The right to sex

Neil McArthur (philosophy) asked on Jan. 13, 2014, if there is a right to sex. He is interested in a question that sometimes comes up in court cases involving sexual behaviour: Why does the state allow us to have sex? Two reasons come to mind: That it is no one’s business, or that it leads to good things. Most people assume the answer to this question is that there is a reasonable expectation to privacy, that it is no one’s business. And in general the courts would say that without a good reason to interfere in our private conduct the state cannot. In other words, there is a right to liberty and privacy. If the law is going to prevent us from doing what we want, it must prove that there is social harm involved in the act. However, this line of reasoning might not be enough. McArthur argues that it is easy to show that sex impacts other people and therefore does have a social impact. For example, “prostitution does have social impacts on society, so this sexual behaviour does impact other people.” So what do the courts do with this? They respond as they might to an issue of free speech. We have the right to free speech, but if there is a social impact to our free speech, the court will ask: What is the purpose of the speech? Do the benefits outweigh the harms? One way to make progress on sexual liberty might be to start talking about why sex is important, McArthur argues. It supports intimate companionship and promotes health and happiness, he noted.

David Churchill (history) discussed the history of sexual advocacy as it relates to same-sex erotic intimacy. He focused on sexual modernity, those practices, laws and diagnoses that emerged in the mid to late 19th century. He argued that the constellation we understand today as gay, lesbian, transgendered, or queer has been over-determined by American and European culture, tradition, laws and sciences. Churchill spoke about the ways in which people build communities around sex acts. He examined the literature of sexual advocacy from the works of Michel Foucault through Karl Heinz Ulrichs – who coined the word Urning to describe a hermaphrodite of the soul.

Bourgeois, urban men were interested mainly in privacy rights that allowed them to protect their standing, Churchill says. He argues for rights based on “acting this way” rather than being “born this way.”

“Queer rights are formed through queer action,” he said. “It was, after all, people doing illegal and ‘sick” things that made queers, and queer culture and identity recognizable and something to fight for in courts of law.” He suggests focusing energy on the public rather than the private to advance sexual rights.

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