A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
Legal reform and LGBT issues have long been defined by the agenda and values of Progressives and the Left in the UK. From the partial decriminalisation of homosexuality via the Sexual Offences Act 1967 – fifty years ago this year – through to the Human Rights Act 1998 which helped to usher in a series of major legal reforms in the 2000s, it has been to Labour and the Liberals that reformers looked for practical change.
The decision by the May Government to launch a series of significant LGBT proposals over the last weekend are a significant attempt to re-cast the LGBT reform agenda in conservative terms. Like someone tardy to the party, they’re walked in late and are changing the music playlist to something they prefer.
The shift – perhaps underappreciated at the time – came under the last Coalition government, when David Cameron proudly told his annual party conference that he wasn’t in favour of same-sex marriage in spite of being a Conservative, he was in favour of it because he is a Conservative. It was to position the Tory brand both on the side of progressive reforming LGBT politics, and to also re-define that territory. There was much less criticality by the LGBT community and broader policy-thinkers as to what that legal institution ought to now look like. Whilst legal academia has a growing number of queer thinkers who are seeking to debate the relationship between regulation, sex, sexuality and gender, this thinking remains at the margins of LGBT campaigning and public discourse.
This new thinking recognises the growing fluidity through which gender and sexuality are regarded by many, but fundamentally it is typically one of plurality in which the state recognises the lived reality of the people it seeks to govern and regulate. When it comes to marriage, it therefore challenges traditionally notions of monogamy and single-partner formal relationships and seeks to have a law that reflects what really happens in relationships rather than one based on dogma and established mythologies.
The government’s proposed shifts on gay blood donation can also be challenged by the Left for the fundamental assumptions about sex that are being made. Gay men can donate blood, just so long as they abstain from sex (the Government is now proposing no sex for three months before donation rather than a year). So too can the Left intervene in the protection of our social and sexual spaces, as saunas, bars and clubs close. These are spaces which are increasingly being eroded by a free-market philosophy that sees spaces men used to meet in for sex being replaced by investment properties for overseas billionaires.
The Left will not always be united. Debates about the regulation of pornography and the regulation of so-called conversion therapy brings freedoms of expression into conflict, but the Left’s debate can enrich the broader public debate which right now is being dominated by a conservative mythology that nobody seems to want to watch pornography. The wankers at Westminster are silent.
The LGBT public questionnaire launched by the Government this weekend is significant for being the first moment in our legal history when the Government bypasses LGBT charities to find out directly about the experiences of LGBT people in their homes, communities, and in accessing public services. The public service elements in particular have the feel of an updated ‘Cones-Hotline’ project in which the public services will be managed to produce a series of favourable results. This is arguably welcome if it produces demonstrable cultural change, but it’s actually familiar and comfortable Conservative territory viewed through a customer service prism.
We should not mistake this as a victorious end-point. The challenge is for the Left to reflect on this agenda and consider how it might re-shape and apply the law relating to sex, sexuality and gender, just as the Conservatives are beginning to re-think this agenda. A failure to do so means that the progressivism which has characterised law reform in this area will be replaced by a resurgent conservative agenda. The Conservatives have not given the Left a victory, they have given it a challenge.