August 26, 2007
In her major essay, "Queer and Now," literary theorist Eve Kosofsky Sedgwick asked why we should expect to infer reliably a person's gender identity and sexual practice from a cursory observation of secondary, or in some cases primary, sex characteristics.
She invoked "queer" as a term to capture as widely as possible the potential combinations of gender identity, sexual orientation, and sexual practice that violate existing norms. Sedgwick was an early practitioner of what came to be called "queer theory," or the intellectual effort to understand the political/cultural effects of beliefs and practices surrounding issues of sexuality and gender.
Like the acronym "LGBT," "queer" strives to encompass virtually any variation in sexuality and gender that anyone could think up, with only very libertarian boundaries marked by consent. One could contemplate substituting "queer" for "LGBT" entirely in order to stop using an awkward and confusing acronym, and to allow for future expansion to include groups we don't know about yet, but many potential constituents of a "queer" movement continue to object to the term.
The queer approach to the topic begins by rejecting the proposition that gender identity and/or sexual orientation flow in any "natural" or inevitable way from genital configuration or other bodily elements of "sex." Whatever links one may be able to demonstrate between the meanings of various terms describing sexuality and gender, and body parts as referents, queer theorists suspect that the meanings are more the result of cultural than biological determination.
Many, perhaps all, queer theorists consider discrimination against sexual minorities to be unjust and unjustifiable. Heterosexual supremacy -- the belief that heterosexual persons are somehow inherently superior to queers -- is a form of regulation for its own sake. No rational or empirical justification exists for any form of discrimination in law or policy against LGBT persons.
But heterosexual supremacy is endlessly creative in its legal manifestations, requiring constant observation and critique. That the issue is not really "homosexual" conduct or persons per se, but control over representations of "homosexuals," becomes increasingly clear from the way the law has changed. In Bowers v. Hardwick, 478 U.S. 178 (1986), the Supreme Court examined a facially neutral sodomy statute to determine if "homosexuals" had a right to engage in sodomy. The Court first endorsed the trial court's dismissal of a heterosexual couple for lack of standing -- they were in no danger, according to the Supreme Court, of suffering the harm of enforcement of the statute against them even though they expressed the desire to engage in conduct that the statute prohibited and felled chilled from doing so. Id. at 188 n.2.
In other words, no one could reasonably expect that any law enforcement officer would arrest heterosexuals for violating the statute that they arrested Michael Hardwick for violating even though the statute prohibited conduct defined exclusively in terms of body parts, with no reference whatsoever to the gender or sexual orientation of the participants. See id. at 188 n.1. It is hard to imagine a clearer admission that the issue with respect to queers is status, not conduct, and that a majority of Supreme Court Justices, at least in 1986, took so much for granted the legitimacy of status-based discrimination against "homosexuals" that they uncritically endorsed it in a decision.
From a purely legal perspective, of course, Lawrence v. Texas, 539 U.S. 558 (2003), was a huge improvement. Now, no one in the United States is subject to arrest for engaging in consensual sodomy. However, as various observers have pointed out, the Lawrence decision still involves the deployment of rhetorical control over same-sex relationships, assimilating them as much as possible to opposite-sex relationships as the justification for striking down sodomy statutes.
Why do same-sex couples only get "liberty" to engage in sexual activity when their relationships look like those of opposite-sex couples? The only answer I can see is that, at least as currently interpreted by the Supreme Court, the United States Constitution's definition of citizenship contains an implicit requirement of heterosexuality.
On the other hand, Justice Kennedy came suprisingly close to performing a queer theoretical analysis of his own in the Lawrence opinion. One of the key moves that allowed queer theorists to begin examining the cultural politics of sexuality and gender apart from biology and anatomy was the growing historical and theoretical evidence in the late 1970s and early 1980s for significant variation in definitions of proper sexuality and gender over time and across cultures. If bodies change their configuration only over evolutionary time, but historians and anthropologists can document substantial variation in historical time in what humans do with those bodies under the western rubric of "sexuality," then the variations must reflect differences of culture, not of biology. At the height of debate over Simon Levay's claim to have found significant differences in brain structures between gay and non-gay men -- the claim, that is, to have grounded the difference of sexual orientation in a difference of anatomy -- Sedgwick asserted that the focus was misplaced not least because humans have proven much more successful at deliberately changing our biology than our culture. In this respect, she echoed feminist legal theorist Catharine MacKinnon.
Kennedy, in turn, relied in Lawrence on the assertions of three historians, Jonathan Ned Katz, Estelle Freedman, and John D'Emilio, that "homosexual" did not exist as a category of persons before the late nineteenth century (the historians' brief in Lawrence offered 1868, the same year as the ratification of the 14th amendment, as the year in which a German researcher first published a paper describing something like the modern notion of "homosexuality").
This move allowed him to identify the novelty of the Texas statute at issue in Lawrence -- laws providing criminal penalties for sodomy may have existed in the Anglo-American tradition since Henry VIII broke from the Catholic Church, as the Bowers Court noted, but those laws never singled out same-sex couples as the only types who could violate them. Statutes singling out same-sex couples were an innovation of the 1970s -- the first decade of the modern lesbian/gay civil rights movement.
As the next post, on a recent rejection of an asylum claim by a Lithuanian lesbian, demonstrates, the problem is still regulation of queers solely for the sake of regulation. Now, however, instead of a blanket prohibition on same-sex conduct, judges get to enforce definitions of who is and who is not properly queer.
For more information on queer theory, see my A Genealogy of Queer Theory (2000).
TrackBack URL for this entry:
Listed below are links to weblogs that reference Defining "queer":
I think the term queer is stupid. The term was and still is used as a derogatory term for homosexuals, and combined with the fact that the new definition isn't very widespread the wholesale use the "community" uses of the word queer to define themselves just makes them sound idiotic and it doesn't tell you ANYTHING about their actual orientation/genitalia/ect(besides the fact that they aren't heterosexual and/or not with normal anatomy). What's wrong with saying, "I'm gay", or "I'm a lesbian", or "I'm bi, but I think like women more" or any variety on that? It may not be "chic" like calling yourself queer, but I prefer unambiguous honesty. I'm bi, but I think I like women more. Is that so hard?
Posted by: ItsDumb | Jun 24, 2009 9:04:21 AM