Date of Degree

6-2020

Document Type

Dissertation

Degree Name

Ph.D.

Program

Political Science

Advisor

Leonard Feldman

Committee Members

Linda Martín Alcoff

Saadia Toor

Subject Categories

Comparative and Foreign Law | Constitutional Law | Legal Theory | Political Theory | Sexuality and the Law

Keywords

sexuality, constitutional law, queer legal theory, nudity, BDSM, sex work

Abstract

The beginning of the 21st century is widely seen as a time of great progress for LGBTQ people. Gay marriage, gay sex, adoption by same sex couples, and gay people serving in militaries have all been legalized in many countries in the past two decades, often through the decisions of constitutional courts. However, these constitutional protections of sexuality have been found in limited contexts and applied to a limited class of people, such that many are still vulnerable to repression by governments and majoritarian politics. In order to resist this sexual oppression, I widen the focus from gay and cisgender couples to other sexual acts and actors often left out of typical gay rights advocacy- namely BDSM, strip clubs and nudity in public. I analyze the promises and dangers of using privacy, freedom of expression, and dignity in the constitutional courts of the U.S., South Africa, India, Canada and England to protect sexuality. I show how courts reinforce the oppression of sexual acts and actors who fall outside of what Gayle Rubin calls the “charmed circle of sexuality,” often through unsubstantiated appeals to the public interest. Looking to recent Indian case law which is open to a wide range of legal and theoretical sources and which centers those outside of normatively valorized sexuality, I propose that this type of robust constitutional inquiry could be a model for other polities and provides courts with the tools to help achieve erotic justice through the law.

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