Introduction
Davina Cooper*
The McGill Law Journal has put together an interesting and diverse set of papers
on sexuality and the law. My aim in this short introduction is to provide one pathway
through the collection, which takes as its focus the problematic of juridically inscribed
sexual equality. The special issue covers three broad, interconnecting areas: sexual
identity, sexual practices, and sexual community. I will discuss each of them in turn.
Sexual Identity
Against a backdrop of ongoing struggles for formal equality internationally (e.g.,
Daniel Borillo and Thierry Pitois-Etienne as well as Carl Stychin), the weight of this
collection is turned toward Canada as a place where direct legal discrimination against
lesbians and gay men has largely been outlawed. Some mopping up remains;
marriage, for instance, is not yet fully cleansed (see Martha Bailey); but, for many
papers in this special issue, the larger question has become: where else is there for law
to go (e.g., John Fisher, Robert Wintemute). In his paper, “Outlaws or In-laws?:
Successes and Challenges in the Struggle for LGBT Equality”, John Fisher argues
that indirect discrimination constitutes the current battleground. He suggests that
litigation has proven less successful where the law is neutral on its face but applied in
a discriminatory way. Nicole LaViolette makes a similar point in relation to the
discretionary application of immigration law to lesbian and gay applicants. Other
contributors also remark on the difficulty, as well as the necessity, of challenging
seemingly impartial laws whose impact on lesbian and gay citizens is both detrimental
and disproportionate.
Yet, while some forms of indirect discrimination can be successfully tackled
through the courts, contributors identify the difficulties and limits that confront the
judicial pursuit of equality. Many of the arguments made here echo and confirm
earlier critiques: for instance, the problem courts have in dealing with systemic forms
of disadvantage; their difficulty in addressing multiple, intersecting inequalities;
. Professor of Law and Political Theory, Director of the AHRB Research Centre for Law, Gender
and Sexuality, Kent Law School. I deal further with some of the issues raised in this introduction in
my recent book: Challenging Diversity: Rethinking Equality and the Value of Difference (Cambridge:
Cambridge University Press, 2004). I would like to thank Carl Stychin and Didi Herman for their help
in exploring some of the issues raised by this collection.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 809
Mode de r6f6rence : (2004) 49 R.D. McGill 809
810
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol 49
evidentiary biases; the legitimation of state power and violence; and the constitution
of minorities as victims. But the papers also raise, albeit sometimes implicitly, other
questions about how the law engages with sexual identity: namely, are all sexual
identities to be protected and valorized; is being an “identity” reason enough to
acquire juridical support; what, if anything, is particular or distinctive about being
lesbian and gay; and does law have any legitimate role or place within the sexual
arena, beyond supporting or enhancing difference?
The troubling character of the law’s identity politics circulates through several
contributors’ discussion of indirect discrimination. For, if disproportionate impact is to
be tackled, there needs to be a clear notion of when lesbians, gay men, or others are
disproportionately harmed. If indirect discrimination occurs when our “differences”
fail to be accommodated, we need to know what these differences are. While some
contributors highlight non-monogamy, pornography, and enjoyment of collective
sexual spaces, others emphasize the less heady differences that emerge in contexts
where discrimination and oppression prevail. Yet, what also surfaces in attempting to
pin down gay difference is methodological diversity. Where should we look to in
identifying how sexual difference is lived: to theory, legal texts, cultural imaginings,
qualitative research, or quantitative data? Can any of these, alone, provide sufficient
guide to knowing when indirect discrimination has occurred? And what kinds of
hybrid methodologies might offer a more satisfactory response to determining
disproportionate impact?
Sexual Practices
Identifying a disproportionate effect is also not enough, for regulatory structures
are premised on the notion that not all things should be, and certainly, that not all
things should be equally. While some papers, particularly those of Brenda Cossman
and Leslie Moran, adopt a more anti-hegemonic perspective, others in this collection
positively affirm the place for limits and boundaries when it comes to practice. The
relationship between practice and identity is not straightforward. In this issue, Rdmi
Samson’s article addresses
the nexus between beliefs and behaviour-between
essence and existence. More generally, the complexity of the way identity and
conduct shape each other has been subjected to extensive analysis by scholars in
lesbian and gay and queer studies. Yet while gay identity may neither produce, nor be
the effect of, gay conduct, and while what each term means is itself subject to
ambiguity and dispute, we can, perhaps, state that the regulation of sexual identities is
closely linked to the regulation of sexual practices. And sexual practices are regulated
on account of, and through, their relationship to harm.
In exploring what counts as harm, contributors to this collection focus on two
kinds of practice. These are individual and collective acts, and the distribution and
consumption of cultural
texts. Drawing on examples that range from popular
mainstream cinema (Brenda Cossman), to gay pornography (Christopher Kendall),
and procreative sexual activity among adults with learning difficulties (Kristin
Savell), the perspectives offered on harm, domination, and protection cover a wide
2004]
D. COOPER –
INTRODUCTION
spectrum-analytically as well as normatively. Alongside divergent opinions on the
role of law and, in particular, the consequences of progressive state protectionism,
how courts should respond to sexual acts is underpinned by a lack of consensus on
three elements: the power and impact of practices; the nature of injury; and the norms
and values that ought to be affirmed.
The first cleavage is most apparent in the divergence Brenda Cossman and
Christopher Kendall show towards erotic texts. These two papers, read together, raise
a number of questions about the impact texts have on readers, on those persons the
readers come into (sexual) contact with, and on wider society. They also ask us to
consider why sexual texts leave an impression or indentation. Is it their sexual quality
that renders them particularly productive and that makes the meanings they convey so
seductive? Do disruptive or troubling meanings-with their inbuilt, and in turn
constitutive, assumptions about what is the status quo-amplify a text’s impact?
Addressing these questions also requires us to think about textual reception. Work in
cultural, literary, and media studies has long complicated notions of how texts are
experienced and understood, rejecting the idea that there is a single message that
becomes lodged in the mind of every reader or viewer. But if people’s engagements
with sexual texts are more complex and negotiated, does this mean that texts that
eroticize relations of inequality and prejudice do not necessarily harm? Is harm, again,
something that requires demonstrating or proving? And through what methods can
such determinations productively, if not conclusively, be made?
The complexity of thinking about harm emerges in Kristin Savell’s article on the
sterilization of people with learning difficulties where injury to the reproductive
subject, their offspring, and wider society are all thrown into the judicial mix. Savell’s
analysis, alongside those of Cossman and Kendall, together demonstrate how disputes
over harm are underpinned by disputes over value. For instance, how central are
dignity, parity, and esteem to what counts as good sex, and can good sex only ever be
found
it, following Kendall’s
discussion, harmful to be “turned on” by the subjugation of a feminized man? And
who, or what, is injured by the erotic simulation of rape?
in good, sexual, reproductive relationships? Is
These and similar questions have been batted backwards and forwards for some
decades. At their most general, the dissensus and tensions they foreshadow is
foundational to Western, liberal courts’ current engagement with sexuality. For, if
overt legal discrimination in nations, such as Canada, is largely tackled, delving
deeper arguably depends on a shared conception of the problem that remains for the
courts to tackle. But is this problem sexual conservatism, the discrimination faced by
“new” sexual “minorities”, neo-liberal values, or something else?
Sexual Community
The question of identifying the norms and values underpinning the courts’
legitimate response to sexual diversity asks us to think about the relationship between
sexual minorities and the wider polity or community. Several papers in this collection
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol149
directly address this theme. In doing so, their focus ranges from the global and
national
to local community standards. Global, transnational, and cross-border
dimensions are addressed by Carl Stychin, Martha Bailey, and Nicole LaViolette.
While Bailey and LaViolette offer close readings of recent developments in Canadian
law, Stychin’s contribution provides an account of lesbian and gay equality’s recently
acquired role in transnational arenas. In particular, Stychin’s discussion addresses the
way certain human rights measures, such as decriminalizing homosexual conduct,
have come to provide a litmus test for global standards of national development. This
process has not been an easy and uncontested one as Stychin, Borillo and Pitois-
Etienne, and others address. It also has not engaged with all aspects of lesbian and gay
discrimination equally-prioritizing negative rather than positive freedom, and sex
acts rather than other social, interpersonal, or economic concerns. Stychin asks why
lesbian and gay agenda have acquired this particular, international role. He finds one
answer in their easy convergence with the broader discursive politics of human
rights-a claim that resonates with an earlier generation of work that focused on the
compatibility between lesbian and gay civil rights demands and modem, liberal anti-
discrimination paradigms, with their shared emphasis on a non-chosen and largely
immutable personal status.
Yet in considering the expanding hegemony of lesbian and gay rights, we need to
ask: what statuses and positions, what ideologies and perspectives, have been written
out as a result. In this collection, Bruce MacDougall focuses on the exclusion of the
young. His argument weaves together age-based and sexual orientation inequality to
argue that even when issues relating to gay sexuality and youths are addressed, this
tends to take place in the context of adults’ needs. Beyond this collection, the issue of
exclusion has proved topical in relation to the promotion of gay marriage and spousal
status. While critical work has addressed the marginalization of “deviant” or non-
respectable sexual lifestyles, equally important is the broader exclusion of the lesbian
and gay poor, particularly those without social and cultural capital, who fail to be
lauded as the pioneers of inner city gentrification.
The argument has been made that giving rights and respectability to some
lesbians and gay men goes hand in hand with the squeezing out of others. This
bifurcated political strategy
is a common one, witnessed in relation to sexual
orientation regulation at many times and places. One way of reading such normative
adjustments is through the resettlement and consolidation of “community standards”.
As both a legal term and political metaphor, this concept weaves its way through the
collection. Thus, Kristin Savell explores the threat seen to be posed to the social order
through the sexual acts and reproductive practices of people with learning disabilities;
John Fisher addresses the application of “community standards of tolerance” in the
courts’ interpretation of bawdy house provisions; Robert Wintemute considers the
collision between
those of other
constituencies, particularly religious ones; and Carl Stychin argues that in different
national disputes over the cultural encoding of “our way of life”, the presence as well
as the absence of gay rights has come to function as a key emblematic standard.
lesbian and gay community standards and
2004]
D. COOPER – INTRODUCTION
813
Conclusion
While many contributors adopt a positive approach to gay rights’ growing
domestication, as witnessed by the resettlement of national and community sexual
standards, Leslie Moran offers a more skeptical reading. His analysis explores how
the designation of homophobically motivated violence as a hate crime, in Britain, has
incorporated lesbians and gay men into the articulation and disavowal of juridical
emotion. Although Moran does not use the language of community standards, his
paper raises questions about whose hate has become outlawed, and whose hate
legitimized, in the production of new institutionally inscribed social norms. While
Moran worries about the punitive state agenda to which lesbian and gay rights have
become linked, more generally, this collection, in addressing community standards,
looks two ways. While some contributors, such as Kendall, are concerned with critical
and normative standards within the lesbian and gay community, others scrutinize
national standards, in the light of Canada’s increasingly consolidated status at the
vanguard of developing lesbian and gay formal, legal equality.
At the same time, the papers, not always explicitly, raise other, more critical
questions: about race, class and poverty, about transgender and intersex concerns.
These issues have been explored in the Canadian context and this collection, to the
extent it offers up a picture of Canada, needs to be read alongside them. It also needs
to be read alongside scholarship that imports other intellectual trajectories and debates
into legal scholarship, and which, in the process of doing so, also works to
problematize law.
Contributors
to this collection address judicial (as well as parliamentary)
ambivalence about engaging with sexual orientation inequality, alongside a portrayal
of law’s limitations in engaging in this field. Yet, the constraints of law, and, even
more, its productive bias-generating and facilitating certain statuses, desires, norms,
and relations of power, while depressing others-ask us to consider where else to
look for
institutional, community,
technological, and social relations evolved since the pioneering “sexuality and law”
scholarship of the 1980s and 1990s, and what implications do these changes have for
analysis in this field?
innovation and social change. How have
As Carl Stychin’s contribution on international human rights usefully reveals,
embarking on such an analysis brings a series of normative concerns in its wake. In
this collection, such concerns surface in relation to thinking about equality, authority,
boundaries, and transgression. More specifically, they emerge in the ambivalence and
divergence of opinion that circulates about what constitutes the good society beyond
the formal, legal inscription of sexual orientation equality. While such variation
allows the papers to be read alongside and, in some cases, against each other, the
collection also works, as a sutured whole, to identify a particular historical and spatial
juncture: that of the liberal, Western polity at the turn of the twenty-first century. It is a
juncture in which, as represented by this Special Issue, echoes and tracings of past
reforms and legal scholarship confront the fracturing norms of the emergent status
814
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol 49
quo. And it is in the dissenting responses to this new sexual settlement that alliances,
articulations, and cleavages outside the terms of liberal gay equality will-indeed
are-being forged.
