POLICING QUEER SEXUALITY.

• Author: Waldman, Ari Ezra

VICE PATROL: COPS, COURTS, AND THE STRUGGLE OVER URBAN GAY LIFE BEFORE STONEWALL. By Anna Lvovsky. Chicago and London: University of Chicago Press. 2021. Pp. viii, 337. Cloth, $105; paper, $35.

INTRODUCTION

Texas considers gender-affirming healthcare to be child abuse. (1) A ban on gender-affirming hormone therapy was signed into law by the governor of Arkansas in 2021, the year the Human Rights Campaign called the "worst year in recent history" for legislative attacks on trans rights. (2) In 2020, a federal appeals court overturned a city's ban on gay conversion therapy, holding that the free speech rights of therapists predominate over the government's interest in protecting queer adolescents. (3) Eleven states require providers to tell individuals seeking abortions that the procedure causes depression, infertility, or breast cancer. (4)

None of these policies withstand scientific scrutiny. The scientific consensus says that hormone therapies are safe and necessary, that conversion therapy is torturous, and that abortion does not cause psychological or physical harm. (5) Facts and scientific expertise are under assault in the lawmaking and adjudicative processes.

Against this backdrop of cultural retrenchment, distorted expertise, and "alternative facts" comes a page-turner of legal history from Anna Lvovsky, (6) Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life Before Stonewall. This painstakingly researched and exhaustive account of the criminalization of sexual identity from the 1930s to the 1960s is not about gender-affirming care. (7) Nor is it about LGBTQ+ teens, conversion therapy, or abortion. Nevertheless, Vice Patrol offers powerful lessons for today's civil rights battles, both in the courts and online. The book uses a case study of state enforcement of anti-vice laws against gay people to tell a larger story about an epistemological struggle over facts and knowledge, as well as the limits, if any, they place on power. (8) Seen through this lens, we can push Lvovsky's detailed and nuanced work even further than she may have imagined. I argue that the book's illustration of the criminal justice system's construction of legal knowledge about queer communities in the middle of the twentieth century mirrors how two very different, yet nevertheless powerful institutions today--the state and the information industry--approach expertise and socially construct knowledge about sexuality and sexual freedom.

Lvovsky shows that anti-vice campaigns against gay people in cities like New York, Chicago, Los Angeles, and Newark tried to walk a fine line on expertise. On the one hand, anti-vice agents denied that they bore any special training or insights into queer life, insisting that they identified gay bars or individuals simply based on their common sense (ch. 1). At the same time, these agents insisted that they--and not more prominent scientific and medical experts on sexuality--had insight into gay subcultures to which courts should defer (ch. 2). That sounds contradictory: How could the law defer to police and exclude actual scientific expertise while the police denied having any specialized knowledge about gay people? But seen through the lens of today's fact-intensive fights over abortion, trans healthcare, conversion therapy, and sexual content moderation, it makes sense. Put simply, it's not that reality doesn't matter, what matters is who gets to decide what reality is. For instance, if the law accepts as true the public's shared assumptions about queer life and, therefore, concludes that homosexuality is easy to spot, then contradictory scientific evidence is not just irrelevant, but wrong.

Vice Patrol tells the story of how anti-vice police helped define accepted legal and public knowledge about homosexuality, often crowding out more rigorous understandings of queer life, and how judges embraced their "commonsense" accounts at the cost of more accurate professional knowledge (chs. 1-2, 4). But the past is prologue. Allison Orr Larsen, Aziza Ahmed, and others have shown that biased amici are treated as experts in ongoing fights over abortion. (9) Laws assigning individuals to public bathrooms based on their sex assigned at birth construct legal definitions of sex and gender that contradict the medical and scientific consensus. (10) Courts striking down laws prohibiting gay conversion therapy for minors have ignored scientific knowledge about the harms of the practice and proceeded to strike down the laws on other grounds. (11)

Policies in each of these areas defy the scientific consensus because the law allows judges and policymakers to construct knowledge independent of actual evidence. That is, these policies pander to the public's lay assumptions and supposedly commonsense beliefs about women and LGBTQ individuals over more scientific, empirically defensible facts about the very people they target. This precise preference for lay opinion over empirical reality is one reason why anti-vice campaigns were so successful for so long. (12) Therefore, Vice Patrol demonstrates that marginalized populations suffer when the law un-tethers itself from facts.

Vice Patrol also describes how anti-vice police insisted that homosexuality was so obvious and subject to a set of shared, cultural understandings that anyone could spot a gay person on the street or in a bar (pp. 41-59). Remarkable as it may seem, that same idea undergirds much of social media's sexual content moderation, which also insists that sexuality is reduceable to a few easily identifiable elements such that any code and anyone with a few hours of training can spot it. As a result, marginalized populations suffer again; gay, trans, queer, and nonnormative sexual expressions are disproportionately censored by social media companies. (13) In this way, Lvovsky's research helps demonstrate digital social platforms' designed-in hostility toward LGBTQ+ sexuality. Vice Patrol can change the way we understand the role of expertise in content moderation and digital governance, as well as in broader struggles for civil rights.

This Review proceeds in three Parts. Part I describes how Vice Patrol provides a nuanced account of the role of policing and the construction of legal knowledge about queer life in the anti-vice era. Part II uses Vice Patrol's study of police "expertise" in the anti-vice context to illustrate how courts and legislatures rolling back civil rights today are following in the anti-vice era's footsteps and choosing to rely on faulty, supposedly "commonsense" assumptions and lay opinions over more rigorous, scientific knowledge about marginalized communities. Finally, Part III connects anti-vice police's insistence that homosexuality was readily identifiable with social media's bankruptcy and antiqueer design. With Lvovsky's work about the relationship between law and knowledge so prevalent in contemporary struggles for sexual freedom, the Review concludes with a reminder of the stakes and the value in looking to the historical foundations of civil rights struggles.

1. POLICING HOMOSEXUALITY

   Lvovsky frames Vice Patrol as a "useful case study of the politics of knowledge underlying the administration of the criminal law" (p. 17). Law also helps construct knowledge by facilitating a process through which different social groups and institutions engage in the contestation and development of mental constructs of what the world is. (14) In the anti-vice context, this played out as different arms of the criminal justice system realizing they needed a reliable, easily duplicable system of distinguishing gay people from heterosexual people if they wanted to enforce anti-vice laws against the former and not the latter.

   That started with the rise of liquor regulations. After Prohibition, cities and states sought to recapture control over urban nightlife--and stave off the temperance movement--by passing strict regulations over alcohol, nightlife, and indecent behavior. (15) States created liquor regulatory boards, like the Division of Alcoholic Beverage Control (ABC) in New Jersey and the State Liquor Authority (SLA) in New York. Their job was to police establishments that served alcohol, from prohibiting sales to minors, to keeping away gay people (p. 27). Their rules rarely mentioned the words "gay" or "homosexual," instead using broad prohibitions against bars that "bee [a] me disorderly" and knowingly "permit [ted] ... degenerates and undesirable people to congregate" (p. 29). In California, a bar could be shut down if it knowingly functioned "as a meeting place" for "known homosexual[s]" (p. 29). Prohibition's permissive sexual culture was over; the era of morality policing had begun.

   These anti-vice statutes covered anything the state deemed undesirable: "perversion," public nuisances, lewdness, female impersonation, and disorderly conduct, to name just a few. (16) The laws were vague and broad, but, when applied to bars, taverns, and cabarets, they all had a similar hook: the requirement of knowledge. The liquor authority could only rescind a bar's license to serve alcohol and shut the establishment down if it could show that the bar knowingly served undesirable elements, knowingly let gay people gather, or knowingly permitted sexual deviance (p. 25). But how could a bar know it was serving gay people? Many masculine-presenting men and feminine-presenting women can meet even the most heteronormative expectations of behavior. To us, "gaydar" is a tool of humor, not science or law. (17)

   But to liquor authorities, gay cultural stereotypes were evidence and sources of knowledge. Throughout the more permissive years of Prohibition, different forms of sexual expression became popular in urban downtowns. The Pansy Craze took over bars in Manhattan's Bowery district and Times Square (p. 36), reaching even rarified media; so-called "fairies" were profiled in Vanity Fair in 1931 (p. 39). Hollywood got in on the act too...