Senator Hirono schooled Amy Coney Barrett for saying "sexual preference." It's an offensive term... as many people just learned yesterday.

Here's a good clip showing Hirono's earnest, mildly contemptuous attitude toward the Supreme Court nominee and editing in the use of "sexual preference" by a few notables, including Joe Biden and Ruth Bader Ginsburg:

Ruth Bader Ginsburg, who Mazie Hirono called "our champion" on Monday, used the term "sexual preference" in 2017. Hirono jumped on Amy Coney Barrett for saying it Tuesday, calling it "offensive and outdated." pic.twitter.com/8bHIQTSVFk https://t.co/JlcRA35g59

— David Rutz (@DavidRutz) October 14, 2020

I was surprised to hear that "sexual preference" has become — at least in some circles — a politically incorrect term. I could immediately see the reason for objecting to it: It vaguely suggests that sexual orientation is a choice, even though I don't think it's true that we choose our preferences. It might suggest that who we love — and who we feel sexually attracted to — is lightweight, more like which flavor ice cream we like better than another. Yes, you prefer to have sex with a blonde, but if you can't have the blonde, the brunette will do just as well. 

Why not get bent out of shape about "sexual orientation" then? Orientation suggests pointing east or west on a landscape. All you have to do is turn around and you'll have a different orientation. 

And why the focus on immutability anyway? I think even if sexual attraction is a matter of choice,  your choice is worth of respect. Choices are important and a good foundation for rights in a free society. Think of freedom of religion, freedom of conscience, freedom to have political opinions and to speak about them. These things matter in part because they can change and you do have a choice. 

Indeed, the right to have an abortion is referred to as the right to choose. It's about individual autonomy. Let me quote the 3-Justice opinion that determined the outcome in Planned Parenthood v. Casey (the case that partially overruled Roe v. Wade in 1992):

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

But I took Hirono's scolding to heart. Even though what I've just said is what I genuinely think upon reflection, my first reaction was: Oh! I didn't know this was offensive! Have I offended?! I knew I could look in my 17-year blog archive and in my classnotes from conlaw2 to see if I'd used the offending phrase.

ADDED: I checked my Constitutional Law II classnotes for the use of the word "preference," and I'd never written "sexual preference" — only "sexual orientation" — but I did see the word "preference" in discussing the same-sex marriage cases. I'd written that the Court had a "preference" for the Due Process clause over the Equal Protection clause. 

I checked the blog archive and found a few occurrences:

1. All the way back in 2007, I quoted Martina Navratilova, who'd said: "The more we play God or try to improve on Mother Nature, the more damage we are doing with all kinds of experiments that... turn into nightmares." I said: "That sounds like the alarmism of a religious fundamentalist, but hostility to scientific research comes from the progressive side when the question is the source of sexual preference." Navratilova was criticizing a scientist who was — in my words — "studying why some male sheep have a sexual preference for other males." I asked: "[S]houldn't we want to know the truth? Shouldn't gay rights advocates care when they sound like the religious fundamentalists they usually deride?"

2. In 2010, I had a post titled "Andrew Sullivan on Elena Kagan's 'emotional orientation' — emotional orientation?" I said: "Apparently, there's a new euphemism. I hadn't seen this one before, and I haven't heard the argument for why it's a good one. Is it something like the way we started saying 'gender' instead of 'sex'? Maybe 'sex' is something that people are supposed to keep quiet, and that makes it hard to insist that talking publicly about someone's sexual orientation is appropriate and important. But there are problems with the term 'emotional orientation.' It suggests that all of your emotions are centered around your sexual preference. Perhaps the term is intended to convey an argument that if you are gay and not open about it, your public persona is shallow and false."

3. In 2014, discussing a Slate article asking "Is kink a sexual orientation?," I wondered: "[W]hat hangs on the answer to the question whether something is in or out of a category called 'sexual orientation'?... 'Sexual orientation' clearly refers to the sexual preference for a partner of another sex or your own sex. But you could make it a big category, inclusive of things like sado-masochism. But why? What are you trying to achieve by grouping these things together?" 

4. In 2015, I quoted a Slate article called "What Was Gay": "It feels like we are working as fast as we can to build what gay academic and activist Dennis Altman imagines in his provocatively titled The End of the Homosexual?: a world in which we no longer see 'homosexuality as a primary marker of identity, so that sexual preference comes to be regarded as largely irrelevant, and thus not the basis for either community or identity.'"  

5. Also in 2015, I have a post about something Russell Wilson said — "If you can love somebody without [sex], then you can really love somebody." I said: "One might seek a sex-free relationship with a person of the opposite sex for reasons other than religion. Maybe that's the only reason People can think of or maybe People is influenced by the church setting or maybe People is pandering to the tastes of its readers, but religion is not a necessary foundation for Wilson's statement. It could be philosophy (as in Plato's "Symposium"). And it could be sexual preference. I would not infer from a woman's beauty that a particular man feels sexual desire for her."

6. Blogging in 2018 about the 20th anniversary of the beginning of the Clinton/Lewinsky scandal, I linked to Drudge quoting Drudge: "A young woman, 23, sexually involved with the love of her life, the President of the United States, since she was a 21-year-old intern at the White House. She was a frequent visitor to a small study just off the Oval Office where she claims to have indulged the president's sexual preference.... " I wisecracked: "'The president's sexual preference' is how people said 'blow jobs' 20 years ago."