Regulating Sex is an anthology that presents debates over the role of the state in constructing and controlling erotic practice, intimacy, and identity. The purpose of this edited volume is to address sexual dilemmas in law and the state in substantive areas such as same-sex domestic partnerships, sexual economies, and childhood sexuality via a series of spirited dialogues between socio-legal scholars from diverse disciplinary, national, and political perspectives.
Non-polemical common sense – a very pleasant surprise.
I bought this book expecting not to like it, and I am pleasantly surprised. The lexicon employs all of the standard loaded terms, expressions with built in presuppositions about social justice issues such as "queer studies", "marginalized", "heteronormativity", "normative vision", "gendered power relations", "vectors of oppression", "sexual justice", "political opportunity theory", "discursive", and "the state has a sexual agenda".
Somehow, even though they are expressed using these cumbersome and off-putting expressions, common sense shines through. Maybe there is hope for academia.
The following paragraphs, each preceded by a quotation mark, are what I wrote in anticipation of not liking the book. I will stand behind these sentiments,,, but I liked the book!
"Before I start to read this book is worth stating explicitly where I come from, certainly at odds with most readers of this book.
"I believe that mankind, and the various populations within it, are products of evolution. The genome and culture of each group have coevolved up through the present day.
"Human beings have been more successful than other great apes for a number of reasons, many of them related to procreation. We are more fertile than the other great apes. That is why our numbers expanded. We are more fertile because we are more communal. Entire families work together to raise children. In particular, human females are unique in that they undergo menopause, allowing them half a lifetime to devote to their grandchildren and subsequent generations.
"I believe, like the philosopher Edmund Burke, that each person on earth has an obligation to past generations, the current generation and also to generations yet to be born. Our obligation to our ancestors is to perpetuate the culture and their genome, as they did for their predecessors. In doing this we repay them for the endowment that they willingly gave us, the dedication of time and resources that we can never repay otherwise. Our obligation to each other is to offer mutual support in the essential mission of propagating our culture and our kind. Our obligation to future generations is to preserve the resources of the world that they will inherit, and to pass on a viable culture.
"My values are consistent with Emmanuel Kant's categorical imperative, that we should behave in such a way that we can envision all mankind following our example without it's leading to chaos and collapse. Unless we reproduce ourselves, we are an evolutionary dead end, and arguments about individual rights and interests are no more than noise that will be forgotten as history passes us by.
"I am certain that the values that I have espoused in the foregoing paragraph are greatly at odds with the values espoused by the authors of this book. I am reading it to see if there is any possibility that the philosophy that they advocate can be the foundation for a sustainable society."
However, the first two paragraphs of the book set a tone of compromise, of seeking truth rather than propounding one:
"While the spread of global capitalism has exacerbated social inequalities, fragmented families, and severed individuals from traditional social ties, it has also given rise to transnational feminist activism, a burgeoning lesbian-gaybisexual-transgender-queer (LGBTQ) movement, a renewed commitment to international human rights, and myriad new forms of eroticism and community. Within this context of cultural upheaval, the best means by which to advocate for sexual freedoms— while at the same time protecting vulnerable parties from violation— can be difficult to assess."
"Is the flourishing of sexual commerce one domain among others in an expanding global service economy, or the manifestation of gross inequalities of gender, class, race, and nation? Should the pursuit of marriage and other forms of legal domestic partnerships for same-sex couples be seen as a vital stepping stone toward civil rights and state recognition, or as assimilation to heteronormative ideals? Are children more in need of protection from sexual exploiters than of direction and encouragement in their quest for erotic forms of intimacy?"
Going back to Burke above, the modern rights movements have everything to do with individual fulfillment and nothing to do with society in general, and in particular, nothing whatsoever to do with perpetuating our genome and our culture. The authors of the pieces in this book, however, see both sides of the coin. They are balanced. The philosopher Isaiah Berlin celebrates "value pluralism" through which we recognize that even our most fundamental values are sometimes at odds with each other.
The ambivalent role of the state is a recurrent theme. They write: "Jakobsen and Kennedy conclude the volume by pointing toward the contradictions that contemporary social justice activists face in demanding state protections from various forms of sex and gender domination on the one hand, while opposing the state’s overzealous interventions into matters of sexual freedom on the other." Amen to overzealous!
Here are my chapter notes.
Part 1 The regulation of queer identities and intimacies.
Chapter 1 - Liberalism and Social Movements
"Discursively mark lesbian and gay sexuality and identity as inferior to heterosexuality" is an interesting phrase. The question to me is not inferiority, but legality. A legal, not a moral issue. Even the concept assumes a certain framework of morality. It assumes that society has no interest in its own propagation, but does have a right to ensure that each individual member of the society enjoy the freedom to practice sex in any way that they want.
The essence of the argument is that for gays, transgendered and others to get legal recognition of their status does not alter the fundamental situation. They gain recognition from the elites, but it feels like a rather condescending recognition rather than true equality. The question is how to they get true equality. In any case, the objectives here are singular: the right of differently sexed people to do whatever they want, with no consideration for externalities such as the good of society.
The model Penal Code of 1955 recommended decriminalizing sodomy as a victimless crime. This came to be the dominant mindset, and it was rather fully implemented by the 1980s. On the other hand, this did nothing to dispel mainstream society as disgust for such practices.
The essence of the article concerns two different spheres. In the legal sphere, it does not make sense to outlaw victimless crimes, as between consensual adults. In the moral sphere, homosexuality may still be regarded as immoral. Activists are more concerned with the latter than the former, the former having been won. But "you can't legislate morality," and people's attitudes change only slowly.
Disgust is a natural and often beneficial feeling. Disgust is associated with taboos such as that against incest. It serves an evolutionary interest in preventing us from inbreeding. Likewise, disgust for homosexuality serves an evolutionary purpose in confining our sexual activity to pairings which are likely to be fertile. Many people feel disgust for sexual acts such as sodomy and oral sex whether they be either homo-or heterosexual. The sense of disgust appears to be transmitted mostly by culture. Many are disgusted by what they feel to be inappropriate public displays of affection regardless of the sexes of the participants.
The authors address the concept of "negative stereotypes of homosexuality." Some stereotypes are valid. It can be statistically established that male homosexuals are more promiscuous than heterosexuals. Likewise they are much more likely to contact sexually transmitted diseases, especially AIDS. Such health matters are a legitimate concern of public policy. As Randy Shilts wrote in "The Band Played On" it was a fear of stereotyping gays that forestalled research into AIDS during the first few years in which this "gay cancer" spread so rapidly.
There's a question of what is in the interests of society and evolution. It is generally conceded that the number of people on earth is at or at least approaching the carrying capacity. Society may no longer have an interest in curtailing sexual acts that do not lead to procreation. There is a parallel with John B Calhoun's "Universe 25" experiment in which mice were allowed to overbreed in a confined space. Their sexual behaviors changed radically, with the appearance of homosexual rodents, those with no interest whatsoever in sex, hyperaggressive males and females generally disinterested in their pups. Some hypothesize that the rise in human homosexuality over the past half-century is related to the overcrowding of our cities.
Chapter 2 On Contracts
The author tells a touching story of Ruth and Naomi and their quest to have a family. They chose the fathers for their family, and entered into contractual relationships which assured them legal custody of the children and defined the future relationship with the fathers.
The relationship described here is a long-lasting, stable pairing between two women both of whom wanted children. As their concern for the arrangements shows, they have a good deal of intelligence and character to pass on to their children. These are the kind of people that society would want to be creating the next generation.
An appealing aspect of this story is that these women were not crusaders, they were simply trying to make the best of their personal situation. There is no discussion of how the children will be raised. As a personal aside, the lesbian couples I have known in Washington D.C. are as dedicated to their children as hetero couples.
Chapter 3 On Transgender
The tone of this chapter is that transgender people have not made that much progress. It is interesting to reflect that the book was written in 2004, 12 years ago. Since then they have made great changes in society. This minuscule slice of humanity has caused great inconvenience for the large majority of people who are content to retain the sex they were born with.
This is an instance in which the comfort of this small minority has been allowed to override the desire of overwhelming majorities to simply be left alone. This issue has led to more resentment of the federal government than perhaps any other. Whatever the justice of the case, this one may prove the straw that broke the camel's back. As the authors note, politicizing the issue may not have been a good long-term strategy. Better to wait for Bruce/Caitlin Jenner et. al. to move society than to try to push it.
The gains realized by society in improving the situation of the small minority are offset by costs and inconvenience to the great majority. There are the costs of physical plant: bathrooms and so on. There are additional costs of security personnel. There are legal costs involved in categorizing people appropriately, to keep peeping toms out of the girls bathroom. There the costs incurred by children who do not go to the bathroom because they are afraid of who they might encounter.
One might call this a kind of tragedy of the commons, in a legal sense. One group getting what they want shrinks the public good for a vast majority. However, the gain to the few is big and the loss to members of the large majority is small. However, one has to think that John Stuart Mill would find that "the greatest good for the greatest number" would ask the transsexual community to simply accept their fate and let others get on with their lives. At least for the time being.
Part two – The Regulation of Sexual Commerce
Chapter 4: Soft glove, punishing fist – the trafficking victims protection act of 2000
The authors note that as early as 1875 immigration law prohibited entry to people who might be expected to enter into prostitution or go on welfare. It is, of course, any sovereign entities right to decide whom it will admit within its borders. The question is a practical one: how do you know?
The Trafficking Victims Protection Act of 2000 gave temporary residency, work permits, welfare, and even a path to permanent residency for qualified victims of sexual trafficking.
This once again is anti-mill – providing benefits to the few at the expense of the many.
The quoted paragraph below shows that authors get this one absolutely right:
"In the case of the Trafficking Victims Protection Act, language within and surrounding the legislation neatly divides “violated innocents” from “illegal immigrants” along the lines of sex and gender. Trafficking victims, described as vulnerable women and children forced from the safety of their home or homelands into gross sexual exploitation, are distinguished from economic migrants who are understood to be men who have willfully violated national borders for individual gain. The law justifies offering protection to the former and punishment to the latter through the use of three sleights of hand. First, it relies on a repressive moral panic about “sexual slavery” created through slippery statistics and sliding definitions. 3 Second, despite offering symbolic support to the notion that all prostitution is “sexual slavery,” the law carefully differentiates between “innocent” and “guilty” prostitutes and provides support only to the innocent. And third, by making assistance to even “deserving” victims contingent on their willingness to assist authorities in the prosecution of traffickers, the legislation further seals U.S. borders against penetration by “undeserving” economic migrants. Protections offered to the innocent help to reinforce the suggestion that the punishments meted out to the “guilty” are justified. I argue, then, that although proponents have presented the bill as important for the people it rescues, it may be that its more important hidden effect involves the people that it excludes."
Reverting to my words, this law tasks law enforcement with determining intent and morality, two things it is manifestly unable to do.
Some feminists hold that all prostitutes are "victims." Others have a more realistic view. Steven Levitt, in super Freakonomics, discusses the economics of prostitution and recounts many conversations with women who enter the profession freely, all for financial benefit and some because they like the sex and the temporary power over men.
The discussion of "guilty sex workers" assumes that sex work is a crime. This is one area in which a libertarian perspective is gaining ground. As in gay relations, what happens between two consenting adults is their own business. A victimless crime is not a crime.
Chapter 5 – At home in the street: questioning the desire to help and save
This chapter addresses migrant sex workers to Europe. The paradox: it is that it is fairly easy for them to get visas to come as artists and dancers and the like, even though their purpose is transparent. Yet, once they arrive, they are despised for being sex workers. Do-gooders attempt to "reinsert" them into society, one of which they have never been apart and don't want to join.
The authors are right again: "This is so, I believe, because the continuing essentializing of “prostitution,” whether as a sex act or a sex job, overlooks other aspects (such as flexible schedules and instant cash), which make possible supporting one’s own relatives and enjoying such advantages as travel, meeting new people, and being admired and desired."
They continue: "It is the middle-class, self-nominated “supporters” (activists, lobbyists, NGO workers) who have become protagonists, not those selling sex, and the role that feminists play in this exercise of social control needs to be recognized. Some of this derives from the victimizing discourse that prevails, in which women selling sex are constructed as lacking agency and choices, but some of it comes about because the social sector is now an enormous area of government (whether public or private) that exists to service people with problems, among them “victims.” Programs that were invented two hundred years ago have not left their roots behind, what Michel Foucault called “biopolitics,” in which society is figured as a population that must be managed and regulated for its own health and welfare (1978, 139— 43). Those who set out to administer the lives of others do so according to what they believe to be good, healthy, normal, and so on, so that knowledge is central:
'When Tobias Hecht studied homeless children in one Brazilian city, some children said that they could return to a house, or that they did return sometimes, but that they preferred to live in the streets. The information that children say these things, however, is unacceptable to many people who want to save them. Hecht says: 'If one’s goal in writing about street children is to offer ideas on how to eradicate a problem one can hardly view those people seen to embody the problem as autonomous beings in a social world. Reduced to something to be cured, street children become objects in a distant debate among adults.' By the end of his project, Hecht had counted more people trying to help street children than street children themselves. And as he suggests, studying “victims” needs to be understood as part of the “helping” field.
They go further: :In terms of the struggle to “help” people selling sex, we would do well to stop obsessing about them and about the “commercial moment”— the exchange of money for sex— and instead divert our gaze to a multitude of other questions: the market for their services, what happens besides sex at sex industry sites, concepts of sexuality that condemn those assumed to find “love” irrelevant, the presupposition that the client has all the power, the assumption that money contaminates sex, the surmise that vendors of sex cannot enjoy the sex they provide, the growing demand among women to purchase sexual services and the presumption— this above all, by Western feminists— that sex matters so much that its imperfection can damage a person’s essence. With these kinds of questions, we also problematize the bourgeois vision of a family-centered state that prevailed in the West after the Enlightenment. We further open sexuality debates aimed at “equal opportunity” for homosexual love and sex that often claim the right to bourgeois family life. Those debates continue to exclude people not necessarily seeking that kind of home, among these— it is possible— both sex workers and their clients."
Rest of the review in the comment since I ran out of characters.