Constituting sexuality: rights, politics and power in the gay rights movement

Abstract

Human rights and sexuality are both complex, contested productions, the subject of much debate in the arenas in which they are deployed. In spite of this, the language of human rights is increasingly used in relation to sexual identity and LGBT issues, and rights have become a powerful means through which claims relating to sexuality and sexual orientation are made. Some campaigners have celebrated the linking of rights language with that of sexuality, arguing that it creates new and useful conceptual tools. Others, however, have questioned how helpful the role of rights, particularly international human rights, can be in such contested discourses as those which surround sexuality, and what impact appeals to international bodies can have on local understandings of both sexual subjectivity and sexual identity.

In light of these concerns, this contribution explores the limitations of the gay rights discourse, its potentially creative capacity and the problems of both. It asks what the role of rights has been and should be in the creation of a visible, nameable sexual subject and what this might mean both for gay rights politics and for the way that we think about law, sexuality and marginality.

Keywords:

• sexuality
• sexual orientation
• human rights
• gay rights
• sexual subjectivity

Notes

United Nations  Letter dated 18 December 2008 from the permanent Representatives of Argentina, Brazil, Croatia, France, Gabon, Japan, the Netherlands and Norway to the United Nations, addressed to the President of the General Assembly, 63rd Session, Agenda Item 64[b], U.N. Doc A/63/635, 22 Dec 2008.

Kate Sheill, ‘Human Rights, Sexual Orientation, and Gender Identity at the UN General Assembly’, Journal Human Rights Practice  (2009), 317.

Human Rights Committee  Toonen v Australia, Communication No. 488/1992 UN Doc CCPR/C/50/D/488/1992 (1994).

I. Saiz, ‘Bracketing Sexuality: Human Rights and Sexual Orientation – A Decade of Development and Denial at the UN’, in Parker and Aggleton (eds), Culture, Sexuality and Society (London: Routledge, 2004), 468.

Emma M. Henderson, “‘I'd Rather Be an Outlaw': Identity, Activism, and Decriminalization in Tasmania”, in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (London: Athlone, 2000).

‘I would argue that the strong community resistance, for example, to safer sex education, and the exclusion of gay sexuality in the public school sex-education curriculum failed to substantially challenge many of the prejudices which have made up the bulk of the decriminalisation debate for the past 40 years’, ibid, 48.

Douglas Sanders, ‘Sexual Orientation in International Law,’ ILGA, www.ilga.org.

W. Brown, States of Injury: Power and Freedom in Late Modernity (New Jersey: Princeton University Press, 1995), 79–81.

Ibid.

Wayne Morgan, ‘Queering International Human Rights Law’, in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (London: Athlone, 2000), 212.

O. Phillips, ‘Zimbabwean Law and the Production of a White Man's Disease’, Social and Legal Studies 6, no. 4 (1997), 478–479.

Ibid., 478.

Ibid., 480.

Pierre De Vos, ‘On the Legal Construction of Gay and Lesbian Identity and South Africa's Transitional Constitution’, South African Journal on Human Rights 12 (1996), 271.

‘The law is clearly a system of desire in which provocation and voyeurism have their own place: the phantasy of the cop is not the creation of the homosexual's deranged mind but the reality of a deviant desiring operation on the part of the police and the judiciary’, Guy Hocquenghem, Homosexual Desire, trans. Estate of Guy Hocquenghem (London: Duke University Press, 1993), 66.

For example, Weeks suggests that under capitalism, sex is increasingly commercialised and commoditised and thus isolated from other aspects of self and social life.  J. Weeks, Sexuality and Its Discontents (London: Routledge, 1985).

J. D'Emilio, ‘Capitalism and Gay Identity,’ in A. Snitow, C. Stansell, and S. Thompson (eds), Powers of Desire: The Politics of Sexuality (New York: Monthly Review Press, 1983), reprinted in Parker and Aggleton (eds), Culture, Society and Sexuality: A Reader (Oxon: Routledge, 2007).

See Dennis Altman, ‘Rupture or Continuity? The Internationalization of Gay Identities’, Social Text, no. 48 (1996), 77.

For the development of the ‘European' approach to sexual rights see Stychin, A Nation by Rights: National Cultures, Sexual Identity Politics and the Discourse of Rights (Philadelphia: Temple University Press, 1998), chapter 5.

Jin Hariataworn, Tamsila Tauqir and Esra Erdem, ‘Gay Imperialism: Gender and Sexuality Discourse in the “War on Terror”’, in Adi Kuntsman and Esperanza Miyake (eds), Out of Place: Interrogating Silences in Queerness/Raciality (York: Raw Nerve Books, 2008), 79.

See Jasbir K. Puar, ‘Homonationalism and Biopolitics,’ in Adi Kuntsman and Esperanza Miyake (eds), Out of Place: Interrogating Silences in Queerness/Raciality (York: Raw Nerve Books, 2008).

Recent articles and publications on this topic have facilitated much debate and contention.  The two notes above are taken from contributions to the book in A. Kuntsman and E. Miyake (eds), Out of Place: Interrogating Silences in Queerness/Raciality (York, Raw Nerve Books).  For debates surrounding this book's publication and subsequent removal from print by the publisher see Raw Nerve Books, ‘Peter Tatchell: Apology and Correction’, http://www.rawnervebooks.co.uk/ (accessed 28 June 2010). Peter Tatchell's commentary ‘Academics smear Peter Tatchell’, http://www.petertatchell.net/politics/academics-smear-peter-tatchell.html (accessed 28 June 2010).

Rosi Braidotti, Nomadic Subjects: Embodiment and Sexual Difference (New York: Columbia University Press, 1994), 49.

Henderson, ‘I'd rather be an outlaw’, note 5.

C. Douzinas, The End of Human Rights (Oxford: Hart, 2000), 271–295.

Brown, States of Injury, note 8.

Karl Marx, ‘On the Jewish Question,’ in M. Ishay (ed), The Human Rights Reader (London: Routledge, 2007).

B. Kneen, The Tyranny of Rights (Ottowa: The Ram's Horn, 2009), 16.

Ibid., 27.

Sara Ahmed, Strange Encounters: Embodied Others in Postcoloniality (London: Routledge, 2000), 6.

Suparna Bhaskaran, Made in India: Decolonizations, Queer Sexualities, Trans/National Projects (New York: Palgrave Macmillan, 2004), 21.

Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003), 56.

‘[M]ainstream human rights discourse is incapable of understanding a claim for liberty that is not cognizable within this apparatus of modernity.  The moral possibilities of the state then, in this view function to constrain the range of human rights that can actually be realised.  This view suffers from an over-reliance on the state as the essential instrument of social change.’ Ibid., 193.

Morgan, ‘Queering International Human Rights Law’, 212.

Wendy Brown, Regulating Aversion (Woodstock: Princeton University Press, 2006).

For example, in Falk's assessment of international human rights documents: ‘It goes back to the UN charter itself which gives the five permanent members of the Security Council a veto.  And that veto, in effect, is saying that the UN charter and international law do not apply to the powerful. The charter is a regulatory framework for the weak.  The strong have impunity and exemption’ cited in Kneen, The Tyranny of Rights, 18, note 28.

Donna J. Haraway, Simians, Cyborgs and Women: The Reinvention of Nature (London: Routledge, 1991), 190.

Pierre De Vos, ‘“The Constitution Made Us Queer”: The Sexual Orientation Clause in the South African Constitution and the Emergence of Gay and Lesbian Identity’, in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (London: Athlone press, 2000), 200.

O. Phillips, ‘Constituting the Global Gay: Issues of Individual Subjectivity and Sexuality in  Southern Africa,’ in D Herman and C. F Stychin (eds), Sexuality in the Legal Arena (Athlone, 2000), 29.

Raewyn Connell, Southern Theory (Polity, 2007), 104.

Ibid., 221.

Rajagopal, International Law From Below, 174, note 32.

Veena Das, Critical Events: An Anthropological Perspective on Contemporary India (New Delhi: Oxford University Press, 1995), 12–14.

Alice Miller expands on this point in A. Miller, ‘Sexuality, Violence against Women and Human Rights: Women Make Demands and Ladies Get Protection’, Health and Human Rights 7, no. 2 (2004). This point is also made by Signe Arnfred who argues that assumptions from colonial and missionary discourses and imaginations of ‘African Culture’ and patriarchy influenced the construction of narratives that defined all African women as downtrodden victims, thus legitimating Western efforts to ‘save’ them. Signe Arnfred, ‘Re-Thinking Sexualities in Africa: Introduction’, in Signe Arnfred (eds), Re-Thinking Sexualities in Africa (Uppsala: The Nordic Africa Institute, 2004), 12–14.

Ahmed, Strange Encounters, note 30.

Puar, ‘Homonationalism’.

Brown,  States of Injury, note 8.

Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’, in Parker and Aggleton (eds), Culture, Society and Sexuality: A Reader (London: Routledge, 2003). Rubin argues that Western societies classify sex acts according to a hierarchical system of value, with heterosexual married coupledom as the most desirable and everything else falling somewhere below this on a sliding scale of acceptability.

Connell discusses this issue in relation to post colonial struggles against established power in Connell, op. cit.

For example, Robert A. Williams Jnr, ‘Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Colour’, Law and Inequality 103, no. 5 (1987), 121–134.

C. F. Stychin, ‘Same-Sex Sexualities and the Globalization of Human Rights Discourse’, McGill Law Journal 49 (2004), 38.

Mikki van Zyl, ‘Shaping Sexualities – Per(Transforming) Queer,’ in Mikki van Zyl and Melissa Steyn (eds), Performing Queer – Shaping Sexualities 1994–2004 – Volume One (Kwela Books, 2005), 19.

W. Morgan, ‘Law and Change, Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations’, Melbourne University Law Review 3 (1994), 740–741.

Puar, The Tyranny of Rights, 57.

Brown, States of Injury, 66, note 8.