Marc Spindelman, “Gay Men and Sex Equality”

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Marc Spindelman (Ohio State) has published Gay Men and Sex Equality, 46 Tulsa L. Rev. 123 (2010).  Here is an excerpt from the introduction:

As easy as it may be to apprehend why straight men have not endorsed sex equality theory and joined its fight in any substantial numbers, a question about gay men remains. Are they just like their straight brothers in relation to sex equality theory and its cause? Or are there yet particular dynamics and ways in which gay men relate to sex equality theory and its struggle?

From within sex equality theory itself, on a rough, initial cut, male homosexuality, if taken to indicate sexual disinterest in, hence sexual non-involvement with, women, might appear to be tidily unimplicated in the heterosexually-based production of gender and sex inequality. If only reality were that crisp. Many gay men, despite their sexual orientation, hence their preferences for sex with other men, do have sex, including unequal sex, with women, just like (and sometimes as) heterosexual men. Gay men who do not engage in these sexual activities, like those gay men for whom sexuality with women is a practice of equality, may not themselves directly contribute sexually to the inequalities between the sexes. But that, of course, does not, without more, mean there may not be–and are not–other ways in which gay men do their part to contribute to them. * *  *From aught that appears, this is a world dominated, hence conditioned, by an active awareness of truths that sex equality theory keeps: Inequalities in sex produces gender, men and women, as those relations shape the organization of society in prison, itself scarcely unrelated to the remainder of social life. The gender and resulting sex-inequalities produced by forced sex in all-male prisons comes not through the sexual objectification and use of biological females, but biological men, proving another of sex equality theory’s facts: that it means what it says when it says it is not a biological theory of sex. Through bodies regarded and used as things for sex by other men, gay men individually and many more gay men collectively, along with differently sexually-oriented men and trans-folk of different genders,  have had to live the knowledge, the truth, that sex equality theory holds: that the system of sex inequality sexuality builds can be affirmatively and very concretely bad news for both women and men, including those men who self-identify or are identified by others as gay. * *  *

Far from passively contemplating injustices like these, sex equality theory, following its commitment to ending all sex-based inequalities, has tangibly helped to chip away at homophobia’s social, including legal, hegemony, proving through its successes to be a substantial boon for those who do or would engage in same-sex sex. Some years back, sex equality theory’s insights about homophobia’s crucial role in furthering women’s inequality, aided by keeping male sexuality locked into channels of cross-sex sex, were translated and taken up in the language of law. Laws and legal practices that discriminate on the basis of sexual orientation, including against gay men, were recognized as implicating legally-established, including constitutionally-based, sex equality norms.  Those norms suggest that anti-gay laws and practices, lacking any secular, rational basis, much less any more powerful non-religious form of justification, should be eliminated from the waters of the law. Despite the radical possibilities of the idea, it wasn’t entirely shunned by often-conservative legal actors, especially courts. Almost remarkably, the sex equality arguments for gay rights, as they have come to be known, made their most famous and indelible legal mark around the law governing one of society’s most treasured institutions: heterosexual marriage.

(Citations omitted). The full article is available here.

To my mind, Marc Spindelman is among the small handful of legal scholars working in feminist legal theory at the highest and most sophisticated levels, so I read pretty much anything he writes!

-Bridget Crawford

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