(Homo)normative legal discourses and the queer challenge

2011] DURHAM LAW REVIEW 77

(Homo)normative Legal Discourses and the Queer Challenge

Chris Ashford*

Recent legal reform in English law has dramatically changed the legal
status of the homosexual. Once a social and legal pariah, the
contemporary queer finds themselves apparently benefitting from
unprecedented legal rights. However, this article seeks to argue that these
new-found rights - whether they be in the construction of the family, the
workplace or in the operation of leisure - operate so as to enshrine in law
a homosexual identity anchored in domesticity and Rubin’s
conceptualisation of ‘good’ sex. This article seeks to explore the
emergence of the new (homo)normative legal discourse and how two
sexual phenomena - barebacking and public sex - continue to present
socio-legal challenges to its operation.

Introduction

The last decade brought a transformation in the legal lives of lesbians and
gay men. The introduction of new legal protections in the form of the
Civil Partnership Act 2004, Equality Acts (2006 and 2010) provisions,
new hate crime measures in the Criminal Justice and Immigration Act
2008 and new rights for lesbian mothers in the Human Fertilisation and
Embryology Act 2008, as well as the repeal of a host of legislation that
was seen as having an oppressive impact, such as the ban on lesbians and
gay men serving in the armed forces, Section 28 of the Local Government
Act 1988 and an unequal age of consent.

Harding has commented that ‘it would be wrong to summarise that these
legislative changes necessarily remove any discrimination from the
everyday lives of lesbians and gay men’.1 In a deeply personal section
later in her 2011 book, Regulating Sexuality, Harding discusses her status
as a lesbian in a civil partnership with the hope and expectation that she
will have children with her partner, yet rather than being a mother or
father, she will be a ‘parent’. Rather than being single or married, she is a
‘civil partner’.2 She is noting the positioning of herself into a new legal
identity, whilst also accepting the ease with which these labels can allow
one to ‘hide’ behind a cloak of heterosexuality as evidenced by the vast

*
Reader in Law and Society, University of Sunderland, UK.
1
R Harding, Regulating Sexuality: Legal Consciousness in Lesbian and Gay Lives
(Routledge, Abingdon 2011) 1.
2
ibid 180-181.

78 (Homo)normative Legal Discourses [VOL. 1

number of gay men and women, in civil partnerships but who refer to
themselves as “married”.

These new legal labels, I will argue, are symptomatic of the emergence of
the (homo)normative legal discourse. More than ‘a cloak of
heterosexuality’, these shifts in legal identity represent the new
(homo)normative. Although, this is a concept some regard as
oxymoronic,3 it is nonetheless a legal narrative that can be seen in the
changes Harding outlines, and in the sexual activity and identities that lie
outside this identity.

Whilst (hetero)normativity is a well established term, meaning the
institutions, structures and understanding of orientation that make
heterosexuality seem coherent and privileged, the term (homo)normative
is comparatively new, and Berlant and Warner have previously suggested,
it is a concept that cannot exist, owing to the lack of tacit ‘rightness’ that
heterosexuality has.4 However, since Berlant and Warner argued that
position, there has been a dramatic shift in the legal landscape, that
necessitates a re-consideration of that position.

Duggan has previously noted that this new (homo)normative discourse is
a type of politics and theory ‘that does not contest dominant
heteronormative assumptions and institutions, but upholds and sustains
them, whilst promising the possibility of a demobilized gay constituency
and a privatized, depolitized gay culture anchored in domesticity and
consumption’.5 The UK gay legal rights agenda of the last decade has
served to fulfil this very role.

Harding’s stated desire for parenthood and her apparent acceptance of a
civil partnership is therefore an action of demobilisation, of depoliticising
her life, through the acceptance of a political settlement. In a future world
of nappies and tuition fees, it is a life anchored by the very domesticity
and consumption that Duggan suggested. This is not to criticise Harding.
She is merely one of many who have apparently accepted a new
(homo)normative6 legal status.

3
R Leckey and K Brooks, Introduction, in R Leckey and K Brooks (eds.) Queer Theory:
Law, Culture, Empire (Routledge, Abingdon 2010) 6.
4
L Berlant and M Warner, ‘Sex in Public’, in L.Berlant (ed.) Intimacy (University of
Chicago Press, Chicago 2000) 312.
5
L Duggan, The Twilight of Equality? Neoliberalism, Cultural Politics, and the Attack
on Democracy (Beacon Press, Boston 2003) 50.
6
After the initial surge in civil partnerships (as one might expect given pent-up desire),
the figures have consistently fallen but a sizable number of lesbians and gay men
continue to enter into civil partnerships. The Office for National Statists reported that
same-sex couples formed 6,281 civil partnerships (3,227 male and 3,054 female) in the
UK in 2009. The total number of partnerships formed since the Civil Partnership Act
came into force in December 2005 up to the end of 2009 is 40,237. See:


The homosexual male or female is granted a legal status that can be
viewed as prima facie (hetero)normative and which also seeks to define a
new (homo)normative, including ‘families of choice’.7 It shifts a legal
discourse that constructed gay men in the 1970s and 1980s as evocative
of disease and promiscuity and prior to 19678 as the victims of blackmail,
men hiding in the legal shadows.9 This negative discourse is replaced by
an assimilationist legal discourse in which the homosexual is constructed
as ‘one of us’. Harding’s focus on the ‘difference’ of her potential status
as ‘parent’ rather than ‘mother’, is to perhaps under-estimate the
normative power of the term ‘parent’.

Cobb has rightly described these more recent landmark legal
developments as ‘a conservative political agenda grounded in demands
for citizenship rights and dictated by the equality agenda of identity
politics, it has exclusionary implications for the parameters of the
debate’.10

It was this critique of the right-of-centre that appeared to inspire
Duggan’s own observation of the new (homo)normative, as set out by the
Independent Gay Forum (now Independent Culture Watch). ICW made
direct reference to the title of Bruce Bawer’s right-wing based argument
for gay rights,11 in stating that ‘Gays are now taking their place at the
American political and cultural table’. Along with Andrew Sullivan’s
Virtually Normal,12 there was an attempt, particularly in American socio-
legal politics to develop an alternative argument about gay rights, one that
promotes gay rights but challenges the established arguments of the left.
Those goals appear to have ironically been fulfilled by a central-left
government in the UK.13

http://www.statistics.gov.uk/cci/nugget.asp?id=1685 (accessed 26 February 2011).
These are the most recent statists available at the time of writing.
7
See: J Weeks, B Heaphy and C Donovan, Same Sex Intimacies: Families of Choice
and Other Life Experiments (Routledge, London 2001) passim.
8
Sexual Offences Act 1967. Section1 of this Act legalised consensual homosexual acts
for adult males aged 21 or above, providing they took place ‘in private’.
9
See more generally: Home Office, Report of the Committee on Homosexual Offences
and Prostitution, Cmnd 247 (HMSO, London 1957); P Wildeblood, Against the Law
(Weidenfield & Nicolson, London 1955).
10
N Cobb, ‘Queer(ed) Risks: Life Insurance, HIV/AIDS, and the ‘Gay Question’ (2010)
37 Journal of Law and Society 4, 620.
11
B Bawer, A Place at the Table: The Gay Individual in American Society (Touchstone,
New York 1994).
12
A Sullivan, Virtually Normal: An Argument About Homosexuality (Picador, London
1995).
13
The Labour government of 1997-2010, led first by Tony Blair (1997-2007) and then
Gordon Brown (2007-2010).


These legal developments were crucial in shifting the (homo)sexual
narrative beyond one of promiscuity and deviant sex. Strongheart
commented that ‘it is absolutely astounding how many uninformed
Heterosexuals think that all lesbians, Gays and Bisexuals do is engage in
gratuitous sex without bothering to court or commit’.14 This was an
important, and purposeful re-positioning of identity through the
bestowing of legal rights.

In a bid to respond to the concerns of Strongheart and those of a similar
mind, together with recalibrating the LGB discourse to take account of
views of the right-of-centre, there has been a legal re-balancing that
rejects the very notion of the ‘gratuitous sex’ Stongheart dismisses.
Gratuitous sex becomes ‘Othered’, and cast beyond the emergent
(homo)normative legal discourse. Whilst we cannot separate the erotic15
from the identity of the homosexual, that is in part what the law has
sought to do, shifting sex from the ‘public’ to the ‘private’ sphere.

Perhaps, as Kemp has suggested, we should be unsurprised by the debate
around contemporary legal discourses. They do reflect Kemp’s truism
that ‘as long as the ‘homosexual’ has existed as an entity, questions as to
what an identity is have followed’.16 Today, competing discourses seek to
define a singular normative identity that favours domesticity and ‘good’
sex over raw erotic desire.

This article explores the queer legal theoretical landscape17 by focussing
upon two specific erotic challenges to the emergent (homo)normative
legal discourse - bareback (condomless) sex as raw sexual authenticity
and public sex - both phenomena operating as transgressive forces within
the contemporary queer existence. This article will use a queer legal
theoretical framework to question the current ‘Othering’ of these sexual
phenomena and the emergence of the (homo)normative.

14
A A S Strongheart, ‘The Power to Choose: We’re Here, We’re Queer, and We Want
to Get Hitched’, in R E Goss and A A S Strongheart (eds.) Our Families, Our Values:
Snapshots of Queer Kinship (Harrington Park Press, New York 1997) 80.
15
J Weeks et al (n7) 132.
16
J Kemp, ‘Queer Past, Queer Present, Queer Future’, Graduate Journal of Social
Science 6(1) 2009, available at:
http://www.gjss.org/images/stories/volumes/6/1/0906.1a02kemp.pdf (accessed 8 January
2011).
17
See, more generally on queer legal theory: L R Kepros, ‘Queer Theory: Weed or Seed
in the Garden of Legal Theory’, 2000 Law & Sexuality 9, 279-310.


The Queer Debate

Although short-lived, the Gay Liberation Front (GLF) offered a radical
alternative to the equality movement. Their Manifesto, published in 1971
began by stating:

The oppression of gay people starts with the most basic unit of society,
the family, consisting of the man in charge, a slave as his wife, and their
children on whom they force themselves as the ideal models. The very
form of the family works against homosexuality.18

This was a bold and radical assertion that rejected the desire to be like
heterosexuals, and any desire to be legally positioned in the same way as
them. The GLF instead sought a fundamental recalibration of society and
legal discourse. Contemporary domesticity and consumerism would be
ripped up in order to overcome the slavery and oppression that was
inherent within these social and legal institutions.

The group’s very radicalism meant it was easy to dismiss their ideas as
extreme or unworkable. Grey has argued that the GLF served only to
create a new stereotype in the public imagination, that of the ‘loony lefty
queer’. He described an image of the ‘blatant, flaunting, determinedly
iconoclastic, far-out, far-Left sexual rebel, despising and challenging all
society’s accepted values and scornful of those homosexuals – the
majority – who still kept their heads down’19. Grey, a key historical figure
and activist, felt that overcoming the socio-legal oppression of the
homosexual was an immensely desirable goal, but it needed to be
achieved in a different way to that advocated by the GLF.

This approach of ‘keeping your head down’, and appearing as a
mainstream campaign organisation is perhaps now personified in the
operation of the group Stonewall,20 whose current chief executive labelled
those who criticise the heteronormative as ‘po-faced sociologists in
university common rooms’21 and re-stated, without any hint of irony, the
merits of a ‘wedding list at Debenhams and a honeymoon in the
Maldives’, for these attributes ‘makes [us] pretty much the same as
everyone else’.22

Stonewall was originally established in 1989 to campaign against Section

18
A Grey, Quest For Justice: Towards Homosexual Emancipation (Sinclair-Stevenson,
London 1992) 178.
19
ibid 183.
20
http://www.stonewall.org.uk/ (accessed 26 February 2011).
21
B Summerskill, ‘Introduction’, in B. Summerskill (ed.) The Way We Are Now: Gay
and Lesbian Lives in the 21st Century (Continuum, London 2006) 3.
22
Ibid 3.


28 of the Local Government Act 1988.23 Today, it continues to lobby and
campaign, particularly in relation to homophobic bullying in schools. The
charity also works with ‘a whole range of agencies to address the needs of
lesbians, gay men and bisexuals in the wider community.’ The Stonewall
logo also increasingly appears on job vacancy adverts, with employers
achieving the status of ‘Diversity Champions’ after meeting a number of
equality criterion set out by Stonewall.24

In contrast, Outrage!25 might be seen as being in the GLF ‘tradition’.
Founded in 1990, the group today describes itself as: ‘a broad based
group of queers committed to radical, non-violent direct action and civil
disobedience to: assert the dignity and human rights of queers; fight
homophobia, discrimination and violence directed against us; and affirm
our right to sexual freedom, choice and self-determination’.26 Outrage!
‘leader’ Peter Tatchell described their goal in typically queer theoretical
terms:

The only reason there currently exists a hetero/homo divide, with
competing identities and behaviours, is because one form of sexuality
has been deemed more valid than the other. The division exists to
reinforce and perpetuate that value judgment…Homosexuality is thus a
categorization invented by straights to marginalize and constrain queer
love within an identifiable, demonized minority.27

These two groups represent the two key lobbying groups for sexual law
reform in the UK.28 By the 1990s, and the founding of Outrage!, figures
such as the writer and commentator Mark Simpson29 were questioning the
new idea that it was ‘fabby to be gay’. He commented, with considerable
irony that ‘Gay is, after all, good, and everyone fortunate enough to be
gay is, of course, glad – when they’re not too busy feeling proud. Which
is perfectly understandable since gays, as we all know, have the best
clubs, the best drugs, the best underwear shops and the best time. In fact,
gays are so glad and proud that they have a big, sweaty street party every
year to show the world just how glad they are and what great underwear

23
This banned local authorities (and crucially, schools) from promoting homosexuality
as a ‘pretended’ family relationship. It served to simply silence schools and the public
sector on the question of homosexuality. See, more generally: M Colvin and J
Hawksley, Section 28: A Practical Guide to the Law and its Implications (National
Council for Civil Liberties, London 1989).
24
http://www.stonewall.org.uk/about_us/2532.asp (accessed 26 February 2011).
25
http://outrage.org.uk/ (accessed 26 February 2011).
26
http://outrage.org.uk/about/ (accessed 26 February 2011).
27
P Tatchell, ‘It’s Just a Phase: Why Homosexuality is Doomed’ in M Simpson (ed.)
Anti-Gay (Freedom Editions, London 1996) 44.
28
It is worth noting there are separate Stonewall organisations in Scotland and Wales.
29
Who also claims to have coined the term ‘metrosexual’.


they have’.30 By 1999, the launching of the landmark Channel 4
television series, Queer as Folk presented the lives of modern gay men
and lesbians. The lesbian characters could now have a child, and used
existing law to ensure rights over that child. The male characters were
presented as hedonists, their lives revolving around commercial queer
space in the form of Manchester’s Canal Street, and Internet hook-ups.31
Law and political campaigns were largely absent. There was no stated
desire for civil partnerships, same-sex marriage, new adoption and IVF
rights, or goods and services protection. In retrospect, this was the last
hurrah before the assertion through law of a (homo)normativity that de-
eroticised the homosexual identity, and transformed the construction of
the homosexual in law.32

In contrast to the relatively quiet manner in which civil partnerships were
introduced into English law, the US has engaged in a fierce debate around
same-sex marriage, particularly amongst academics, as various states
have sought to introduce same-sex marriage, and over-turn the Defence of
Marriage Act at a federal level.33 The argument has often been
characterised as being either for or against marriage, or for or against civil
unions with a small number of scholars –notably Polikoff34 – challenging
anything that seeks to create a single privileged category. Those theorists
who do challenge the boundaries of this debate, have advocated a more
flexible multi-relationship framework.35

In English law, the closest comparison is perhaps the current Equal Love
campaign.36 The campaign and legal action seeks to challenge the
existing law that marriage, as defined by the Matrimonial Causes Act
1973, and the law regarding civil partnerships in the Civil Partnership Act
2004 create exclusive categories. Thus, only different-sex couples can

30
M Simpson, ‘Gay Dream Believer: Inside the Gay Underwear Cult’, in M Simpson
(ed.) Anti-Gay (Freedom Editions, London 1996) 1.
31
See, R T Davies, Queer as Folk: The Scripts (Channel 4 Books, Basingstoke 1999),
and G Davis, Queer as Folk (BFI Publishing, London 2008).
32
See, more generally, on the pre-1997 position of homosexuality in law: L Moran, The
Homosexual(ity) of Law (Routledge, London 1996).
33
In February 2011, the law, originally introduced by the Clinton administration, was
deemed unconstitutional by the Obama administration, and the US federal government
announced they would not defend DOMA in two specific cases. See:
http://www.pinknews.co.uk/2011/02/23/video-barack-obama-rules-us-will-no-longer-
defend-the-anti-gay-defense-of-marriage-act/ (accessed 26 February 2011).
34
N D Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families under the
Law (Beacon Press, Boston 2008).
35
See more generally, C Calhoun, Feminism, The Family, and the Politics of the Closet:
Lesbian and Gay Displacement (Oxford University Press, Oxford 2000) and G
Chauncey, Why Marriage? The History Shaping Today’s Debate Over Gay Equality
(Basic Books, New York 2005).
36
http://equallove.org.uk/ (accessed 15 March 2011).


enter into marriages and only same-sex couples can enter into civil
partnerships.

These legal moves have continued to cause concern for some queer and
feminists legal theorists such as Auchmuty and others.37 Jeffrey Weeks, in
contrast, finds the current debate around legal reform and same-sex
marriage pregnant with irony. He observes an ‘illuminating irony of our
time’ that ‘at the same time as American conservatives find same-sex
marriage an intolerable threat, queer radicals apparently see same-sex
marriage as not enough of a threat, and an unacceptable surrender to
heteronormativity’.38

Yet as Halperin has noted, queer derives meaning from its oppositional
relationship to the norm. Thus, the legal ‘norms’ of monogamy,
consumerism and reproduction remain intact within the discourse of civil
partnerships, and same-sex marriage. Queer is however, an ever-shifting
theoretical position. Put simply, ‘there is nothing in particular to which is
necessarily refers’, it is, in Haleprin’s words, ‘an identity without
essence’.39

Nonetheless, Rubin has argued that a sex hierarchy exists, between what
she termed a ‘charmed circle’ and ‘the outer limits’, and between ‘good’
and ‘bad’ sex. Queer theory offers a theoretical framework that seeks to
move beyond these boundaries, boundaries which are defined and
enforced by the law, and which I would argue, compose the
(homo)normative.

Rubin’s ‘charmed circle’ characteristics consisted of: heterosexual,
married, monogamous, procreative, non-commercial, in pairs, in a
relationship, same-generation, in private, no pornography, bodies only,
and vanilla. Her ‘outer limits’ category consisted of: homosexual,
unmarried, promiscuous, non-procreative, commercial, alone or in

37
R Auchmuty, ‘Out of the Shadows: Feminist Silence and Liberal Law’, in V E Munro
and C F Stychin, Sexuality and the Law: Feminist Engagements (Routledge-Cavendish,
Abingdon 2007). See, also: R Harding, ‘Sir Mark Potter and the Protection of the
Traditional Family: Why Same Sex Marriage is (Still) a Feminist Issue’ (2007) 15
Feminist Legal Studies 2, 223, and R Robson, ‘Resisting the Family: Repositioning
Lesbians in Legal Theory’ (1994) 19 Signs: Journal of Women in Culture and Society 4,
975. An interesting US queer perspective can be found in D Rosenblum, ‘Queer
Intersectionality and the Failure of Recent Lesbian and Gay “Victories”’ (1994) 4 Law
& Sexuality 83. Rehagg has discussed the transnational migration of these norms;
S.Rehagg, ‘The Transnational Migration of Same-Sex Equality Normal’ (2005) 4
Journal of Law and Equality, 68.
38
J Weeks, The World We Have Won (Routledge, London 2007) 169.
39
D M Halperin, Saint Foucault: Towards a Gay Hagiography (Oxford University
Press, Oxford 1995) 62.


groups, casual, cross-generational, in public, pornography, with
manufactured objects and sadomasochism.40

Despite many academics’ self-identification as postmodernists, feminists
or even queer scholars, many continue to reflect wider LGB society in
embracing the legal ‘heteronormative straightjacket’41 in private with
civil partnerships, children and the whole straight ideal whilst continuing
to write scholarship that offers an academic critique. Queer, essentially
the ‘radical’ face of the lesbian and gay movement,42 is an increasingly
fashionable academic label but such is the power of the (homo)normative
legal discourse, our lives typically fall into Rubin’s ‘charmed circle’.

To operate outside the (homo)normative is to embrace transgression, to
seek Rubin’s ‘outer limits’, to embrace and contribute to narratives of
pollution, disease and contagion, that as Stychin has noted,43 have
traditionally been used to characterise homosexuality. As with any
pollution, disease or contagion, society acts to remove it, and thus in does
seek to do precisely that in relation to bareback and public sex, the two
areas considered in this article.

Visibility and the Construction of (Homo)normativity

The legalisation of homosexuality in the Sexual Offences Act 1967 was
to allow a visibility to homosexuality that had not previously been evident
on any large scale. The emphasis of the Act, and the earlier Wolfenden
report had been on creating an environment of tolerance; that is to say,
allowing something you don’t actually like in the name of being civilised.
It was tolerance rather than acceptance that meant homosexuality between
adult males, aged 21 or over was legalised provided the acts took place in
private. Wolfenden later commented that he regarded this as in a sense,
the start of a process, and that further reform would be needed, writing in
1976 that:

What I find amusing is that we, who were thought by many to be so
outrageous in 1957, should now be regarded as Victorian fuddy-duddies.

40
G Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’, in
C.S.Vance, Pleasure and Danger: Exploring Female Sexuality (London, Routledge &
Kegan Paul, 1984) 281.
41
C Ashford, ‘Queer Theory, Cyber-ethnographies and Researching Online Sex
Environments’ (2009) 18 Information & Communications Technology Law 3, 315.
42
J Parnaby, ‘Queer Straits’, in L Harne and E Miller (eds.) All the Rage: Reasserting
Radical Lesbian Feminism (Teachers College Press, New York 1996) 3. See, more
generally: K E Lovaas, J P Elia and G A Yep, ‘Shifting Ground(s): Surveying the
Contested Terrain of LGBT Studies and Queer Theory’ (2006) 52 Journal of
Homosexuality 1/2, 1.
43
C Stychin, Law’s Desire: Sexuality and the Limits of Justice (Routledge, London
1995) 135.


It is entertaining to have lived long enough to have made oneself
obsolete.44

Nonetheless, a degree of public ‘visibility’ was now conceptualised in
which gay men and women could move away from a culture of closet
classified adverts, 45 secretive language46 and public sexual encounters.
This meant that gay men could gather in their ‘space’, they could openly
consume commercial spaces in the form of bars, clubs, saunas and sex
cinemas, often organised into designated spaces within cities such as the
Castro in San Francisco, Boys Town in Chicago or Canal Street/The
Village in Manchester, spaces that have been termed by sociologists and
queers alike as ‘the ghetto’.47

However, despite the apparent progress and the growth in open, visible,
gay bars, bathhouses, saunas and other gay orientated commercial
spaces,48 Valverde and Cirak49 have argued that men who do not identify
as homosexual might find it ‘stigmatizing or threatening’ to use some
commercial ‘gay space’. Instead, they pointed to the growth in the
Internet and the new possibilities it offered to create sexual contacts.

In addition, men may feel prevented from engaging with commercial gay
space for reasons of race and poverty50 or physical appearance.51 For
these men and others, the Internet offers not only a means for seeking
sexual liaisons but also a place to socialise. Unable to conform to the
requirements of the new commercial (homo)normative spaces, they find
themselves excluded and rendered largely invisible except within the self-
selecting virtual communities.

44
J Wolfenden, Turning Points: The Memoirs of Lord Wolfenden (Bodley Head, London
1976) 146.
45
H G Cocks, Classified: The Secret History of the Personal Column (Random House,
London 2010).
46
P Baker, Polari: The Lost Language of Gay Men (Routledge, London 2002).
47
See, M P Levine, ‘Gay Ghetto’, in M P Levine (ed.) Gay Men: The Sociology of Male
Homosexuality (Harper & Row, New York 1979).
48
See, more generally: R Tikkanen and M W Ross, ‘Technological Tearoom Trade:
Characteristics of Swedish Men Visiting Gay Internet Chat rooms’ (2003) 15 AIDS
Education and Prevention 2, 122.
49
M Valverde and M Cirak, ‘Governing Bodies, Creating Gay Spaces: Policing and
Security Issues in ‘Gay’ Downtown Toronto’ (2003) 43 British Journal of Criminology
1, 102.
50
Diaz, R., Ayala, G., & Bein, E. (2004). Sexual risk as an outcome of social
oppression: Data from a probability sample of Latino gay men in three U.S. cities.
Cultural Diversity and Ethnic Minority Psychology, 10, 255-267.
51
S Whittle, ‘Consuming Differences: The Collaboration of the Gay Body with the
Cultural State’, in S Whittle (ed.) The Margins of the City: Gay Men’s Urban Lives
(Arena, Aldershot 1994). Also see L Humphreys, Tearoom Trade: Impersonal Sex in
Public Places (AldineTransaction, New Brunswick 2005) 137-139.


One such site, Gaydar,52 has also been successful at penetrating into the
mainstream media and with it, the public’s imagination. Yet, the media
has reacted with horror at behaviour it regards as counter to the
(homo)normative. Labour MP Chris Bryant almost found his political
career over before it had barely began in 2003 following the revelation by
The Sun newspaper that he had a profile on Gaydar in his underpants53
and described himself as ‘horny as b***ery’.54

It is perhaps the visible that necessitates the emergence of a ‘straight’ and
‘respectable’ (homo)normativity. Smith has noted that the ‘British have,
historically, taken a pragmatic view of sexual relations, recognising that
appearance is all and that a strict preservation of a public façade of
continent behaviour is just as important as actually achieving it’.55 Thus,
whilst gay males might still engage in acts of buggery - traditionally
associated with narratives of hell and damnation – they do so behind
closed doors, concomitantly projecting a visible image of the Civil
Partnered couple. This new (homo)normativity requires the re-
closetisation of aspects of the gay life, that is to say, aspects of one’s
lifestyle undergo a process of being returned into the political closet, the
hidden world characterised by double-lives and/or repression of raw
desire.

Challenging the Discourse: Bareback Sex

Perhaps the most controversial example of ‘raw’ desire, is the practice of
barebacking, or condomless anal sex. In January 2011, the San Francisco
based bareback porn company Treasure Island Media (TIM) declared it to
be ‘the year of living positively’. Perhaps more than any other porn
company, TIM has sought to define and promote itself as a bareback, and
renegade porn company.56 To coincide with their ‘declaration’, they
released a scene from their first ‘positive’ film entitled Buggery, featuring
openly HIV+ porn performers engaging in bareback sex. TIM founder
Paul Morris commented: “May the unrestrained joy these men exhibit in
boning the ever-loving hell out of one another be an inspiration to all”.57
52
See, more generally: S Mowlabocus, Gaydar Culture: Gay Men, technology and
Embodiment in the Digital Age (Ashgate, Farnham 2010).
53
A photograph that remains easily available on the Internet following a number of
bloggers and websites posting the photograph once the profile had been revealed.
54
JockBoy26, The Big Book of Gaydar (Uncut!) (The Book Guild, Brighton 2010) 65
55
C Smith, ‘British Sexual Cultures in M Higgins’, in C Smith and J Storey (eds.) The
Cambridge Companion to Modern British Culture (Cambridge University Press,
Cambridge 2010) 247.
56
C Ashford, ‘The Bareback Porn Renegades’, Freedom in a Puritan Age, 2010
http://www.freedominapuritanage.co.uk/?p=962 (accessed 6 January 2011).
57
Anon ‘Treasure Island Kicks Off ‘Year of Living Positive’’, Gay Porn Times, 4
January 2011, http://www.gayporntimes.com/hardnews/2011/01/04/treasure-island-
kicks-off-year-of-living-positive/ (accessed 6 January 2011)


Morris has previously set out his belief that pornography ought to
document the reality58 of gay men’s sex lives:

“…all acts of queer sex should be represented on screen with equal
honesty. The entire spectrum of behavior from innocent to depraved,
from life-affirming to death-enhancing should be available for the
viewers.”59

This has arguably led to Dean describing Morris as ‘an amateur
anthropologist’.60 This latest, ‘positive’ line of pornography is perhaps all
the more controversial because of the truth it seeks to represent. It directly
challenges the (homo)normative legal discourse that portrays gay men’s
sex lives as anchored in domesticity. Here, the ‘authentic’, is ‘deviant’.
Moreover, the porn gains the label authenticity by situating itself in
contrast to the porn of the larger condom wearing studios. At the same
time, the language of reproduction – “breeding”, “seeding” – are queered,
and re-defined as the linguistics of authentic raw queer sex.61

The term bareback or raw sex was coined comparatively recently. Rofes
has noted that prior to the mid 1990s, such sexual acts were simply
referred to as ‘unprotected anal sex’.62 More recently, the label has been
seen to embrace a number of different ‘categories’,63 and this has created
a great deal of confusion about the language associated with bareback
sex. The terms ‘unsafe’ and ‘unprotected’ are often used interchangeably
but do, it has been argued, hold different meanings. Shernoff states that
‘unsafe sex refers to when an HIV-negative man has unprotected anal
intercourse with either a partner of unknown HIV status or with a partner

58
On ‘reality’ and porn, see, more generally: S Hardy, ‘The Pornography of Reality’
(2008) 11 Sexualities 1/2, 60.
59
P Morris, ‘No Limits: Necessary Danger in Gay Porn, Paper Presented at the World
Pornography Conference, Los Angeles, and the UCSF InSite Discussion on
Barebacking’, San Francisco, 1998. Available at:
http://www.treasureislandmedia.com/TreasureIslandMedia_2007/paulsPapers.php?articl
e=noLimits (accessed 26 February 2011).
60
T Dean, Unlimited Intimacy: Reflections on the Subculture of Barebacking (University
of Chicago Press, Chicago 2009) 119.
61
For instance “breed your hole”, “seed your hole”, to ejaculate semen into the anus of
another. See for example the following description from Ruggero: ‘One part of my love
of sex is swallowing cum. I feel as though the person – their seed – is inside of me, even
though I’m not going to have a baby. It’s valuable. I don’t know if it’s tribal, ancient,
or what, but I think it’s important to be able to drink another man and have him drink
you. My very first lover fucked me, and as he was coming, he said, “My seed is in you
for eternity.” I felt a warmth of love when he said that, and when I fucked him, I said the
same thing’; F Ruggero, ‘My Seed Is in You’, in W I Johnston (ed.) HIV-Negative: How
the Uninfected Are Affected by AIDS (Insight Books, New York 1995) 211-212.
62
E Rofes, Dry Bones Breathe: Gay Men Creating Post-AIDS Identities and Cultures
(Harrington Park Press, New York 1998) 196.
63
Dean, above n. 60 at 16-17.


he knows to be HIV-positive’. In contrast, ‘unprotected sex is anal
intercourse without a condom between two HIV-negative men’.64 This
distinction is important in a case where the two HIV negative men are
both monogamous, as clearly the ‘risk’ involved in bareback sex for them
is different from those engaging in ‘unsafe’ bareback sex. Although, the
very term bareback has been extensively debated,65 it is now seen as
applying to any condomless anal sex, whether as a result of carelessness
or intent; a distinction that continues to pre-occupy the English criminal
law in matters of HIV transmission.

In the 1960s, gay liberation challenged the invisibility of queers with the
command to ‘come out’. Whilst, post Stonewall riots, the choice to ‘come
out’ was a personal one, it was as Bronski has noted, a ‘political and
ethical action as well as an individual one’.66 Today, the act of ‘coming
out’ as someone who barebacks can be seen as a similar political
statement – attracting criticism and praise – but can also be a practical
way of accessing more bareback sex, just as coming out as gay can
provide access to more same-sex erotic encounters.

Yet bareback remains a ‘deviant’ act, one constructed as sitting outside
the (hetero)normative framework, of sitting squarely within the realms of
Rubin’s ‘bad sex’ and thus when proponents of that framework are
‘outed’ as barebackers, it is seen as revelatory of a hypocrisy. Andrew
Sullivan, whose right-of-centre work is discussed above, was ‘outed’ in
2001 when discovered cruising online for bareback sex under the screen
name ‘RawMuscleGlutes’.67 Sullivan is known to be HIV positive. His
online profile sought: ‘bi-scenes, one-on-ones, three-ways, groups,
parties, orgies and gang bangs,’ but not in ‘fats and fems’.68

In 2009, the Oscar winning Milk screenwriter and HIV campaigner,
Dustin Lance Black, was similarly ‘outed’ as a barebacker when stills
from a sex video were released on the gossip site, Perezhilton.com. Hilton
write on his blog: ‘People, people, people. How many times do we have
to say it? NEVER make a sex tape, unless you're ready for it to leak! Cuz
it will happen’ and also posted a number of still photographs.’ Yet, it was
not Dustin Lance Black who came in for criticism but Hilton, for posting
the pictures, whilst other comments focused on how ‘hot’ Lance Black

64
M Shernoff, Without Condoms: Unprotected Sex, Gay Men & Barebacking
(Routledge, Abingdon 2006) 17.
65
ibid 18.
66
M Bronski, The Pleasure principle: Sex, Backlash, and the Struggle for Gay Freedom
(St Martin’s Press, New York 1998) 171.
67
Dean (n60) 8.
68
R Kim, ‘Andrew Sullivan, Overexposed’, The Nation, June 18 2001, available at:
http://www.thenation.com/article/andrew-sullivan-overexposed (accessed 27 February
2011).


looked.69 Hilton ultimately took the pictures down (although they remain
easily located on the internet).

As Dean notes, the label ‘hypocrite’ does not adequately account for what
is going on with Sullivan and Lance Black. There is, ‘something about
barebacking that prompts its distancing as an identity category’. In the
case of Lance Black, there appeared a collective ‘Ostrich effect’, as
people overwhelmingly chose to ignore the act of barebacking and focus
instead upon the exposure of barebacking. Lance Black made a public
statement, effectively condemning the acts portrayed in the photographs,
and thus saving others the effort. His statement read: ‘I have had the
privilege to speak to people across the country, both gay and straight, on a
number of critical issues including safe sex. More important than the
embarrassment of this incident is the misleading message these images
send. I apologize and cannot emphasize enough the importance of
responsible sexual practices’.70

Here, Lance Black re-positioned himself within the (homo)normative, and
not as a bareback ‘outsider’. Dean argues that barebackers claim only the
right to ‘fuck whom and how they wish’, and appear uninterested in the
legal rights-based discourse, suggesting barebacking could be described
as ‘antihomonormative’.71

Whilst English law has appeared less interested in the issue of condoms
being worn, it has as in many many jurisdictions,72 taken an increased
interest in the transmission of HIV.73 Whilst bareback sex can, and
frequently is engaged in by men who are HIV+, anti-bareback
campaigners do so because of the fear of HIV transmission. HIV and
bareback sex thus remain linked in both a cultural, and as we will see, a
legal sense.

The HIV Dimension

By the 1980’s, the ‘gay plague’ of AIDS was devastating queer
communities and acting to create estrangement between the heterosexual

69
http://perezhilton.com/2009-06-12-oscar-winner-dustin-lance-black-exxxposed
(accessed 27 February 2011).
70
http://www.inquisitr.com/26037/dustin-lance-black-photos/ (accessed 27 February
2011).
71
Dean (n60) 9.
72
See, J Chalmers, Legal Responses to HIV and AIDS (Hart, Oxford 2008).
73
On the link between barebacking and the criminalisation of HIV transmission, see: C
Ashford, ‘Barebacking and the ‘Cult of Violence’: Queering the Criminal Law’ (2010)
74 Journal of Criminal Law 4, 339. On the response of English law more generally, see:
M Weait, Intimacy and Responsibility: The Criminalisation of HIV Transmission
(Routledge-Cavendish, Abingdon 2007).


and homosexual, prompting activist and gay man, Larry Kramer, to write
in 1989: ‘I don’t think any heterosexual can understand what it’s like to
be a homosexual man in New York today – or in any other major
American city’.74 New York, along with San Francisco, were the biggest
‘gay cities’, and thus the effects of disease were most acutely felt. The
story of HIV/AIDS is one of plague and uncertainty followed by dramatic
education and health campaigns, imperfect drug treatments, and today
excellent drug treatments that allow people to lead perfectly ‘normal’
lives.

As Kramer noted, we moved from the Age of Death and into the Age of
Treatment,75 but this shift was also the catalyst for a transformation of the
gay life, particularly gay men. It was time to become respectable and law
became the channel through which that process of change was to be
achieved. Yet, it also marked a shift from AIDS to HIV. As Warner has
observed, one of the major differences between the 80s and 90s was that
‘being positive has become an identity…When a negative man has unsafe
sex today, it may mean not so much a gamble with the banalities of
infection and disease as a way of trying on the cultural identity of the
HIV-positive.76 Thus, the law’s intervention into the transmission of HIV
can be seen as an attempt to intervene in the acquiring of a cultural
identity, acting as a latex barrier between the positive queer and the
(homo)normative.

In English law, this has taken the form of prosecutions under section 20
of the Offences Against the Person Act 1861. This necessitates that the
defendant did in fact cause serious bodily harm to another person, and at
the relevant time, he was aware of the risk of causing some degree of
bodily harm.77

In the Age of Treatment, the National Health System’s payment of HIV
healthcare is symptomatic of the state’s failure to regulate through legal
cultures and the promotion of the (homo)normative. Gay men, receiving
treatment, rarely die of HIV, but each infection is a strike against the
(homo)normative legal apparatus.

Yet for many, such as the author and social commentator Paul Burston,
bareback sex, and attempts to regard being positive as ‘positive’, and as
an empowered action is to partake in a form of madness. Kramer,

74
L Kramer, Reports from the Holocaust: The Making of an AIDS Activist (Penguin,
London 1990) 217.
75
ibid 283.
76
M Warner, ‘Unsafe: Why gay Men ate Having Risky Sex’, Village Voice, January 31
1995.
77
See, Weait (n73).


speaking in 2004 delivered a speech in which he challenged the growing
acceptance of bareback sex:

‘”Ah, you say, aren’t we to have a little fun? Can’t I get stoned and have
the thrill of fucking without a condom one last time. Are you out of your
fucking mind? At this moment in our history, no, you cannot. Anyway,
we had your fun and look what it got us into. And it is still getting us
into. You kids want to die? Because that’s what I sometimes think.
Well, then, die.”78

Kramer re-asserts the often cited fear that one day the ‘miraculous drugs
we have to keep us alive are going to stop working’.79 This statement is at
the heart of a generational shift that informs whether the intervention of
law can be seen as a positive or negative force. For a younger generation,
HIV is chronic, perhaps akin to asthma. Sure you need treatment and if
you don’t, you will die or have a rapidly reduced life but beyond that you
can routinize HIV medication into your life, especially with ever
improving drugs. For the men of Kramer’s generation, this is akin to
madness.

The law ultimately takes the view of Kramer, that HIV is not like
contracting Asthma. The law reflects a socio-political belief that to be
HIV+ is a terrible and worrying thing. Transmission of HIV is therefore
something that we, as a society want to stop, and like anything we want to
stop, all tools – economic, social and legal – need to be deployed. If, like
Kramer, we believe that gay men are murdering one another through
bareback sex – Kramer himself poses the question ‘Was it my sperm that
killed them, that did the trick’80 – the question is how law can intervene.

Barebacking, whether involving the transmission of HIV or not, remains
evocative of irresponsibility and of death. Edelman’s criticism of the all-
pervasive figure of the child in our society, explains in part why
barebacking acts as such a powerful attack on the (homo)normative,
promoting as it does a rejection of reproduction, and the (hetero)sexual
family in favour of the ‘death drive’.81 Thus, law seeks to increasingly
intervene, bestowing reproductive legal rights and increasingly
criminalising the transmission of HIV, as symptomatic of ‘bad’
behaviour. The law is about providing ‘future(s)’, future consumerism,
future domesticity, and barebacking is a statement of ‘no future’, of living
in the raw realism of the momentary essence.82

78
L Kramer, The Tragedy of Today’s Gays (Penguin, London 2005) 50.
79
ibid 43.
80
ibid 55.
81
L Edelman, No Future: Queer Theory and the Death Drive (Duke University Press,
Durham 2004) passim.
82
Interestingly, if barebacking is taken to encompass vaginal as well as anal penetrative
sex (as it sometimes now is colloquially), then the act of barebacking can be theorized in


Challenging the Discourse: Public Sex

Just as barebacking can be viewed as attacking the (homo)normative, so
too can public sex. Dwyer has noted the manner in which those who
appear to embody forms of non-heteronormative for example in the form
of effeminacy or cruising in public sex environments can suffer greater
crime. These acts, Dwyer argued, queer the heteronormative.83 They also,
I would argue, attack the emergent (homo)normative narrative. As with
barebacking, the action of cruising or cottaging shuns Rubin’s ‘good gay’,
‘charmed circle’ categories, taking place in public, and essentially
celebrating promiscuity and slutdom.

Humphreys’ 1970 study of sex in public conveniences by men revealed a
complex world in which a large subculture – often, he stated, practised by
married ‘straight’ men – appeared to take place.84 Indications of these
practices had been documented much earlier, with the 1937 text, For
Your Convenience, offering a not-so-coded guide to London’s cottages
(public toilets).85

Although the populised myth is of dirty old men, desperate for sexual
release, the true picture is somewhat more complex. University campuses
are often popular locations – with numerous ‘hubs’ of high traffic places
that provide spaces of opportunity – what Delph termed ‘erotic oases’86 –
and this is an issue for Universities beyond the UK. Reynolds recently
noted that Harvard University had taken the action to remove the cubical
doors from the ‘chief’ men’s room in the Harvard Science Center to
‘supress the gay male sexual activity that was taking place in the toilet
stalls’.87

Cavanagh has noted similar steps being taken across North America, with
outer doors re-positioned to remove warnings that someone is entering,
cubicle doors removed, and locks taken off.88 Greed89 and Cockfield and

different terms. Thus, the preservation of the (homo)normative narrative is dependent
upon a narrow definition of bareback sex, as condomless anal sex.
83
A Dwyer, ‘Policing Queer Bodies: Focusing on Queer Embodiment in Policing
Research as an Ethical Question’ (2008) 8 QUT Law and Justice Journal 414.
84
Humphreys (n51).
85
P Pry, For Your Convenience (George Routledge & Sons, London 1937).
86
E W Delph, The Silent Community: Public Homosexual Encounters (Beverly Hills:
Sage 1978).
87
B Reynolds, ‘Rest Stop: Erotics at Harvard’, in H Molotch and L Noren (eds.) Toilet:
Public Restroom and the Politics of Sharing (New York University Press, New York
2010).
88
S L Cavanagh, Queering Bathrooms: Gender, Sexuality and the Hygienic Imagination
(University of Toronto Press, Toronto 2010) 177-178.
89
C Greed, Inclusive Urban Design: Public Toilets (Architectural Press, Oxford 2003).


Moss90 have also previously commented on the ways that the space of the
public convenience can be re-designed and modified to limit illicit
activity. Public parks, the scenes for cruising, or public recreational
points, and picnic locations used for dogging have similarly been
transformed by state officials with the removal or cutting back of trees
and shrubbery.

These geographical changes to space represent an attempt to use
geography and socialisation to regulate challenges to the legal
orthodoxies. These orthodoxies, just as with bareback sex, reflect a
challenge to the (homo)normative. For the men engaged in public sex, the
very experience can give rise to conflicting emotions, but the narratives
are often that of the closet, and of ‘desperation’:

Part of me felt “It’s beautiful, it’s dark, the moon is out. There’s a lovely
breeze. There’s an energy.” Then on the other hand, “There are rats
around here. Why do we have to do this in the dark? Why can’t we be
‘out’?”91

This is a typical example of the portrayal of the ‘desperate’ man, cruising
because they have no other alternative. Whilst it is true that men who are
older, less likely to achieve sexual success in the bar and other
commercial queer space, frequent these spaces along with the bi, and the
closeted, these spaces are also utilised by the young, exploring their
sexuality and also those who are openly gay and simply enjoy public
sex.92

For many men, the cottage or cruising ground offers an inexpensive form
of ‘instant sex’,93 and even at a time of growing public toilet closures, and
park gentrification, the spaces continue to operate thanks to online listings
in which men can share details of more successful public sex locations. 94
These spaces offer the potential thrill of danger (from police arrest,
through to being attacked), and sex without commitment.95 In one

90
C Cockfield and K Moss, ‘Sex, Drugs and Broken Bowls: Dealing with Problems of
Crime Reduction in Public Conveniences’ (2001) 1 Community Safety Journal 2, 37.
See, also: R Byrne, ‘Socio Sexual Use of Public Recreational Space: managing the
Public Sex Environment in Country Parks’ (2004) 1 Proceedings of the Second National
Conference, Chartered Institute of Water and Environmental Management 351.
91
Ruggero (n61) 207.
92
J Couture, Peek: Inside the Private World of Public Sex (Routledge, London 2008) 59-
70.
93
P Flowers, C Marriott and G Hart, ‘The Bars, the Bogs, and the Bushes: The Impact of
Locale on Sexual Cultures’ (2000) 2 Culture, Health & Sexuality 1, 69.
94
C Ashford, ‘The Only Gay in the Village: Sexuality and the Net’ (2006) 15
Information & Communications Technology Law 3, 275, and C Ashford, ‘Sexuality,
Public Space and the Criminal Law: The Cottaging Phenomenon’ (2007) 71 Journal of
Criminal Law 6, 506.
95
N McKenna, ‘The Joys of Cottaging’, New Statesman, 30 October 1998.


academic study, the biggest reasons for engaging in public sex were that
they enjoyed it sexually and the excitement/thrill.96

Although the policing undoubtedly contributes to this phenomenon, by
generating additional ‘thrill’ at the prospect of being caught, public sex
activity remains a focus for lawmakers and policing,97 particularly in the
context of sex in public lavatories, or cottaging.98 Police forces around the
world have resorted to a range of tactics to stop this behaviour, including
camera surveillance,99 sting operations,100 and more recently Internet
warnings.101

Yet, despite over forty years passing since the legalisation of
‘homosexual acts’ between men, the law continues to create a sexual
closet for those identities that not only defy the (hetero)normative but the
emergent assimilationist (homo)normative. This process of closetisation
extends to the self-defined heterosexual too. The emergence of dogging
among heterosexuals has similarly produced an act that defies the
(hetero)normative and in so doing, attracts the attention of the police.102

The good queer stays home with their civil partnered ‘hubby’. A penchant
for Gaydar might be tolerated so long as it leads to safe sex indoors, but
the he outdoors remains trapped in a legal discourse that defines it as ‘bad
sex’, and anti-homonormative, evocative, as with bareback sex, of a
homosexual history that does not easily sit with the new legally re-
constructed homosexual.

A New Paradigm?

Politically, the division in legal responses to sexuality in recent years can
be explained as the emergence of a new paradigm. Former British Prime
Minister, Tony Blair noted in his memoirs that

96
J Church, J Green, S Vearnals and P Keogh, ‘Investigation of Motivational and
Behavioural Factors Influencing Men Who have Sex with other men in Public Toilets
(Cottaging)’ (1993) 5 AIDS Care 3, 337.
97
Ashford (n94).
98
P Johnson, Ordinary Folk and Cottaging: Law, Morality and Public Sex’ (2007) 34
Journal of Law and Society 4, 520.
99
See, for example: W O’Callaghan, ‘Cameras in the Restroom: Police Surveillance and
the Fourth Amendment’ (1995) 22 Hastings Constitutional Law Quarterly 867, and W E
Jones, Tearoom (2nd Cannons Publications, Los Angelas 2009).
100
See, for example: H Power, ‘Entrapment and Gay Rights’ (1993) 143 New Law
Journal 47, and J B Woods, ‘Don’t Tap, Don’t Stare, and Keep Your Hands to Yourself!
Critiquing the Legality of Sting Operations’ (2009) 12 Journal of Gender, Race and
Justice 545.
101
Ashford (n94).
102
Smith (n55) 257.


in the old days, a Conservative was hard line on law and order and on
‘political correctness’ issues like immigration and gays. The left-winger
was liberal, the right-winger illiberal. My generation had defined a new
paradigm: what you did in your personal life was your choice, but what
you did to others was not.103

Unfortunately, this simplistic utilitarian argument becomes more complex
with variable constructions about public and private. Any act is arguably
private until someone else views it, and thus the question is one of
propensity towards being public or private. Public ‘open air’ sex, may be
as public or private as sexual acts in a commercial sex club or sauna, with
people as likely to come upon a scene as a child might in the home. It is
the cultural construction of certain spaces as locations of ‘bad sex’ that
renders them the focus of law. Similarly, the act of bareback sex is in the
confines of a silent relationship semi-acceptable, yet the public
celebration of barebacking is to position the act in the public
consciousness and thus render it transgressive.

Blair’s former ‘spin doctor’, Alastair Campbell, indicates in his diaries
that Blair may have had similar difficulties with the constitution of
families, a ‘public’ definition of a series of relationships between
individuals, rather than how people actually live their lives. Campbell
notes one incident on the BBC Today programme in 1996 in which Blair
was described as being ‘…a bit of a disaster area…he got a bit caught on
gay couples and whether that constituted a family’.104

The emergence of a (homo)normative narrative that seeks to exclude
queer challenges, whether they take the form of bareback sex or public
sex is perhaps unsurprising. Since the ‘legalisation’ of homosexuality in
1967, a process of assimilation has been taking place. Harding likens it to
the Borg, characters in the popular science fiction franchise, Star Trek,
their slogan: ‘You will be assimilated…Resistance is Futile’ seems
somewhat apt.105

However, it is perhaps worth adding that Bronski has commented that
assimilation has historically, been ‘not an equitable exchange’. He has
argued that a ‘more honest’ paradigm of assimilation is ‘the protection
payoff’ rather than the populised notion of a ‘melting pot’.106 For many
immigrants to America, a new name, and an adjustment to identity and
customs were necessary in order to become ‘American’. Similarly, to
become first tolerated, and then accepted, queer ‘immigrants’ have been
forced to adapt and conform to an ever-evolving paradigm of
103
T Blair, A Journey (Hutchinson, London 2010) 582.
104
A Campbell, The Alastair Campbell Diaries: Volume One, Prelude to Power 1994-
1997 (Hutchinson, London 2010) 552.
105
Harding (n1) 177.
106
Bronski (n66) 39.


(homo)normativity. Yet, this process has also created the queer refugees.
Those who desire public sex and those who seek to queer the HIV/AIDS
narratives surrounding bareback sex are all rejected, and cast out. These
groups defy the (homo)normative paradigm and the law becomes case as
a tool of coercion and punishment.

Today’s immigrant queers, the acceptable gays of the (homo)normative,
serve to exert further pressure on their former compatriots, encouraging
them to join them in the brave new land of gay adoption, same-sex
marriage and employment protection.

These legal changes perhaps reflect Weeks’ observation that ‘our culture
has all too readily justified erotic activity by reference to something else –
reproduction or the cementing of relationships usually – and has ignored
the appeal of the erotic as a site of freedom, joy and pleasure’.107

Conclusion

It would be a mistake to regard this queer analysis as a rejection of the
rights recently won in English law. Yet historically, even those seen as
‘moderate’ figures within the LGBTQ movement, such as former chair of
the Albany Trust, Anthony Grey could question laws on public sex on the
basis of asking ‘who is the victim?’108 Today, to stand in opposition to the
(homo)normative, to question the very bounty of rights that have been
bestowed by English law in recent years, is to appear ‘ungrateful’, and
un-appreciative of the apparently dramatic legal shift in the course of the
last forty years.

Warner likens the questioning of same-sex marriage rights to being ‘the
unmannerly wedding guest, gossiping about divorce at the rehearsal
dinner’.109 To question the new (homo)normative, and question the
continued ‘bad/good’ sex divide is to seem similarly bad-mannered.
These recent legal developments and the queer resistance that has
apparently followed, are easy to characterise in terms of conflicting
discourses, and through binary divisions, to ascribe power differentials,
setting one discourse in a superior or privileged position over the other.

107
J Weeks, Invented Moralities: Sexual values in an Age of Uncertainty (Polity,
Cambridge 2007) 68.
108
A Grey, Speaking Out: Writings on Sex, Law, Politics and Society 1954-95 (Cassell,
London 1995) 50-54.
109
M Warner, ‘Normal and Normaller: Beyond Gay Marriage’ (1999) 5 GLQ: A Journal
of Lesbian and Gay Studies 2, 119.


Yet, as Halperin has previously noted, 110 Foucault observed what he
termed ‘the tactical polyvalence of discourses’.111 He observed that:

‘we must not imagine a world of discourse divided between accepted
discourse and excluded discourse, or between the dominant discourse
and the dominated one; but as a multiplicity of discourse elements that
can come into play in various strategies…We must make allowance for
the complex and unstable process whereby discourse can be both an
instrument and an effect of power, but also a hindrance, a stumbling
block, a point of resistance and a starting point for an opposing
strategy’.112

So it is with the emergence of the (homo)normative. It occupies a space
outside the accepted and excluded. In considering civil partnerships,
same-sex marriage and other aspects of the (homo)normative legal
discourse, as with those activities excluded such as public sex and
barebacking, we must look, as Foucault suggested, at who is speaking,
their position of power and the institutional context in which they happen
to be situated.

110
Halperin (n39) 57.
111
M Foucault, The Will to Knowledge: The History of Sexuality, Volume 1 (Penguin,
London 1998) 100.
112
ibid 100-101.

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