(Homo)normative legal discourses and the queer challenge
2011] DURHAM LAW REVIEW 77 (Homo)normative Legal Discourses and the Queer Challenge Chris Ashford*Recent legal reform in English law has dramatically changed the legalstatus of the homosexual. Once a social and legal pariah, thecontemporary queer finds themselves apparently benefitting fromunprecedented legal rights. However, this article seeks to argue that thesenew-found rights - whether they be in the construction of the family, theworkplace or in the operation of leisure - operate so as to enshrine in lawa homosexual identity anchored in domesticity and Rubin’sconceptualisation of ‘good’ sex. This article seeks to explore theemergence of the new (homo)normative legal discourse and how twosexual phenomena - barebacking and public sex - continue to presentsocio-legal challenges to its operation.IntroductionThe last decade brought a transformation in the legal lives of lesbians andgay men. The introduction of new legal protections in the form of theCivil Partnership Act 2004, Equality Acts (2006 and 2010) provisions,new hate crime measures in the Criminal Justice and Immigration Act2008 and new rights for lesbian mothers in the Human Fertilisation andEmbryology Act 2008, as well as the repeal of a host of legislation thatwas seen as having an oppressive impact, such as the ban on lesbians andgay men serving in the armed forces, Section 28 of the Local GovernmentAct 1988 and an unequal age of consent.Harding has commented that ‘it would be wrong to summarise that theselegislative changes necessarily remove any discrimination from theeveryday lives of lesbians and gay men’.1 In a deeply personal sectionlater in her 2011 book, Regulating Sexuality, Harding discusses her statusas a lesbian in a civil partnership with the hope and expectation that shewill have children with her partner, yet rather than being a mother orfather, she will be a ‘parent’. Rather than being single or married, she is a‘civil partner’.2 She is noting the positioning of herself into a new legalidentity, whilst also accepting the ease with which these labels can allowone to ‘hide’ behind a cloak of heterosexuality as evidenced by the vast* Reader in Law and Society, University of Sunderland, UK.1 R Harding, Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives(Routledge, Abingdon 2011) 1.2 ibid 180-181.
78 (Homo)normative Legal Discourses [VOL. 1number of gay men and women, in civil partnerships but who refer tothemselves as “married”.These new legal labels, I will argue, are symptomatic of the emergence ofthe (homo)normative legal discourse. More than ‘a cloak ofheterosexuality’, these shifts in legal identity represent the new(homo)normative. Although, this is a concept some regard asoxymoronic,3 it is nonetheless a legal narrative that can be seen in thechanges Harding outlines, and in the sexual activity and identities that lieoutside this identity.Whilst (hetero)normativity is a well established term, meaning theinstitutions, structures and understanding of orientation that makeheterosexuality seem coherent and privileged, the term (homo)normativeis comparatively new, and Berlant and Warner have previously suggested,it is a concept that cannot exist, owing to the lack of tacit ‘rightness’ thatheterosexuality has.4 However, since Berlant and Warner argued thatposition, there has been a dramatic shift in the legal landscape, thatnecessitates a re-consideration of that position.Duggan has previously noted that this new (homo)normative discourse isa type of politics and theory ‘that does not contest dominantheteronormative assumptions and institutions, but upholds and sustainsthem, whilst promising the possibility of a demobilized gay constituencyand a privatized, depolitized gay culture anchored in domesticity andconsumption’.5 The UK gay legal rights agenda of the last decade hasserved to fulfil this very role.Harding’s stated desire for parenthood and her apparent acceptance of acivil partnership is therefore an action of demobilisation, of depoliticisingher life, through the acceptance of a political settlement. In a future worldof nappies and tuition fees, it is a life anchored by the very domesticityand consumption that Duggan suggested. This is not to criticise Harding.She is merely one of many who have apparently accepted a new(homo)normative6 legal status.3 R Leckey and K Brooks, Introduction, in R Leckey and K Brooks (eds.) Queer Theory:Law, Culture, Empire (Routledge, Abingdon 2010) 6.4 L Berlant and M Warner, ‘Sex in Public’, in L.Berlant (ed.) Intimacy (University ofChicago Press, Chicago 2000) 312.5 L Duggan, The Twilight of Equality? Neoliberalism, Cultural Politics, and the Attackon Democracy (Beacon Press, Boston 2003) 50.6 After the initial surge in civil partnerships (as one might expect given pent-up desire),the figures have consistently fallen but a sizable number of lesbians and gay mencontinue to enter into civil partnerships. The Office for National Statists reported thatsame-sex couples formed 6,281 civil partnerships (3,227 male and 3,054 female) in theUK in 2009. The total number of partnerships formed since the Civil Partnership Actcame into force in December 2005 up to the end of 2009 is 40,237. See:
2011] DURHAM LAW REVIEW 79The homosexual male or female is granted a legal status that can beviewed as prima facie (hetero)normative and which also seeks to define anew (homo)normative, including ‘families of choice’.7 It shifts a legaldiscourse that constructed gay men in the 1970s and 1980s as evocativeof disease and promiscuity and prior to 19678 as the victims of blackmail,men hiding in the legal shadows.9 This negative discourse is replaced byan assimilationist legal discourse in which the homosexual is constructedas ‘one of us’. Harding’s focus on the ‘difference’ of her potential statusas ‘parent’ rather than ‘mother’, is to perhaps under-estimate thenormative power of the term ‘parent’.Cobb has rightly described these more recent landmark legaldevelopments as ‘a conservative political agenda grounded in demandsfor citizenship rights and dictated by the equality agenda of identitypolitics, it has exclusionary implications for the parameters of thedebate’.10It was this critique of the right-of-centre that appeared to inspireDuggan’s own observation of the new (homo)normative, as set out by theIndependent Gay Forum (now Independent Culture Watch). ICW madedirect reference to the title of Bruce Bawer’s right-wing based argumentfor gay rights,11 in stating that ‘Gays are now taking their place at theAmerican political and cultural table’. Along with Andrew Sullivan’sVirtually Normal,12 there was an attempt, particularly in American socio-legal politics to develop an alternative argument about gay rights, one thatpromotes gay rights but challenges the established arguments of the left.Those goals appear to have ironically been fulfilled by a central-leftgovernment in the UK.13http://www.statistics.gov.uk/cci/nugget.asp?id=1685 (accessed 26 February 2011).These are the most recent statists available at the time of writing.7 See: J Weeks, B Heaphy and C Donovan, Same Sex Intimacies: Families of Choiceand Other Life Experiments (Routledge, London 2001) passim.8 Sexual Offences Act 1967. Section1 of this Act legalised consensual homosexual actsfor adult males aged 21 or above, providing they took place ‘in private’.9 See more generally: Home Office, Report of the Committee on Homosexual Offencesand Prostitution, Cmnd 247 (HMSO, London 1957); P Wildeblood, Against the Law(Weidenfield & Nicolson, London 1955).10 N Cobb, ‘Queer(ed) Risks: Life Insurance, HIV/AIDS, and the ‘Gay Question’ (2010)37 Journal of Law and Society 4, 620.11 B Bawer, A Place at the Table: The Gay Individual in American Society (Touchstone,New York 1994).12 A Sullivan, Virtually Normal: An Argument About Homosexuality (Picador, London1995).13 The Labour government of 1997-2010, led first by Tony Blair (1997-2007) and thenGordon Brown (2007-2010).
80 (Homo)normative Legal Discourses [VOL. 1These legal developments were crucial in shifting the (homo)sexualnarrative beyond one of promiscuity and deviant sex. Strongheartcommented that ‘it is absolutely astounding how many uninformedHeterosexuals think that all lesbians, Gays and Bisexuals do is engage ingratuitous sex without bothering to court or commit’.14 This was animportant, and purposeful re-positioning of identity through thebestowing of legal rights.In a bid to respond to the concerns of Strongheart and those of a similarmind, together with recalibrating the LGB discourse to take account ofviews of the right-of-centre, there has been a legal re-balancing thatrejects the very notion of the ‘gratuitous sex’ Stongheart dismisses.Gratuitous sex becomes ‘Othered’, and cast beyond the emergent(homo)normative legal discourse. Whilst we cannot separate the erotic15from the identity of the homosexual, that is in part what the law hassought to do, shifting sex from the ‘public’ to the ‘private’ sphere.Perhaps, as Kemp has suggested, we should be unsurprised by the debatearound contemporary legal discourses. They do reflect Kemp’s truismthat ‘as long as the ‘homosexual’ has existed as an entity, questions as towhat an identity is have followed’.16 Today, competing discourses seek todefine a singular normative identity that favours domesticity and ‘good’sex over raw erotic desire.This article explores the queer legal theoretical landscape17 by focussingupon two specific erotic challenges to the emergent (homo)normativelegal discourse - bareback (condomless) sex as raw sexual authenticityand public sex - both phenomena operating as transgressive forces withinthe contemporary queer existence. This article will use a queer legaltheoretical framework to question the current ‘Othering’ of these sexualphenomena and the emergence of the (homo)normative.14 A A S Strongheart, ‘The Power to Choose: We’re Here, We’re Queer, and We Wantto Get Hitched’, in R E Goss and A A S Strongheart (eds.) Our Families, Our Values:Snapshots of Queer Kinship (Harrington Park Press, New York 1997) 80.15 J Weeks et al (n7) 132.16 J Kemp, ‘Queer Past, Queer Present, Queer Future’, Graduate Journal of SocialScience 6(1) 2009, available at:http://www.gjss.org/images/stories/volumes/6/1/0906.1a02kemp.pdf (accessed 8 January2011).17 See, more generally on queer legal theory: L R Kepros, ‘Queer Theory: Weed or Seedin the Garden of Legal Theory’, 2000 Law & Sexuality 9, 279-310.
2011] DURHAM LAW REVIEW 81The Queer DebateAlthough short-lived, the Gay Liberation Front (GLF) offered a radicalalternative to the equality movement. Their Manifesto, published in 1971began by stating: The oppression of gay people starts with the most basic unit of society, the family, consisting of the man in charge, a slave as his wife, and their children on whom they force themselves as the ideal models. The very form of the family works against homosexuality.18This was a bold and radical assertion that rejected the desire to be likeheterosexuals, and any desire to be legally positioned in the same way asthem. The GLF instead sought a fundamental recalibration of society andlegal discourse. Contemporary domesticity and consumerism would beripped up in order to overcome the slavery and oppression that wasinherent within these social and legal institutions.The group’s very radicalism meant it was easy to dismiss their ideas asextreme or unworkable. Grey has argued that the GLF served only tocreate a new stereotype in the public imagination, that of the ‘loony leftyqueer’. He described an image of the ‘blatant, flaunting, determinedlyiconoclastic, far-out, far-Left sexual rebel, despising and challenging allsociety’s accepted values and scornful of those homosexuals – themajority – who still kept their heads down’19. Grey, a key historical figureand activist, felt that overcoming the socio-legal oppression of thehomosexual was an immensely desirable goal, but it needed to beachieved in a different way to that advocated by the GLF.This approach of ‘keeping your head down’, and appearing as amainstream campaign organisation is perhaps now personified in theoperation of the group Stonewall,20 whose current chief executive labelledthose who criticise the heteronormative as ‘po-faced sociologists inuniversity common rooms’21 and re-stated, without any hint of irony, themerits of a ‘wedding list at Debenhams and a honeymoon in theMaldives’, for these attributes ‘makes [us] pretty much the same aseveryone else’.22Stonewall was originally established in 1989 to campaign against Section18 A Grey, Quest For Justice: Towards Homosexual Emancipation (Sinclair-Stevenson,London 1992) 178.19 ibid 183.20 http://www.stonewall.org.uk/ (accessed 26 February 2011).21 B Summerskill, ‘Introduction’, in B. Summerskill (ed.) The Way We Are Now: Gayand Lesbian Lives in the 21st Century (Continuum, London 2006) 3.22 Ibid 3.
82 (Homo)normative Legal Discourses [VOL. 128 of the Local Government Act 1988.23 Today, it continues to lobby andcampaign, particularly in relation to homophobic bullying in schools. Thecharity also works with ‘a whole range of agencies to address the needs oflesbians, gay men and bisexuals in the wider community.’ The Stonewalllogo also increasingly appears on job vacancy adverts, with employersachieving the status of ‘Diversity Champions’ after meeting a number ofequality criterion set out by Stonewall.24In contrast, Outrage!25 might be seen as being in the GLF ‘tradition’.Founded in 1990, the group today describes itself as: ‘a broad basedgroup of queers committed to radical, non-violent direct action and civildisobedience to: assert the dignity and human rights of queers; fighthomophobia, discrimination and violence directed against us; and affirmour right to sexual freedom, choice and self-determination’.26 Outrage!‘leader’ Peter Tatchell described their goal in typically queer theoreticalterms: The only reason there currently exists a hetero/homo divide, with competing identities and behaviours, is because one form of sexuality has been deemed more valid than the other. The division exists to reinforce and perpetuate that value judgment…Homosexuality is thus a categorization invented by straights to marginalize and constrain queer love within an identifiable, demonized minority.27These two groups represent the two key lobbying groups for sexual lawreform in the UK.28 By the 1990s, and the founding of Outrage!, figuressuch as the writer and commentator Mark Simpson29 were questioning thenew idea that it was ‘fabby to be gay’. He commented, with considerableirony that ‘Gay is, after all, good, and everyone fortunate enough to begay is, of course, glad – when they’re not too busy feeling proud. Whichis perfectly understandable since gays, as we all know, have the bestclubs, the best drugs, the best underwear shops and the best time. In fact,gays are so glad and proud that they have a big, sweaty street party everyyear to show the world just how glad they are and what great underwear23 This banned local authorities (and crucially, schools) from promoting homosexualityas a ‘pretended’ family relationship. It served to simply silence schools and the publicsector on the question of homosexuality. See, more generally: M Colvin and JHawksley, Section 28: A Practical Guide to the Law and its Implications (NationalCouncil for Civil Liberties, London 1989).24 http://www.stonewall.org.uk/about_us/2532.asp (accessed 26 February 2011).25 http://outrage.org.uk/ (accessed 26 February 2011).26 http://outrage.org.uk/about/ (accessed 26 February 2011).27 P Tatchell, ‘It’s Just a Phase: Why Homosexuality is Doomed’ in M Simpson (ed.)Anti-Gay (Freedom Editions, London 1996) 44.28 It is worth noting there are separate Stonewall organisations in Scotland and Wales.29 Who also claims to have coined the term ‘metrosexual’.
2011] DURHAM LAW REVIEW 83they have’.30 By 1999, the launching of the landmark Channel 4television series, Queer as Folk presented the lives of modern gay menand lesbians. The lesbian characters could now have a child, and usedexisting law to ensure rights over that child. The male characters werepresented as hedonists, their lives revolving around commercial queerspace in the form of Manchester’s Canal Street, and Internet hook-ups.31Law and political campaigns were largely absent. There was no stateddesire for civil partnerships, same-sex marriage, new adoption and IVFrights, or goods and services protection. In retrospect, this was the lasthurrah before the assertion through law of a (homo)normativity that de-eroticised the homosexual identity, and transformed the construction ofthe homosexual in law.32In contrast to the relatively quiet manner in which civil partnerships wereintroduced into English law, the US has engaged in a fierce debate aroundsame-sex marriage, particularly amongst academics, as various stateshave sought to introduce same-sex marriage, and over-turn the Defence ofMarriage Act at a federal level.33 The argument has often beencharacterised as being either for or against marriage, or for or against civilunions with a small number of scholars –notably Polikoff34 – challenginganything that seeks to create a single privileged category. Those theoristswho do challenge the boundaries of this debate, have advocated a moreflexible multi-relationship framework.35In English law, the closest comparison is perhaps the current Equal Lovecampaign.36 The campaign and legal action seeks to challenge theexisting law that marriage, as defined by the Matrimonial Causes Act1973, and the law regarding civil partnerships in the Civil Partnership Act2004 create exclusive categories. Thus, only different-sex couples can30 M Simpson, ‘Gay Dream Believer: Inside the Gay Underwear Cult’, in M Simpson(ed.) Anti-Gay (Freedom Editions, London 1996) 1.31 See, R T Davies, Queer as Folk: The Scripts (Channel 4 Books, Basingstoke 1999),and G Davis, Queer as Folk (BFI Publishing, London 2008).32 See, more generally, on the pre-1997 position of homosexuality in law: L Moran, TheHomosexual(ity) of Law (Routledge, London 1996).33 In February 2011, the law, originally introduced by the Clinton administration, wasdeemed unconstitutional by the Obama administration, and the US federal governmentannounced they would not defend DOMA in two specific cases. See:http://www.pinknews.co.uk/2011/02/23/video-barack-obama-rules-us-will-no-longer-defend-the-anti-gay-defense-of-marriage-act/ (accessed 26 February 2011).34 N D Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families under theLaw (Beacon Press, Boston 2008).35 See more generally, C Calhoun, Feminism, The Family, and the Politics of the Closet:Lesbian and Gay Displacement (Oxford University Press, Oxford 2000) and GChauncey, Why Marriage? The History Shaping Today’s Debate Over Gay Equality(Basic Books, New York 2005).36 http://equallove.org.uk/ (accessed 15 March 2011).
84 (Homo)normative Legal Discourses [VOL. 1enter into marriages and only same-sex couples can enter into civilpartnerships.These legal moves have continued to cause concern for some queer andfeminists legal theorists such as Auchmuty and others.37 Jeffrey Weeks, incontrast, finds the current debate around legal reform and same-sexmarriage pregnant with irony. He observes an ‘illuminating irony of ourtime’ that ‘at the same time as American conservatives find same-sexmarriage an intolerable threat, queer radicals apparently see same-sexmarriage as not enough of a threat, and an unacceptable surrender toheteronormativity’.38Yet as Halperin has noted, queer derives meaning from its oppositionalrelationship to the norm. Thus, the legal ‘norms’ of monogamy,consumerism and reproduction remain intact within the discourse of civilpartnerships, and same-sex marriage. Queer is however, an ever-shiftingtheoretical position. Put simply, ‘there is nothing in particular to which isnecessarily refers’, it is, in Haleprin’s words, ‘an identity withoutessence’.39Nonetheless, Rubin has argued that a sex hierarchy exists, between whatshe termed a ‘charmed circle’ and ‘the outer limits’, and between ‘good’and ‘bad’ sex. Queer theory offers a theoretical framework that seeks tomove beyond these boundaries, boundaries which are defined andenforced by the law, and which I would argue, compose the(homo)normative.Rubin’s ‘charmed circle’ characteristics consisted of: heterosexual,married, monogamous, procreative, non-commercial, in pairs, in arelationship, same-generation, in private, no pornography, bodies only,and vanilla. Her ‘outer limits’ category consisted of: homosexual,unmarried, promiscuous, non-procreative, commercial, alone or in37 R Auchmuty, ‘Out of the Shadows: Feminist Silence and Liberal Law’, in V E Munroand C F Stychin, Sexuality and the Law: Feminist Engagements (Routledge-Cavendish,Abingdon 2007). See, also: R Harding, ‘Sir Mark Potter and the Protection of theTraditional Family: Why Same Sex Marriage is (Still) a Feminist Issue’ (2007) 15Feminist Legal Studies 2, 223, and R Robson, ‘Resisting the Family: RepositioningLesbians in Legal Theory’ (1994) 19 Signs: Journal of Women in Culture and Society 4,975. An interesting US queer perspective can be found in D Rosenblum, ‘QueerIntersectionality and the Failure of Recent Lesbian and Gay “Victories”’ (1994) 4 Law& Sexuality 83. Rehagg has discussed the transnational migration of these norms;S.Rehagg, ‘The Transnational Migration of Same-Sex Equality Normal’ (2005) 4Journal of Law and Equality, 68.38 J Weeks, The World We Have Won (Routledge, London 2007) 169.39 D M Halperin, Saint Foucault: Towards a Gay Hagiography (Oxford UniversityPress, Oxford 1995) 62.
2011] DURHAM LAW REVIEW 85groups, casual, cross-generational, in public, pornography, withmanufactured objects and sadomasochism.40Despite many academics’ self-identification as postmodernists, feministsor even queer scholars, many continue to reflect wider LGB society inembracing the legal ‘heteronormative straightjacket’41 in private withcivil partnerships, children and the whole straight ideal whilst continuingto write scholarship that offers an academic critique. Queer, essentiallythe ‘radical’ face of the lesbian and gay movement,42 is an increasinglyfashionable academic label but such is the power of the (homo)normativelegal discourse, our lives typically fall into Rubin’s ‘charmed circle’.To operate outside the (homo)normative is to embrace transgression, toseek Rubin’s ‘outer limits’, to embrace and contribute to narratives ofpollution, disease and contagion, that as Stychin has noted,43 havetraditionally been used to characterise homosexuality. As with anypollution, disease or contagion, society acts to remove it, and thus in doesseek to do precisely that in relation to bareback and public sex, the twoareas considered in this article.Visibility and the Construction of (Homo)normativityThe legalisation of homosexuality in the Sexual Offences Act 1967 wasto allow a visibility to homosexuality that had not previously been evidenton any large scale. The emphasis of the Act, and the earlier Wolfendenreport had been on creating an environment of tolerance; that is to say,allowing something you don’t actually like in the name of being civilised.It was tolerance rather than acceptance that meant homosexuality betweenadult males, aged 21 or over was legalised provided the acts took place inprivate. Wolfenden later commented that he regarded this as in a sense,the start of a process, and that further reform would be needed, writing in1976 that: What I find amusing is that we, who were thought by many to be so outrageous in 1957, should now be regarded as Victorian fuddy-duddies.40 G Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’, inC.S.Vance, Pleasure and Danger: Exploring Female Sexuality (London, Routledge &Kegan Paul, 1984) 281.41 C Ashford, ‘Queer Theory, Cyber-ethnographies and Researching Online SexEnvironments’ (2009) 18 Information & Communications Technology Law 3, 315.42 J Parnaby, ‘Queer Straits’, in L Harne and E Miller (eds.) All the Rage: ReassertingRadical Lesbian Feminism (Teachers College Press, New York 1996) 3. See, moregenerally: K E Lovaas, J P Elia and G A Yep, ‘Shifting Ground(s): Surveying theContested Terrain of LGBT Studies and Queer Theory’ (2006) 52 Journal ofHomosexuality 1/2, 1.43 C Stychin, Law’s Desire: Sexuality and the Limits of Justice (Routledge, London1995) 135.
86 (Homo)normative Legal Discourses [VOL. 1 It is entertaining to have lived long enough to have made oneself obsolete.44Nonetheless, a degree of public ‘visibility’ was now conceptualised inwhich gay men and women could move away from a culture of closetclassified adverts, 45 secretive language46 and public sexual encounters.This meant that gay men could gather in their ‘space’, they could openlyconsume commercial spaces in the form of bars, clubs, saunas and sexcinemas, often organised into designated spaces within cities such as theCastro in San Francisco, Boys Town in Chicago or Canal Street/TheVillage in Manchester, spaces that have been termed by sociologists andqueers alike as ‘the ghetto’.47However, despite the apparent progress and the growth in open, visible,gay bars, bathhouses, saunas and other gay orientated commercialspaces,48 Valverde and Cirak49 have argued that men who do not identifyas homosexual might find it ‘stigmatizing or threatening’ to use somecommercial ‘gay space’. Instead, they pointed to the growth in theInternet and the new possibilities it offered to create sexual contacts.In addition, men may feel prevented from engaging with commercial gayspace for reasons of race and poverty50 or physical appearance.51 Forthese men and others, the Internet offers not only a means for seekingsexual liaisons but also a place to socialise. Unable to conform to therequirements of the new commercial (homo)normative spaces, they findthemselves excluded and rendered largely invisible except within the self-selecting virtual communities.44 J Wolfenden, Turning Points: The Memoirs of Lord Wolfenden (Bodley Head, London1976) 146.45 H G Cocks, Classified: The Secret History of the Personal Column (Random House,London 2010).46 P Baker, Polari: The Lost Language of Gay Men (Routledge, London 2002).47 See, M P Levine, ‘Gay Ghetto’, in M P Levine (ed.) Gay Men: The Sociology of MaleHomosexuality (Harper & Row, New York 1979).48 See, more generally: R Tikkanen and M W Ross, ‘Technological Tearoom Trade:Characteristics of Swedish Men Visiting Gay Internet Chat rooms’ (2003) 15 AIDSEducation and Prevention 2, 122.49 M Valverde and M Cirak, ‘Governing Bodies, Creating Gay Spaces: Policing andSecurity Issues in ‘Gay’ Downtown Toronto’ (2003) 43 British Journal of Criminology1, 102.50 Diaz, R., Ayala, G., & Bein, E. (2004). Sexual risk as an outcome of socialoppression: Data from a probability sample of Latino gay men in three U.S. cities.Cultural Diversity and Ethnic Minority Psychology, 10, 255-267.51 S Whittle, ‘Consuming Differences: The Collaboration of the Gay Body with theCultural State’, in S Whittle (ed.) The Margins of the City: Gay Men’s Urban Lives(Arena, Aldershot 1994). Also see L Humphreys, Tearoom Trade: Impersonal Sex inPublic Places (AldineTransaction, New Brunswick 2005) 137-139.
2011] DURHAM LAW REVIEW 87One such site, Gaydar,52 has also been successful at penetrating into themainstream media and with it, the public’s imagination. Yet, the mediahas reacted with horror at behaviour it regards as counter to the(homo)normative. Labour MP Chris Bryant almost found his politicalcareer over before it had barely began in 2003 following the revelation byThe Sun newspaper that he had a profile on Gaydar in his underpants53and described himself as ‘horny as b***ery’.54It is perhaps the visible that necessitates the emergence of a ‘straight’ and‘respectable’ (homo)normativity. Smith has noted that the ‘British have,historically, taken a pragmatic view of sexual relations, recognising thatappearance is all and that a strict preservation of a public façade ofcontinent behaviour is just as important as actually achieving it’.55 Thus,whilst gay males might still engage in acts of buggery - traditionallyassociated with narratives of hell and damnation – they do so behindclosed doors, concomitantly projecting a visible image of the CivilPartnered couple. This new (homo)normativity requires the re-closetisation of aspects of the gay life, that is to say, aspects of one’slifestyle undergo a process of being returned into the political closet, thehidden world characterised by double-lives and/or repression of rawdesire.Challenging the Discourse: Bareback SexPerhaps the most controversial example of ‘raw’ desire, is the practice ofbarebacking, or condomless anal sex. In January 2011, the San Franciscobased bareback porn company Treasure Island Media (TIM) declared it tobe ‘the year of living positively’. Perhaps more than any other porncompany, TIM has sought to define and promote itself as a bareback, andrenegade porn company.56 To coincide with their ‘declaration’, theyreleased a scene from their first ‘positive’ film entitled Buggery, featuringopenly HIV+ porn performers engaging in bareback sex. TIM founderPaul Morris commented: “May the unrestrained joy these men exhibit inboning the ever-loving hell out of one another be an inspiration to all”.5752 See, more generally: S Mowlabocus, Gaydar Culture: Gay Men, technology andEmbodiment in the Digital Age (Ashgate, Farnham 2010).53 A photograph that remains easily available on the Internet following a number ofbloggers and websites posting the photograph once the profile had been revealed.54 JockBoy26, The Big Book of Gaydar (Uncut!) (The Book Guild, Brighton 2010) 6555 C Smith, ‘British Sexual Cultures in M Higgins’, in C Smith and J Storey (eds.) TheCambridge Companion to Modern British Culture (Cambridge University Press,Cambridge 2010) 247.56 C Ashford, ‘The Bareback Porn Renegades’, Freedom in a Puritan Age, 2010http://www.freedominapuritanage.co.uk/?p=962 (accessed 6 January 2011).57 Anon ‘Treasure Island Kicks Off ‘Year of Living Positive’’, Gay Porn Times, 4January 2011, http://www.gayporntimes.com/hardnews/2011/01/04/treasure-island-kicks-off-year-of-living-positive/ (accessed 6 January 2011)
88 (Homo)normative Legal Discourses [VOL. 1Morris has previously set out his belief that pornography ought todocument the reality58 of gay men’s sex lives: “…all acts of queer sex should be represented on screen with equal honesty. The entire spectrum of behavior from innocent to depraved, from life-affirming to death-enhancing should be available for the viewers.”59This has arguably led to Dean describing Morris as ‘an amateuranthropologist’.60 This latest, ‘positive’ line of pornography is perhaps allthe more controversial because of the truth it seeks to represent. It directlychallenges the (homo)normative legal discourse that portrays gay men’ssex lives as anchored in domesticity. Here, the ‘authentic’, is ‘deviant’.Moreover, the porn gains the label authenticity by situating itself incontrast to the porn of the larger condom wearing studios. At the sametime, the language of reproduction – “breeding”, “seeding” – are queered,and re-defined as the linguistics of authentic raw queer sex.61The term bareback or raw sex was coined comparatively recently. Rofeshas noted that prior to the mid 1990s, such sexual acts were simplyreferred to as ‘unprotected anal sex’.62 More recently, the label has beenseen to embrace a number of different ‘categories’,63 and this has createda great deal of confusion about the language associated with barebacksex. The terms ‘unsafe’ and ‘unprotected’ are often used interchangeablybut do, it has been argued, hold different meanings. Shernoff states that‘unsafe sex refers to when an HIV-negative man has unprotected analintercourse with either a partner of unknown HIV status or with a partner58 On ‘reality’ and porn, see, more generally: S Hardy, ‘The Pornography of Reality’(2008) 11 Sexualities 1/2, 60.59 P Morris, ‘No Limits: Necessary Danger in Gay Porn, Paper Presented at the WorldPornography Conference, Los Angeles, and the UCSF InSite Discussion onBarebacking’, San Francisco, 1998. Available at:http://www.treasureislandmedia.com/TreasureIslandMedia_2007/paulsPapers.php?article=noLimits (accessed 26 February 2011).60 T Dean, Unlimited Intimacy: Reflections on the Subculture of Barebacking (Universityof Chicago Press, Chicago 2009) 119.61 For instance “breed your hole”, “seed your hole”, to ejaculate semen into the anus ofanother. See for example the following description from Ruggero: ‘One part of my loveof sex is swallowing cum. I feel as though the person – their seed – is inside of me, eventhough I’m not going to have a baby. It’s valuable. I don’t know if it’s tribal, ancient,or what, but I think it’s important to be able to drink another man and have him drinkyou. My very first lover fucked me, and as he was coming, he said, “My seed is in youfor eternity.” I felt a warmth of love when he said that, and when I fucked him, I said thesame thing’; F Ruggero, ‘My Seed Is in You’, in W I Johnston (ed.) HIV-Negative: Howthe Uninfected Are Affected by AIDS (Insight Books, New York 1995) 211-212.62 E Rofes, Dry Bones Breathe: Gay Men Creating Post-AIDS Identities and Cultures(Harrington Park Press, New York 1998) 196.63 Dean, above n. 60 at 16-17.
2011] DURHAM LAW REVIEW 89he knows to be HIV-positive’. In contrast, ‘unprotected sex is analintercourse without a condom between two HIV-negative men’.64 Thisdistinction is important in a case where the two HIV negative men areboth monogamous, as clearly the ‘risk’ involved in bareback sex for themis different from those engaging in ‘unsafe’ bareback sex. Although, thevery term bareback has been extensively debated,65 it is now seen asapplying to any condomless anal sex, whether as a result of carelessnessor intent; a distinction that continues to pre-occupy the English criminallaw in matters of HIV transmission.In the 1960s, gay liberation challenged the invisibility of queers with thecommand to ‘come out’. Whilst, post Stonewall riots, the choice to ‘comeout’ was a personal one, it was as Bronski has noted, a ‘political andethical action as well as an individual one’.66 Today, the act of ‘comingout’ as someone who barebacks can be seen as a similar politicalstatement – attracting criticism and praise – but can also be a practicalway of accessing more bareback sex, just as coming out as gay canprovide access to more same-sex erotic encounters.Yet bareback remains a ‘deviant’ act, one constructed as sitting outsidethe (hetero)normative framework, of sitting squarely within the realms ofRubin’s ‘bad sex’ and thus when proponents of that framework are‘outed’ as barebackers, it is seen as revelatory of a hypocrisy. AndrewSullivan, whose right-of-centre work is discussed above, was ‘outed’ in2001 when discovered cruising online for bareback sex under the screenname ‘RawMuscleGlutes’.67 Sullivan is known to be HIV positive. Hisonline profile sought: ‘bi-scenes, one-on-ones, three-ways, groups,parties, orgies and gang bangs,’ but not in ‘fats and fems’.68In 2009, the Oscar winning Milk screenwriter and HIV campaigner,Dustin Lance Black, was similarly ‘outed’ as a barebacker when stillsfrom a sex video were released on the gossip site, Perezhilton.com. Hiltonwrite on his blog: ‘People, people, people. How many times do we haveto say it? NEVER make a sex tape, unless youre ready for it to leak! Cuzit will happen’ and also posted a number of still photographs.’ Yet, it wasnot Dustin Lance Black who came in for criticism but Hilton, for postingthe pictures, whilst other comments focused on how ‘hot’ Lance Black64 M Shernoff, Without Condoms: Unprotected Sex, Gay Men & Barebacking(Routledge, Abingdon 2006) 17.65 ibid 18.66 M Bronski, The Pleasure principle: Sex, Backlash, and the Struggle for Gay Freedom(St Martin’s Press, New York 1998) 171.67 Dean (n60) 8.68 R Kim, ‘Andrew Sullivan, Overexposed’, The Nation, June 18 2001, available at:http://www.thenation.com/article/andrew-sullivan-overexposed (accessed 27 February2011).
90 (Homo)normative Legal Discourses [VOL. 1looked.69 Hilton ultimately took the pictures down (although they remaineasily located on the internet).As Dean notes, the label ‘hypocrite’ does not adequately account for whatis going on with Sullivan and Lance Black. There is, ‘something aboutbarebacking that prompts its distancing as an identity category’. In thecase of Lance Black, there appeared a collective ‘Ostrich effect’, aspeople overwhelmingly chose to ignore the act of barebacking and focusinstead upon the exposure of barebacking. Lance Black made a publicstatement, effectively condemning the acts portrayed in the photographs,and thus saving others the effort. His statement read: ‘I have had theprivilege to speak to people across the country, both gay and straight, on anumber of critical issues including safe sex. More important than theembarrassment of this incident is the misleading message these imagessend. I apologize and cannot emphasize enough the importance ofresponsible sexual practices’.70Here, Lance Black re-positioned himself within the (homo)normative, andnot as a bareback ‘outsider’. Dean argues that barebackers claim only theright to ‘fuck whom and how they wish’, and appear uninterested in thelegal rights-based discourse, suggesting barebacking could be describedas ‘antihomonormative’.71Whilst English law has appeared less interested in the issue of condomsbeing worn, it has as in many many jurisdictions,72 taken an increasedinterest in the transmission of HIV.73 Whilst bareback sex can, andfrequently is engaged in by men who are HIV+, anti-barebackcampaigners do so because of the fear of HIV transmission. HIV andbareback sex thus remain linked in both a cultural, and as we will see, alegal sense.The HIV DimensionBy the 1980’s, the ‘gay plague’ of AIDS was devastating queercommunities and acting to create estrangement between the heterosexual69 http://perezhilton.com/2009-06-12-oscar-winner-dustin-lance-black-exxxposed(accessed 27 February 2011).70 http://www.inquisitr.com/26037/dustin-lance-black-photos/ (accessed 27 February2011).71 Dean (n60) 9.72 See, J Chalmers, Legal Responses to HIV and AIDS (Hart, Oxford 2008).73 On the link between barebacking and the criminalisation of HIV transmission, see: CAshford, ‘Barebacking and the ‘Cult of Violence’: Queering the Criminal Law’ (2010)74 Journal of Criminal Law 4, 339. On the response of English law more generally, see:M Weait, Intimacy and Responsibility: The Criminalisation of HIV Transmission(Routledge-Cavendish, Abingdon 2007).
2011] DURHAM LAW REVIEW 91and homosexual, prompting activist and gay man, Larry Kramer, to writein 1989: ‘I don’t think any heterosexual can understand what it’s like tobe a homosexual man in New York today – or in any other majorAmerican city’.74 New York, along with San Francisco, were the biggest‘gay cities’, and thus the effects of disease were most acutely felt. Thestory of HIV/AIDS is one of plague and uncertainty followed by dramaticeducation and health campaigns, imperfect drug treatments, and todayexcellent drug treatments that allow people to lead perfectly ‘normal’lives.As Kramer noted, we moved from the Age of Death and into the Age ofTreatment,75 but this shift was also the catalyst for a transformation of thegay life, particularly gay men. It was time to become respectable and lawbecame the channel through which that process of change was to beachieved. Yet, it also marked a shift from AIDS to HIV. As Warner hasobserved, one of the major differences between the 80s and 90s was that‘being positive has become an identity…When a negative man has unsafesex today, it may mean not so much a gamble with the banalities ofinfection and disease as a way of trying on the cultural identity of theHIV-positive.76 Thus, the law’s intervention into the transmission of HIVcan be seen as an attempt to intervene in the acquiring of a culturalidentity, acting as a latex barrier between the positive queer and the(homo)normative.In English law, this has taken the form of prosecutions under section 20of the Offences Against the Person Act 1861. This necessitates that thedefendant did in fact cause serious bodily harm to another person, and atthe relevant time, he was aware of the risk of causing some degree ofbodily harm.77In the Age of Treatment, the National Health System’s payment of HIVhealthcare is symptomatic of the state’s failure to regulate through legalcultures and the promotion of the (homo)normative. Gay men, receivingtreatment, rarely die of HIV, but each infection is a strike against the(homo)normative legal apparatus.Yet for many, such as the author and social commentator Paul Burston,bareback sex, and attempts to regard being positive as ‘positive’, and asan empowered action is to partake in a form of madness. Kramer,74 L Kramer, Reports from the Holocaust: The Making of an AIDS Activist (Penguin,London 1990) 217.75 ibid 283.76 M Warner, ‘Unsafe: Why gay Men ate Having Risky Sex’, Village Voice, January 311995.77 See, Weait (n73).
92 (Homo)normative Legal Discourses [VOL. 1speaking in 2004 delivered a speech in which he challenged the growingacceptance of bareback sex: ‘”Ah, you say, aren’t we to have a little fun? Can’t I get stoned and have the thrill of fucking without a condom one last time. Are you out of your fucking mind? At this moment in our history, no, you cannot. Anyway, we had your fun and look what it got us into. And it is still getting us into. You kids want to die? Because that’s what I sometimes think. Well, then, die.”78Kramer re-asserts the often cited fear that one day the ‘miraculous drugswe have to keep us alive are going to stop working’.79 This statement is atthe heart of a generational shift that informs whether the intervention oflaw can be seen as a positive or negative force. For a younger generation,HIV is chronic, perhaps akin to asthma. Sure you need treatment and ifyou don’t, you will die or have a rapidly reduced life but beyond that youcan routinize HIV medication into your life, especially with everimproving drugs. For the men of Kramer’s generation, this is akin tomadness.The law ultimately takes the view of Kramer, that HIV is not likecontracting Asthma. The law reflects a socio-political belief that to beHIV+ is a terrible and worrying thing. Transmission of HIV is thereforesomething that we, as a society want to stop, and like anything we want tostop, all tools – economic, social and legal – need to be deployed. If, likeKramer, we believe that gay men are murdering one another throughbareback sex – Kramer himself poses the question ‘Was it my sperm thatkilled them, that did the trick’80 – the question is how law can intervene.Barebacking, whether involving the transmission of HIV or not, remainsevocative of irresponsibility and of death. Edelman’s criticism of the all-pervasive figure of the child in our society, explains in part whybarebacking acts as such a powerful attack on the (homo)normative,promoting as it does a rejection of reproduction, and the (hetero)sexualfamily in favour of the ‘death drive’.81 Thus, law seeks to increasinglyintervene, bestowing reproductive legal rights and increasinglycriminalising the transmission of HIV, as symptomatic of ‘bad’behaviour. The law is about providing ‘future(s)’, future consumerism,future domesticity, and barebacking is a statement of ‘no future’, of livingin the raw realism of the momentary essence.8278 L Kramer, The Tragedy of Today’s Gays (Penguin, London 2005) 50.79 ibid 43.80 ibid 55.81 L Edelman, No Future: Queer Theory and the Death Drive (Duke University Press,Durham 2004) passim.82 Interestingly, if barebacking is taken to encompass vaginal as well as anal penetrativesex (as it sometimes now is colloquially), then the act of barebacking can be theorized in
2011] DURHAM LAW REVIEW 93Challenging the Discourse: Public SexJust as barebacking can be viewed as attacking the (homo)normative, sotoo can public sex. Dwyer has noted the manner in which those whoappear to embody forms of non-heteronormative for example in the formof effeminacy or cruising in public sex environments can suffer greatercrime. These acts, Dwyer argued, queer the heteronormative.83 They also,I would argue, attack the emergent (homo)normative narrative. As withbarebacking, the action of cruising or cottaging shuns Rubin’s ‘good gay’,‘charmed circle’ categories, taking place in public, and essentiallycelebrating promiscuity and slutdom.Humphreys’ 1970 study of sex in public conveniences by men revealed acomplex world in which a large subculture – often, he stated, practised bymarried ‘straight’ men – appeared to take place.84 Indications of thesepractices had been documented much earlier, with the 1937 text, ForYour Convenience, offering a not-so-coded guide to London’s cottages(public toilets).85Although the populised myth is of dirty old men, desperate for sexualrelease, the true picture is somewhat more complex. University campusesare often popular locations – with numerous ‘hubs’ of high traffic placesthat provide spaces of opportunity – what Delph termed ‘erotic oases’86 –and this is an issue for Universities beyond the UK. Reynolds recentlynoted that Harvard University had taken the action to remove the cubicaldoors from the ‘chief’ men’s room in the Harvard Science Center to‘supress the gay male sexual activity that was taking place in the toiletstalls’.87Cavanagh has noted similar steps being taken across North America, withouter doors re-positioned to remove warnings that someone is entering,cubicle doors removed, and locks taken off.88 Greed89 and Cockfield anddifferent terms. Thus, the preservation of the (homo)normative narrative is dependentupon a narrow definition of bareback sex, as condomless anal sex.83 A Dwyer, ‘Policing Queer Bodies: Focusing on Queer Embodiment in PolicingResearch as an Ethical Question’ (2008) 8 QUT Law and Justice Journal 414.84 Humphreys (n51).85 P Pry, For Your Convenience (George Routledge & Sons, London 1937).86 E W Delph, The Silent Community: Public Homosexual Encounters (Beverly Hills:Sage 1978).87 B Reynolds, ‘Rest Stop: Erotics at Harvard’, in H Molotch and L Noren (eds.) Toilet:Public Restroom and the Politics of Sharing (New York University Press, New York2010).88 S L Cavanagh, Queering Bathrooms: Gender, Sexuality and the Hygienic Imagination(University of Toronto Press, Toronto 2010) 177-178.89 C Greed, Inclusive Urban Design: Public Toilets (Architectural Press, Oxford 2003).
94 (Homo)normative Legal Discourses [VOL. 1Moss90 have also previously commented on the ways that the space of thepublic convenience can be re-designed and modified to limit illicitactivity. Public parks, the scenes for cruising, or public recreationalpoints, and picnic locations used for dogging have similarly beentransformed by state officials with the removal or cutting back of treesand shrubbery.These geographical changes to space represent an attempt to usegeography and socialisation to regulate challenges to the legalorthodoxies. These orthodoxies, just as with bareback sex, reflect achallenge to the (homo)normative. For the men engaged in public sex, thevery experience can give rise to conflicting emotions, but the narrativesare often that of the closet, and of ‘desperation’: Part of me felt “It’s beautiful, it’s dark, the moon is out. There’s a lovely breeze. There’s an energy.” Then on the other hand, “There are rats around here. Why do we have to do this in the dark? Why can’t we be ‘out’?”91This is a typical example of the portrayal of the ‘desperate’ man, cruisingbecause they have no other alternative. Whilst it is true that men who areolder, less likely to achieve sexual success in the bar and othercommercial queer space, frequent these spaces along with the bi, and thecloseted, these spaces are also utilised by the young, exploring theirsexuality and also those who are openly gay and simply enjoy publicsex.92For many men, the cottage or cruising ground offers an inexpensive formof ‘instant sex’,93 and even at a time of growing public toilet closures, andpark gentrification, the spaces continue to operate thanks to online listingsin which men can share details of more successful public sex locations. 94These spaces offer the potential thrill of danger (from police arrest,through to being attacked), and sex without commitment.95 In one90 C Cockfield and K Moss, ‘Sex, Drugs and Broken Bowls: Dealing with Problems ofCrime Reduction in Public Conveniences’ (2001) 1 Community Safety Journal 2, 37.See, also: R Byrne, ‘Socio Sexual Use of Public Recreational Space: managing thePublic Sex Environment in Country Parks’ (2004) 1 Proceedings of the Second NationalConference, Chartered Institute of Water and Environmental Management 351.91 Ruggero (n61) 207.92 J Couture, Peek: Inside the Private World of Public Sex (Routledge, London 2008) 59-70.93 P Flowers, C Marriott and G Hart, ‘The Bars, the Bogs, and the Bushes: The Impact ofLocale on Sexual Cultures’ (2000) 2 Culture, Health & Sexuality 1, 69.94 C Ashford, ‘The Only Gay in the Village: Sexuality and the Net’ (2006) 15Information & Communications Technology Law 3, 275, and C Ashford, ‘Sexuality,Public Space and the Criminal Law: The Cottaging Phenomenon’ (2007) 71 Journal ofCriminal Law 6, 506.95 N McKenna, ‘The Joys of Cottaging’, New Statesman, 30 October 1998.
2011] DURHAM LAW REVIEW 95academic study, the biggest reasons for engaging in public sex were thatthey enjoyed it sexually and the excitement/thrill.96Although the policing undoubtedly contributes to this phenomenon, bygenerating additional ‘thrill’ at the prospect of being caught, public sexactivity remains a focus for lawmakers and policing,97 particularly in thecontext of sex in public lavatories, or cottaging.98 Police forces around theworld have resorted to a range of tactics to stop this behaviour, includingcamera surveillance,99 sting operations,100 and more recently Internetwarnings.101Yet, despite over forty years passing since the legalisation of‘homosexual acts’ between men, the law continues to create a sexualcloset for those identities that not only defy the (hetero)normative but theemergent assimilationist (homo)normative. This process of closetisationextends to the self-defined heterosexual too. The emergence of doggingamong heterosexuals has similarly produced an act that defies the(hetero)normative and in so doing, attracts the attention of the police.102The good queer stays home with their civil partnered ‘hubby’. A penchantfor Gaydar might be tolerated so long as it leads to safe sex indoors, butthe he outdoors remains trapped in a legal discourse that defines it as ‘badsex’, and anti-homonormative, evocative, as with bareback sex, of ahomosexual history that does not easily sit with the new legally re-constructed homosexual.A New Paradigm?Politically, the division in legal responses to sexuality in recent years canbe explained as the emergence of a new paradigm. Former British PrimeMinister, Tony Blair noted in his memoirs that96 J Church, J Green, S Vearnals and P Keogh, ‘Investigation of Motivational andBehavioural Factors Influencing Men Who have Sex with other men in Public Toilets(Cottaging)’ (1993) 5 AIDS Care 3, 337.97 Ashford (n94).98 P Johnson, Ordinary Folk and Cottaging: Law, Morality and Public Sex’ (2007) 34Journal of Law and Society 4, 520.99 See, for example: W O’Callaghan, ‘Cameras in the Restroom: Police Surveillance andthe Fourth Amendment’ (1995) 22 Hastings Constitutional Law Quarterly 867, and W EJones, Tearoom (2nd Cannons Publications, Los Angelas 2009).100 See, for example: H Power, ‘Entrapment and Gay Rights’ (1993) 143 New LawJournal 47, and J B Woods, ‘Don’t Tap, Don’t Stare, and Keep Your Hands to Yourself!Critiquing the Legality of Sting Operations’ (2009) 12 Journal of Gender, Race andJustice 545.101 Ashford (n94).102 Smith (n55) 257.
96 (Homo)normative Legal Discourses [VOL. 1 in the old days, a Conservative was hard line on law and order and on ‘political correctness’ issues like immigration and gays. The left-winger was liberal, the right-winger illiberal. My generation had defined a new paradigm: what you did in your personal life was your choice, but what you did to others was not.103Unfortunately, this simplistic utilitarian argument becomes more complexwith variable constructions about public and private. Any act is arguablyprivate until someone else views it, and thus the question is one ofpropensity towards being public or private. Public ‘open air’ sex, may beas public or private as sexual acts in a commercial sex club or sauna, withpeople as likely to come upon a scene as a child might in the home. It isthe cultural construction of certain spaces as locations of ‘bad sex’ thatrenders them the focus of law. Similarly, the act of bareback sex is in theconfines of a silent relationship semi-acceptable, yet the publiccelebration of barebacking is to position the act in the publicconsciousness and thus render it transgressive.Blair’s former ‘spin doctor’, Alastair Campbell, indicates in his diariesthat Blair may have had similar difficulties with the constitution offamilies, a ‘public’ definition of a series of relationships betweenindividuals, rather than how people actually live their lives. Campbellnotes one incident on the BBC Today programme in 1996 in which Blairwas described as being ‘…a bit of a disaster area…he got a bit caught ongay couples and whether that constituted a family’.104The emergence of a (homo)normative narrative that seeks to excludequeer challenges, whether they take the form of bareback sex or publicsex is perhaps unsurprising. Since the ‘legalisation’ of homosexuality in1967, a process of assimilation has been taking place. Harding likens it tothe Borg, characters in the popular science fiction franchise, Star Trek,their slogan: ‘You will be assimilated…Resistance is Futile’ seemssomewhat apt.105However, it is perhaps worth adding that Bronski has commented thatassimilation has historically, been ‘not an equitable exchange’. He hasargued that a ‘more honest’ paradigm of assimilation is ‘the protectionpayoff’ rather than the populised notion of a ‘melting pot’.106 For manyimmigrants to America, a new name, and an adjustment to identity andcustoms were necessary in order to become ‘American’. Similarly, tobecome first tolerated, and then accepted, queer ‘immigrants’ have beenforced to adapt and conform to an ever-evolving paradigm of103 T Blair, A Journey (Hutchinson, London 2010) 582.104 A Campbell, The Alastair Campbell Diaries: Volume One, Prelude to Power 1994-1997 (Hutchinson, London 2010) 552.105 Harding (n1) 177.106 Bronski (n66) 39.
2011] DURHAM LAW REVIEW 97(homo)normativity. Yet, this process has also created the queer refugees.Those who desire public sex and those who seek to queer the HIV/AIDSnarratives surrounding bareback sex are all rejected, and cast out. Thesegroups defy the (homo)normative paradigm and the law becomes case asa tool of coercion and punishment.Today’s immigrant queers, the acceptable gays of the (homo)normative,serve to exert further pressure on their former compatriots, encouragingthem to join them in the brave new land of gay adoption, same-sexmarriage and employment protection.These legal changes perhaps reflect Weeks’ observation that ‘our culturehas all too readily justified erotic activity by reference to something else –reproduction or the cementing of relationships usually – and has ignoredthe appeal of the erotic as a site of freedom, joy and pleasure’.107ConclusionIt would be a mistake to regard this queer analysis as a rejection of therights recently won in English law. Yet historically, even those seen as‘moderate’ figures within the LGBTQ movement, such as former chair ofthe Albany Trust, Anthony Grey could question laws on public sex on thebasis of asking ‘who is the victim?’108 Today, to stand in opposition to the(homo)normative, to question the very bounty of rights that have beenbestowed by English law in recent years, is to appear ‘ungrateful’, andun-appreciative of the apparently dramatic legal shift in the course of thelast forty years.Warner likens the questioning of same-sex marriage rights to being ‘theunmannerly wedding guest, gossiping about divorce at the rehearsaldinner’.109 To question the new (homo)normative, and question thecontinued ‘bad/good’ sex divide is to seem similarly bad-mannered.These recent legal developments and the queer resistance that hasapparently followed, are easy to characterise in terms of conflictingdiscourses, and through binary divisions, to ascribe power differentials,setting one discourse in a superior or privileged position over the other.107 J Weeks, Invented Moralities: Sexual values in an Age of Uncertainty (Polity,Cambridge 2007) 68.108 A Grey, Speaking Out: Writings on Sex, Law, Politics and Society 1954-95 (Cassell,London 1995) 50-54.109 M Warner, ‘Normal and Normaller: Beyond Gay Marriage’ (1999) 5 GLQ: A Journalof Lesbian and Gay Studies 2, 119.
98 (Homo)normative Legal Discourses [VOL. 1Yet, as Halperin has previously noted, 110 Foucault observed what hetermed ‘the tactical polyvalence of discourses’.111 He observed that: ‘we must not imagine a world of discourse divided between accepted discourse and excluded discourse, or between the dominant discourse and the dominated one; but as a multiplicity of discourse elements that can come into play in various strategies…We must make allowance for the complex and unstable process whereby discourse can be both an instrument and an effect of power, but also a hindrance, a stumbling block, a point of resistance and a starting point for an opposing strategy’.112So it is with the emergence of the (homo)normative. It occupies a spaceoutside the accepted and excluded. In considering civil partnerships,same-sex marriage and other aspects of the (homo)normative legaldiscourse, as with those activities excluded such as public sex andbarebacking, we must look, as Foucault suggested, at who is speaking,their position of power and the institutional context in which they happento be situated.110 Halperin (n39) 57.111 M Foucault, The Will to Knowledge: The History of Sexuality, Volume 1 (Penguin,London 1998) 100.112 ibid 100-101.