The beginning of the 21st century witnessed great progress for and immense pushback against LGBTQ rights. Conservative movements seek to recriminalize LGBTQ people in the form of anti-trans bathroom laws, bans on gender-affirming care, anti-gay curriculum laws and book bans, criminalization of drag performances, banning trans people from sports and the military, and litigation to obtain a Constitutional right to discriminate against LGBTQ people. As Supreme Court Justice Clarence Thomas made clear in his concurrence to Dobbs, even same-sex marriage in the U.S.- only assured since 2015- is now in doubt. Trump ran on an agenda of scapegoating trans people. In his first weeks in office, he delivered on his promises, signing multiple executive orders to roll back the legal protections achieved in the last 50 years. We need a new legal approach.
The recent progress made by LGBTQ+ movements was due in no small part to efforts to secure privacy rights in law. There are, however, significant pitfalls to relying upon privacy rights as a means of ensuring rights and freedom for LGBTQ+ and other sexually minoritized groups.
To achieve erotic justice in law, we will need to move beyond the focus on privacy in US jurisprudence and better attend to the ways the law polices and punishes a wide variety of sexual expressions and actors.
Erotic (In)justice
Our sociolegal system is currently defined by sexual injustice, in that it systematically privileges and extends protections to certain forms of (consensual) sexuality and penalizes others. For instance, while the Supreme Court declared that gay marriage and gay sex are protected by the Constitution, it has twice held that erotic dancing does not deserve protection. In both Barnes v. Glen Theatre and City of Erie v. Pap’s A.M. the Supreme Court upheld laws that required dancers in the private 21+ Kitty Kat Lounge and Kandyland to remain partially clothed. In Barnes, Justice Antonin Scalia noted that the Constitution allows states to ban conduct that they find “immoral,” including “sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy.” In Erie, Justice Sandra Day O’Connor wrote that prohibitions on nude dancing are fine because of purported negative “secondary effects” caused by adult entertainment –although researchers have frequently called into question the veracity of this claim.
The anthropologist Gayle Rubin helps explain how sex acts are sorted into good and bad and ranked in a hierarchical system. She visualizes this ranking with a “Charmed Circle” of “good, normal, natural and blessed” sexuality and its deviant “outer limits.” Within the “charmed circle” lies heterosexual, married, monogamous, procreative, non-commercial, dyadic, in a relationship, the same age generation, without pornography, BDSM, or sex aids, and in private. The “outer limits” include sex acts that are homosexual, unmarried, casual, promiscuous, commercial, alone or in groups, across generations, with pornography, with manufactured objects, sadomasochistic or public. Rubin’s sexual hierarchy is useful for understanding how the law routinely punishes sexual actors or activities that do not conform to the charmed, inner circle; punishment that can have severe material consequences for individuals and communities. If we want to achieve true erotic justice, we must dismantle this system of blessed v. cursed sexuality.
Rubin’s framework helps us understand why marriage and sex between people of the same sex were protected, and strip clubs were not. Marriage and sex (at least as framed by the Supreme Court) have many elements in the charmed circle: married, monogamous, procreative, non-commercial, just two people, in a relationship, and in the privacy of a bedroom. Strip clubs, conversely, are all cursed: casual, commercial, in groups, and public.
Legally, charmed actors (such as married couples) have been granted protections under a Constitutional right to privacy. Cursed actors (such as erotic dancers) have been denied such protections – a distinction that perpetuates erotic injustice.
Legal History of Privacy
Legal protections for LGBTQ people in the U.S. owe a great deal to the concept of privacy. Deriving from the Fourteenth Amendment’s guarantee that no state shall deprive a person of “life, liberty or property without due process of law,” the U.S. Supreme Court has held that this “liberty” includes certain rights to “privacy.” In some situations, the Constitution protects us from unwarranted governmental interference, because it would violate our rights to “substantive due process.” The Supreme Court has identified two specific “rights to liberty” protected by the due process clause: decisional autonomy and bodily integrity. Decisional autonomy protects certain major life decisions, which should be made without governmental interference and has been interpreted to include decisions such as whom to marry (Loving v. Virginia, (1967); Obergefell v. Hodges, (2015), whether to have a child (Roe v. Wade, overruled by Dobbs), and whom one has sexual relations with (Lawrence v. Texas, 2003). The doctrine of “bodily integrity” refers to the right to make major decisions about one’s body without governmental interference. Landmark cases such as Griswold v. Connecticut (1965), effectively challenged government restrictions of birth control and established the right to (marital) privacy as an animating principle in law.
The right to privacy established by Griswold was central in subsequent rulings about abortion, gay sex, and same-sex marriage. Even though these cases were wins for birth control, gay marriage, and gay sex (and formerly abortion), they also reinforced the sexual hierarchy that Rubin describes.
In striking down anti-sodomy laws, Lawrence v. Texas explicitly tied its protections to people in non-commercial and marriage-like relationships, whose actual sex acts are in private homes. The Supreme Court’s decision on same-sex marriage repeatedly emphasized that marriage has historically been recognized as the keystone of social order. In their words: “No union is more profound than marriage” and the plaintiffs want to marry because “[t]heir hope is not to be condemned to live in loneliness.” Jurists and lawmakers do not exist outside their social context, and biases toward heteronormative models of sexual and intimate life have been encoded in our sex laws.
With Roe v. Wade overruled and the uncertain future of other cases about birth control, this leaves Obergefell and Lawrence as the two major privacy cases in the U.S.; these cases protect people mostly already within the charmed circle: monogamous adults who want to have typical “families.” Using privacy has not moved us closer to erotic justice, and if anything is moving in the opposite direction at this point.
Toward Erotic Justice
I argue that the concept of “dignity” can be utilized to dismantle entrenched systems of erotic injustice. In the last century, dignity has become extremely important to constitutional law, particularly outside of the U.S. Most constitutions now include a right to dignity. Dignity refers to the equal, inherent, and inalienable value of every person in every aspect of life. The American Bar Association has said that dignity is the foundation of a just rule of law. Justice Kennedy has proclaimed that “dignity” is his favorite word.
For those interested in sexual justice, dignity has proved vital in cases in India. The Supreme Court of India has found that its Constitution requires the government to foster a robust concept of dignity, which is violated when disfavored sex acts or actors are criminalized.
This ruling (Navtej Johar v. Union of India) offers a path forward for courts in the U.S. First, the Supreme Court of India was explicit that the question of sexuality in this case is tied to larger systems of oppression. They explained how heteronormativity in India is a byproduct of British colonialism, and how the Indian Constitution’s protections can be used to dismantle patriarchal social systems. Secondly, the Supreme Court of India chose cases of people whose sexuality has been seen as outside of “good” Indian sexuality, including trans people and sex workers. Third, their decisions entailed a comprehensive understanding of the politics and history that led to such sexual actors being seen as bad and abnormal. The decision looks to a wide scope of sources – legal decisions from its own country, foreign legal materials, treaties, law reviews, and even contemporary queer theorists. By combining these methods – centering disfavored sexual actors and looking to history to see the structural factors at play in sexual oppression- the Indian Supreme Court was able to articulate an understanding of sexual dignity that offers protections to those who often most need it.
Were US litigators, jurists, and lawmakers to draw upon this vision of sexual dignity, we might develop a legal vision that could lead to erotic justice.
