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Constructing Sexual Citizenship: Theorizing Sexual Rights: University of Newcastle
Constructing Sexual Citizenship: Theorizing Sexual Rights: University of Newcastle
University of Newcastle
Abstract
Recently, a new body of work on sexuality and citizenship has emerged. In
this article I analyse sexual citizenship through an examination of the
concept of sexual rights. How has rights language been used to articulate
demands in relation to sexuality? What do we mean by sexual rights or
duties? Although the concept is not new, there are competing claims for
what are defined as sexual rights and lack of rights, reflecting not only
differences in how sexuality is conceptualized but also the fact that there is
no singular agreed definition of sexual citizenship. The combination of
sexual rights as a contested concept and the increasing usage of the
language of citizenship in ‘sexual politics’, underlines the need for a critical
analysis of its meaning and value as a concept. To this end, I have outlined
a framework which tries to make sense of the different ways of interpreting
sexual rights in terms of three main sub-streams apparent within sexual
rights discourse: conduct-based, identity-based and relationship-based
rights claims. This is not to imply an uncritical acceptance of the concept
of sexual rights, however this may be defined. On the contrary, it is to
attempt to clarify similarities and differences between both individual
writers and social groups campaigning for social change in relation to
sexuality, in order that we may have a more detailed understanding of the
limitations and potential of the notion of sexual citizenship.
Key words: citizenship, gay, lesbian, sexual citizenship, sexual rights,
sexuality
Introduction
Practice
Claims to rights that centre on sexual practice fall into three main
categories: those concerned with forms of social regulation which
specify what one can and cannot do; those concerned not only with the
right to participate in but also the right to enjoy sexual acts, commonly
expressed as the right to sexual pleasure; and those concerned with the
rights of bodily self-control. I will consider each of these in turn.
in almost half of the states of the USA and in many parts of the world
(Moran, 1996; Bamforth, 1997). In Britain, prior to 1967, consensual
sexual contact between men, even in private, was illegal. After the 1967
Sexual Offences Act, such practices remained unlawful unless the
following conditions were met: both consenting adults were aged 21
and over and the acts should take place in private. The 1967 reform
applied to England and Wales, homosexual practice remained illegal in
Scotland until 1981 and in Northern Ireland until 1982. At the time of
writing, the current legal age of consent for sexual practices between
two men stands at 18 years of age. Having been reduced to 18 from 21
in 1994 under the Criminal Justice Act, it was further decreased to 16
years of age in 1998 as part of the Crime and Disorder Act. However,
this was overthrown in the same year by the House of Lords.
It is important not to interpret such liberalization of the law as
state recognition of the right to be homosexual. (This distinction is
discussed in more detail in the following section.) What these changes
in the law represent is the granting of the right, under certain specific
contexts, for one man to engage in sexual acts with another man: a
right that extends to all adult males, not only those who identify as
bisexual or gay.
Of particular importance in analysing the issues surrounding this
and other examples of sexual rights claims is the public/private binary.
Indeed, arguments for conduct-based rights claims have largely been
based on respect for privacy. Although, having said this, it is
important to recognize that in recent years there has been a shift in this
discourse associated with the emergence of new social movements, such
as, for example, queer politics which have emphasized the right to
public forms of sexual expression (Bell, 1995; Ingram et al., 1997).
This conceptual division between the public and the private is, never-
theless, fundamental to a liberal model of sexual citizenship, which has
predominated in Britain since the 1960s, based on a politics of toler-
ance and assimilation. Thus, for example, those who wish to engage in
sexual acts (often referred to as ‘unnatural practices’) with members of
their own gender are granted the right to be tolerated as long as they
remain in the private sphere and do not seek public recognition. The ‘I
don’t mind what they do in their own homes as long as I don’t have to
see or hear about it’ argument. Similarly, justifications of the right to
consume certain forms of pornography are frequently couched both in
terms of individual civil liberties and a respect for privacy.
The justification for the right to engage in various forms of sexual
RICHARDSON—CONSTRUCTING SEXUAL CITIZENSHIP 111
conduct in terms of respect for privacy has not, however, gone unchal-
lenged and in some instances may be seen as illegitimate. In the
example given above of the right to consume pornography, for
instance, both moral right and certain feminist critiques reject the
conceptualization of the public and the private as distinct spheres
where what happens in the private is assumed to have no wider social
effects, specifically in this case on male attitudes and behaviour towards
women (Cameron and Frazer, 1993).2 Similarly, in the case of gay
rights, respect for privacy may be found wanting. Thus, for example,
in the now famous Bowers versus Hardwick case in the USA, in 1986,
the Supreme Court decided that individuals did not have a funda-
mental right to engage in ‘homosexual sodomy’ (see Currah, 1995).
The plaintiff, Hardwick, challenged the court’s decision, claiming that
it violated his right to privacy since he was engaging in consensual sex
with another adult male in the privacy of his own bedroom. The two
men were ‘discovered’ by a police officer who was delivering an arrest
warrant and had been inadvertently directed to Hardwick’s bedroom.
The Supreme Court’s decision upheld the right of the State of Georgia
to send individuals convicted of engaging in anal intercourse with
someone of the same gender to prison for up to 20 years. At the same
time, the court refused to rule on the constitutionality of laws that
apply to ‘heterosexual sodomy’.
What are the ideas and assumptions behind the denial of the right
to perform certain sexual acts, even when conducted in private?
Fundamentally important are institutionalized (hetero)sexual norms
and practices, whereby heterosexuality is established as ‘natural’ and
‘normal’; an ideal form of sexual relations and behaviour by which all
forms of sexuality are judged. Exclusions from the boundaries of sexual
citizenship as practice, therefore, may be on the grounds of ‘natural’
disqualification. For example, the belief that the body should not be
used for acts for which nature did not design it. This understanding of
bodies within what Butler (1993) refers to as a ‘heterosexual matrix’,
which operates through naturalizing a heterosexual morphology, is
itself an important aspect of heterosexual ideology where the penis and
the vagina are assumed to be a natural fit, unlike, for example, the
penis and the anus or the vagina and the vagina. In addition to such
dominant inscriptions of the body, the belief that vaginal intercourse
is naturally the chief purpose of sexual behaviour is another ‘norm’ by
which sexual practices have been judged to be more or less acceptable.
For example, although the law has traditionally been much less hostile
112 CRITICAL SOCIAL POLICY 20(1)
towards sexual conduct between men and women in both public and
private settings, fuelled by this view of what people should properly be
engaging in sex for, it can prohibit certain heterosexual practices. It is,
for instance, illegal for heterosexual couples to engage in oral sex in a
number of states in the USA (Kaplan, 1997).
Lack of recognition of rights claims may also be on the grounds of
moral inferiority, where again heterosexual ideology conflates a
particular form of heterosexuality with propriety and moral worth.
That is, if certain acts are categorized as immoral then the restrictions
placed on the right to engage in them may be justified in terms of a
moral threat posed to society. This is illustrated by the judgement in
the ‘Operation Spanner’ case, in 1990, where eight adult men were
convicted for engaging in consensual sadomasochistic acts in private.
Following an appeal, the House of Lords upheld the decision that
consensual sadomasochism was against the public interest and should
therefore be found unlawful under the Offences Against the Persons
Act 1861 (for an account of the case see R. v Brown, 1992, 1994). This
was an interesting judgement in so far as it appeared to mark a reversal
of the law’s distinction, post-Wolfendon,3 between legality and
morality; a distinction that was to be crucial to the recognition of
future rights claims relating to the practice of, amongst other things,
abortion and homosexuality. Indeed, echoing this view, those who
dissented from the judgement claimed ‘that questions of morality
should not be presumed to fall within the remit of the criminal law
unless explicitly stated by parliament’ (Cooper, 1993: 194). The House
of Lords decision was subsequently upheld on appeal, in 1997, to the
European Court of Human Rights in Strasbourg, who ruled that it was
acceptable for the state to interfere in the ‘right of privacy’ where it is
necessary for the protection of health or morals.
Health and welfare considerations in sexual conduct-based rights
claims have also been particularly apparent in relation to AIDS. An
example of this from the early years of the epidemic, when AIDS was
mistakenly portrayed as a ‘gay disease’, was the calling for the (re)crim-
inalization of homosexuality as a sexual practice by moral rights
organizations in the USA (Altman, 1986). In a European context, by
contrast, one of the demands of AIDS activists in organizations such as
ACT UP has been the right to safer sexual practice through access to
effective education about prevention of the sexual transmission of HIV,
as well as health and welfare services that encourage safer sex, such as
the provision of condoms (Watney, 1991).
RICHARDSON—CONSTRUCTING SEXUAL CITIZENSHIP 113
demands and force against one’s wishes, and includes claims to freedom
from sexual harassment, violence, abuse and coercion, as well as rights
of access to abortion and contraception. Feminist debates over these
issues have further demonstrated the gendered nature of sexual citizen-
ship. Thus, for example, feminist campaigns for changes in policy and
practice concerning sexual violence have highlighted how men have
traditionally been granted greater sexual rights than women, especially
in marriage. In many countries the law decrees that rape in marriage is
not a crime, a view that was only overturned a few years ago in England
with the introduction of the Rape in Marriage Act in 1991. Under such
laws, a man’s right of sexual access to his wife’s body is privileged over
her right to consensual sexual practice. He has the right to take by force
that which the law defines as rightfully his: sex within marriage or,
more specifically, the act of vaginal penetration. An example of what
Wilton (1992) refers to as ‘rights of penetration’, which she claims,
citing HIV/AIDS health promotion as evidence, frequently takes
precedence over other considerations, including rights to pleasure and
safety. Even in those countries and states where rape in marriage is
recognized as a crime, ‘the prosecution of offenders and the success of
these prosecutions is greatly reduced in comparison with stranger rape,
because socially it is not fully accepted as a crime’ (Hanmer, 1997:
369). Translated into the language of rights, this means that men still
have greater social rights in relation to such forms of sexual practice.
In addition to these feminist campaigns, debates over AIDS have also
been significant in the framing of sexual rights in terms of the language
of rights of safety, as well as for the reproductive rights of HIV-positive
women (Doyal et al., 1994). On the one hand, we have witnessed claims
for the extension of sexual rights, such as the right to information about
HIV and safer sex as part of rights recognized by the state to sex education
in schools, as well as health education more generally (Watney, 1991).
On the other hand, some responses to AIDS represent demands for the
curtailment of rights to sexual expression which are justified in terms not
of protection of public morals, but rather the protection of public health
and the protection of the rights and freedoms (including the right to life)
of others. Earlier I made reference to the example of calls for the (re)crim-
inalization of male homosexual conduct. Another illustrative case would
be the suggestion that it should be a criminal offence for a person who is
HIV infected to (knowingly) practice unsafe sex with a sexual partner
without their informed consent (Seighart, 1989). This is already the case
in some countries. For example, in 1997, in Finland an American man
116 CRITICAL SOCIAL POLICY 20(1)
who was HIV positive was sentenced to imprisonment for having unpro-
tected intercourse with a series of women, some of whom became infected
with the HIV virus as a result.
Many of the conduct-based claims to sexual rights involve claims
for civil rights; both in terms of the removal of laws which prohibit or
try to restrict certain sexual acts, for example, campaigns by gay rights
groups over age of consent and other forms of discriminatory legis-
lation, as well as the creation of new laws that penalize certain
practices, for example, feminist campaigns to outlaw rape within
marriage. However, such rights claims go beyond protective civil
rights. As I have argued earlier, they also include access to social rights,
as is evidenced in feminist demands for the recognition of women’s
sexual needs, and the provision of welfare. Thus, for example, claims
for the right to express oneself sexually without fear of unwanted preg-
nancy are informed by the right of access to education and health
services in respect both of abortion and contraception.
Identity
upholding the policy that lesbians and gay men may only be ministers
in the Church if they abstain from ‘homosexual acts’. Such practices
have been extremely controversial, but in the context of the focus of
this article I do not have the space to elaborate on this. (For a study of
outing see Johansson and Percy, 1994.) Rather, the point I want to
make in using this example is that outing sets itself up to challenge
what has been a significant argument in the struggle for sexual rights,
the right to privacy.
As I have stated earlier, lesbian and gay politics over the last 30
years have been less about the right to privacy than about claims for
the right not to have to be private. There is a paradox here, as Weeks
(1998) also notes, in that it is through claiming rights to the public
sphere that lesbians and gay men have sought to protect the possibili-
ties of having private lives of their own choosing. This is further
complicated by the influence of postmodern ideas about identity as
fragmented and fluid, rather than fixed attributes which one may
publicly declare or not. In this context, the right not to be out can be
considered in a rather different sense from that above, as a right not to
be defined in terms of a particular sexual identity.
Relationships
writers have detailed (Evans, 1993; Moran, 1996), the right to consent
to sexual behaviours is not only set at a higher age, but is also both
gendered and sexualized. The sexual status and rights of boys are recog-
nized at an earlier age than girls, who are regarded as insufficiently
mature to ‘consent’ to heterosexual acts under the age of 16. A further
sexual ‘double standard’ exists in so far as the law recognizes the right
to consent to heterosexual acts before (male) homosexual relations.11
Claims for the right to an equal age of consent have been an
important aspect of lesbian and gay rights campaigns, with organiz-
ations like Stonewall lobbying for such legal reform. These can be
distinguished from campaigns led by various paedophile organizations
for legal recognition of ‘cross-generational sex’ such as, in the recent
past in Britain, PIE (Paedophile Information Exchange) and in the
USA by NAMBLA (North American Man/Boy Love Association). As
with child-liberationist objections to age of consent laws, though for
different reasons, such organizations argue for the right of sexual self-
determination for children. They are not, in other words, seeking equal
rights in law with heterosexuals, but a reduction in the age children are
granted sexual rights or the removal of age of consent laws altogether.
Conclusion
Notes
1. There has also been a division of sexual attributes based on race and class
as well as gender, which has implications for sexual citizenship.
2. In saying this I want also to stress, especially in the context of accusations
of collusion, that the arguments of antipornography feminists are
different from those of religious and right-wing movements.
3. The Wolfendon Committee reviewed the law and practice relating to
homosexuality and prostitution. Its conclusions, published in 1957, were
enacted later in the Street Offences Act 1959, relating to prostitution,
and formed the basis of the 1967 law reforms relating to homosexual acts
(Wolfendon, 1957).
4. This is interesting, given the important role that feminists have played
in critiquing essentialist understandings of sexuality over the last 25
years or more, in so far as such claims appear to reaffirm a notion of sexual
essence, while challenging the idea of a reproductive purpose to
sexuality.
130 CRITICAL SOCIAL POLICY 20(1)
References
Alexander, M. J. (1994) ‘Not Just (Any) Body Can Be A Citizen: The Politics
of Law, Sexuality and Postcoloniality in Trinidad and Tobago and the
Bahamas’, Feminist Review 48: 5–23.
Altman, D. (1986) AIDS in the Mind of America. New York: Doubleday.
Bamforth, N. (1997) Sexuality, Morals and Justice: A Theory of Lesbian and Gay
Rights Law. London: Cassell.
RICHARDSON—CONSTRUCTING SEXUAL CITIZENSHIP 131