Sex Equality Panic (+)

By Spindelman, Marc | Columbia Journal of Gender and Law, Winter 2004 | Go to article overview

Sex Equality Panic (+)


Spindelman, Marc, Columbia Journal of Gender and Law


What are all the creatures of the earth in comparison with a single one of our desires!

--Sade

The question ... is whether queer theory comprises a set of "master's tools" as it straps on the master's theories, whether or not (or to what extent) queer theory opposes "the master's house," and at what point queer theory itself becomes the house that screams for dismantling.

--Linda Garber

For B.K.

The Supreme Court's announcement in Oncale v. Sundowner Offshore Services, Inc., (1) that same-sex sexual harassment can be actionable sex discrimination under federal anti-discrimination law, changes the social context against which it was decided. No longer, for instance, are men guaranteed all the protections male supremacy has traditionally offered them when they sexually subordinate other men. In refusing to de-sexualize same-sex sexual violence or render it legally invisible, Oncale disrupts the conventional social meanings that that violence has had. After Oncale, one cannot quite be certain how "boys will be boys," or how one is supposed to "take it like a man."

As a strike against male supremacy, Oncale is an important step forward for sex equality rights, including the rights of those who identify or are identified as lesbians and gay men. (2) For the first time ever, the Supreme Court has made anti-gay discrimination, in the form of sexual violence at least, subject to judicial scrutiny and action as a matter of sex equality law. Judicial decisions in Oncale's wake have already begun to acknowledge this transformative potential. (3) As Janet Halley observes: "a gay-friendly analysis has to welcome the Court's [Oncale] decision that same-sex sex harassment is actionable sex discrimination: Without it, federal antidiscrimination law would have explicitly declared open season on gay men and lesbians, leaving us unprotected from sexual interference that can threaten our very ability to work and learn." (4)

To be sure, the time hasn't come for lesbians and gay men to let down our guard. It's always possible courts will allow themselves to be blinded by their own commitments to male supremacist norms and so not recognize that the context-sensitive judgments Oncale mandates are no warrant for judges or juries to police same-sex sexual interactions in antigay ways. Notwithstanding this possibility, Oncale is cause for cautious celebration. It puts a new legal tool in the hands of those lesbians and gay men who have been sexually subordinated because of their sex.

As a case clarifying the rules of sexual harassment law, Oncale has the potential to help straight and gay victims of same-sex sexual harassment in the workplace, in schools, in public housing, even in the streets. Nor is that all. As a case addressing the structures of sex inequality, Oncale offers victims of same-sex rape, (5) sexual assault, domestic violence, (6) stalking, (7) and the sex industry, (8) a new vehicle through which to lay claim to--and to name (9)--what it is that they've endured. We may thus finally begin to learn, through the previously silenced voices of its victims, what life under male supremacy, with its safe harbors for perpetrators of same-sex sexual violence, means for them: as human beings who have been harmed because of, and through, their sex. In part as a result of feminist efforts--efforts that helped produce sexual harassment law, Oncale, and the analysis and social movements that, in turn, produced them--the world looks better than it did before. (10)

But just as we begin to approach the threshold that Oncale has opened up--beyond which lies fresh knowledge of power and its sexual use--appears "queer theory" in the doorway, shooing us away.

I. QUEER CHOICES

Perhaps it could have been otherwise. Acknowledging the centrality of concepts like "power," "knowledge," "domination," "oppression," and "hierarchy," and their relation to sexuality, queer theory could have aligned itself with male supremacy's critics. …

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