Chewing gum, sexuality, and pregnancy. Which of these have never been criminalised? The answer is none. All three have been discussed in the context of criminalisation somewhere and at some point around the globe. The purpose of this article is to look at LGBTQI+ (lesbian, gay, bisexual, transgender, queer, intersex and all inclusive) rights and investigate the relationship between sexuality, harm and criminalisation.
We usually think about LGBTQI+ rights in relation to a set of characteristics possessed by certain people. However, I would like us here to think about sexuality as a social relationship or process that people are involved in.
There are four ways to think about the complex relationship between criminalisation and LGBTQI+ rights: a conservative, a liberal, a neo-conservative and neo-liberal, and a radical version.
The conservative approach suggests that there is a direct link between LGBTQI+ people and harm. Mainly by claiming that LGBTQI+ people pose threats to society or political order. In this vision, criminalisation – the imposition of criminal law prohibitions – is a powerful tool. Historically, it has been used to control and repress LGBTQI+ people . Following the partial decriminalisation of sex between adult men with the Sexual Offences Act 1967, in May 1988, Section 28 prohibited the “promotion” of homosexuality by local authorities. (Indeed women and non-binary people seem to be covered with the infamous legal invisibility cloak!). This signalled a shift from directly criminalising to persecuting and disciplining through censorship. Influenced by its historical roots in using criminal law and medical science to cast people as ‘Others’, this strand is completely devoted to criminalisation and medicalisation of LGBTQI+ people.
Conversely, the liberal approach to sexuality accepts LGBTQI+ rights as a legitimate way to reduce inequality and allow LGBTQI+ people to participate in democratic and capitalist policies. From a liberal point of view, equality is a quest to participate in a globalised market and change policies to reflect individual interests. For instance, in 1996, sexual orientation, as prohibited grounds of discrimination, was explicitly added to the Canadian Human Rights Act, similarly to the 2010 Equality Act for England, Wales and Scotland . Within this approach, the drive for legal and policy change is linked to material interdependence, and the position of states within domestic and global markets. Here the core idea is that LGBTQI+ people are gradually assimilated within society and the market economy. Take for instance the debates on “marriage equality” as well as the transformation of corporations into “LGBT allies”. For instance, beyond references to fair trade, Wal-Mart Stores, Exxon Mobil Corp., and UnitedHealth Group Inc. are included in the top 20 of “Corporate Equality Index 2017”, which attests to taking steps to eliminate inequality on the bases of promoting LGBTQI+ rights.
Combining the above two approaches, the neo-conservative and neo-liberal approaches have emerged in recent years. Although these two approaches often seem to represent opposing views, they share an idea of how discrimination is generated. Neo-conservative and neo-liberal visions support traditional values such as individual liberty, equality before the law, personal autonomy and responsibility. These traditional values, for this approach, depend on the institutions of market economy, free decision, and limited government. Following this, policies in support of LGBTQI+ rights can be used as the barometer of progressiveness within an increasingly globalised market. For instance, while various sources criticise Islamic states for their intolerance of LGBTQI+ rights, the newly elected President Donald Trump is praised for stepping up on LGBTQI+ rights. A newly found division then emerges between “Us” and “Others”. Where “Others” (from non-Western countries) do not support LGBTQI+ rights and “we” play the civiliser’s role.
Finally, the radical approach sees things through a more polemic prism. I identify with this tradition because it highlights a simple premise: LGBTQI+ rights and criminalisation work together to construct a specific understanding of sexuality in the first place. Both rights and criminalisation are inextricably linked and understood under the notions of an existing order connected to economic categories. Categories like productivity, distribution of power and resources. And at the same time, the existing order systematically violates rights or mobilises the language of “war” and criminalisation to negate rights (like privacy, employment, housing). Effectively, the basic structure of modern states (e.g. capitalism, neo-liberalism, the criminal justice and prison systems) is constructing a certain version of sexuality as part of maintaining the current order of things. This can be seen in the ways that the heterosexual matrix is constructed and reconstructed as “norm” necessarily casting gender and sexuality non-conforming people as Other. Therefore, for a radical perspective, the commitment to LGBTQI+ rights necessarily means the commitment to a different order in which needs can be met and rights can be respected.
While these four approaches seem to support opposed views, they share a common basis. They have in common the idea of discrimination as socially generated harm. The first three perspectives understand discrimination as something contingent to the world we live in, influenced by the tide of history. While the fourth also accepts that discrimination is socially generated, it further challenges the structure. It challenges the systemic factors that produce harm and suggests other models where harm is not endemic to the system. In this sense, located inside the radical approach, a Queer Marxist perspective on the construction of sexuality is imperative.
Altman, Dennis and Symons, Jonathan (2016) Queer Wars, Cambridge & Malden: Polity Press.
Butler, Judith (2006) Gender Trouble: feminism and the subversion of identity, New York & London: Routledge.
Duggan, Lisa (2002) “The New Homonormativity: the sexual politics of neoliberalism”, in Castranovo, Russ and Nelson, D. Dana (eds) Materializing Democracy: toward a revitalized cultural politics, pp.175-194, Durham: Duke University Press.
Hörnle, Tatjana (2014) “Introduction to Theories of Criminalization” in Dubber, Markus, D., and Hörnle, Tatjana (eds) The Oxford Handbook of Criminal Law, pp. 679-701, Oxford: OUP.