Aug 1 2010

Finishing School for Elena Kagan

Policing the gender and sexuality of a high court nominee

When Barack Obama nominated Solicitor General Elena Kagan to the Supreme Court, her status as an unmarried professional woman did not go unnoticed—nor did her disregard for stereotypically “feminine” dress and behavior. Policing of Kagan’s gender and sexuality worked its way through the media like a whispering campaign, proving that conforming to rigid gender norms is still an expectation for smart, powerful women.

On April 15, re-printed an opinion article originally published on the website of right-wing blogger Benjamin Domenech (New Ledger, 4/11/10). In the piece, Domenech wrote that Kagan was “openly gay” yet somehow “still closeted,” claiming that her “female partner is rather well-known in Harvard circles.” After White House criticism, Domenech attached an addendum apologizing for his “speculative blog post,” but once again suggested Kagan was “openly gay”—again providing no sources for his gossip.

Dan Farber, editor-in-chief of, removed Domenech’s article later that evening, describing it in a statement to the Washington Post (4/16/10) as “nothing but pure and irresponsible speculation on the blogger’s part.”


Domenech’s use of unsourced rumors to label Kagan as a “closeted” lesbian reinforces the homophobic idea that being gay is something shameful that deserves to be exposed—under a shield of anonymity, if need be. The lesbian rumors had a sexist core to them as well: A 50-something woman’s choice not to marry or procreate is seen as an aberration that demands explanation.

With the rumors still swirling, the Wall Street Journal (5/11/10) ran on its front page an old photo of Kagan with short hair, wearing jeans and sneakers, and grinning as she clutches a softball bat. The stand-alone illustration was captioned, “Court Nominee Comes to the Plate.” The insinuation was not lost on observers: Kagan’s femininity and sexual orientation were once again being called into question, as softball has long been stereotyped as a sport beloved by lesbians.

That same day, Politico’s Ben Smith (5/11/10) reported on the Wall Street Journal’s controversial photo choice; Smith quoted acquaintances of Kagan denying rumors of lesbianism by confirming that Kagan had dated men in college. “She’s straight,” friend Sarah Walzer was quoted by Politico. “She dated men,” Walzer continued, but “she just didn’t find the right person.” The sex scandal-tainted former governor of New York, Eliot Spitzer, also weighed in on Kagan’s sexuality, writing an email to Politico, “I did not go out with her, but other guys did.” Smith included further proof from Walzer for good measure: that the two would discuss “who in our class was cute” and engaged in “the usual girl-talk stuff—talk about how to get his attention.”

Politico headlined its article about the softball photo and rumor-mongering, “Elena Kagan’s Friends: She’s Not Gay.” This, then, was what Politico saw as the proper response to the rumors: to establish once and for all that Kagan had engaged in appropriate heterosexual behavior.

Raising questions about Kagan’s sexuality was also a critique of how well she performs female gender norms. Like many professional women, she was expected by corporate media to avoid appearing too feminine—i.e., weak, shallow or girly—without crossing the line into a suspicious level of masculinity. Washington Post style columnist Robin Givhan (5/23/10) seemed to find Kagan failing at the balancing act. Givhan noted that Kagan followed Supreme Court nominee tradition as she eschewed fashion and “embraced dowdy as a mark of brainpower.” But Givhan sounded almost scandalized that

Kagan didn’t bother maintaining an image of poised perfection. She sat hunched over. She sat with her legs ajar…. She does not cross her legs at the ankles either, the way so many older women do…. The woman and her attire seem utterly at odds. She is intent on being comfortable.

UNUSUAL: Most women, including Sen. Amy Klobuchar, cross their legs when sitting, but not Kagan. (Hyungwon Kang - Reuters)

Does Kagan not know how to behave like a lady? Or does she not care? In the court of gender policing, either would be suspect. Of course, qualifying Kagan’s femininity this way at all is also a veiled message about her sexuality—perhaps Kagan doesn’t care about being feminine because she is a lesbian.

One wonders why a finishing school pedigree—sitting up straight, crossing one’s legs, leaving sports to the boys, attracting beaux—is at all relevant to a seat on Supreme Court. Judging by the rebukes to Kagan’s performances of her gender and sexuality, one sees it’s still fair game to evaluate a woman’s fitness for the highest court in the land by interrogating her personal life instead of examining her qualifications and legal views.

Jessica Wakeman blogs for and is a former associate blog editor for the Huffington Post.