INTRODUCTION: THE MISSING HISTORY OF “BAD” QUEERS IN THE LATE TWENTIETH CENTURY
The North American Man-Boy Love Association (NAMBLA) was a political organization that activists founded in Boston in 1978 “to organize support for men and boys involved in consensual sexual and other relationships with each other, and to help educate society about such relationships” (NAMBLA Manuscripts, box 1). From the very beginning, NAMBLA alienated many if not most other lesbian and gay rights activists and feminists, not least because of its call to “abolish all age of consent laws” (NAMBLA News 1980–81).Footnote 1 But in the early eighties, the organization was still an active participant in lesbian and gay politics that used gay-community centers for its meetings and conferences, marched in pride parades, and facilitated critical discussion and debate with other queer activists and feminists about youth sexuality, pedophilia, and attraction to youth, and how to govern those things. Soon, NAMBLA became the object of public, political, and police scrutiny in the context of the rise of a new, bipartisan movement against child sexual abuse. Then the discovery of the HIV/AIDS epidemic brought with it scrutiny of gay male public sexual subcultures. Along with the political response to AIDS, the rise of the child-protection movement placed an extraordinary amount of external pressure with an intensity not seen since the 1950s on the increasingly mainstream lesbian and gay rights movement to officially distance itself from the stigma of sexual “deviance”—while also making it much more difficult even for those queer activists who did want to do so to defend or even discuss stigmatized gender and sexual practices, in general.Footnote 2
One of the central paradoxes of recent US LGBTQ history is the unevenness with which the LGBTQ rights revolution has benefitted or disadvantaged different categories of LGBTQ people who engage in different kinds of gender or sexual behavior. Since the 1970s, LGBTQ rights have expanded in a variety of ways particularly for “good” LGBTQ people who conduct their sexual lives within the approved boundaries of “consenting adults in private.” And, to a lesser but non-negligible extent, trans people who “pass” by conforming with heteronormative expectations of gender presentation.
But during the same period, a range of “bad queers”—including sex workers, men who cruise for sex in public, trans and gender-nonconforming people (especially ones who do not “pass”), sadomasochists, people who work in the queer porn industry, people with HIV, queer prisoners, and youth and adults who have sex that violates the age of consent—have become subject to ever-proliferating and intensifying forms of criminalization and legal stigmatization.Footnote 3 Why have bad queers become increasingly ensnared by the carceral state at the exact same time as the rights of good LGBTQ people have advanced?
The answer to this question, or at least a very important part of the answer, lies in the pivotal era of the long 1970s.Footnote 4 At midcentury, state officials and social activists launched an ambitious campaign to combat sex crime—the war on sex offenders—that included among its targets the conduct of many people we now call LGBTQ, both “good” and “bad” (Freedman Reference Freedman1987; Chauncey Reference Chauncey and Graebner1993; Jenkins Reference Jenkins1998, 49–93). Then the seventies was a time of particularly intense political activity when state officials and a groundswell of social movements—LGBTQ activists, civil libertarians, feminists, youth liberation activists, child protection advocates, psychiatrists, law enforcement officials, Christian conservatives, public health authorities, insurance companies, and lawmakers on both sides of the aisle—engaged in struggles over the legitimacy of the criminalization of diverse gender and sexual practices, and of diverse kinds of gay sex and gender nonconformity in particular.
LGBTQ activists and their progressive allies were particularly successful at challenging the legal mistreatment of gay sex between consenting adults in private and the police harassment of gay bars—in the process helping throw the war on sex offenders into a crisis of legitimacy (Eskridge Reference Eskridge2008, 388–407; De Orio Reference De Orio, Halperin and Hoppe2017a). In that context, the architects of the war on sex offenders shifted gears, increasingly leaving good LGBTQ people alone while doubling down especially on sexual activity involving men and boys but also on public and “promiscuous” sex in the age of AIDS (Pan 1980; Hoppe Reference Hoppe2017, 101–31). The result was a new legally constructed distinction between good and bad LGBTQ people that enabled the transformation of what I call the “long” war on sex offenders into a new and even more expansive phase.Footnote 5
In making this argument, my aim is to bring the field of LGBTQ political and legal history in the modern US into closer conversation with scholarship by queer theorists who are not historians concerning the governance of stigmatized gender and sexual practices. To that end, this essay considers some of the most important texts in these overlapping but to an important extent separate areas of academic inquiry: the historical perspectives of George Chauncey’s Gay New York ([1994] 2019) and Margot Canaday’s The Straight State (2009), and the theoretical works of the anthropologist Gayle Rubin’s essay “Thinking Sex” ([1984] 2011a) and the literary and cultural critic Michael Warner’s The Trouble with Normal (1999). Examining the history of political struggles over bad queers in the long 1970s makes it possible to extend scholarly understandings in both fields about the trajectory of LGBTQ politics and rights as well as the expansion of the carceral state.
Queer theorists who are not historians have long examined the stigmatization of “bad” gender and sexual practices in general and bad LGBTQ people in particular in the late twentieth century. As Rubin argues in “Thinking Sex,” there exists a stratified “sex hierarchy” that elevates, normalizes, or promotes some approved gender and sexual subjects and practices while disqualifying and marginalizing many others ([1984] 2011a, 152).Footnote 6 And in The Trouble with Normal (1999), Warner extends Rubin’s analysis by highlighting how a new subclass specifically of LGBTQ people, ones whose gender or sexual conduct violated heteronormative standards of propriety and decency, were being left out of the LGBTQ rights revolution.Footnote 7
When it comes to historians in particular, it has been easier to write about bad queers the further back in history they go. In Gay New York, Chauncey describes the multiple gender and sexual identities and practices—gender nonconformity, public sex, sex in private, sex work, and age-disparate sex—that characterized the “gay” male sexual subculture of early-twentieth-century New York City at a timebefore gay identity had become widespread.Footnote 8 And in The Straight State, Canaday finds that the federal government policed a whole constellation of types of gender and sexual “perversion” during the same period.Footnote 9 But it has been more difficult for these and other historians to discuss the history of bad queers in the later twentieth and the early twenty-first centuries. Chauncey and Canaday both posit a transformation in which the multiple queer forms they study in the early-twentieth-century context became consolidated by midcentury into a starker social and legal binary consisting of “homosexuals” and “heterosexuals.” From the midcentury period onward, bad queers become increasingly tangential to their analyses.
A particularly salient reason why that has been the case is that LGBTQ historians in particular have played an instrumental role in promoting the political project of LGBTQ rights. Thus—like the strategies of LGBTQ rights activists—historical narratives have been shaped by the political necessity to distance LGBTQ identity from the stigma of sexual “deviance” with which it was previously associated as a necessary precondition for positing LGBTQ people as legitimate and deserving of the rights and benefits of full citizenship. With the rise of the recent child protection movement, the pressure has been especially intense to avoid anything to do with underage sex. This has made it all the more difficult to write the history of bad queers in the late twentieth century, since such a history would have to address the history of NAMBLA and would necessarily include both youth and those attracted to them among the legitimate subjects of queer history.
So while it is easy to understand why historians have steered clear of this history, one of the consequences has been that the field has not fully appreciated the centrality of sexual demonization— and the criminalization of bad queers in particular—to the history of modern America.Footnote 10 Placing bad queers at the center of LGBTQ political and legal history diversifies who counts as a subject of this history, reveals an even bigger carceral state that governed them, and sheds new light on how that system of state power was constructed.
THE STATE OF THE POLITICAL AND LEGAL HISTORY OF BAD QUEERS
As Chauncey and Canaday both show, in the early twentieth century the American state was developing a nascent system of policing of multiple queer behaviors and subjectivities.
Chauncey’s work reveals how the inhabitants of the predominantly working-class “gay male world” of early-twentieth-century New York City adopted diverse queer identities and engaged in several broad categories of queer gender expression and sexual conduct defined along the lines of gender, age, and space. “Fairies” were gender nonconformists, typically effeminate men and drag queens, while “trade” were men who had sex with men, often with fairies, but who thought of themselves as “normal” because they exhibited a normatively masculine gender style and took a dominant, “active” sexual role ([1994] 2019, 4, 16). “Husbands” and “wolves” were older men who had relationships with younger, often underage “punks” that sometimes involved monetary exchange (86–97).Footnote 11 In collaboration with private anti-vice reformers, the police developed new ways of policing sex in public, scrutinizing venues where men gathered—such as bars, parks, public toilets, and the semi-public space of the baths (131–149). Finally, the identity “queer”—which was “essentially synonymous” with the modern definition of homosexuality as desire for the same sex—was starting to gain currency among middle-class men who sought to distance themselves from the gender nonconformity of the fairies and championed a sexual ethic of discretion and privacy (16).
The policing of sex between men and boys was an even bigger deal in the early twentieth century than previously realized. Historian Rachel Hope Cleves reviewed the primary sources used by Chauncey’s Gay New York. Cleves found that “as many as 40 percent of prosecutions for homosexual offenses in early New York were generated by the Society for the Prevention of Cruelty to Children and concerned sexual encounters involving boys” (Cleves Reference Cleves2018, 3). The heavy focus on sex between men and boys in the early twentieth century was an unexpected side effect of the contemporaneous war on “white slavery”—the idea circulating at the time that young, white women were moving from country to city and falling into lives of prostitution before meeting an early death (Romesburg Reference Romesburg2009).
Then around the time of the Great Depression, as Gay New York shows, a wave of social and legal repression contributed to the formation of modern homosexual identity and politics. In the 1930s and 1940s, a “series of panics over sex crime”—the early phase of the war on sex offenders—“became the vehicle for a wide-ranging discourse about the boundaries of acceptable sexual and gender behavior” (Chauncey [1994] 2019, 359). One of the specific effects of the panics was to usher in a new era of suppression of homosexuality in particular and a starker binary social and legal distinction between homo- and heterosexuality. The repression manifested in the form of press campaigns portraying homosexuals as psychopathic child molesters, “sexual psychopath” laws at the state level that sometimes criminalized gay men, a crackdown on the part of the New York State Liquor Authority on bars catering to gay men, and the censorship of queer themes at the movies (360, 456, 358, 353). “To use the modern idiom, the state built a closet in the 1930s and forced gay people to hide in it,” helping eventually to spark the emergence of gay identity, defined as a type of person with erotic desire for the same sex, and the gay rights movement (9, 3).
The broad strokes of Canaday’s narrative are similar, though her focus is on the invention of the homosexual as a federal-legal category, as opposed to a social one as in Chauncey’s social history of the categories employed by the inhabitants of New York City’s early gay male world (Canaday 2009, 5). The Straight State details how the federal government gradually developed a concept of the homosexual in the course of the twentieth century through three case studies focusing on governmental activities pertaining to immigration, welfare, and the military. The first half of the book examines the system of “nascent policing” in the early twentieth century, when federal agencies encountered a wide range of forms of queer conduct—“gender inversion (mannishness in women and effeminacy in men),” intersex people, gay sex in public, gay sex in private, and underage sex—without having a “clear conceptual framework” through which to interpret them.Footnote 12 But if federal officials did have an overarching paradigm for identifying “deviance” at this point, it was looking for signs of gender nonconformity, as opposed to evidence of same-sex desire.
As the second half of The Straight State shows, from midcentury onward the federal government consolidated a system of “explicit regulation” of a clearly defined legal category of the homosexual. Canaday focuses on the World-War-II-era military as the key institution that produced the crystallization of a legal binary hierarchizing the homo- and the heterosexual. The military had significant lesbian and gay subcultures that officials developed new ways of rooting out and policing. In turn, the military also influenced the welfare state. The GI Bill of 1944, the massive piece of federal legislation offering various kinds of support to veterans, excluded racial minorities but also homosexuals (Canaday 2009, 137–73). Five of the six chapters of her book are about men and male-bodied people, but one time and place when lesbianism was a major police focus was in the early Cold War military after the passage of the Women’s Armed Services Integration Act of 1948 (174–213). In turn, the crackdown on those subcultures led many servicemen and -women to come out to themselves and others for the first time, which was in turn one of the contributing factors that helped inspire the formation of the gay rights movement (254).Footnote 13
Chauncey and Canaday offer convincing evidence that a starker binary between homo- and heterosexuality did in fact develop during this period, when—for example, as Chauncey finds—it became less possible for masculine-presenting tops to have sex with other men and still consider themselves to be “normal” ([1994] 2019, 359).Footnote 14 And as Canaday shows, at midcentury the military and the federal government invented new ways of targeting and excluding a historically new and specific psychiatric-legal category of “homosexuals.” But it is also the case that many of the other queer practices and identities that populate Chauncey and Canaday’s historical narratives in the early twentieth century become more and more tangential to their analyses the closer their narratives get to the present, even though those practices and identities continued to exist in modified form and people continued to be policed for them.
The work of queer theorists who are not historians, especially that of Gayle Rubin and Michael Warner, suggests that bad queers were central to LGBTQ history as well as to the history of the carceral state in the late twentieth century in ways that have yet to be documented by LGBTQ historians or political and legal historians of state power. In “Thinking Sex,” Rubin’s focus is not on the conduct of LGBTQ people in particular—though the essay has much to say about that subject, too—but on “bad” sexual and gender practices broadly speaking. She argues that in modern, Western societies, there exists a “general system of sexual stratification” analogous to, but not the same as, other major social hierarchies like race, class, and gender (Rubin [1984] 2011a, 159).
While multiple expert, religious, and popular discourses and institutions produce the sex hierarchy, especially significant for the purposes of this essay is how Rubin highlights the key role played by the criminal justice system. “In its most serious manifestations, the sexual system is a Kafkaesque nightmare in which unlucky victims become herds of human cattle whose identification, surveillance, apprehension, treatment, incarceration, and punishment produce jobs and self-satisfaction for thousands of vice police, prison officials, psychiatrists, and social workers” (Rubin [1984] 2011a, 164).
The way that sexual activity is governed is always political and politicized, but there are certain historical moments when the politics of sexuality are particularly live and when specific kinds of sexual “deviance” become the focus of a “moral panic.” The concept of the moral panic or sex panic was theorized by scholars including the sociologist Stanley Cohen ([1972] Reference Cohen2011) and historian Jeffrey Weeks ([1981] Reference Weeks2018) to describe moments in history when certain social groups are stigmatized and scapegoated as the alleged cause of broader social problems (such as child sexual abuse or the AIDS epidemic). Rubin writes, “In such periods, the domain of erotic life is, in effect, renegotiated” ([1984] 2011a, 138). The midcentury crackdown on homosexuals was a sex panic. Another was the historical moment in which Rubin was writing, when a range of the most stigmatized gender and sexual subjects and practices including “promiscuous” gay men, sex workers, and underage sex, were coming under a fresh round of political attack.
As Michael Warner argues in The Trouble with Normal, by the late 1990s a cleft was emerging between the social and legal treatment of “good” and “bad” LGBTQ people in particular.Footnote 15 At the same time as the status of “respectable” lesbians and gay men—ones who confined their sexual lives to conduct with other adults in private and/or lived in monogamous, marriage-like relationships—was being upgraded, many others were getting left out of the emerging LGBTQ rights revolution: for example, “the queers who have sex in public toilets, who don’t ‘come out’ as happily gay, the sex workers, the lesbians who are too vocal about a taste for dildos or S/M, the boys who flaunt it as pansies or leathermen, the androgynes, the … transgendered whose gender deviance makes them unassimilable to the menu of sexual orientations, the clones in the so-called gay ghetto, the fist-fuckers and popper-snorters, the ones who actually like pornography” (Warner 1999, 66). In New York City, the Giuliani administration was clearing sex commerce out of Times Square to make way for the Disney Store, in the process further marginalizing and suffocating the city’s queer sexual subculture and the diverse modes of relationality and intimacy that it facilitated (149–93).Footnote 16
Together, Rubin and Warner point to multiple factors that brought about the decline of the sexual revolution in general, and the normalization of the lesbian and gay rights movement in particular. As Rubin shows, in the 1970s and 1980s, widespread bipartisan concern over child protection and pedophilia, and then over HIV/AIDS, were central to the creation of a more repressive and exclusionary political culture of sex. She writes, “For over a century, no tactic for stirring up erotic hysteria has been as reliable as the appeal to protect children,” highlighting the crackdown on underage pornography, and the police repression of NAMBLA ([1984] 2011a, 141). In The Trouble with Normal, Warner highlights the role of mainstream LGBTQ movement leaders, who by the late 1990s had become increasingly invested in the relatively narrow political goals of sexual privacy and gay marriage. “Instead of broadening its campaign against sexual stigma beyond sexual orientation, as I think it should, [the movement] has increasingly narrowed its scope to those issues of sexual orientation that have least to do with sex” (Warner 1999, 25).
WRITING BAD QUEERS INTO LGBTQ POLITICAL AND LEGAL HISTORY AFTER WORLD WAR II
The time has come for historians to incorporate the insights of Rubin and Warner into US LGBTQ political and legal history by writing bad queers into historical narratives about developments in the late twentieth century. As Chauncey and Canaday show, the rise of campaigns against sex crime at midcentury helped consolidate a social and legal binary of homo- and heterosexuals. Yet it is also the case that the diverse bad forms of gender and sexual behavior that they document in the early twentieth century context, before the rise of the homosexual, persisted in modified form later in the twentieth century and beyond. Tracing the evolution of the war on sex offenders into the 1960s and 1970s reveals the development of an even more complex legal hierarchy LGBTQ subjects stratified according to the types of gender and sexual behavior in which they engaged.
The early phase of the war on sex offenders created inventive and historically new laws and policies for the policing of sex crime—particularly at the local and state levels. At the encouragement of law enforcement officials, California enacted the first state-level sex offender registry in 1947 (Los Angeles Times 1947).Footnote 17 Between 1937 and 1967, twenty-six states and Washington, DC, created “sexual psychopath” laws allowing for the indefinite “civil” commitment of sex criminals, including those who performed gay sex and/or displayed public gender nonconformity.Footnote 18
The war on sex offenders caused a spike in the repression not only of the homosexual but also of diverse other categories people we now call LGBTQ.Footnote 19 On the ground, gay sex between consenting adults in private was policed less heavily than public sex, gender nonconformity, sex work, or underage sex. Nonetheless, until the 1970s the police and the sex laws that governed policing made no firm distinction between “good” and “bad” LGBTQ people, and popular discourse, the police, and sex law viewed LGBTQ conduct of any kind as “deviant.”
When it came to race, class, and gender, the war on sex offenders criminalized male-bodied queers of color disproportionately in every area of sex-crime law, as along with white men who had sex with boys. Reference Coleman and CopilowColeman and Copilow (1973) conducted a study of the enforcement of California’s law against “lewd or dissolute conduct” in Los Angeles. Of the fifty arrests made in bars over the four-month study period, 90 percent occurred in gay bars. In addition, black and Latinx people were arrested for gay cruising and being trans in public “in greater proportion than their average number in the population. This was apparently because most of the vice arrests occurred in older downtown areas (Main Street, Pershing Square, or McArthur Park) frequented mainly by these two groups.”
In turn, the repression helped spark the formation of multiple queer political movements for gender and sexual “liberation” that culminated in the long 1970s.Footnote 20 The earliest and ultimately most powerful argument used by gay activists and their progressive allies was that gay sex between “consenting adults in private” was a “victimless crime.”Footnote 21 Activists also challenged the criminalization of public sex and public sexual culture, winning new restrictions on the policing of gay and queer bars and other sexual meeting-places.Footnote 22 The transgender liberation movement challenged the criminalization of gender-nonconforming behavior in public, a phenomenon that affected butch lesbians, as well.Footnote 23 There were historically new movements challenging the criminalization of sex work, sadomasochism, pornography, and the mistreatment of queer prisoners.Footnote 24
There were multiple social movements for underage sexual rights or “liberation,” including NAMBLA (Garten Reference Garten1978). It was not only man-boy love activists who were making radical proposals at the time about youth sexuality. In 1978–79, feminists in New Jersey who were participating in the revision of the state penal code lowered the age of consent in that state to thirteen. Members of the New Jersey Coalition against Rape, a consortium of rape-crisis centers, and the state chapter of the National Organization for Women (NOW) had originally wanted to prohibit sex between a young teenager and a person who was “substantially older.” But when that proposal was rejected by the Penal Code committee for vagueness, feminists agreed to simply lowering the age of consent to thirteen, with some exceptions for relations of authority and dependence, arguing that doing so would reduce the number of teenagers with criminal records; however, before the code went into effect, conservatives, Catholic groups, and child protection advocates managed to raise the minimum age back to sixteen (Globe and Mail 1979).Footnote 25
Collectively, these challenges threw the war on sex offenders into a crisis of legitimacy by undermining the justification for its existence. Civil libertarians argued that sex offender registries unconstitutionally branded individuals as criminals and should be done away with entirely, and in any case on the ground it appears that police departments had stopped keeping their records of registered sex offenders up to date, rendering the laws effectively defunct (Kohorn 1983, 104). Most of the state “sexual psychopath laws” were repealed, fell into disuse, or were highly contested in the 1970s (Group for the Advancement of Psychiatry 1977). By 1979, lesbian and gay activists and their progressive allies had managed to legalize “sodomy” between consenting adults in private in twenty-nine states.
At first, some conservatives tried to go back to a time when all queer people were officially stigmatized and criminalized at least to some degree. Throughout the 1970s, Christian conservatives, child protection advocates, and law enforcement officials attempted to organize a backlash against the lesbian and gay movement by reviving the stereotype that gays were child molesters. In Texas in 1974, legislators reformed the state “sodomy” law by leaving “homosexual conduct” a crime even as they legalized heterosexual oral and anal sex, citing concerns about the alleged threat homosexuals posed to children. The passage of the homosexual conduct law ensured that the battle in the state over “good” lesbian and gay sex would drag on for years to come (Reference De OrioDe Orio 2017).Footnote 26 In her 1977 “Save Our Children” campaign in Miami, the activist Anita Bryant successfully got a local gay rights ordinance overturned by arguing that lesbians and gay men preyed on and were trying to “recruit” children (Gay Community News 1977).Footnote 27 The following year, California Republican lawmaker John Briggs introduced a ballot initiative to ban gay teachers, arguing that the legalization of homosexuality was leading down a “slippery slope” to the legalization of pedophilia. Such backlashes did not work completely—Bryant won, Briggs did not—but they did have the effect of galvanizing and nationalizing the mainstream LGBTQ movement on an entirely new scale (McQueen and Shilts Reference McQueen and Shilts1977).
As “good” gays were becoming less and less of an easy target, law enforcement officials, child protection advocates, and lawmakers on both sides of the aisle reinvented the war on sex offenders by strategically shifting their “locus of attack” (Weaver Reference Weaver2007, 230), doubling down specifically on the most stigmatized of bad queers. The process began with the rise of the child protection movement and the emergence of a new, international law enforcement crackdown on (gay) sex that violated the age of consent.Footnote 28 The crackdown used the power of the state to suppress not only sexual activity but also political organizing, discussion, and debate about underage sex.Footnote 29 It also cleared the way for the child protection movement to set the age of consent as high as eighteen and criminalize teenage sexual conduct.Footnote 30 In collaboration with some feminists, lawmakers exploited the issue of child protection as an occasion to crack down on pornography generally and on queer porn in particular, notably the practice and representation of sadomasochism.Footnote 31 Then, the outbreak of the HIV/AIDS epidemic in 1981 occasioned new crackdowns on gay cruising, bathhouses, and sex workers, along with the creation of new ways of criminalizing and controlling the sexual conduct of HIV-positive people.Footnote 32 And in spite of the gains of the trans movement, the criminalization of gender nonconformity persisted, particularly people of color and working-class people in public who do not “pass” (Bellafante Reference Bellafante2016).
By targeting the most stigmatized bad queers and focusing less on good ones, the new war on sex offenders shut down political protest on the part of the mainstream LGBTQ rights movement. Many LGBTQ people and activists were not interested in defending gay sex involving legal minors and worked to distance themselves from the issue.Footnote 33 In the age of AIDS, activists also worked to distance the movement from a defense of promiscuous gay sex and sometimes actively sought to police such conduct themselves.Footnote 34 More and more—whether out of necessity or because they themselves did not like bad queers—mainstream LGBTQ activists sought to naturalize a “good” political identity and limit their sexual politics to the defense of conduct between “consenting adults in private” so that the movement could continue to thrive.Footnote 35
Now unhindered by mainstream political protest, the new phase of the war on sex offenders continued to expand into the 1980s–2000s—increasingly at the federal level.Footnote 36 Finally, the LGBTQ movement achieved the legalization of gay sex between consenting adults in private nationwide in 2003 and of gay marriage in 2015.Footnote 37 The overall result of these battles was a legal system of sexual disqualification that produced, classified, stigmatized, regulated, or normalized multiple categories “good” and “bad” LGBTQ subjects on the basis of their “normal” or “deviant” gender and/or sexual behavior.
CONCLUSION: HOW THE HISTORY OF BAD QUEERS EXTENDS WHAT WE KNOW ABOUT LGBTQ POLITICS AND THE CARCERAL STATE
Focusing on bad queers expands who counts as a subject of LGBTQ political and legal history after World War II, bringing more kinds of people and conduct into the analysis. Doing so makes clear how uneven the LGBTQ rights revolution was. From the perspective of the “good” homosexual, the arc of LGBTQ rights in the late twentieth century followed an upward pathway of progress. As Canaday writes, “I expect that well before my old age, I will live in a nation that allows LGBTs to share equally in the obligations and benefits of national citizenship” (264).Footnote 38 From the perspective of “bad” queers, that trajectory appears considerably less sunny: it emerges instead as a deepening nightmare of stigmatization, repression, and criminalization.
Hierarchies of race, class, gender, and age shaped what kinds of queers the state targeted the most or the least. In “Thinking Sex,” Rubin was invested in convincing others of the simple existence of the sex hierarchy, and in distinguishing it from sexual oppression that women experience on the basis of their gender. “In the long run, feminism’s critique of gender hierarchy must be incorporated into a radical theory of sex, and the critique of sexual oppression should enrich feminism. But an autonomous theory and politics specific to sexuality must be developed” (Rubin [1984] 2011a, 180). Now that scholars have done this to some extent, the next task is to make the analysis of the sex hierarchy more intersectional. Even as the war on sex offenders disproportionately targeted white men compared with the wars on drugs or immigrants, urban law enforcement also singled out people of color, “precocious” youth, and trans- and gender-nonconforming people for criminalization.Footnote 39
An examination of these political struggles reveals an even larger system of carceral state power affecting LGBTQ people. The juvenile justice system and the welfare state—which oversaw the adjudication of “sexual psychopaths,” later rebranded as “sexually violent predators”—remained key facets of the legal system for the regulation and punishment of bad queers.Footnote 40 Public health played an increasingly significant role in the age of AIDS.Footnote 41 The wars on child sexual abuse and sex trafficking occasioned the formation of new, transnational law enforcement networks.Footnote 42 The rise of the new standard defining “good” gay sex as conduct between consenting adults in private extended the reach of the carceral state insidiously into everyday life by creating a set of rules governing sexual privacy that individuals are expected to internalize and respect. And the political suppression of pornography similarly extended the reach of the carceral state into everyday life by obstructing access to knowledge about and representations of gender and sexual variance.
An examination of the political struggles over good and bad queers of the long 1970s changes how we think about who counts as a “state actor.” Coalitions of social movements, state officials, experts, and corporations at the local and state levels were the driving force that accomplished this expansion of state power.Footnote 43 In Canaday’s investigation, it was federal officials who invented new ways of targeting and excluding gays and lesbians; “the state is ‘what officials do’” (Canaday 2009, 5; qtd. Novak 1996, 8). But the local and state levels were also key. In every case, the coalitions that transformed the state transcended divisions between left and right, and were effective precisely because they included a broad consensus of actors.Footnote 44
These political struggles were central to the expansion of the carceral state ultimately at the national and federal levels. As Chauncey and Canaday show, the lesbian and gay rights movement influenced the American state “from the ground up” to become less repressive toward some queer people. But that was not the full extent of the ways in which social movements and coalitions at the local and state levels influenced the criminal justice system. During precisely the same period, new coalitions against sexual victimization created what the political theorist Vesla Weaver calls a “frontlash” that renewed the justification for what became the “long” war on sex offenders, in part by now making a distinction between “good” and “bad” queers and leaving “good” ones increasingly alone.Footnote 45 As a consequence of these political contests, the war on sex offenders “trickled up” from the local and state levels to become increasingly federalized, culminating in a national and ultimately transnational phenomenon.
On the other hand, if coalitions affected the state “from below,” the state also affected them. The state repression of the man-boy love movement, and of gay male public sexual subcultures in the age of AIDS, contributed centrally to normalization of the sexual politics of the LGBTQ rights movement and the decline of more inclusive queer social movements. Warner shows how gentrification helped destroy queer subcultures of public and promiscuous sex in the 1990s and highlights the complicity of some lesbian and gay rights activists and organizations in that development.Footnote 46 But the lesbian and gay rights movement was facing some serious structural constraints preventing activists from being more progressive even if they wanted to. In ways that were as significant as AIDS, the rise of the child protection movement was a turning point in LGBTQ politics, part of a longer transformation in which mainstream LGBTQ activists and their progressive allies, willingly or unwillingly, retreated from defending “bad” queers.
Gay male sex that violated age-of-consent laws has been the focus of intense public and police scrutiny for a long time. We need to find better and more nuanced ways of thinking about and governing it. One of the first steps toward that end is to write people who had underage sex, and “bad” queers more generally, back into legal and historical narratives of the late twentieth century.
