Law and Sexuality

The law and ideas of justice play an essential role in much of Shakespeare’s work. His characters often refer to contemporary laws and legal institutions even as the plays raise larger questions about justice and the workings of the law. Amongst the most extensive of these discussions takes place in Measure for Measure, which concerns itself with the impossibility of reconciling the abstractions of legal dictates with human passions. In the course of the play, Shakespeare confronts us with questions relating to how the law should work with rather than against nature, as well as what it means to do an act of justice, and how one mediates adjudication with empathy.

These are particularly relevant questions in the contemporary context. As this paper discusses, they throw an illuminating light on the Indian judiciary’s constitutional engagement with the criminalization of homosexuality under Section 377 of the Indian Penal Code. The Delhi High Court's judgment in Naz Foundation v. Union of India and the Supreme Court's verdict in Suresh Kumar Koushal v. Naz Foundation can be read as building on the themes raised in Measure for Measure, whether it be in their varied understandings of the role of the judiciary in protecting fundamental rights, or in the quibbling around what constitutes carnal intercourse against the order of nature. The talk will read Measure for Measure as a conceptual lexicon of law and justice to further explore these contemporary debates.

Two years after the Supreme Court dismissed a review petition filed in Suresh Koushal vs Naz Foundation, in which the court had held Section 377 of the Indian Penal Code to be constitutional, the case has been listed for Tuesday in a curative petition challenging this decision. Published in The Asian Age on 2 February 2016

This article analyzes how concepts of gender, gender equality, and secularism have been addressed by the higher judiciary in India in cases dealing with matters of religion. The discussion focuses on three landmark decisions of the Indian Supreme Court on gender equality. The cases involve challenges to discriminatory religious practices that target women in the Muslim-minority and Hindu-majority communities. In each case, gender equality is taken up in relation to religion in ways that produce several outcomes for women that are problematic rather than ones that are unequivocally progressive or transformative. The judicial reasoning in each case resonates with the Hindu Right's approach to gender, gender equality, and secularism. Each concept is used to advance the Hindu Right's majoritarian and ideological agenda, which seeks to establish India as a virile “Hindu” nation. Ironically, interventions by progressive groups, including feminist and human rights advocates opposed...

"In this chapter, we extend our earlier work on sexuality education in U.S. public schools in which we forwarded a theory of adolescent sexuality, which we called thick desire (Fine & McClelland, 2006). We chose the metaphor of thickness in order to evoke the multi-faceted ‘nature’ of sexual desire and to underline our reading of desire as a product of intimate and social negotiations. In contrast to contemporary theories that frame sexual desire as emerging solely from individual motivation, behaviour, or fantasy (within the person or the couple; see Basson 2000, 2001; Brotto, Bitzer, Laan, Leiblum, & Luria, 2010; Carvalho & Nobre, 2010; cf., Kaschak & Tiefer, 2001), thick desire invites a theoretical and methodological intervention. It reminds us that bodies adhere with connective tissue to economic, political, historic, and psychological landscapes—meaning that desire never stands on its own. It is a concept we placed into feminist discourse to signal how bodies are linked to social arrangements, politics, yearnings, deprivations, and betrayals in public settings and that these connections—both supportive and restrictive—inform how young people learn to develop a sense of desire. Thick desire encourages researchers and policy makers alike to situate desire as an ‘entry point’ (McClelland & Frost, 2014), a window through which we might begin to notice the extensive web of factors in a person’s life, family, community, and nation when making evaluations and recommendations about how individuals can and should learn about, practice, and engage with sexuality."

This paper considers issues of sexual citizenship in light of new UK legislation that prosecutes the viewers of ‘extreme pornography’. Justified as an attempt to uphold public decency, government intervention seeks to prevent people seeing ‘extreme’ images not by limiting access to certain websites, but instead by intervening in the private consumption of these images. In this paper I draw on the discourses of those who have supported such intervention, and suggest that these arguments make a claim to space that defends the rights of some citizens over others. I examine the entwining of rights of expression, rights to identity and rights to safety. In conclusion, I argue that sexual citizenship is not just about the right to occupy actual physical places but also the right to inhabit the virtual. I hence argue that the internet plays a key role in transforming the sexual geographies of public and private.

Institute of Development Studies Brighton BN1 9RE UK T +44 (0) 1273 606261 F +44 (0) 1273 621202 E [email protected] W www.ids.ac.uk twitter.com/IDS_UK facebook.com/idsuk The Gender, Sexuality and Social Justice Edited Collection is a cross-continental and multidisciplinary collaboration, bringing together critical theory, practical lessons and accounts of activists, academics and legal practitioners working to advance sexual and gender rights in over 20 countries that span almost every continent in the world. Built around two thematic areas, the contributions in the Collection interrogate the changing dynamics of sexuality and gender politics, and ask how law and legal processes translate into people’s lived experiences in different socioeconomic, political and legal contexts.

Last summer I was at this commitment celebration and had the most awkward argument about sex work. It was the night before the ceremony and my husband and I were enjoying a dinner cruise arranged for out-of-* Ummni Khan is an Assistant Professor at Carleton University. She earned her J.D. from Osgoode Hall Law School, her LL.M. from the University of Michigan Law School, and her S.J.D. from the University of Toronto, Faculty of Law. Her current research focuses on the discursive production of male clients of sex work in law, social science, and popular culture. The author would like to thank participants of the "Workshop on Comparative Family Law: What is the Global Family? Family Law in Decolonization, Modernization and Globalization" at the

This collection of essays juxtaposes developments in law and policy relating to same sex desire and sexuality more broadly in the Indian and the Ugandan contexts with the intention of opening up new questions for struggles in both these places, but also with the objective of generating a deeper conversation amongst activists and academics about the peculiarities of Law and Politics as distinct (if connected) realms of action. One feature of these various essays is to bring about the circulation of more nuanced analyses of the particular political-economic and cultural conditions for these dramatic developments in law , which take place at the intricate intersections between global economics, national politics and the so called ‘return of the religious’ (Derrida, 1998) in dogmatic manifestations. Another aspect examined by some of the authors regards the limitations and caveats of dominant juridical, economic and scientific rationales that currently pervade political struggles and advocacy in relation to human rights.

This article critically assesses the notion of dignity used in recent
Supreme Court judgments on ‘third gender’ and ‘transgender
rights’ in South Asia, and suggests a reexamination of dignity as
the basis for demanding justice for historical wrongs. Tracing the
constitutional genealogy of the idea, I suggest that dignity has
a distinctively European philosophical and legal origin. Yet the
category of dignity has taken on a universal significance, and it
has become a platform for demanding all kinds of rights and
making appeals for the assuagement of political, moral, social and
cultural injuries in the postcolonies. By juxtaposing the conception
of dignity with the demand for izzat (respect), I argue that the
notion of dignity – as it is freely deployed in discourses on
human, gender and queer rights, and assumed to be contingent
upon the fulfilment of one’s (gender) identity – fails to address
the demand for justice made by hijras in Pakistan. Demands for
justice, I further argue, are raised in the context of historical
dispossession of hijras by the colonial state and their exclusion
from middle-class sharafat (respectability). Challenging their
dispossession, hijras identify with middle-class signs of ‘progress’
and question traditional hierarchies, identities and sources of izzat.

Institute of Development Studies Brighton BN1 9RE UK T +44 (0) 1273 606261 F +44 (0) 1273 621202 E [email protected] W www.ids.ac.uk twitter.com/IDS_UK facebook.com/idsuk The Gender, Sexuality and Social Justice Edited Collection is a cross-continental and multidisciplinary collaboration, bringing together critical theory, practical lessons and accounts of activists, academics and legal practitioners working to advance sexual and gender rights in over 20 countries that span almost every continent in the world. Built around two thematic areas, the contributions in the Collection interrogate the changing dynamics of sexuality and gender politics, and ask how law and legal processes translate into people’s lived experiences in different socioeconomic, political and legal contexts.

On September 6, 2018, the Supreme Court of India decriminalized the intimate lives of LGBTQ individuals in the country by reading down Section 377 of the Indian Penal Code. One of the most significant elements of the decision is its articulation of the right to privacy. The Court lays out an understanding of the private domain that has expanded significantly since the litigation process began almost two decades ago. This chapter will argue that the expansion of the private sphere performed by the Court is a transformative notion that is reflected in several different strands of the decision: whether it is by talking about how private acts might be performed in public spaces or in reimagining the role of the Court in constitutional adjudication by way of enacting a public apology. I further trace how this transformation may have happened, finding its paradoxical roots in the same Court’s prior decision upholding the constitutionality of Section 377. I explore how the public response to this decision set the stage for a jurisprudential reimagination of the public sphere that takes place in the final decision.

This article explores the various ethical and legal limitations faced by researchers studying extreme or ‘ shock’ pornographies, beginning with generic and disciplinary contexts, and focusing specifically upon the assumption that textual analysis unproblematically justifies certain pornographies, while legal contexts utilize a prohibitive gaze. Are our academic freedoms of speech endangered by legislations that restrict our access to non-mainstream images, forcing them further into taboo locales? If so, is the ideological normalization of sexuality inextricable from our research methodologies? Simultaneously, can we justify researchers being allowed access to materials that are not deemed suitable for general consumption, which may further bolster normalized hierarchies of class-privilege and cultural capital?

This essay examines some of the cultural wars that are being fought out in India in the legal domain, cultural wars that all seem to involve sex. The battles taking place in the legal domain, comprising issues such as a legal challenge to the sodomy laws in the Indian Penal Code, a legal challenge to satellite broadcasting and the struggle to decriminalise prostitution, all involve a contest over the meaning of culture. In each of the controversies, the rallying cry is one of ‘Indian cultural values’ in which it seems
that all sides of the debate stake their claim to being ‘true’ protector and promoter of Indian cultural traditions.
This essay addresses three concerns which underlie why participating in a conversation about gender, sexuality and law is important in a postcolonial context. First, it examines the importance of recuperating and theorizing desire and pleasure as an important political project within postcolonial India, particularly against the backdrop of the rise to power of the Hindu Right. Second, it examines the problematic role of cultural essentialism in both promoting and resisting this project in the legal
arena. The final part of this essay re-evaluates the emancipatory potential of the victim subject in a postcolonial context and explores the possibility of rethinking the nature of the sexual subject to ensure that the political project remains both liberating and subversive.

This paper examines the intersection between sexuality and education, employment, law and citizenship. The fluidity of sexuality and its capability of affecting people in multiple ways means that there is a very real need for enactments and implementations of effective laws and policies that are inclusive and prevents violence and abuse. Access to rights-based Comprehensive Sexual Education (CSE) spaces for children and youth; non-discriminatory employment opportunities and the recognition of sex work as a legitimate form of work; laws that are inclusive and efficient in preventing violence and sexual abuse and harassment in the real world as well as in the cyber space; and matters of sexuality in terms of legitimizing citizenship to a few marginalised group of people; these are some of the ways in which the paper highlights the fact that the fluidity of sexuality permeates all aspects of an individual’s life. The paper offers a reflective conclusion suggesting the complexity of approaching sexuality through only one perspective, and the real world consequences emerging from that method.

Partners for Law in Development (PLD) in partnership with Tulir organized a two-day consultation to understand and discuss the criminalization of adolescent sexuality. This consultation sought to addressing particular the impact of laws and policies on adolescent sexuality, crisis intervention services, sexual and reproductive health and capacity development. Sixty participants representing individual practitioners as well as about 35 organizations working with adolescents across the domains of healthcare, education, sexuality and law came together to debate and discuss the specific opportunities and challenges presented by legal and state-driven interventions and mandates as well as the methods and avenues they used to navigate these structures.

The policy brief was drafted to catalogue how SOGIESC has been addressed within the CEDAW reporting mechanisms. It also provides baseline information on CEDAW for activists based in ASEAN member-states, and offer guidance on its application to SOGIESC in human rights advocacy. The Policy Brief is based on a desk review of pertinent documents, including state submissions and alternative reports by civil society organizations from ASEAN member-states and Timor-Leste. It includes the most recent periodic reports submitted by these countries, as well as the Concluding Observations from the CEDAW Committee, which were published between 2012 and 2017.

LGBTIQ groups’ engagements with the CEDAW reporting process have increased significantly in the most recent reporting cycles. Among the various issues raised in their reports to the CEDAW committee are the criminalization of homosexuality and transgender persons, the absence of legal redress mechanisms, the non-recognition of same-sex unions, the absence of legal gender recognition, the lack of comprehensive legislation defining discrimination against women, harmful cultural norms and practices, and violence against women.

La sentencia de la Corte Interamericana de Derechos Humanos en el caso Karen Atala e hijas contra Chile constituye un precedente jurisprudencial importante para la región el que se interpretan, por primera vez, los alcances de la prohibición de discriminación por orientación sexual bajo la Convención Americana de Derechos Humanos. Este artículo analiza el pronunciamiento del Tribunal Interamericano resaltando sus aportes y criticando sus omisiones y plantea la pertinencia de los criterios allí asumidos para la práctica judicial peruana.

This article analyzes how concepts of gender, gender equality, and secularism have been addressed by the higher judiciary in India in cases dealing with matters of religion. The discussion focuses on three landmark decisions of the Indian Supreme Court on gender equality. The cases involve challenges to discriminatory religious practices that target women in the Muslim-minority and Hindu-majority communities. In each case, gender equality is taken up in relation to religion in ways that produce several outcomes for women that are problematic rather than ones that are unequivocally progressive or transformative. The judicial reasoning in each case resonates with the Hindu Right's approach to gender, gender equality, and secularism. Each concept is used to advance the Hindu Right's majoritarian and ideological agenda, which seeks to establish India as a virile “Hindu” nation. Ironically, interventions by progressive groups, including feminist and human rights advocates opposed...

Статья предлагает обзор современных исследований политической и дискурсивной интервенции британских феминисток «первой волны» в сферу регулирования коммерческого секса. Показано, что у современных исследовательниц и исследователей есть основания считать, что борьба с государственной регуляцией коммерческого секса оказала значительное влияние на развитие феминистского проекта. В частности, проблематизация коммерческого секса помогала мобилизации новых сторонниц и сторонников, а также предоставила возможность для выражения и легитимации некоторых целей феминистского движения, напрямую несвязанных с «проституцией» (право голоса, переоценка роли женщин в публичной сфере, борьба с двойным «половым» стандартом). В то же время викторианские феминистские дискурсы о коммерческом сексе имели ряд негативных для движения эффектов. Коммерческий секс продолжал рассматриваться как греховный и не-нормальный (в противопоставление браку), а занимающиеся им женщины оставались исключенными из процесса дискурсивного производства и принятия политических решений. Соответственно, вместо легализации в Британии (а затем и в других странах) были приняты законы, криминализирующие коммерческий секс, что только усилило контроль над сексуальностью женщин из рабочего класса. Таким об-разом, анализ современных исследований позволяет рассматривать феминистскую политику в отношении коммерческого секса как историко-политический ассамбляж, возникающий и развивающийся на пересечении разных сил, желаний и дискурсов, взаимодействие с которыми делает возможным создание новых форм высказываний и действий как по поводу коммерческого секса, так и по другим феминистским проблемам

This article analyzes how concepts of gender, gender equality, and secularism have been addressed by the higher judiciary in India in cases dealing with matters of religion. The discussion focuses on three landmark decisions of the Indian Supreme Court on gender equality. The cases involve challenges to discriminatory religious practices that target women in the Muslim-minority and Hindu-majority communities. In each case, gender equality is taken up in relation to religion in ways that produce several outcomes for women that are problematic rather than ones that are unequivocally progressive or transformative. The judicial reasoning in each case resonates with the Hindu Right's approach to gender, gender equality, and secularism. Each concept is used to advance the Hindu Right's majoritarian and ideological agenda, which seeks to establish India as a virile "Hindu" nation. Ironically, interventions by progressive groups, including feminist and human rights advocates opposed to the Hindu Right's makeover of the Indian nation, have not proved to be disruptive of gender norms; nor have they pushed back the tides of Hindu (male) majoritarianism that are increasingly determining the terms of engagement on issues of gender and faith in law.
Keywords: secularism, Hindu Right, gender, equality, freedom of religion, religious majoritarianism.

Upendra Baxi is one of the few legal scholars of his generation to have consistently engaged with the queer movement and the legal struggle for decriminalisation of homosexuality in India. In this article, I outline three key moments in Baxi’s engagement with queer politics— his foreword to the groundbreaking 2003 PUCL-K report on human rights violations against the transgender community in Karnataka, his public responses to the Delhi High Court’s Naz Foundation decision in 2009 and its overruling by the Supreme Court in the Koushal judgment in 2013. I conclude by selecting parts of the Supreme Court’s recent decision in Navtej Singh Johar overturning Koushal, that resonate strongly with Baxi’s writing on this theme.
This paper is part of a collection of essays in the Jindal Global Law Review issue titled "Upendra Baxi in our times: Law, life, liminality", October 2018

Abstract in English:
The Hebrew University Law Journal, Vol. 45, 3, 653-707
The article is the first to offer an innovative conceptualization of sexuality in law. Its first part exposed the manner in which the law constrains the perception of female sexuality as a source of power and empowerment and contributes to the transformation of the sexual economy into a sexual dysonomy a. Identifying an additional "strategic totality" operating as part of the deployment of sexuality beyond the strategic totalities identified by Foucault, the article argues that the 'sexual dysonomy' is mediated by this strategic totality, which we term  "the humiliation scale." The humiliation scale is a modern tool for policing  female sexuality structured around the ascription of a social price of shame to any female sexual activity exceeding certain pre-determined gender bounds. It does so by 'fining' diverse enactments of female sexuality, from seemingly 'legitimate' utilizations entailing a low degree of humiliation, to prostitution, the point of "no return" at the bottom of the humiliation scale.
Against this backdrop, the article delineates a map of legal norms which sustain and reinforce the humiliation scale, and an initial outline for the conversion of the existing legal order, which preserves female inferiority, into a new order heralding women's empowerment. In particular, the research project develops a new paradigm for regulating sexuality in Israeli law in lieu of the problematic consent paradigm that currently misshapes female sexuality as a site of danger, inferiority, and weakness. Under the new paradigm, women would be freely allowed to enjoy sex without being 'fined' with shame and humiliation, in a legal regime that would reconceptualize female sexuality, as a source of power, self-actualization and empowerment.

Abstract in Hebrew:
משפטים מה(3), ספטמבר 2016, תשע"ז, 653
המאמר מציע המשגה עכשווית של המיניות במשפט. חלקו הראשון חשף כיצד המשפט תורם להפיכת כלכלת המין לקלקלת מין ומהווה גורם המעכב את תפיסת המיניות הנשית כמקור לעונג, כוח והעצמה. חלק זה מזהה "מכלול אסטרטגי" נוסף הפועל במסגרת מערך המיניות, מעבר לאלה שזיהה פוקו, וטוען כי "קלקלת המין" פועלת בתיווכו של מכלול אסטרטגי זה, אותו אנו מכנות "סקאלת ההשפלה". סקאלת ההשפלה היא כלי מודרני למשטור מיניות נשית המושתת על הצמדת מחיר חברתי של בושה לכל פעילות מינית נשית הנחזית כחורגת מגבולות מגדריים מוגדרים. המחקר מזהה כיצד גם במאה ה-21, שבה נורמות של מוסרנות מינית הן לכאורה נחלת העבר, עדיין משמרת החברה, בסיוע המשפט, תיוג של נשים לפי האופן שבו הן נתפסות כמשתמשות במשאב המין, וקונסת מופעים שונים של שימוש במיניות הנשית, החל משימוש "לגיטימי" לכאורה, הכרוך במידה נמוכה של השפלה, ועד לזנות, נקודת האל-חזור שבתחתית סקאלת ההשפלה.

על רקע זה, המאמר מציע מיפוי של נורמות משפטיות התורמות לקיומה של סקאלת ההשפלה, ומשרטט מתווה ראשוני להמרת הסדר המשפטי הקיים, בו נשמרת נחיתותן של נשים, בסדר חדש. המחקר מפתח פרדיגמה חדשה, חלף פרדיגמת ההסכמה, לעיצוב הממשק שבין מין ומשפט, באופן התורם לתיאורטיזציה של מיניות אנושית – גברית ונשית – במונחים חיוביים. לפי ההמשגה המוצעת, מיניותן של נשים תומר מאתר של סכנה, פגיעות וחולשה למקור של עונג, מימוש עצמי והעצמה.

The contributions to this Edited Collection reveal the complexity of the deceptively simple question posed by its title: Gender, Sexuality and Social Justice: What’s Law Got to Do With It? Many of those involved in this publication are directly involved in and affected by the issues to which the Edited Collection’s title speaks. From activists working with women in Assam’s tea gardens in India or young lesbian, gay, bisexual and transgender leaders in Vietnam, to lawyers fighting the Anti-Homosexuality Bill in Uganda or the criminalisation of cross-dressing in Malaysia, to academics carefully re-reading Islamic Sharia or researchers assessing HIV prevention programmes in South Africa, the contributors to this Collection have first-hand knowledge and experience of the complexities
of gender, sexuality and social justice.

The product of this vast array of experience is a series of conversations that decisively indicate that the question of law’s relation to sexuality, gender and social justice does not have a single, simple answer. The increased legalisation of processes by which sexual, sexuality and gender justice is sought requires
interrogation and careful scrutiny and, as the contributions in this Collection show, the law is often an imperfect tool for achieving meaningful justice.

Yet it is in these important and complex conversations that the scope for future action becomes tangible. In exploring different processes by which activists and other actors have worked for change, in interrogating what we mean when we talk about ‘solidarity’, and in questioning the usefulness and place of law, a picture of a complex but vibrant field of action for sexuality and gender justice begins to emerge. This Collection offers multiple routes to sexuality and gender justice and numerous suggestions of what sexuality and gender justice could be in a plurality of contexts. It also suggests that there are many potential pitfalls and barriers to justice or progress. What this Collection highlights, however, is that by listening carefully to each other and by paying careful attention to the needs of those working on the ground, we give ourselves the best chances of success, individually and collectively. The ongoing conversations in this Collection are part of this process. It has been a privilege to be part of them and we will watch how they develop further with interest and with hope.

Hijras in India constitute a much-misunderstood community; they are often denied humane treatment by the state machinery and are deprived of the rights that other citizens enjoy.
An article published in Frontline Magazine, Vol. 20, Issue 21, October 11-24, 2003

Despite a sensitive understanding of marital sexuality, the judicial discourse on the subject in India does not involve any mention of consent. This article highlights four approaches taken by judges towards marital sexuality—seeing sex within marriage as a norm, a pragmatic approach valuing it for its health consequences, a formalist approach of attaching a formal legal function to it, and a moral panic approach warning against attaching legal relevance to sexual dissatisfaction as a criterion for ending marriage.

The article examines the LGBTIQ movement's engagement with international human rights adjudication from the perspective of its borrowing from or piggybacking on the strategies and tactics of other international social movements for historically disadvantaged groups, particularly race, gender, and Indigenous peoples. Piggybacking has shaped the rights goals of the LGBTIQ movement, which are then translated into the language of international human rights law. In this translation process, certain objectives get foregrounded at the expense of others, and the movement essentializes itself in the pursuit of strategic gains, often to lasting unintended consequences that harm the movement itself. In mapping these trends, the article argues that social movement advocates would do well to be more mindful of the piggybacking's strategic costs, particularly as new international rights-oriented social movements emerge in areas like disability rights and the rights of older persons.

This Article explores how prostitution is treated in Canada, despite being legalised, as compared to the highly lucrative business of selling and manufacturing pronography.
I also discuss whether the theory of Marxism interactionism fits with such an attitude.

An article on the 2018 Indian Supreme Court judgment, Navtej Singh Johar & Ors that decriminalised homosexuality in India striking down section 377 of the Indian Penal Code, thus bringing to an end a 17 year-old litigation that began in 2001 in the Delhi High Court.