Taking liberties

This article originally appeared in T&S Issue 34, Winter 1996/97.

The time is long gone when feminism and gay politics might have been assumed to share a common analysis of heterosexuality. Gay activists, civil rights lawyers and the gay press seem united in their determination to measure gay (male) rights against a heterosexual norm. A recent report by Liberty illustrates this only too well. Not only does it exclude a lesbian feminist perspective, argues Stevi Jackson, it is dangerous, self-defeating and deeply reactionary.

Back in the early 1970s, the term ‘sexual politics’ was used as an umbrella term covering both feminist and gay politics. For a brief period, radical gay activists allied themselves with the women’s movement, believing that gay liberation, like women’s liberation, required the dismantling of patriarchal structures and institutions. This alliance, however, proved short lived. Today large sections of the male dominated gay movement are pursuing goals which are antithetical to feminismand also counter-productive for gay liberation. This can be illustrated by a report published by Liberty (formerly the National Council for Civil Liberties) in 1994: Sexuality and the State: Human Rights Violations Against Lesbians, Gays, Bisexuals and Transgendered People.

While produced by a civil rights organi­sation, the report was compiled in consultation with Stonewall and OutRage, representing respec­tively the reformist and radical faces of gay politics in Britain. The arguments it presents reflect those widely aired by gay activists and most of the evidence cited in support of these arguments comes from the gay press. The report can, therefore, be taken as representative of male dominated gay politics. It is certainly not representative of lesbian politics.

While claiming to speak for both lesbians and gays, the Liberty report is primarily a defence of the rights of gay men. There are women in both OutRage and Stonewall, but the agenda of these organisations is defined from a gay male perspective and this, unsurprisingly, is reflected in the report. Lesbian feminist perspectives are totally excluded. Among all the references to the gay press there are none to feminist publications and there appears to have been no consultation with feminist organisa­tions, such as Rights of Women, which have campaigned around the legal rights of lesbians.

Endorsing heterosexuality

The lack of any engagement with feminism not only illustrates the distance between gay male politics and feminist politics, but also leads to some of the fundamental flaws in the arguments Liberty presents. Because the report ignores decades of feminist activism and scholarship on sexuality (as well as the work of more radical gay theorists) it reads as if no-one had ever developed critical perspectives on the social construction of gender and sexuality. In parti­cular, it fails to address the ways in which institutionalised heterosexuality reinforces both patriarchal domination and the oppression of lesbians and gays.

Any attempt to further gay rights should recognise that lesbianism and homosexuality exist in opposition to heterosexuality. In the first place, the categories ‘homosexual’ and ‘lesbian’ serve to police the boundaries of institution­alised heterosexuality: homosexuals and lesbians are defined as deviant outsiders in order to confirm the ‘normality’ of hetero­sexuality. This is central to the oppression of lesbians and gays. Second, in mobilising around these identities, redefining them as political rather than deviant, lesbians and gays poten­tially challenge the institutionalisation of heterosexuality. Lesbianism in particular been adopted as a political stance in opposition to the appropriation of women within patriarchal societies.

The Liberty report does not recognise the oppositional location of lesbians and gays. Hence it fails to question the structures and ideologies which maintain the distinction between heterosexuality and homosexuality, and which confirm the former as the norm. Nor does it take any critical stance on heterosexuality itself. It considers neither the power relations which exist within heterosexual relationships nor the power relations which operate between heterosexuals and homosexuals. Instead heterosexuality’s normative status is confirmed. It is taken as the standard on which human rights are founded, and hence the issue of rights is posed in terms of equality with heterosexuals, leaving heterosexuality itself unchallenged.

The Liberty report aims to expose the ways in which the British state denies the rights of lesbians and gays. The argument is framed in terms of internationally agreed standards for human rights, such as the United Nations (UN) International Covenant on Civil and Political Rights (ICCPR). It is partly because it takes the terms of such international agreements, them­selves formulated on the assumption of a universal heterosexual normality, that the report is problematic. I have no quarrel with the aim of defending civil liberties for lesbians and gay men, but this aim is not furthered by a perspec­tive which treats heterosexuality as the standard for human rights and which does not consider the political consequences of endorsing patriar­chal, heterosexual institutions.

‘Nature’ vs. choice: a false opposition

One of the grounds on which Liberty argues that discrimination on the basis of sexual orientation is an abuse of human rights is that ‘sexual orientation is an immutable part of every person like their race or gender’ (p. 11). In the very next paragraph, however, it is stated that: ‘A debate continues about whether sexual orienta­tion is a biologically innate characteristic or a conscious political choice’.

You cannot have it both ways! If sexual orientation is biological in origin it cannot be a matter of choice. Liberty wants to have it both ways because each of these options can be used to argue for protection against discrimination: ‘either similar protection to that which is afforded women and ethnic minorities, or protection from discrimination because of political or other opinions’ (1994: 11). This either-or distinction between biology and choice is not confined to this document: it has been a feature of other recent debates and campaigns, such as those around Section 28 and the homosexual age of consent. It relies, as Lynda Birke argues, on a reductionist view of biology as a single, simple explanation for complex human behaviour. More importantly, it leaves no room at all for social structures and proc­esses. In ruling out the third alternative, that sexuality is socially or culturally constructed, it ignores the social contexts which shape both biological research and the choices we make. In addition to these problems, I am not convinced that either alternativebiology or choiceprovides a sound basis for advocating equality.

It is not clear whether the idea of sexuality as a choice is a misunderstanding of social constructionist theories of sexuality or of political lesbianism or both. If the idea of choice derives from political lesbianism it is a some­what naive interpretation of it; the slogan may have been that ‘any woman can’ be a lesbian but, in fact, not every woman could. Lesbian feminist theorists such as Adrienne Rich had a great deal to say about the material and ideolog­ical constraints involved in the maintenance of compulsory heterosexuality. Those who became lesbian for political reasons did so as a result of a particular analysis of sexuality, one which derived from the women’s movement: that sexuality was socially constructed within heterosexually ordered patriarchal relations. It was in this context that the possibility of challenging and transforming sexuality opened up, making new choices available. Moreover, although the idea of choice has been important to feminist thinking on sexuality, feminists have also long been aware of the complexity of sexuality and the dangers of a liberal individual­istic model of desire and identity (see Jackie Stacey’s article ‘Promoting normality’).

Locating oneself as lesbian or gay is potentially political, because it entails embrac­ing an identity oppositional to the prevailing norm: it is precisely the social significance of homosexuality and lesbianism that creates this political potential. Following the logic of homosexuality as a choice, Liberty argues for gay rights as analogous to the rights of political belief and dissent. What they do not consider is what gays and lesbians are dissent­ing from if not compulsory heterosexuality. The one thing which a politically motivated lesbian or homosexual does not want is to be just like a heterosexual, yet the aim of the report is precisely that lesbians and gays should be treated just like heterosexuals. They should, it is argued, have the right to form heterosexual style marriages including entitlements to the pensions and tax allowances which derive from the economic inequality underpinning heterosexual marriage. The goal is to be included into heterosexual privilege rather than to challenge it. Political lesbianism, on the other hand, has always been seen as a challenge to institution­alised heterosexuality, a refusal to live within its boundaries.

Even in the absence of such a radical analysis, what freedoms could a posited right to a dissident sexuality guarantee? The right to believe and articulate a political defence of homosexuality or lesbianism is not equivalent to the right to freedom of sexual conduct. There is not, nor can there be, absolute freedom of action for any of us. Liberty’s claim that the ICCPR ‘protects the right of people to enter into relationships’ (Liberty 1994: 11) is, to say the least, rather vague. None of us is free to enter into any form of relationship we choose, nor should we be. Many feminists would balk at the extreme libertarianism which such an argument could lead to. We would not, for example, support the right of an adult man to enter into a sexual relationship with a six year old child. Indeed feminism directly challenges some existing relationship rights, particularly the rights over women which men gain through marriage.

The return of biological determinism

The alternative strategy offered by Liberty is the claim to rights premised on sexuality as a biologically ordained immutable characteristic. Their assumption that immutable sexual nature is the only alternative to political choice is not an isolated instance, but part of a more general turn to biological explanations among gay activists. In the absence of a political under­standing of sexuality as socially constructed, the idea of being ‘born that way’ has become attractive to many gays and some lesbians. The cultural legitimacy of ‘science’ provides individuals with an easily understandable way of accounting for their own sexual desires and practices. Biological explanations ‘ring true’ not because they are based on incontrovertible fact, but because they provide culturally approved ways of making sense of sexuality.

A further reason for the popularity of biological determinism among gay activists it that the political Right sometimes use a version of social constructionism against lesbians and gays, suggesting that it is possible to ‘promote’ homosexuality or convert people to it. This however, is no reason to abandon social and cultural perspectives. If both choice and determinism can be used to defend gay and lesbian rights, they can equally be deployed against those rightsto damn lesbians and gays as genetic freaks on the one hand or moral degenerates on the other.

More importantly, countering the Right’s homophobia by resorting to biological determin­ism concedes political ground to them. Femi­nists have long been aware of that homo­sexualityand more specifically lesbianismdoes represent a threat to institutionalised heterosexuality and to the hierarchy of gender which is integral to it. It has always been a central tenet of feminism that sexuality is socially constructed and that we can therefore struggle politically to change it. The existence of such a threat, the potential for political change, depends on recognising that the current ordering of gender and sexuality is social rather than natural.

The notion of an innate sexual orientation offers no challenge to hierarchies of gender and sexuality. This is precisely why biological theories appeal to the less radical wing of the gay rights movementthey render homo­sexuality unthreatening. If gays are ‘born that way’, then there is no risk of their ranks being swelled by converted heterosexuals, no chal­lenge to the hegemony of the heterosexual social order. Indeed this is the political stance taken by Simon LeVay, the originator of the ‘gay brain’ theory.

This position also ignores the continued vitality of lesbian and gay communities, which have managed to reproduce themselves non-biologically. As Sarah Franklin argues:

There is a distinct political significance to the simple fact that we do not reproduce ourselves biologically. We reproduce ourselves socially, entirely by means of the social, political and cultural struggles that keep lesbian and gay sub-cultures alive. According to every theory of evolution, biological determinism or genetic essentialism we should be extinct. But we are not extinct. (p. 38).

The implications of biological and genetic theories, that they suggest that lesbians and gays, if not extinct, should be a dying breed, seems to have been missed by those gay activists who endorse such theories. They also ignore the central issue raised by Franklin, the political importance of the social reproduction of lesbian and gay communities. Instead they assume that lesbians and gays constitute a permanent, more or less stable, natural minority. To campaign for equal rights on this basis is misguided. The hope behind this, as voiced by the American gay activist Randy Shilts, is that being gay could have no more significance than being left-handed, that it will therefore cease to be regarded as socially intolerable. Pleas for rights on this basiswe deserve tolerance and protection because we can’t help ithardly seem a promising start for claims to equality.

Such aspirations are founded on a misunder­standing of why homosexuality is socially significant, or why it exists as a meaningful social category at all. Homosexuality is not a natural difference that has become stigmatised through some irrational prejudice, but a category which only exists in relation to normative heterosexuality. It cannot be equal to hetero­sexuality: it is necessarily in opposition to it. Homosexuality will inevitably be regulated, oppressed and stigmatised while heterosexuality retains its privileged position as the unques­tioned, institutionalised cultural norm. Nowhere in the report is this privilege challenged.

The politics of gender and sexuality

It is somewhat ironic that the Liberty report takes the immutability of sexual orientations as analogous to gender (p 11), given that the concept of gender has been used by feminists in order to refute the idea that sex differences are natural and unchanging. It also leads to further contradictions. Gender, we are told, is fixed and immutablebut because Liberty want to defend ‘transgendered’ individuals they complain that ‘the law does not recognise the right of people to have changes to their gender acknowl­edged’ (p. 58). The argument runs like this: gender can’t change but the law should recog­nise our right to change it! They do not see that the very existence of gender divisions might be part of the problem and that this is linked to the division between hetero- and homo- sexuality.

Heterosexuality as a system depends upon gender hierarchy and patriarchal domination. Heterosexuality as a sexual practice is legiti­mated as the ‘natural’ outcome of equally ‘natural’ sex differences. Hence anatomical sex, gender and sexuality are conflated: to have female genitals is to be a women; to be a woman is to desire men (and vice-versa). At the core of heterosexuality is gendering of desirethe idea that we should be attracted to ‘the opposite sex’. Because homosexuality involves the ‘wrong’ choice of sexual partner, it has often been seen as a gender disorder. Some recent forms of biological determinism pro­moted by gay scientists and activists accept this. For example, Simon LeVay’s (1991) ‘gay brain’ theory relies on the idea that the brains of gay men are character­istically feminised, and thus assumes that if men desire other men they must be ‘like’ women. Thus patriarchal and hetero­sexist ideology which identifies gay men as failed menand lesbians as failed womenis left intact.

The policing of gender divisions and of heterosexuality are intimately interconnected. It is this which the author of the Liberty report fails to appreciate. He also has not noticed that heterosexuality is necessarily a gendered institution: a man plus a woman equals a heterosexual relationship. Heterosexuals are not a genderless category. Moreover, men and women do not share equally in heterosexual privilege since heterosexual marriage has historically institutionalised women’s subordi­nation to their husbands. It is a nonsense to claim equality with heterosexuals when the condition of being heterosexual, by definition, differs for women and men.

Pretended families?

Major problems arise when Liberty demands rights in areas which are central to the institu­tion­alisation of heterosexuality, notably ‘the right to form a family’ (pp 18; 37-44). The well-worn example of Section 28 of the Local Government Act 1988 demonstrates that the family, by definition, is heterosexual: gays and lesbians can only have ‘pretended family relationships’. This, however, only served to underline what was already the case. However diverse family forms are becoming, a variety of state social policies reinforce the institution­alised heterosexuality and male dominance on which families are still founded. Why would lesbians and gays want to be included into an institution which has served to perpetuate heterosexuality and patriarchy? Liberty mobi­lises the idea of family diversity to argue that the ICCPR’s provision on family rights could be extended to lesbians and gays, but the rights they argue for do not rely at all on ideas about diversity, but rather on the closest possible mimicry of conventional heterosexual domes­ticity. Rather than looking for ways of enhancing diversity, Liberty simply want to give lesbians and gays rights modelled precisely on the heterosexual family. It would seem that Liberty is indeed advocating rights enabling lesbians and gays to establish ‘pretended (heterosexual) family relationships’.

Demands for the recognition of gay marriage are now, of course, widely heard throughout the Western world. Liberty’s call for legal recog­nition of same-sex relationships includes the ‘benefits’ accruing to heterosexual couples, such as wives’ pension rights and the ‘married man’s tax allowance’(sic) (p. 37). The report’s author seems curiously oblivious of the implications of this. Taxation and social security provisions have evolved in the context of a hierarchical system in which husbands are economic heads of households and wives are their dependants. Again we might ask why lesbians and gays should want to replicate the patterns of support and dependency which have typified patriarchal marriage.

The right to parent is potentially of a different order from the right to marriage, in that rearing children outside conventional families could pose a more radical challenge to institu­tionalised heterosexuality. This, however, is played down in the Liberty report. Liberty’s defence of the rights of lesbians and gays to parent, and especially to foster and adopt, is couched in terms of the difficulties faced by lesbian and gay couples (p. 43). This presup­poses the normality and desirability of mono­gamous coupledom. Presumably the aim is to appear respectable and reasonablebut it also reflects an insensitivity to issues of gender.

Although the report mentions the specific problems faced by lesbian mothersloss of custody of their children and barriers to access to assisted conceptionit assumes a general­ised opposition to lesbian/gay parents. This is not the case, since that opposition is clearly related to the gender of the parent as well as their sexuality. The work that has been done on lesbian mothers by organisations such as Rights of Women suggests that one of the reasons why they lose custody of children is that their children are growing up without being subject to the proper patriarchal authority. Similarly, the ‘virgin mothers’ scare around Artificial Insemi­nation by Donor in 1991 entailed publicly expressed outrage that women should dare to become pregnant without men, without being ‘possessed’ by a man, without fulfilling conventional feminine obligations to men (see Jill Radford in T&S 21).

The gender division underpinning hetero­sexuality means that gays and lesbians are not simply commonly oppressed through their homosexuality but are located differently in relation to compulsory heterosexuality. Rights pursued by gay men may not, therefore be rights for lesbians. Aside from the (very) limited recognition of gender difference in relation to the specific problems faced by lesbian mothers, the report largely ignores differences between lesbians and gay men.

The problem of consent

Another obviously gender specific issue is the campaign for an age of consent which applies equally to heterosexuals and homo­sexual men. What is not widely recognised, and is not mentioned in Liberty’s coverage of the issue, is that the age of consent is a gendered conceptit applies only to heterosexual women. There is no age of consent for hetero­sexual men, but rather an age of assumed sexual capabilityand therefore of criminal culpa­bility for such acts as rape. In other words the law encodes a model of heterosexual acts as something men do and women merely consent to (or not). Femi­nists have long been aware that this derives from a history in which male sexual access to a women’s body was an act of appropriation whereby a man gained rights over a woman’s person, property and labour. This history should not be ignored, for we do not yet live beyond its influence.

The extension of the concept of the age of consent to gay men has been a result of the partial decriminalisation of homosexuality. The only model available for the enforcement of age-limits was one developed through heterosexist assumptions of sexual activity and passivity, effectively positioning (sic) gay men in an analogous situation to straight women: consent­ing to have ‘it’ done to them. This model of sexual relations is clearly absurd since in practice both active and passive partners are equally liable to prosecution for sex with someone under the age of consent. Yet the assumption of an active older man and a passive younger man certainly shapes the thinking of some of those who oppose lowering the age of consent, who see it as a license for men to bugger young boys. I am not suggesting that the age of consent campaign is misguided, merely that it should be recognised that it does not render gay men formally equal to heterosexual men but rather to heterosexual women. This holds true whether one regards the age of consent for women as repressive discriminatory legislation or a necessary protection against male sexual exploitation.

The lack of attention given to these issues is surprising since the NCCL (now Liberty), argued in the early 1980s for the removal of the age on consent on the grounds of sex discrimi­nationan argument controversial at the time since many feminists felt (and still feel) that it was necessary to protect young women from sexual violence and exploitation. The history of heterosexual age of consent legislation has also been much debated among feminists, particu­larly in terms of whether its protective intent was progressive for women or repressive of their sexuality. This has been ignored despite the fact that it was the same piece of legislationthe Criminal Law Amendment Act of 1885 — which both raised the heterosexual age of consent to 16 and outlawed ‘acts of gross indecency between men’.

Whose rights?

The issue of consent serves to underline, yet again, that the pursuit of rights ‘equal’ to those of heterosexuals is far from unproblematic, and that the way in which heterosexuality has been constructed and institutionalised should be questioned. Throughout Liberty’s report, the social construction of heterosexuality remains unexamined. Moreover, the focus on individual rights diverts attention away from social inequalities which are not amenable to change simply through legal reform. We cannot even begin to challenge heterosexual hegemony while limiting our concept of equality to formal, individual rights. The fact that women have gained many such rights without attaining social equality should demonstrate the limitations of a politics of rights which ignores the structural bases of social inequality.

To whom, in any case, do the lesbians and gays of the ‘rights’ lobby want to be equal: heterosexual women or heterosexual men? I suspect that many gay men are seeking equality with heterosexual men and are quite happy to leave lesbians the less enviable goal of equality with heterosexual women. Lesbian feminists, of course, have continued to fight for equality for all women and an end to gender hierarchy. This does not mean equality with men, or being like men for, as Christine Delphy puts it in ‘Rethink­ing sex and gender’, ‘if women were the equals of men, men would no longer equal themselves’ (p. 8). That is to say, since men and women are categories rooted in a hierarchical division of gender, without that hierarchy the categories would cease to be socially significant. The same logic can and should be extended to the division between homo- and heterosexualities. If real equality existed heterosexuality would no longer be what it is today. To seek equality with heterosexuals is a logical absurdity since it cannot happen without displacing hetero­sexuality from its status as privileged, institu­tionalised norm. Rather the goal should be to make the anatomical contours of one’s chosen sexual partners socially irrelevant. This itself requires that gender ceases to be a significant factor in the way we organise our sexual and social lives.


This article arises out of, and owes much to, collaborative work with Momin Rahman.


Lynda Birke ‘Interventions in Hostile Territory’, in Gabriele Griffin, Marianne Hester, Shirin Rai & Sasha Roseneil (eds) Stirring It: Challenges for Feminism (Taylor & Francis, 1994).

Christine Delphy ‘Rethinking Sex and Gender’, Women’s Studies International Forum, 1993.

Sarah Franklin ‘Essentialism, Which Essentialism? Some Implications of Reproductive and Genetic Techno-Science’ in J.P. DeCecco and J.P. Elia (eds) If You Seduce a Straight Person, Can You Make Them Gay? Issues in Biological Essentialism Versus Social Constructionism in Gay and Lesbian Identities (Harrington Park Press, 1993).

Simon LeVay The Sexual Brain (MIT Press, 1993).

Liberty Sexuality and the State: Human Rights Violations Against Lesbians, Gays, Bisexuals and Transgendered People (National Council for Civil Liberties, 1994).

Jill Radford ‘Immaculate Conceptions’ (T&S 21, 1991).

Jackie Stacey ‘Promoting Normality: Section 28 and the Regulation of Sexuality’, in Sarah Franklin, Celia Lury & Jackie Stacey (eds), Off Centre: Feminism and Cultural Studies (Harper Collins, 1991).

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