Understanding “Racialized” Desire Requires Understanding “Gendered” Desire

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Edward Stein

Solangel Maldonado’s The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (NYU Press, 2024) is an accessible, thoughtful, and provocative book about the role of race in intimate preferences and intimate relationships in the United States.  The book powerfully describes the current racialized character of dating and marriage, and persuasively demonstrates how this existing state of affairs is connected to the social and legal history of race in this country.  

For me, the most engaging parts of this book are its prescriptive conclusions.  Maldonado proposes “several reforms [to] reduce the pernicious effects of the law’s influence on interracial intimacy” (p. 10 [unless indicated otherwise, references are to Architecture of Desire]). Specifically, she proposes changing laws regulating dating platforms, housing, education, and transportation.  My focus, in this short commentary, is on dating platforms and the general approach of her project.  I suggest that the project of Architecture of Desire is incomplete without comparing and contrasting the racialized nature of intimate desires and its relationship to US law, on the one hand, to the gendered nature of intimate desires and its relationship to US law, on the other.

Maldonado’s book focuses on one aspect of people’s general intimate preferences, i.e., the extent to which they are racialized.  Intimate preferences include preferences and desires for sexual, romantic, marital, and other types of intimate relationships.  In this context, we often classify people in terms of the sex or gender of their sexual or romantic object choice—namely, whether they are gay, lesbian, heterosexual, bisexual, asexual, pansexual, etc.  Like racial and ethnic preferences, sexual orientations are aspects of a person’s intimate preferences.  Such preferences vary widely.  Some people are particularly or primarily attracted to people of a certain age range, body type, hair color, personality, and/or profession, in addition to being attracted to people of a certain race, ethnicity, sex, gender, gender identity, and/or sexual orientation.  Maldonado’s focus is racial and ethnic preferences, one aspect of the architecture of desire.  Given the history of racism in United States, its continued significance today, and the way that the law of intimate associations has historically been connected to race and ethnicity, her focus is timely and important.  However, the law related to intimate associations also is—and has been—deeply connected to gender, generally, and to sexual orientation, in particular, and issues of gender, gender identity, and sexual orientation are also especially significant today.  While a discussion of gender in the context of intimate associations may seem beyond the scope of Architecture of Desire, race and gender intersect in important ways.  Further, the similarities and differences between gender and race in the context of the law of intimate associations are, I think, crucial to Maldonado’s overall project.  I return to this point below. 

A central focus of Architecture of Desire concerns racial filters on dating platforms.  As Maldonado convincingly shows, people increasingly meet their partners and friends using these platforms, so analyzing them is essential to her project.  At the heart of Architecture of Desire is a subtle proposal about dating platforms: general dating platforms (like “Match”, “eHarmony,” and “OkCupid”) should be prohibited from providing users with filters that enable them to screening out of members of particular racial groups (chapter 3 & p. 131).  Maldonado demonstrates that providing racial filters both “signal[s] … that it is reasonable, acceptable, and even desirable to categorically exclude an entire group based on stereotypes and assumptions,” and “signal[s] that discrimination in other [i.e., non-intimate] settings is acceptable” (134).  Maldonado acknowledges that there are some people who use racial filters on dating platforms for non-problematic purposes, for example, when members of racial minority groups use filters to facilitate meeting other members of such groups (132).  That said, she argues that the benefits of being able to do this are significantly outweighed by the deleterious effects of racial filters.

In contrast, however, Maldonado does not propose restrictions on dating platforms that seek to “bring together date-seekers of certain racial, religious, educational or professional backgrounds” (133).  She has in mind platforms like “Black People Meet” (“the premier online destination for African American dating”), “Christian Mingle” (for “like-minded single Christians” to meet each other), and “JDate” (for helping people “meet Jewish singles … for dating and romance”).  Maldonado would allow these platforms to operate as they currently do because they are “open to everyone even though they attract users seeking partners of certain backgrounds” (134). 

I am not convinced that platforms like “Black People Meet” aren’t practically and ethically equivalent to dating platforms that offer racial filters.  To see this, suppose that a platform like “eHarmony” or “OKCupid” offered an option for users to indicate, for example, an interest in dating black people or Jewish people, and, when a user indicated such an interest, transferred them to a part of the platform structured like “Black People Meet” or “JDate,” where a user would have access to others—regardless of their race, ethnicity, or religion—who have indicated a similar interest.  It seems to me that allowing this feature on a general dating platform is difficult to distinguish—practically, legally, or ethically—from the racial filters that Maldonado wants to prohibit, and equally difficult to distinguish from platforms like “Black People Meet” that she wants to allow.  All three variations of dating platform design seem to reinforce racial stereotypes and exacerbate social distance between people of different races.  I think the law should treat all three the same and that Maldonado’s arguments for treating them differently, while admirable and well intentioned, aren’t convincing.

For me, this complexity of this problem becomes even more apparent when we consider dating platforms through the lens of the LGBTQ+ community.  In its simplest form, if, as Maldonado proposes, racial filters should be prohibited on dating platforms, then shouldn’t gender or sex filters also be prohibited?  After all, just as “[t]he law directly shaped preferences for partners of certain races through anti-miscegenation laws, segregation, and structural barriers to interracial intimacy, and those preferences contributed to and continue to perpetuate racial and social inequality” (10), so to the law directly shaped gender-related intimate preferences through sodomy laws, marriage laws, and other laws that “contributed to and continue to perpetuate” sexism, homophobia, transphobia, and the like.  This analogy suggests that Maldonado’s argument proves too much: if dating platforms are going to be useful, don’t they need to allow users to filter for the gender or sex preferences associated with their sexual orientation?

In his essay “Sexual Racism: Intimacy as a Matter of Justice” (The Journal of Politics [2015, vol. 77, no. 4, pp. 998-1011])—which clearly influenced Maldonado’s thinking about racial filters—Sonu Bedi tried to distinguish intimate preferences regarding race from intimate preferences regarding gender (or sex) as follows:

Insofar as those who identify as gay and lesbian discriminate on the basis of sex in selecting intimate partners, their discrimination may constitute, in part at least, what it means to be gay. Attraction and love for those of the same sex is a marker of being gay.  … This kind of preference then is unlike the preference for those of a particular race... [I]t may be morally problematic to view racial preferences as in any way constitutive of identity. Individuals generally do not structure their sense of self in terms of their preference for those of a particular race. (Bedi, p. 1008). 

Other commentators have tried to make this ethical distinction between intimate preferences regarding race and intimate preferences regarding gender by appeal to the innateness or immutability of sexual orientations.  For example, Alexander Leon, in his 2020 post, Sexual Racism: A Guide for White People, said:

Unlike preferences around gender, racial ‘preferences’ in dating are usually considered a result of social conditioning, rather than innate or biological.  This means that your attraction or lack thereof to a particular race is not an innate preference, but a learned preference cultivated over a lifetime due to the way you were socialized.  And you can unlearn it.

Neither Bedi’s nor Leon’s s way of distinguishing intimate preferences with respect to race and ethnicity from intimate preferences with respect to sex and gender are convincing.  As I have argued elsewhere, the scientific evidence that sexual orientations are innate, immutable, or “natural kinds” is much weaker than many advocates of LGBT rights think and, more importantly, the extent to which sexual orientations are innate or immutable is (mostly) irrelevant to the legal and ethical attitudes we should have towards lesbians, gay men, bisexuals, and other queer people (see my book The Mismeasure of Desire: The Science, Theory, and Ethics of Sexual Orientation (Oxford University Press, 1999), and my articles “Immutability and Innateness Arguments about Lesbian and Gay Rights” (Chicago-Kent Law Review [2014, vol. 89, no. 2, pp. 597-640]) and “Sexual Orientations, Rights, and the Body: Immutability, Essentialism, and Nativism” (Social Research: An International Quarterly [2011, vol. 78, no. 2, pp. 633-658])).  Although Maldonado does discuss dating platforms that serve the LGBTQ community (specifically Grindr and Hornet), she doesn’t use them as an opportunity to consider the similarities and differences between racial filters and gender/sexual orientation filters on dating platforms.  While race and gender are no doubt different and are historically and presently connected to the law of intimate associations differently, failing to grapple with gender and race together, especially given the ways that they intersect, is a significant gap in the project of reframing how the law should respond to the architecture of desire.  Engaging with gender and sex is an inextricable part of understanding and reforming the racialized—and the overall—structure of intimate preferences and relations in the United States. 

Edward Stein is Professor of Law and the Director of the Gertrud Mainzer Program in Family Law, Policy, and Bioethics at Cardozo School of Law. You can reach him by e-mail at estein2@yu.edu.