Group names in legal usage

[Laurence Claus]

If heterosexuality had once been the technical term for an 
officially-designated mental illness, I doubt that those to whom it refers 
would celebrate its use. Same-sex orientation historically did not speak 
its own name, and when it did, "gay" is what the subculture called itself. 
That those within a subculture may address each other using even the most 
derogatory of exogenously-generated epithets, mixing irony with 
self-deprecation, is no reason for those on the outside to do so. If 
someone outside a subculture wishes to display respect for those in the 
subculture, that is most clearly accomplished by using the labels for the 
subculture that were generated within it. If someone outside a subculture 
wishes to signal that he actually doesn't much respect those in the 
subculture, then using a term whose origins are negative but far too formal 
for it ever to degenerate into taboo slang is an effective way to 
accomplish that objective. I'm late reaching this conversation, so please 
forgive me if some of this was said on earlier days.

Laurence Claus
University of San Diego School of Law










At 01:00 PM 8/10/2005, Volokh, Eugene wrote:
>         Let me suggest that, instead of asking what names group members
>prefer, judges selecting the group names to use should ask what names
>group members consider acceptable (as opposed to offensive, focusing on
>the offensiveness of the label and not on the offensiveness of the legal
>rule involved).
>
>         This acknowledges the possibility that group views may be mixed
>and not precisely knowable.  For instance, do most blacks today prefer
>"black" or "African-American"?  Its hard to tell; as of 1995, "black"
>was preferred, but I don't know what it is now.  If most Hispanics
>prefer "Hispanic," should judges who have gotten used to "Latino," whose
>circle of Latino friends prefers "Latino," or who are themselves Latino
>and prefer "Latino," eschew "Latino"?
>
>         This also makes it easier to make a choice when there is a
>reason to use a particular term, but there can be debate about the
>strength of the reason.  Some judges, for instance, might prefer to use
>a term that fits more closely with a related legal term.  A judge
>deciding a case in which a party is the League of United Latin American
>Citizens might find it stylistically preferable to speak of their
>defending the interests of Latinos, even if he concludes that the
>majority preference is Hispanic.  Likewise, in a case that's full of
>discussion of homosexuality or homosexual conduct, a judge might prefer
>to use "homosexuals" -- or might prefer to use the term instead of "gays
>or lesbians" simply because he wants to use one word rather than three.
>Alternatively, some judges might use the words interchangeably in the
>opinion because it fits their preference for elegant variation
>(something that I generally don't much like stylistically, but that
>others do).
>
>         Finally, this norm would actually lessen the number of people
>who are offended.  Sometimes, offense both to listeners and to speakers
>(when speakers are told that an innocently intended usage is wrong, they
>may often get offended themselves) is *caused* by norms that encourage
>too much offense.  For instance, if we persuade handicapped people that
>the word "handicapped" is offensive -- something that some people have
>apparently tried to do, generally based on spurious etymological claims
>-- then handicapped people who otherwise wouldn't even have noticed the
>term might end up unnecessarily taking umbrage.  Likewise, if we
>persuade people that only the majority-of-the-group-preferred usage is
>proper, and anything else is offensive, then more people will take
>offense at innocently intended usages.  If the social norm is more
>tolerant of multiple possible usages (though it frowns on usages that
>are already seen as offensive by the majority of the group), then fewer
>listeners and speakers will end up getting offended.
>
>         I agree that using a term that most group members reasonably
>interpret as offensive or pejorative should require some extra
>justification, especially if the author is a high-level government
>decisionmaker who is speaking in his official capacity.  But if there
>are several terms that people find acceptable, then it seems to be
>enough to ask that the judge use one of these terms.
>
>         Eugene
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