Ashford comments that -
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 benefiting 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.He argues that -
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.
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. ...
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 thatin 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.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’.
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.
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’. 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 (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’.
