Sexual Orientation And The Law Research Paper

1. Homosexuality And Heterosexuality As Historically Contingent

The study of the law relating to sexually marginalized people, also known as ‘queer legal theory,’ evolved in the 1980s and 1990s out of feminist legal theory, postmodern theory, and critical race theory. The most influential work informing queer legal theory is Michel Foucault’s History of Sexuality, Vol. 1 (Foucault 1978), which posited that sexual orientation is socially constructed rather than naturally or divinely ordained. This point has been further developed by Judith Butler’s performativity theory of sexual orientation and gender, which posits that identities are performed rather than biologically or divinely ordained (Butler 1990).

1.1 From Conduct To Status And Back To Conduct

The social construction of sexual orientation is revealed by the different ways in which society and law have viewed same-sex sexuality. Different terms used to describe same-sex sexuality reflect these changes. Prior to the late nineteenth century, same-sex sexuality was viewed as sinful conduct, redeemable through repentance. The terms ‘homosexual’ and ‘heterosexual’ did not appear in English until 1892, along with the idea that sexual orientation was a status. These terms are products of German and English medical research on same-sex sexuality, which saw same-sex sexuality as a status, gave it a name, contrasted it with the previously unmarked status of heterosexuality, and assigned it social meaning as a constellation of characteristics that a person is (rather than particular sexual acts that one does). The terms ‘invert’ or ‘homosexual’ refer to this medicalized understanding of same-sex sexuality as a sickness rather than sinful conduct. Oscar Wilde’s 1895 trials and imprisonment for gross indecency are credited with introducing into popular culture the status of the male homosexual as effete, artistic, self-centered, and sybaritic.

A third stage, beginning in the 1940s and 1950s, relied on the scientific research of Alfred Kinsey and Evelyn Hooker to contend that same-sex sexuality was a normal variation from opposite-sex sexuality, rather than a disease (Hooker 1957, Kinsey et al. 1948). The nascent homophile movement adopted the term ‘gay’ to distance itself from the medical judgment associated with ‘homosexual.’ A fourth stage, emerging through queer theory in the 1990s, rejected the very notion of sexual orientation status (evil or neutral), pointing out the indeterminate and potentially subordinating qualities associated with status-based notions of identity. This stage dubbed minority sexual orientations ‘queer’ (reclaiming the epithet), treating this anti-status as an epistemological category. To be queer is to believe that racial, sexual, and sexual orientation subordination is wrong. Queer theory arguably uncouples status from conduct, so that one person can be both queer and actively heterosexual.

1.2 Fluidity Between Sexual Orientation And Gender Identity

Sexual orientation and gender issues overlap, but are also distinct in important ways. Both are associated with gender nonconformity. They differ, however, in their fundamental premises. Conventional approaches to sexual orientation presuppose two sexes, and categorize a woman as lesbian if she is with another woman (homosexual literally meaning same-sex), and heterosexual if she is with a man (heterosexual literally meaning different-sex). Transgender theory, in contrast, posits that there are more than two sexes, and that people exist along a continuum of masculinities and femininities. This reasoning renders gay theory’s primary assumption absurd; to speak of a person being gay or heterosexual ceases to make sense when there are many more than the two options of being a woman-with-a-woman or woman-with-a-man.

‘Transgender’ generally refers to gender norm transgression. Some transgender people, known as transsexuals, undergo medical treatment to change from one sex to another. Other categories of transgender people include transvestites (people who cross-dress but do not undergo medical gender reassignment), and transgendered people (those who do not conform to gender norms for the sex they were assigned at birth, but neither do they undergo medical treatment to reassign their sex).

Some cultures do not draw bright lines to distinguish same-sex sexuality from gender identity issues. In Bolivia, for example, men who engage in same-sex sexuality do so within a cultural understanding that one of the participants, in some sense, is female. Men who engage in same-sex sexuality call themselves gente de ambiente, or people of the atmosphere (West and Green 1997). Three subcategories of gente de ambiente highlight the overlap between sexual orientation and transgender identity in Bolivian culture. Travestis, or transvestites, view themselves as women trapped in men’s bodies. Camuflados, the camouflaged, see themselves as men, but take the receptive role in intercourse, and often pass as heterosexual in public spaces. The third category, hombres, or just men, take the penetrating role in intercourse, and are distinguished from heterosexual men in that they respond to sexual overtures from other men. In Bolivia, and elsewhere, these sexual orientation and gender categories are fluid. A man might sleep with men exclusively, only occasionally, or for money. He might desire to sleep with men, but refrain for fear of social or legal condemnation. The very difficulty in deciding the characteristics of identity categories forms the thesis of much postmodern scholarship that identity generally, and sexual identity in particular, is indeterminate because it varies historically, culturally, and within a particular individual’s lifetime.

2. Changing Focus Of Sexual Orientation Research

Sexual orientation law is a synergy of gay rights advocacy and theoretical academic writings. Advocates bring cases and support legislation countering anti-gay discrimination. Scholars both craft theories that inform these efforts and evaluate the cases and statutes that become law. Two important areas involve anti-sodomy laws and the ban on same-sex marriage.

2.1 Anti-Sodomy Laws

Because the criminalization of same-sex sexuality is the most obvious expression of state condemnation, sexual orientation law began by challenging anti-sodomy laws. In the US case Bowers vs. Hardwick, 478 US 186 (1986), the US Supreme Court upheld Georgia’s statute criminalizing sodomy against a constitutional privacy challenge. The Court issued extraordinarily homophobic declarations, such as the concurring opinion’s citation of Blackstone (1859) to describe same-sex sodomy as ‘an offense of ‘‘deeper malignity’’ than rape, a heinous act ‘‘the very mention of which is a disgrace to human nature.’’’ The gratuitous nastiness inspired both numerous critiques of the decision (Goldstein 1988, Thomas 1992) and challenges to other laws disadvantaging gay people.

One strand of this critique challenges the validity of anti-sodomy statutes, arguing that sodomy is an historically contingent category. For example, early Roman–Dutch law (imported to Colonial South Africa) interpreted sodomy as including a wide range of nonconforming sexual acts, such as anal penetration, bestiality, masturbation, oral penetration, penetration with an inanimate object, interfemoral intercourse, and heterosexual intercourse between a Jew and a Christian (West and Green 1997, p. 6). This insight undermines the logic of sodomy law defenders, who, along with the US Supreme Court in Bowers vs. Hardwick, rest their defense on ‘millennia of moral teaching’ (Goldstein 1988). If what counts as reprehensible conduct differs markedly among people, places, and times, theorists reason, then one cannot invoke a uniform condemnation of the conduct.

While many governments have decriminalized same-sex sexuality, the criminal ban remains strong in some places. In 2000 in Malaysia, for example, former deputy Prime Minister Anwar Ibrahim was convicted of sodomy and sentenced to nine years in prison after a 14-month trial. At the opposite extreme, the 1996 South African Constitution explicitly forbade sexual orientation discrimination. The ban on gays in the military, like anti-sodomy laws, excludes gay people from full citizenship. While the ban remains in the US, other countries, such as Israel, allow gay people to serve in the military.

2.2 The Ban On Same-Sex Marriage

Although anti-sodomy laws are rarely enforced, their existence impedes other anti-discrimination claims, such as gay people’s rights to marry or to serve in the military. Since the 1980s, many countries (i.e., South Africa) and US states (i.e., Georgia) have decriminalized same-sex sexuality. Legal advocacy and scholarship has moved on to contest discrimination in other areas. In Romer vs. Evans, 517, US 620 (1996), the US Supreme Court invalidated a state constitutional amendment that forbade any state entity from protecting gay, lesbian, or bisexual people from discrimination. Advocates and legal scholars, however, have paid far more attention to marriage litigation. In 2001, the Netherlands became the first country to allow same-sex couples to marry. Other countries such as Denmark, France, Greenland, Hungary, Iceland, Norway and Sweden each recognize some type of partnership, which accords same-sex couples (and sometimes opposite-sex unmarried couples) various benefits accorded to married couples.

Parts of Canada and Spain also recognize same-sex partnerships, and domestic partners enjoy some employment benefits in Argentina, Canada, Israel, New Zealand, and South Africa. Other countries, such as Australia, Austria, Belgium, Brazil, the Czech Republic, Germany, Portugal, Spain, and the UK recognize narrower rights, such as succession rights in private housing and some inheritance rights. Australia, New Zealand, Belgium, Denmark, Finland, Germany, Iceland, The Netherlands, Norway, South Africa, Sweden, and the UK recognize same-sex relationships for immigration purposes. Smaller governmental units, such as cities, counties, and provinces around the world, ban discrimination on the basis of sexual orientation.

In the USA, only one state, Vermont, accords samesex relationships recognition akin to marriage; the federal government and a majority of the states explicitly refuse to recognize same-sex marriage. The Vermont Supreme Court in Baker vs. Vermont, 744 A.2d 864 [Vt. 1999] found that banning same-sex marriage (or its equivalent under another name) violated the Common Benefits Clause of the Vermont constitution. That clause provides that ’government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not the particular emolument or advantage of any single person, family, or set of persons, who are only a part of that community.’ Following the court’s instructions, the Vermont legislature created a structure parallel to marriage for same-sex couples, calling it civil union.

3. Theoretical Approaches To Sexual Orientation Law

The emphasis in current theory and research on sexual orientation law is to deconstruct and reconstruct legal regulations that subordinate gay and transgendered people. This rubric includes various ideological and methodological approaches.

3.1 Ideology

Ideological diversity includes both classical liberal and critical approaches. Liberal approaches suggest that gay people are sufficiently similar to heterosexuals to justify equal legal treatment. This approach suggests that altering legal rules to lift the ban on gay participation in marriage or the military will not fundamentally change these institutions. A critical approach, in contrast, contests essentialized notions of identity, seeing it as socially constructed rather than reflecting essential commonalties among people who engage in same-sex sexuality. This critical approach often seeks a more comprehensive restructuring of legal regulations than simply adding gay people to existing institutions. Instead, critical approaches propose incorporating sexual orientation analysis into other antisubordination discourses, such as feminism, critical race studies, and class analysis. Critical theorists might further propose alternatives to marriage, such as domestic partnership for all people, contending that only new institutions can alleviate the sex gender hierarchies inherent in marriage.

3.2 Methodology

Postmodern, empirical, and legal economic approaches have contributed to the literature on sexual orientation law. One empirical approach compiles data about rates of arrest and prosecution for sexual offenses, and points out that consensual same-sex sexual activity is unfairly singled out for criminal penalty (Eskridge 1999). The two major premises of this approach, that like parties should be treated alike, and further that the state should generally refrain from interfering in private consensual activities, together lead to the conclusion that the state statutes criminalizing sodomy should be invalidated.

One postmodern approach closely examines the language and reasoning of a judicial opinion to decode the cultural context of the decision, revealing, for example, the Supreme Court’s strategic and biased collapse of status and conduct in Bowers vs. Hardwick. This approach focuses on how the majority decision in Hardwick collapsed the distinction between status and conduct, and ignored the many cross-sex couples who commit sodomy by engaging in acts such as fellatio, cunnilingus, and anal intercourse. The majority in Hardwick framed the question as ‘whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy’ focusing the legal inquiry on both a bad act (sodomy) and a bad status (homosexuality). Under this reasoning:

[I]f sodomy is bad … then homosexuals and heterosexuals who do it are bad. If homosexuals are bad, we are bad whether we’ve engaged in sodomy or not. To hold both of these positions with consistency, you have to be willing to say that many, many heterosexuals are bad. This the majority Justices never acknowledged … They wanted the badness of each to contaminate the other—while heterosexual personhood remained out of the picture, protected from the taint with which it was logically involved. (Halley 1999, pp. 7–8)

By leaving the categories of sexual orientation status and conduct ambiguous, legal doctrine governing consensual sexuality ‘remained always ready to focus on ‘‘act’’ or ‘‘status’’ according to the expediencies of the situation’ (Halley 1999, p. 8)

An emerging strand of legal scholarship uses legal economic premises to examine heterosexuality as well as same-sex sexuality. US Court of Appeals Judge Richard Posner’s book Sex and Reason (1992 posited a bioeconomic theory of sexuality that combined sociobiology with legal economics. Posner’s often controversial analysis (describing, for example, the economic efficiency in some contexts of female infanticide and baby selling, which he renames ‘parental-right selling’) provoked a firestorm of response. Yet recent scholarship has built on Posner’s economic approach to posit a bargaining theory of sexuality, suggesting that legal regulation should equalize the bargaining positions between men and women (Hirshman and Larson 1998).

4. Future Directions Of Theory And Research

The youth of sexual orientation legal research makes it unpredictable. Four likely future trends emerge. First, future research may well include increased use of empirical methods such as compilations data from court records in criminal or family law cases. Second, queer legal theory’s emphasis on post-identity analysis and legal doctrine’s focus on identity as a foundational category require that future scholarship address the tensions between deconstructing identity and reconstructing a legal regime that does not discriminate on the basis of sexuality or gender performance. Third, scholars are likely to try to resolve the analytical tension between a binary construction of sex that underlies gay theory and a fluid construction of sex that underlies transgender approaches. Fourth and finally, future scholarship and advocacy may focus on the legal regulation of heterosexuality and bisexuality, further developing the literature on how legal regulation misconstrues identity as fixed or natural. On an ideological level, theoretical research is likely to continue to develop in both liberal (assimilationist) and critical (utopian) strands.

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