Legal Queeries
One strategy commonly used to attempt to address the inadequacies
of most social theory when dealing with the harsh reality
of contemporary social mores is to use history as a way of
taking apart “the self-evidence of the present”
, and therefore
my research will incorporate a history of sexuality in order
to use the past to reveal the social and political structure
of the present. It has been argued that “an analysis
of law is the wrong place to start if one wishes to understand
the regulatory strategies on sexuality”,
and writing about sex may be ‘dangerous’ in terms of creating a form of ‘moral suspicion’.
However in order
to justify it we need to work within the constraints of (morally)
acceptable discourse like law. The ensuing discussion will
focus on aspects of the law which serve to frame moral ideology.
Indeed “it would not be correct to say that every moral
obligation involves a legal duty; but every legal duty is
founded on a moral obligation.”
Queer By Choice?
It would be illogical to begin a discussion of the rights
of lesbians and gay men without first understanding what homosexuality
really is. Whisman scrutinizes the politics of identity and
the assumption that being homosexual is a choice. Many right-wing
political groups actively oppose homosexuality and see it
as an affront to traditional family values. Much anti-gay
propaganda has been published and such groups claim that the
true agenda of gay activists is to force a “perverse
and public sexuality on society.” They argue that homosexuals should not be afforded the same
civil-rights protection as heterosexuals on the basis that
homosexuality is a choice. Indeed some psychologists claim
to have an ability to ‘cure’ homosexuality, implying
that it is some form of disease that ought to be rid of. Most
homosexuals would generally believe that their sexuality is
not a choice, but something they are born with.
It is in the genes, in effect no different to being left-handed
or having ginger hair. The question of whether equal rights
should be afforded regardless of sexual orientation may thus
be seen to rest on this dichotomy. Anti-gay rhetoric will
use the term ‘sexual preference’ to imply choice,
while pro-gay rhetoric prefers to use ‘sexual orientation’,
denying choice.
The claim that homosexuality is both a disease and a wilfully
chosen behaviour does not appear to be consistent. However
this ignores the underlying line of reasoning; that homosexual
people are inferior, which is consistent. If homosexuality
is a disease, homosexuals are constitutionally inferior; if
it is a wilfully chosen behaviour, they are morally inferior.
This is the stance the present state of law would force us
to take.Although one cannot be blamed for an illness, one
can certainly be blamed for a sin – perhaps the strongest
nexus between the stigmatisation of homosexuality and the
notion that it is a choice.
It is often argued that the raising of a child by homosexual
parents induces that child to grow up to be gay themselves,
implying that there would be a choice.
However there have been a number of studies which have proved
that there is no connection between the sexual orientation
of a parent and that of his or her child.
It may be worth remembering at this point that it actually
takes two heterosexuals to make a homosexual! The right-wing
homophobic perception of homosexuality is grossly outdated
and the discussion will thus continue on the premise that
it is not a choice one can make, but something inherently
genetic.
Social Categorization
The conflict that exists between essentialist and constructionist
theorists
poses the question of whether ‘gay identity’ is,
in Fuss’s words, “empirical fact or political
fiction.” It is nonsensical to speak of ‘lesbian and gay rights’
if in fact no universal concept of a gay identity actually
exists. Essentialist theory states that, in terms of sexual
orientation, the categories ‘homosexual’ and ‘heterosexual’
are fixed, mutually exclusive entities. Thus the position
that everyone belongs to one group or the other can be easily
explained. Constructionists however, would argue that the
homosexual/heterosexual dichotomy does not actually exist.
Instead, social categorisation is informed by particular social
assumptions and discourse in any given society at any given
time. Concepts can therefore vary in terms of definition between
different social groups and in different periods of time.
The discussion can be broken down a stage further by distinguishing
between radical and moderate constructionism. Radicalists
believe that humans lack an intrinsic sexuality of any particular
type, and that individual sexual desires are socially determined,
as is their understanding of sexual desire. At the other end
of the spectrum, a moderate constructionist would argue that
while someone’s direction of sexual attraction may be
fixed biologically or psychologically, their perception of
sexuality is determined by their social climate. The moderate
constructionist stance appears to be the most prudent stance
if one conforms to the ‘gay gene’ theory.
Bamforth asserts that “‘gay’ is best seen
as a social label, not a biological one (italics provided). ” This
must be the correct interpretation, so far as it is a label
which society ascribes, and not a label defined as a continuing
concept (in the essentialist manner).
Rights – Legal or Social?
Just as a more concrete definition must be attributed to
homosexuality, so must the rights that homosexuals claim to
be entitled to. For homosexuals to build relationships became
a political struggle and the National Gay Liberation of the
United States claimed in 1970 that they had “the right
to be gay anytime, anyplace.” Soon after, the Gay Liberation Front in London called for
a right to behave
“in any way we choose, in any manner or style, with
any words or gestures, to wear whatever clothes we like or
to go naked, to draw or write or read or publish any material
or information we wish, at any time and in any place.”
These liberationist views, although somewhat extreme, illustrate
the different contexts rights can be seen in. The two main
forms of protection that can be conferred on rights are by
legal or social means. The law can act to prohibit encroachment
on such rights and thus provide legal remedies to those harmed.
On the other hand, societal attitudes towards certain behaviour
deemed to be ‘wrong’ can operate to prompt that
society’s abhorrence of such behaviour.
In staking such claims though, pro-gay movements are in fact
attempting to assert moral rights to those legal and social
privileges. Social acceptance of homosexuality is a far stronger
weapon than the ability to engage in homosexual activity without
fear of prosecution. It follows that unless homosexuality
can be incorporated into what society perceives as ‘moralistic’
behaviour, no laws passed in favour of it can be of any great
significance.
The nature of rights can be classified in philosophical terms
by reference to ‘will theory’ and ‘interest
theory’. According to the will theory, having a right
depends on the recognition of one’s choice (or will)
as being principal to that of other people with respect to
any given subject matter in any given relationship. The interest
theory, by contrast, asserts that central to a right is the
protection or promotion of one’s interests set against
any given person, by way of enforcing duties on that person.
The concept
of rights as entitlements must be informed by the interest
theory. Will theory cannot explain the existence of paternalistic
laws, which grant people rights they cannot, by definition,
waive. Thus if there is a strong enough reason to protect
or promote a given interest (i.e. homosexuality), it will
provide justification for a corresponding (moral) right. Consequently,
this moral right must bestow legitimacy on the use of law
to protect those rights in society.
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