What does it mean to say that being gay is a “choice”? This particular claim is often the focus of arguments that ultimately prove to be aimless, tired and irrelevant. It’s not uncommon for it to be used as some kind of accusation, as though its truth would delegitimize homosexuality itself. Of course, the natural rejoinder is that being gay is as much of a choice as being straight – if one is a choice, then the other must be as well.

At this point, something very revealing happens: Some people will insist that they were in fact born straight, and that this is not a choice. Clearly, these do not have to be mutually exclusive. And for something like homosexuality to be “a choice” requires that alternatives must exist to choose from. If there’s only one option, then making any kind of choice is impossible. So what exactly is going on here? Do people even know what they’re talking about?

While the role of volition in sexual orientation may be limited in its ethical implications, the legal consequences of this idea could have a significant impact on gay people. This year, the Department of Justice announced that it would no longer be defending Section 3 of the federal Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriages. In response, the Bipartisan Legal Advocacy Group of the House of Representatives appointed outside counsel to defend the law.

In a brief filed last month, their counsel claims that sexual orientation does not qualify as an immutable characteristic, which is one of the factors in whether laws that discriminate based on sexual orientation are required to pass a higher standard of judicial scrutiny. Their filing cites various statements that “individuals have reported changes in their sexual orientation in midlife”, that 50% of respondents to a study “had changed their identity label more than once since first relinquishing their heterosexual identity”, that “more than 12% of self-identified gay men and nearly one out of three lesbians reported that they experienced some or much choice about their sexual orientation”, and that “homosexuality is primarily behavioral in nature”.

To determine whether sexual orientation is an immutable characteristic, and whether being gay is indeed a matter of choice, it’s important to understand what it actually means to be gay. In their efforts to show that homosexuality is not immutable, the defendants have confused three separate aspects of sexuality: sexual orientation, sexual identity, and sexual behavior. These characteristics are not interchangeable, and treating behavior and self-identification as equivalent to orientation is a mistake.

Sexual behavior, being voluntary, is obviously a matter of choice, but it is not reliably indicative of sexual orientation itself. Gay people having been in prior relationships with opposite-sex partners does not mean that they are actually any less gay, or that they weren’t gay before. Conversely, straight men in prison who choose to have sex with other men are not gay in their orientation, and almost always resume a pattern of heterosexual behavior upon their release. Bisexual people are not constantly in transit between being gay or straight depending on the gender of their partner at any given time – they remain bisexual throughout, whether their behavior is homosexual or heterosexual. And people who are celibate do not cease to be gay, straight or bisexual – their lack of sexual behavior does not translate to a lack of sexual orientation. People’s behavior can vary independently of their actual orientation.

Likewise, self-identification does not always correlate with sexual orientation. Gay people may identify as straight earlier in their lives prior to coming out, or later in their lives without ever coming out, but this doesn’t mean they’re not gay. People who are to some degree bisexual may identify as gay or straight for personal or political reasons, for the sake of simplicity, or because they feel it describes them more accurately. But however they identify, this doesn’t alter the reality of their orientation.

50% of a sample reporting that their own self-ascribed identity has changed does not mean that their actual orientation which is the subject of such labels must have changed as well. Nor does the failure to switch one’s chosen identity mean that one’s underlying orientation has remained completely static. And even if self-identification were to be considered identical to sexual orientation, this would leave another 50% who did not report such changes. Indeed, the study cited in the filing showed that an overwhelming majority of the 89 participants reported either no change in their identity, or a switch between identifying as lesbian or bisexual. In other words, their same-sex attractions were a persistent feature.

Sexual orientation itself can sometimes be a fluid characteristic for some individuals, and it can shift throughout the course of their lifetime. But this is the result of an involuntary process, and it does not mean that their actual orientation is subject to conscious choice. It’s intuitively obvious even to straight people that your own fundamental sexual desires are not something that can be deliberately rewritten at a whim. Even if they do change over time, our higher-order desires about what we wish for them to be are unlikely to have any impact on what they actually are. And if 12% of gay men and a third of lesbians claim to have experienced some degree of choice about their orientation, this would still leave 88% of gay men and two thirds of lesbians who do not consider it a choice. If simple self-reporting is to be taken as definitive here, this leaves a strong majority of gay people for whom their sexuality is not a matter of choice.

So what does this mean for the question of whether sexual orientation is immutable? First, courts must take care to distinguish orientation from identity and behavior. Second, there may not be a simple yes-or-no answer to this. While many people do have an unchanging and unalterable sexual orientation, others claim that theirs is voluntary and fluid. For some people it is immutable, and for some people it is not. As a result, sexual orientation itself does not appear to be something that can be neatly classified as mutable or immutable.

If immutability is a key factor that the level of judicial scrutiny hinges upon, then people who could be considered sexually “invariant” would receive a stronger degree of protection from discrimination than people who are sexually “variant”. Essentially, only some gay people would be “gay enough” to qualify as a suspect class, while other gay people would still be fair game for discrimination on the off chance that they might revert to heterosexuality in the future. Implementing such a distinction in practice, especially for legal purposes, would probably not be easy. It would also be very unreasonable in its consequences. What sense would it make to say that same-sex marriage is only a right for some people, just because they have no realistic alternative? Why is discrimination based on sexual orientation any more permissible when applied to some people but not others?

Given that, for many gay people, their orientation is indeed immutable, discriminating against gay people as a whole is hardly justifiable merely because some of them might have had an alternative. Multiracial people may have the option of “passing” or identifying as any of their constituent ethnicities, but this does not exclude them from protections against racial discrimination, nor does it mean that race itself is no longer considered a suspect class. Interracial marriage is obviously a choice, and not an immutable characteristic – after all, interracial partners are fully capable of marrying someone of their own race. Yet discrimination on this basis is still prohibited. Straight people have sometimes been known to come out as gay, but nobody would consider it acceptable to expect that straight people should simply wait until their orientation can accommodate a same-sex partner before they’re allowed to marry. Given that most of them are unlikely to experience such a change, imposing this on all of them would make no sense whatsoever.

Calling sexual orientation mutable is simply not correct, yet calling it immutable would also not be correct. But when the only other possibilities are falsely regarding everyone’s orientation as mutable when it most commonly is not, or instituting an unprecedented and impractical system of distinguishing between people whose orientation is stable or unstable, the best and most viable option would be to treat sexual orientation as an immutable characteristic in practice. This recognizes the fact that orientation is most often an unchanging feature, and rarely is it under voluntary control. Anything less would be contrary to fact, inconsistent in its treatment of individuals, and would impose an undue burden upon people by requiring that they alter their sexual orientation in order to enjoy the same rights as everyone else. For the purposes of law, the most realistic choice is that being gay is really no choice at all.