Sex equality panic (+).

• Author: Spindelman, Marc

What are all the creatures of the earth in comparison with a single one of our desires!

--Sade

The question ... is whether queer theory comprises a set of "master's tools" as it straps on the master's theories, whether or not (or to what extent) queer theory opposes "the master's house," and at what point queer theory itself becomes the house that screams for dismantling.

--Linda Garber

For B.K.

The Supreme Court's announcement in Oncale v. Sundowner Offshore Services, Inc., (1) that same-sex sexual harassment can be actionable sex discrimination under federal anti-discrimination law, changes the social context against which it was decided. No longer, for instance, are men guaranteed all the protections male supremacy has traditionally offered them when they sexually subordinate other men. In refusing to de-sexualize same-sex sexual violence or render it legally invisible, Oncale disrupts the conventional social meanings that that violence has had. After Oncale, one cannot quite be certain how "boys will be boys," or how one is supposed to "take it like a man."

As a strike against male supremacy, Oncale is an important step forward for sex equality rights, including the rights of those who identify or are identified as lesbians and gay men. (2) For the first time ever, the Supreme Court has made anti-gay discrimination, in the form of sexual violence at least, subject to judicial scrutiny and action as a matter of sex equality law. Judicial decisions in Oncale's wake have already begun to acknowledge this transformative potential. (3) As Janet Halley observes: "a gay-friendly analysis has to welcome the Court's [Oncale] decision that same-sex sex harassment is actionable sex discrimination: Without it, federal antidiscrimination law would have explicitly declared open season on gay men and lesbians, leaving us unprotected from sexual interference that can threaten our very ability to work and learn." (4)

To be sure, the time hasn't come for lesbians and gay men to let down our guard. It's always possible courts will allow themselves to be blinded by their own commitments to male supremacist norms and so not recognize that the context-sensitive judgments Oncale mandates are no warrant for judges or juries to police same-sex sexual interactions in antigay ways. Notwithstanding this possibility, Oncale is cause for cautious celebration. It puts a new legal tool in the hands of those lesbians and gay men who have been sexually subordinated because of their sex.

As a case clarifying the rules of sexual harassment law, Oncale has the potential to help straight and gay victims of same-sex sexual harassment in the workplace, in schools, in public housing, even in the streets. Nor is that all. As a case addressing the structures of sex inequality, Oncale offers victims of same-sex rape, (5) sexual assault, domestic violence, (6) stalking, (7) and the sex industry, (8) a new vehicle through which to lay claim to--and to name (9)--what it is that they've endured. We may thus finally begin to learn, through the previously silenced voices of its victims, what life under male supremacy, with its safe harbors for perpetrators of same-sex sexual violence, means for them: as human beings who have been harmed because of, and through, their sex. In part as a result of feminist efforts--efforts that helped produce sexual harassment law, Oncale, and the analysis and social movements that, in turn, produced them--the world looks better than it did before. (10)

But just as we begin to approach the threshold that Oncale has opened up--beyond which lies fresh knowledge of power and its sexual use--appears "queer theory" in the doorway, shooing us away.

1. QUEER CHOICES

   Perhaps it could have been otherwise. Acknowledging the centrality of concepts like "power," "knowledge," "domination," "oppression," and "hierarchy," and their relation to sexuality, queer theory could have aligned itself with male supremacy's critics. (11) But with few notable exceptions (12) it hasn't. Queer theory, as I will begin to show in the pages that follow, has in significant ways aligned itself with male supremacy and its regulation of the general erotic economy that gives meaning to women's and men's (sexual) lives.

   Against the normalization of sexuality, Michel Foucault famously proposed that "[t]he rallying point for counterattack against the deployment of sexuality ought not to be sex-desire but bodies and pleasures." (13) Less cryptically, while discussing the decriminalization of rape as a crime of sexuality, he offered: "One can always produce the theoretical discourse that amounts to saying: in any case, sexuality can in no circumstances be the object of punishment." (14) In step with now standard interpretations of these thoughts, (15) queer theory has embraced a sexual politics that sometimes seemingly above all eschews sexual regulation, particularly when it issues from the state, (16) and pursues instead the proliferation of bodily--including "sexual"--pleasures. (17)

   But what does queer theory mean by "sexual regulation"? How does that meaning differ from the restrictions and limitations on sexual abuse, hence on sexuality, that feminists have long opposed? (18) What is its relation to ending sexual abuse and the role of the state in that--something feminists have, at times, proposed? What is the queer conception of "pleasure," and how does it relate to queer efforts to deregulate sexuality? Or to feminist efforts to end sexual violence, which some perpetrators apparently find pleasurable?

   A close reading of Janet Halley's Sexuality Harassment, which ventures a queer critique of sexual harassment law, offers some answers to these and other questions. (19) Having examined Halley's text for what it can teach about queer commitments against sexual regulation and for sexual pleasures, I conclude by considering its position on sexual violation, highlighting some of its more conspicuous dangers.

2. OPPOSING SEXUAL REGULATION

   The queer critique of sexual harassment law that Halley offers begins with the Supreme Court's decision in Oncale v. Sundowner Offshore Services, Inc. (20) By "complacently dedicat[ing] the reach of hostile environment liability in same-sex cases to the 'common sense' of judges and juries," we are warned, Oncale has "opened Title VII to ... a homophobic project" (21) of "antigay regulation." (22) Oncale, in the queer imagination, thus threatens us with a very scary prospect. Now that "[t]he Supreme Court has held that same-sex sex harassment may be sex discrimination within the ambit of Title VII," (23) sexual harassment law is poised to become--if it hasn't already--a doctrine of sexuality regulation, a dangerous, oppressive "mechanism" of sexual surveillance and "social control." (24)

   Queer theory is not only concerned that sexual harassment law may regulate sexual acts that cause sexual harm, though it is concerned about that. It is also concerned with sexual harassment law's regulation of sexual desire. Understood as different aspects of queer opposition to sexual regulation, what might appear to be an unfortunate (perhaps Freudian) slip tunas out to have deeper shades of meaning: the observation that queer theory wishes (and wishes us) to ask "whether, when a woman claims that a male coworker or supervisor or teacher injures her by desiring her sexually, we should believe her, or think her claim of injury is reasonable," (25) serves as one way, more or less, to recapitulate the complaint that, "Title VII operat[es] to regulate sexual interactions in the workplace...." (26)

   Once "sexual regulation" is defined in these expansive and doctrinally inexact terms--terms that, by and large, do not treat sexual harassment itself as the practice of sexual regulation that it is (27) queer theory sees the occasion for such regulation woven throughout the fabric of sexual harassment law. (28) Like others before, (29) queer theory contends that different elements of sexual harassment claims--what's legally "unwelcome," "severe," even "unreasonable," for example--are all forms of sexual regulation susceptible of homophobic interpretation by judges and juries. (30)

   Halley adds to this the newish argument that sexual harassment lawsuits themselves (and not just their elements) may become a legitimated vehicle for homophobic expression, a tool for "sexuality harassment," (31) especially after Oncale. (32) As well, she proposes that bringing a sexual harassment suit can itself be a homophobic sexual act, bound up with, and perhaps even motivated by, the same sexual dynamics that are usually the target of sexual harassment prohibitions. (33)

   It would, of course, be worrisome if homophobic plaintiffs, wrongly claiming sexual harassment that never occurred, were permitted to sue. But Halley gives us no reason to think they have been or will be. (34) She "predict[s]" that this "alarming class of cases ... will make it to trial under Oncale," (35) but cites not one example. Indeed, so far as is discernable from Halley's text, not a single case from the more than twenty years of reported sexual harassment decisions with which Oncale is consistent, and criticized by Halley as consistent, (36) has. Not after Oncale either.

   To deliver on her prediction, Halley playfully serves up a fantasy reconstruction of the "disturbing" (37) facts of Oncale which, she claims, "none of the facts published in the various court decisions in the case preclude." (38) This is how we are to imagine Joseph Oncale's sexual violation:

   In this version, it was Oncale, as well as or possibly not his co-workers, who were homophobic. We can imagine that a plaintiff with these facts willingly engaged in erotic conduct of precisely the kinds described in Oncale's complaint, or engaged in some of that conduct and fantasized the rest, or, indeed, fantasized all of it--and then was struck with a profound desire to refuse the homosexual potential those experiences...