with their legs open like a 16 year old boy on a packed NYC subway.

Flory's defense of Kagan is admirable, but to suggest unfeminine behaviors are a code for calling someone gay makes me uncomfortable. A massive amount of bullying in schools occurs because kids and teens police each other for gender norm violations. Girls use epithets like "dyke" or "lesbian" to label girls who refuse to comply with strict gender norms. Are you too political? You're a lesbian. Why aren't you obsessing about guys with the rest of us? Guess you're a dyke. Why do you spend so much time with your best friend? Probably because you're sleeping together. You get the picture. As with the word "slut," the label has little to do with behavior and everything to do with gender policing.

I'm a rabid Broadsheet fan, and I am grateful for the vigilance of feminist bloggers as Kagan goes through the nomination firestorm. But let's not go too far in calling everything homophobia (not least because by continuing to bring it up, we may perpetuate the rumors). Givhan's criticisms were, for my money, giving voice to the sexist norm that women need to take up less space by crossing their legs. Her article is just a grown up version of the girls who patrol the hallways with their withering elevator glances, reducing you to loser status because you don't have the right handbag or wear the right jeans.