Seeing Is Believing: Research on Women's Sexual Orientation and Public Policy

Journal of Social Issues, Summer, 2000 by Sheila James Kuehl

Sheila James Kuehl [*]

In this commentary, Sheila Kuehl, the first openly lesbian or gay person to be elected to the California State Legislature, addresses the interface among science, social issues, and public policy in the arena of women's sexual orientation. She emphasizes the value of scientific research and analysis in informing policy makers, identifies specific ways that social scientists can influence policy makers, and suggests areas that would benefit from continuing and expanded research.

As a legislator, I call upon my "knowledge" every day in deciding whether to favor or disfavor a particular bill, approach to the law, concept or idea. How do I know what I know? And what part of what I "know" is really opinion, based on a murky brew of experience, bias, misinformation, factoids and facts gleaned from newspapers, magazines and the Internet, surveys, and half-digested reports on research? Since more than 4,000 bills cross my desk in every 2-year legislative session, you can, more than likely, understand the sentiments of the anonymous wag who opined, "There are two things you never want to watch being made: sausages and law." However you may feel about lawmakers, once we are elected to any legislative body, we are expected to change the law for the better. "Better," however, is in the eye of the beholder, and so the 80 Assembly members in the California Assembly and the 40 Senators in the State Senate legislate furiously, advocate vociferously, and attempt to persuade their colleagues to vote for the changes. This advocacy is done, primarily, through the use of research, testimony, and argument.

One of the first sermons I got in law school went like this: If the law is on your side, pound the law; if the facts are on your side, pound the facts; if neither is on your side, pound the table. With the dearth of research on sexual orientation and especially on the experiences of women who are sexual minorities, little is left on both sides but a whole lot of table pounding. Inevitably, however, the law, whether in its present form or as we and others propose to change it, has great power to reward, punish, and protect people on the basis of their sexual orientation. Therefore, in order to make the law more responsive to the needs of sexual minorities such as lesbian, gay, bisexual, transgendered, or others, we must legislate.

The Legislature as Battleground

The legislatures of states, as well as the U.S. Congress, are a battleground upon which social theories of fairness, equality, crime and punishment, the creation and protection of families, workplace safety, and a host of other issues collide and where ideas strive for ascendance, acceptance, and enactment. With the greater openness of sexual minorities in declaring or acknowledging their sexuality in public and with the election of openly gay and lesbian legislators, issues concerning women and sexuality have come to the fore in these public arenas. The questions raised by the presentation of these issues require answers based in research, and that has presented a significant problem to legislators. What is the research? How do we find it? How do we influence the choice of topics or considerations being studied?

For me, some of the answers may lie in my experience in the women's movement and especially in the movement to protect women against domestic violence. In the late 1970s, I became drawn into early efforts to make the law more responsive to the needs of women who were being battered by their intimates. Such actions weren't even a crime and, when we set out to try and convince legislators that, indeed, these acts should be criminalized, we ran into a firewall of resistance. It was clear to me that, even though I had yet to work in any arena to change the law, social attitudes alone were powerful enough to shape women's experience in this area.

The mythologies concerning domestic violence influenced public policy, or the lack of it, in very powerful ways. First, no one seemed to believe that domestic violence was widespread; rather, they believed that women made it up or that a few violent men in "lower" economic classes just lost their tempers and got carried away. Consequently, there was no need, in their minds, for legislation. Although fact gathering was difficult, given the self-blaming and secret nature of domestic violence, early research went a long way to prove that, indeed, this phenomenon was widespread.

Well, then, the mythology went, women must bring it on themselves, and, indeed, other research was brought forward to show that domestic violence was actually "mutual combat" with both sides engaged in violent acts. Public policy then developed mutual restraining orders and arrested women for fighting back. Further research was needed to show that women could not inflict the same level of harm, did not initiate family violence, and so on. By continuing to tell the truth about women's lives, research drove public policy to swing back to a place where women might truly be protected. Perhaps the most intractable myth influencing public policy in this area was the belief that violence against a parent was not harmful to children unless they, too, were victims of the physical violence. This took years of research to change but, just this year, I introduced a bill that was signed into law stating that the court could take for granted, as a matter of law, that it was detrimental to a child to be placed in the custody of a batterer. The batterer then has the burden of showing that it would be in the best interest of the child to be with him or her. Lawmakers were convinced to vote for this bill by a multitude of studies examining the effects of domestic violence on children.