A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
Crikey, the bongs of Big Ben will soon usher in another year and with it, our annual few hours of feeling optimistic about the future (coincidentally at the very moment most of us are in a state of some inebriation). What, we might ask, will the cold sober daylight of 2011 bring for law and sexuality? Here are some of my thoughts.
For Brits, the Coalition is the ‘new politics’ through which all issues pertaining to law and sexuality must be viewed. Their Coalition document suggests some further policy announcements that could be announced and/or initiated in 2011. For instance, improved recording of hate crime and a review of family law to shift the emphasis towards mediation when couples break up (take a look at the Family Law Act 1996 as originally passed for an indication of Conservative thought in this area).
The Government also promised to ‘review the criminal records and vetting and barring regime and scale it back to common sense levels’, so expect a debate about what levels are ‘common sense’ – and some fear mongering by the Daily Mail over the safety of children. I would expect the Labour Party – who see an opportunity to be to the right of the Coalition on law and order issues – to hit the Government pretty hard over any relaxation of the law on vetting.
The coalition has also indicated it will bring forth legislation that will wipe convictions for historical gay sex offences. This will, as Pink News indicated, form part of the Freedom Bill and will be brought forward early in 2011. This specific policy pledge formed part of the Conservative manifesto but I can’t find it in the coalition document. So, whilst I welcome it, it’s interesting to see another policy being introduced that is actually outside the coalition programme (please do correct me if it’s in the doc and point me to the page!).
This announcement also tells us that the long anticipated Freedom Bill will be brought forward quite early on in the New Year. However, it’s precise contents remain unclear. Expect some constitutional reform and some of the repeals that the public were invited to submit via a website (which was initially hopeless). Will my suggestion for the repeal of section 71 of the Sexual offences Act be included? We shall see.
Speaking of public sex, the Law Commission consultation on ‘Simplification of Criminal Law: Public Nuisance and Outraging Public Decency’ should also report during 2011 and again, it will be interesting to see what, if any, reforms are recommended and how the Government responds.
The budget cuts announced in 2010 will start kicking in during 2011 and the gay charities and support groups that have grown like Topsy in recent years will come under increased budget pressures and public scrutiny. Expect closures and reductions in service and how this will be greeted in the media will be fascinating to see. I can’t see certain tabloids reacting in the same way to the closure of a gay support group for 13 year old boys in the same way as they would the closure of a charity that provides free books of the ‘classics’ to 13 year old boys. These cuts will reveal much about our true social attitudes and I suspect will reveal a society that hasn’t progressed as much as we like to think we have.
The Coalition government is also a reminder that some things are hard to predict – who predicted a coalition government in January 2010? Events, as former Prime Minister Harold Macmillan noted, will intervene and blow things in a unpredictable direction. A child abduction, a horrific hate crime, a high-profile celebrity positioning on gender or sexuality, a major legal or medical break-through can all re-frame the debate. Of course, that’s why you’ll need to keep reading the blog in 2011 😉
It’s already been announced that Lord Fowler, the man responsible for convincing Margaret Thatcher in the 1980s to introduce the hard-hitting national AIDS campaign, has been brought back to the forefront of public service by heading-up a committee of the House of Lords to look at the continuing spread of HIV/AIDS. It’s a move to be welcomed but could also prompt calls for clear legal guidelines about the criminalisation of HIV (with some campaigning to follow the Canadian model) and will, if given appropriate publicity, serve to reposition HIV/AIDS in the national consciousness. Fowler noted in his comments to the media that the issue has been left to smaller local campaigns since the mass campaign in the 1980s: “It just seems to be crazy to have a massive campaign like that and almost go off the air over the next 25 years.” The full select committee membership consists of:
Lord Fowler (Chairman)
Baroness McIntosh of Hudnall
Lord Gardiner of Kimble
Baroness Masham of Ilton
Baroness Gould of Potternewton
Lord May of Oxford
Baroness Healy of Primrose Hill
Baroness Ritchie of Brompton
Lord McColl of Dulwich
The committee will examine what improvements can be made in testing and consider evidence of discrimination. A call for evidence will be issued in the New Year. Any evidence submission I make will also be posted on this blog but I’m feeling quite optimistic that the committee will come forward with some sensible suggestions. The Government will then be faced with having to respond to any recommendations.
The re-positioning of HIV/AIDS into the public discourse may also spark a further discussion of sex education. My political tip (although I wouldn’t put huge sums on it) is David Laws will return to the Government as Secretary of State for Health in Cameron’s first Cabinet re-shuffle. His text on health in The Orange Book indicates his general approach (very in line with the direction the Coalition wants to go in) and he also discusses the need for sexual education to focus on relationships – something the last Labour government agreed on.
Internationally, expect further prosecutions for the criminalisation of HIV and that will feed into the debate in the UK. Expect eruptions in the world of porn when Treasure Island Media bring forward their new line of positive porn films – featuring HIV positive porn performers engaging in bareback sex. Paul Morris revealed soon after Christmas 2010 that he was working on the first film and it seems reasonable it will appear early in 2011. It will no doubt spark further bareback porn regulation debates in the US and beyond.
Cory Koons (some pics NSFW), self described ‘equal opportunity bottom’ for TIM, has been posting some odd stuff on his Facebook page recently and in one posting about TIM, in which he seemed to be critical, later vanished without trace. The post suggested that all does not seem to be happy for Koons aboard the TIM ship. One to watch for potential TIM gossip hunters.
The decision by TIM to launch a series of porn films depicting HIV positive performers bareback – or to be more accurate – ‘out’ positive bareback porn performers, will cause further division and anger within the porn industry, but for me the more important questions are: will they be commercially successful? Will they be copied and where next for Treasure Island Media.
The company has long fascinated me and became a major pre-occupation in 2010. Once I get this public sex book out of the way, I’d really like to focus on TIM. I’m convinced there’s a fascinating book to be written about them and their master, Paul Morris. I know my queer writings on bareback sex will upset some, but I’ve been touched by the number of young scholars who have written to me in the last six months and found my work to be a welcome addition, and in-line with their own private thoughts. A new generation of queer scholars is emerging and increasingly questioning the established norms of law and sexuality. 2011 will no doubt see more publications and conference presentations by this band of controversial academics. You can read/download a refereed piece here and a short webzine piece on TIM here.
In the English courts, I would expect further cases to be brought under the Criminal Justice and Immigration Act concerning ‘violent pornography’ and further attempts to square this circle of bad law.
Speaking of bad law, the usually equally affable and sensible minister Ed Vaizey seems to have been drafted in to throw some red meat to the Tory back-benchers and will be working hard with ISP providers in 2011 to create new restrictions on pornography. You will not be surprised to learn that I am utterly opposed to such a move. However, I suspect this won’t get off the ground in quite the way some of the media talked about but it will once again throw a spotlight on our hypocritical attitudes to sex and pornography.
Whilst I’m on the subject of hypocritical attitudes to sex; the Government is also likely to come under increased pressure to once again take a look at the laws relating to sex work/prostitution. The recent statement by the Association of Chief Police Officers offers some pragmatic and cost-cutting measures that are likely to get the attention of Home Secretary Teresa May. She is due to publish new guidelines in the Spring on policing problems linked to sex work. Read more here.
In the United States, Perry will rumble on and with it the position of marriage in the State of California. What about the rest of America? The division between those seeking change through the legislative process and those believing in change via the courts will continue but an Obama administration having lost control of the House and with a severely weakened grip on the Senate will necessitate an embracing of the court route by LGBTQ activists.
DADT having been dealt with (at least so it appears now – I predict complications in the courts and in implementation), attention will shift to the repeal of the Defence of Marriage Act but given that Obama expressed the view that the definition of marriage contained within DOMA reflects his view (although in true Obama style, he also stated he would support repeal) suggests that campaigners will have to look to the courts rather than Congress for hope. I suspect that such campaigns are overly optimistic. The tea-baggers, newly installed in Congress in January will want to flex their muscles and LGBTQ activists may be fighting for the rights already obtained in individual States and at a Federal level rather than working for further break-throughs. At the same time, campaigning for the 2012 Presidential race will kick-off, and gay rights will prove a source of controversy between and within the Democrat and Republican parties.
On the other side of the Pond, the Equal Love campaign’s attempt to bring a challenge in the Strasbourg European Court of Human Rights will get under way. The challenge seeks to end the discrimination that means Civil Partnership’s are only available for same-sex couples and marriage is only available for different-sex couples. It’s a tough one to call but if forced to, I don’t think the action will succeed but it’s worth a shot.
Britain won’t be the only place talking about Civil Partnerships in 2011. April will see the first Civil Partnerships in Ireland showing that this alternative framework still has momentum in it (and interesting that they didn’t go down the US route of ‘civil unions’. See more in the Irish Times here.
A second series of Lip Service on the BBC and a gay ‘wedding’ in Coronation Street offer televisual insights into the lives of twenty-first century British lesbians and gay men. The first series of Lip Service failed to hugely take-off but will hopefully have more success next time around. The Corrie ‘wedding’ will of course be a Civil Partnership (unless the Equal Love legal campaign scores a very early victory) but it will be interesting to watch how it’s talked of in the soap – I suspect it will be a ‘gay marriage’; “will you marry me?” is far more likely to be the invite than “Sean, will you enter into a civil partnership with me?”. Seen as a triumph, it could actually kick the legs from under legal attempts to introduce gay marriage and straight civil partnerships – with the mass public taking an ever firmer view that civil partnerships and marriage are essentially the same thing and therefore can’t see the point of attempts to change the law.
2010 saw Stonewall implode on the issue of same sex-marriage with the actor Ian McKellen appearing a rare figure of sanity connected to the organisation. Durham law academic Neil Cobb commented ‘thank heavens for Gandalf‘ – a view echoed by many. I’ve not pulled any punches when it comes to Stonewall and I suspect 2011 will bring even more criticism for an organisation that means well but has become woefully out of touch and increasingly an organisation better suited to providing HR advice than as a campaigning force. Perhaps will be the year when Stonewall re-engages with a broad LGBQ community and has a serious debate about its mission and approach.
The Rest of the World
As China and India continue to emerge as economic superpowers, expect further concerns about human rights abuses – and little action by the West. There will be more executions, oppressive actions and abuse inflicted upon gay men in the Middle East – and a Coalition Government with trade as a key focus will be reluctant to speak out. In Africa, the growing influence of China rather than the West, coupled with the continued rise of religion – both Christianity and Islam – will lead to an increase in the oppression of LGBTQ identities. The campaigns in Russia will begin to shift some opinions and make a little progress among the more affluent Muscovites but make little penetration beyond. As Putin looks towards becoming President again, the country will continue it’s drift in authoritarian waters.
Expect increased tensions in the popular tourist destination of the Maldives where religious orthodox Muslim views are increasingly breaking out and creating tensions with those citizens (and figures in government) who have embraced tourism in recent years. It must surely be a location high on the list of Islamic terrorists for an attack against Westerners.
These tensions should and I believe will act as a reminder of just how much extraordinary progress has been achieved for LGBTQ individuals in obtaining legal rights and protections in the UK in the space of the last decade, and how quickly we have come to take them for granted.
Happy New Year everyone.