I recently attended an event, a very fine event, that engaged issues of sexuality and gender in education. During the event an attorney specializing in these issues, explored the legal terrain of LGBT rights and their relation to education. For instance, being in Michigan where there is no state anti-discrimination law, it is technically legal to fire someone for the sexual orientation or gender identity. This may not happen often and there are ways in which one can "get around" this lack (i.e. teacher unions can put a clause in the union contract). The information presented then was in many ways useful in thinking about this complex terrain. It was practical and important to be aware of and understand.
Yet, I am not a practical person. I prefer the excessive, the impractical. As I listened to these practical and important issues, I was surprised that often "sex" was either completely ignored or seen as irrelevant. I should note here that I am not talking about "sex" in terms of "biological sex" which in itself is a problematic notion, but about "sex" as in SEX, the act. I asked the lawyer why there was such an aversion to sex in the legal discourse around LGBT rights? Of course the response was, well housing discrimination has nothing to do with sex, having a job has nothing to do with sex, free speech has nothing to do with sex, sex is what happens in the bedroom...we dealt with sex with anti-sodomy laws (i.e. Loving vs. Texas - I believe). Yet, I persisted and disagreed noting that it is "sex" in part that defines sexuality and therefore "homosexuality" and sex can happen beyond the confines of the bedroom. I argued that the reason why judges perhaps operated in part in opposition to LGBT Rights or parents opposed LGBT literature in schools was because of the aversion to sex...that when such issues are engaged the image of "gay sex" enters the imagination and such images frighten, scare, and create an aversion to want to allow such persons to be fully human - the Symbolic is perhaps homophobic. The response again was not satisfying as the attorney noted a case where a girl wore a "gay pride" shirt to school and was asked to take it off because it was promoting "sex"...which was legally defended (successfully) as unconstitutional because it 1) wasn't about sex and 2) was about "pride"...
It was that response that exposed my point. What would the legal consequences of saying, "Yes, she is promoting sex" but even so, she deserves to wear such a shirt, she deserves to be fully human. Why, because sex is sex is sex...people have it, people like it, people don't like it. I want to believe, but I am no legal scholar, that instead of pandering to a de-sexualized society (and the political machine both democratic and republican) where sex is just in the bedroom and "pride" can be removed from the context of sex (perhaps law has forgotten the history of Pride) an engagement with the stigmatized concept of "sex" and embrace of the "homophobic fear" of such sex, different possibilities within the legal realm of discourse and the discourses that operate closely to it (i.e. medical, psychiatric, educational, political) could emerge...What these possibilities would be though is of course unknown, but no more unknown than the current strategies.
For readings that I develop my argument from see:
Leo Bersani (1988) "Is the rectum a grave" in D. Crimp (Ed.). AIDS: Cultual Analysis/Cultural Activism. Cambridge, MA: MIT Press.
Didier Eribon (2004) Insult: The Making of the Gay Self. Durham, NC: Duke University Press.
David Halperin (2007) What do Gay Men Want: Sex, Risk, and Subjectivity. Ann Arbor: University of Michigan Press.