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This June, a month marked globally as LGBT Pride Month, an online debate has reignited over the question of whether (partial) nudity, fetish wear, and kinky activity ought to have a place in Pride events, or if Pride ought to be “kept PG.” The debate, conducted mainly on Twitter, is itself not new, and appears more an exercise in virtue- or woke-signaling than a genuine policy recommendation. Perhaps you already surmise the side I take, and it is certainly a controversy designed for side-taking, not world-building. Yet the melodrama has much to teach us about the progressive, political import of a public sexual culture.
Those who recall the culture wars of the 1980s and ’90s may find themselves unsure of how to interpret many of today’s criticisms of naughty Pride paraders, which no longer truck in the language of morality and Christian decency. Rather, this new raft of critiques comes mainly from ostensibly woke, politically left, often gay folks who claim that overt displays of (kinky) sexuality at Pride violate the consent of other attendees and endanger children. These sorts of allegations hit a nerve with queer scholars and activists not because they are outrageous but rather because they are not entirely unpersuasive.
Nevertheless, I assert that these anti-sex, anti-kink complaints are not only wrong but also racist and bad for children. In what follows, I tour through a series of legal arguments about the risks and rewards of public sex before considering how these arguments dovetail with historical concerns about the overpolicing and hypersexualizing of Black communities.
In the wake of #MeToo, it requires some care to explain why it is not always assaultive to see another’s exposed genitals without having explicitly consented. For what distinguishes Louis C.K.’s jerking off at women in his hotel room from exposed buttocks at Pride?
Morally paramount among the many, many distinguishing factors is intent, to which I will return soon. Framing it as a debate about consent, on the other hand—or rather nonconsent—is a dangerous misdirection. To see sexual activity or nudity without one’s prior agreement is not equivalent to having one’s own body nonconsensually exposed or assaulted—in the same sense that if I witness a bar fight, I have not myself been hit. But because we have now all been trained to think about consent when we think about sex or anything proximate to it, the equivalence is as understandable as it is wrong.
In our political moment, disgust has collapsed into harm. I regularly see things that profoundly offend, even disgust me: Proud Boys, Florida congressman Matt Gaetz, Confederate flag bumper stickers, Fox News pundit Tucker Carlson. Trans activist and writer Julia Serrano wryly tweeted that “people in public wearing wedding rings” nonconsensually involve her in their intimate relationships. But if we cannot nor should not ban Gaetz from being outdoors because he repulses so many of us, the case for prohibiting tushies and kink from Pride is far weaker: if both Gaetz and tushies disgust people, only one perpetuates racist and sexist inequalities. It’s not the tushies.
“Family-friendly” critics, both queer and hetero, who decry displays of kink and nudity in Pride parades draw on a notion of sexual autonomy, what law professor Stephen Schulhofer denotes as a right to sexual self-determination and what Hil O’Connell and I describe elsewhere as the capability to codetermine one’s sexual relations. The kinkphobic Pride spectator claims his sexual autonomy is violated by seeing sex or sexuality he would not otherwise elect to see. But as legal philosopher Joel Feinberg points out, visual offenses rarely possess the noxious inescapability of aural or olfactory offenses. While taking a ride on Feinberg’s hypothetical Nasty Bus, it is easier to look away from a passenger wearing a blasphemous T-shirt than it is to ignore a passenger defecating next to you. For Feinberg, public nudity simply does not rise to the level of what he categorizes as “profound” offense.
If we tend to find putrid smells and grating sounds more severely affronting than eyesores, all these sensory offenses take backseat, in liberal legal thought at least, to intrusions and perturbations of corporeal integrity—that is, to harm inflicted on the body. For Feinberg as for many other legal thinkers, a violation of a person’s body versus an affront to a person’s senses is the difference between harm and offense. Sexual autonomy, instructs Schulhofer, “is not only mental and intellectual, not only the capacity for meaningful, unconstrained choice. It is also physical, the separateness of the corporeal person.” For your sexual autonomy to be violated, your body—not just your senses (visual, aural, olfactory)—has to be nonconsensually intruded upon.
Law professor Kendall Thomas makes an identical point in regard to anti-sodomy statutes. The core wrong with (now unconstitutional) anti-sodomy statutes, argues Thomas, is not that they violate privacy—for queers, “the claim of privacy always also structurally implies a claim to secrecy,” i.e., the closet—but that such laws authorize and legitimate brutal police and civilian violence against the bodies of gay and lesbian citizens. Now reconsider the social policing of Pride’s constituents: How exactly do the kink-has-no-place-at-Pride censors intend to remove kinky people from their sight? Do the censors wish to reinvite police to Pride, so they might taser us into family friendliness? The LGBT battle against sodomy laws was never summarily about preventing the police from entering our bedrooms; it was about protecting a diversity of erotic life from violence, criminalization, and heteronormative compulsion. As law professor Brenda Cossman illuminates in her reconstruction of gay activism ignited by police crackdowns of Toronto’s gay bathhouses in the early 1980s, “private” and “public” have no purified empirical referents; but as political constructs, they help police what lusts, loves, and lives are criminal or free, shamed or venerated.
Schulhofer and Thomas help explain both why seeing sex(uality) is not the same as having sex done to you, and how that faulty equivalence, brokered on nonconsent, unleashes the precise violence on the exhibitionist that the viewer claims to suffer.
Schulhofer’s and Thomas’s arguments have some shortcomings in the age of the Internet, though. Given how much of our lives is now virtual, perhaps we should not privilege bodies as much as Schulhofer and Thomas suggest when we are trying to understand what counts as sexual violation. Consider all that Zoom pandemic sex you or someone you know had. If one can have sex without bodily contact, perhaps it is not so outrageous to suppose one can be sexually injured or assaulted in the absence of corporeal intrusion—say if an online partner (or, in the case of sex work, a client) violates a predetermined safe word, unexpectedly uses racist or misogynistic epithets, or otherwise harasses his partner.
So it turns out rebutting the critics of kink and public nudity at Pride by recourse to unwanted bodily intrusion may be insufficient, which returns us to the question of what difference is there, if any, between Louis C.K. and the leather daddy at the parade.
In their discussions of public indecency and obscenity, legal scholars Richard Posner, Joel Feinberg, and Stuart Green all arrive at the same conclusion: the difference is bad intent. “The flasher thrusts his nudity on an unwilling stranger,” as Posner resonantly phrases it. The wrong of public indecency is that the perpetrator holds others captive to his nudity or sex acts in order to gratify himself and subjugate the witness. As for stripteases, pornography, and public nudity—as one might see at Pride—Posner finds it rather silly that we would criminalize or otherwise spend public resources clamping down on “activities that may be as harmless as witchcraft or heresy” rather than on “violence and other serious lawlessness.”
Feinberg, drawing on the work of philosopher William L. Prosser, suggests that a critical determinant for whether or not a “nuisance”—anything from a neighbor’s blaring heavy metal music to a passerby’s farting—ought to be permissible or impermissible is “the motive of the defendant, in particular its character as innocent or spiteful.” Feinberg proposes that a fruitful way to consider nuisance anew is to inquire about the boundaries marking “private domains of persons.” Breaching a person’s boundaries “without his consent” is presumptively violative.
The “private domains of persons” may or may not map onto Schulhofer’s and Thomas’s “corporeal personhood,” that is, bodily intrusion. But Feinberg, like Posner, would find the assertion that a parade participant’s nudity violated an onlooker’s “private domain” facetious. As Green remarks, if someone “attends a parade in the French Quarter of New Orleans on Mardi Gras”—which we might substitute with a Pride parade in any major city—“it is quite likely she will see people flashing and mooning.” The decisive questions for Green are, first, “whether the victim consented to or assumed the risk of witnessing the offender’s conduct,” and, second and most importantly, “whether the offender’s conduct was intended to cause or recklessly caused significant disgust, shock, embarrassment, fear, or distress in the victim.”
Green doubles down on bad intent even harder than Posner or Feinberg; in fact, he chides Feinberg’s nuisance guidelines for not being intent-centered enough. Echoing Posner, Green writes: “When A exposes himself to an unwilling B, he does more than merely preempt her attention; he infringes on her sexual autonomy. He enlists her, involuntarily, as a participant in his sexual life.” Notice that for Green, but unlike for Schulhofer, a person’s sexual autonomy may be violated even when her body is not—but the threshold for that violation is very high. Green goes a step further, acknowledging that the “exhibitionist’s act can have socially recognized value. . . . Even having sex in public can be a meaningful way of finding human connection and expanding one’s erotic horizons.” Expanding our erotic horizons, I will soon suggest, is also an imperative for social and sexual justice.
When it comes to wrongful indecent exposure, I find myself in reluctant agreement with these three white liberal or liberalish men. I agree reluctantly because at heart I am allergic to bad intentions as an explanatory variable for social problems. Yet regarding sex in public, there seems to be no way around the question of wicked intentions, which also means the worst forms of “sex in public” are rarely sex acts per se, but instead acts of aggression: acts of self-gratification intended to subordinate, shame, or demean onlookers. Consider the man jerking himself off on the subway as he stares down the woman sitting across from him.
All this talk of public sex acts that violate can make one lose sight of the more sanguine correlate: the varieties of public sex practices that we might want to revalue as benign, amusing, mildly to moderately inconvenient, or, finally, politically potent. We might then think about the wicked intentions of the flasher as an exception to a norm of public sex accommodation. For whatever the intentions of Pride participants, whether we are wearing wedding rings or dog collars, we are there to celebrate queer love, queer family, and queer sex; we parade not to humiliate others but to dignify ourselves.
Turning, then, from the question of what can make “sex” in “public” wrong (or not), let us focus upon the more generative question: Why might some “sex” in “public” be right and good?
Gender studies scholars Michael Warner and Lauren Berlant conclude their queer cri de coeur, “Sex in Public” (1998), by describing a scene in which a man induces a younger man to vomit, pushing milk and food down his throat, onstage, at a leather bar in New York. Berlant and Warner are not exalting public puking as an antidote to heteronormativity. But they use this extreme example of nonreproductive, nongenital erotics to redefine “sex” and “public” and to occasion reexamining our norms and rituals. When we go to a leather bar for its weekly talent show, or to Pride for its yearly parades, is this not what we came for, to be shook and shocked, to be introduced to alternate pleasures and publics? And what kinds of harmful intrusions do we invite by asking that these acts be regulated by the state or shamed back into the “private” bedroom?
In Wayward Lives, Beautiful Experiments (2019), African American Studies scholar Saidiya Hartman describes how, in New York a century prior, “all the vice and untoward desires of the white world were channeled into the Negro quarter.” At the turn of the twentieth century, Blacks were white folks’ sex public. Black urban space authorized and provided an alibi for white carnality, so that even or especially white progressives “delighted in being lost in the sea of Blackness.” “Privacy” was a privilege not afforded to Black people. “The hallways, bedroom, stoop, rooftop, airshaft and kitchenette provided the space of experiment” in the sex lives and relationships of Black urbanities. Even the Black bedroom, as Hartman shows, was a “public” space, since “the police and the sociologists were there also, ready and waiting.”
Bodies of color, simply by existing, were tantamount to sex in public. Courts, legislatures, and police often have answered the question, Who is guilty of lewd acts? with, A woman offering it for money, or the kind of woman who might. “The mere willingness to have a good time with a stranger was sufficient evidence of wrongdoing,” remarks Hartman, describing the hyper-policed, surveilled lives and intimacies of young Black women at the turn of the twentieth century, not the twenty-first—right?
Hartman dramatizes not only how young Black women and the queerly gendered of the industrialized city were rendered as sex in public, but also how the publicly mediated, unruly intimacies of Black women’s lives were a mode of survival and an unsung politics of freedom. Hartman’s recreation of young Black women’s “wayward practices” transforms the question, What’s wrong with sex in public? into, What’s right, necessary, and antiracist about it? Were it not for racial segregation, avers Hartman, the “promiscuity-sociality of the lower ranks . . . might have sounded a whore’s Internationale.” In other words, the criminalization and demonization of prostitution, vice, and public indecency ought to have laid the groundwork for a cross-racial, working-class, queer coalitional politics against the scapegoating and criminalizing of minority communities. White supremacy got in the way.
Hartman’s Wayward Lives is part of a plethora of relatively recent Black feminist and Black feminist–adjacent literature that recenters and revalues pleasure, sensuality, and sexuality for Black lives, Black counter-publics, and antiracist politics. Across an array of academic disciplines and subject matters, scholars including Jennifer Nash, Amber Musser, Ariane Cruz, Darieck Scott, Roderick Ferguson, and Mireille Miller-Young labor to embrace the nonnormative erotics, genders, and sexualities historically ascribed to Black bodies. (And I am especially indebted to Nash, along with Brenda Cossman and Gabriel Rosenberg, for helping me think through the ideas presented here.) If an earlier Black feminism tilted sexually conservative in order to ward off exploitative, racist depictions of Black sexuality, more contemporary Black feminist thought emphatically refuses “the politics of respectability,” asking instead what hedonic, more just world we might make together should we “turn the tables” on white supremacist denigrations of the supposed sexual and appetitive excess of the Black community (although as Black feminist scholars Shoniqua Roach and Erica Edwards caution, “turning the tables” comes with messy risks, too).
To reappraise sexualities maligned as exhibitionist, promiscuous, and pernicious—whether that “sexuality” takes the form of a sex worker, a kinky parader, or a trans woman out shopping—is to build a culture of “public sex” that withstands righteous parochialism masquerading as family friendliness. And if “racist practice articulates itself generally as gender and sexual regulation,” then one powerful form of antiracism is to defiantly celebrate minoritized sexuality, to reclaim “erotic sovereignty” and “sensual excess” against and within state and social regulation.
Over at Vox, my friend and colleague Greta LaFleur has less patience for the kink-at-Pride debate than I do, averring that the full-throttle corporatization of Gay™ has defanged Pride of any political promise or power. I suppose I see another payout. My argument, all along really, has been for the children.
Like Robin Dembroff, another friend and colleague quoted in that same Vox article, I believe queerness is anchored in “political resistance to hegemonic ideas of how humans ought to be.” Leather chaps and nipple clamps and boys kissing boys and girls kissing girls—even on an otherwise unexceptional Bank of America float—model modes of living and loving that many kids and teenagers attending Pride have never seen, or have just seen online, and only as pornography (not that there is anything ipso facto wrong with pornography, but the more models of queerness, the better). When parents or people ventriloquizing parents oppose public indecency at Pride on the grounds that it may upset children, the opposite is more likely the case: their children might like it, and that upsets the parents, not the children. What is the presumptive harm if a child happens upon a guy sporting a chest harness, or sees an adult’s butt cheeks, or even an adult’s genitals or breasts? Would such children necessarily feel violated, or might adults be feeling violated on their behalf? Might the child be as likely to respond with curiosity?
The “problem” with gay sex or kink in public, like the “problem” of early twentieth-century young Black women carving slices of pleasure and intimacy out of brutal city life, is that it models how to have gay sex, or how to be kinky, or how to squeeze fun (or a living) out of socially mandated misery. For an antiracist, democratically hedonic, and more just future, we ought to celebrate kink, butts, and boobs at Pride. And we should do so especially for those kids whose opportunities and curiosities are stifled by racist violence, economic inequality, or their heterosexual nuclear family.
Joseph J. Fischel is an Associate Professor of Women’s, Gender, & Sexuality Studies at Yale University. His research traverses normative political theory, feminist and queer studies, and public law. He is the author of Sex and Harm in the Age of Consent and Screw Consent: A Better Politics of Sexual Justice. He is currently working on his next book project, Sodomitical Justice: A Solicitation, which investigate the life and afterlife of sodomy law in New Orleans and beyond.
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