Queers, Closets, and Corporate Governance

The past few years have seen several corporate diversity initiatives that include Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ+) people. In 2020, Nasdaq, the world’s second-largest stock exchange, and California, the largest state, both adopted rules to encourage board diversity for underrepresented groups, including LGBTQ+ people. Since that time, the Los Angeles Superior Court struck down California’s law, the Fifth Circuit invalidated Nasdaq’s rule, and the Trump administration initiated a slew of anti-Diversity Equity and Inclusion (DEI) and anti-LGBTQ+ measures. In the context of this sharp ideological turn, this Article attempts to step back and tackle a larger question: how can firms or jurisdictions advance LGBTQ+ inclusion when so many remain in the closet? Despite widespread progress in achieving LGBTQ+ inclusion, corporate governance is one context that remains deeply exclusionary. There are few corporate LGBTQ+ leaders, and fewer still who are openly queer. To ascend the straight ladder up the corporate hierarchy, most remain closeted. This Article asserts that advancing inclusion requires understanding the closet in the sphere of corporate governance. Through robust engagement with case law, corporate governance literature, queer theory, and social science, this Article’s queer analysis challenges exclusionary corporate dynamics, prompting a broader evaluation of corporate leadership. While some have criticized recent DEI efforts and inclusion specifically, the continued dominance of a small subset of the population exposes a level of groupthink that indubitably undermines good governance. We also must re-emphasize the core value of inclusion as a remedy. Corporate leadership needs to escape what I call “corporate heteronormativity.” Instead of engaging in rote diversity box-ticking, efforts should focus on weakening the stifling normativity that undergirds corporate governance—especially in an era where even these basic inclusion measures are under attack. In this sense, understanding the closet may unlock broader inclusion not only for LGBTQ+ people but also for others who have been passed over by the corporate hierarchy. Inclusion, as this Article understands it, does not depend solely on identity, a consideration that may provide a path around today’s entrenched DEI skirmishes.