In Part II of the paper I investigate the depth of privilege enjoyed by whites and heterosexuals as a consequence of claiming these identity labels. I characterize this racial and sexual-preference privilege as property. Traditionally, American society has treated private property as sacred, elevating it above intangible privileges such as legal rights. In his book And We are Not Saved, Derrick Bell exposes the centrality of private property in our system of law through a conversation between the members of the Constitutional Convention and a time-traveling black woman from the present day named Geneva Crenshaw. In this dialogue Crenshaw asks the founding fathers to explain their choice of private property over human rights (in deciding not to abolish slavery). One of the delegates quotes Gouverneur Morris of Pennsylvania (an outspoken opponent of slavery) stating “life and liberty were generally said to be of more value than property… [but] an accurate view of the matter would nevertheless prove that property was the main object of Society.”

Since property has been given substantial attention in our society, I will use the concept of “property” to quantify the full range of tangible and intangible privileges of whiteness and heterosexuality. Cheryl Harris has developed a theory that in protecting settled expectations based on white privilege, American law has recognized a property in whiteness. 10 I argue in Part II that the extent of privilege associated with being heterosexual converts heterosexuality into a form of property similar to whiteness. Thus “having” the label “white” or “heterosexual” is analogous to possessing a form of property. I examine both the tangible and intangible aspects of the property gained by being within the dominant racial and sexual-preference group. In addition, I posit that personhood is a form of property that is also distributed according to racial and sexual identity. I contend that one’s sense of self as an individual–one’s humanity–is stolen when one is black, a gay men or a lesbian and is reserved through the law for those who “own” whiteness and heterosexuality.

A story recited by Patricia Williams in her book The Alchemy of Race and Rights illustrates the relationship between identity and personhood. Williams presents a story about a transsexual student, S., who approaches Williams because she has been outcast by both the male and female populations at the school where Williams is teaching. S. goes to speak with Williams about her experience because she feels that Williams would be more understanding since she is black. Williams explains how she is initially put off by the student’s assumption that she would understand S.’s feelings of being a “nobody,” since Williams was in the middle of her own process of coming to define herself as “somebody.” But Williams quickly realizes that an element of her identity as black is “to be part of a community of souls who had experienced being permanently invisible nobodies; ‘black’ was a designation for those who had no place else to go . . .”One message to glean from Williams’ narrative is that there is an element of “nobodiness” that is common to unprivileged identities. State-sponsored racism and homophobia rob blacks, gay men and lesbians of their sense of being a “somebody.” This paper demonstrates how laws that regulate sexuality contribute to the unequal distribution of somebodiness, and as a result, being a “somebody” becomes a form of property.