Sexual Minorities and Civil Rights: LGBT and BDSM Comparisons

In order to understand how state-led persecution of sadomasochists is possible in some of the world’s most celebrated democracies – including in countries like Norway, the Netherlands, Canada, the United States, France and in some of the best-ranked democracies of the Pacific region – it can be  useful to turn to theories developed in the studies of religious minorities in the Ottoman Empire. In particular, there are instructive parallels to be found in Fuad Khuri’s seminal distinction in Islamic studies between “religious communities” (tolerated but subjected minorities)  and “sects”  (legally unrecognized groups susceptible to unpredictable patters of persecution). In modern liberal democracies, Khuri’s distinction is to  some extent mirrored in the differences between how gender-defined sexual minorities (LGBT or lesbian-gay-bi-transgender) and “other” sexual minorities (including BDSM or bondage-discipline-sado-masochism) are treated as far as civil rights are concerned.

Over the past decades, minority groups that define their sexual identity in relation to gender – first gays and lesbians and more recently bi-sexual people and various transgender groups – have made the greatest advances in terms of constitutional and or legal protection against discrimination in the West. That is not to say that their civil-rights advances have been unambiguous, unilinear, or necessarily paralleled by an actual decline in discriminatory behaviour. Precisely like the religious communities of the Ottoman Empire – primarily Jews and Christians – gender-defined minorities are still to some extent second-class citizens in many liberal democracies today, for example with respect to marriage rights. Also, the “integration” of these groups is sometimes accompanied by a degree of condescension not unlike that which befell minorities in the Ottoman Empire: When gays in official positions are paraded as examples of happy integration, it is sometimes unclear whether it really serves as empowerment or as a reminder about just how exceptional such cases really are. Nonetheless, in most Western democracies, LBGT groups have at least made sufficient advances that discrimination is now seen as uncouth  in educated circles, and systematic state-led persecution of LBGT minorities would be rather unthinkable. When transgressions of the rights of minorities do happen, they are typically “condemned” and profuse apologies are offered (although not necessarily followed by effective measures to prevent such episodes from happening again). This again echoes the Ottoman record of mostly peaceful urban coexistence between Muslims, Christians and Jews that was nevertheless vulnerable to spasmodic rioting by urban mobs.

Very different realities faced “sects” in the Sunni-dominated Ottoman Empire, including Shiites, Alawites and Druze. Unlike the recognised non-Muslim communities of Jews and Christians, Muslim sects were seen as competitors to the mainline Sunni version of Islam. Few if any formally recognized rights were bestowed upon them, and persecution was frequent, often accompanied by large-scale massacres. The state typically saw these groups not as second-class citizens or tolerated infidels, but as a threat to the very order of the state.

In modern democracies, a similar fate that has befallen sexual minorities that define themselves without gender references. Rarely have they been accorded explicit recognition as minorities. Instead, they have seen systematic state discrimination of the kind that gays used to suffer a half-century ago. Examples from the United States include frequent child custody cases as well as the official listing of some sexual preferences, notably some expressions of sadomaschism, as psychological disorders. Prominent academics with BDSM identity have been the victim of savage, identity-related  attacks from leading forces in the media. In short, like deviants from Sunni Islam in the Ottoman Empire, those who stray from orthodoxy in the modern heterosexual church can expect a rougher ride than recognized minorities.

The problems suffered by sadomasochists and other sexual minorities in liberal democracies go back to a definitional struggle about what constitutes a sexual minority, involving both legal and academic controversies. So far, in legal jurisprudence there has been a tendency of equating “sexual orientation” with gender-based categories such as gay, lesbian, bi or transgender. To some extent this is the result of gays and lesbians having fronted the pioneering struggles for the civil rights of sexual minorities, to the point where micro-minorities within those communities like bisexuals and transgender persons were sometimes marginalized, both internally as well as in the external struggle. Conversely, other, non-gender sexual minorities like sadomasochists, fetishists and polyamorous people have seen very little in the way of explicit recognition of their minority status, with their legal status often depending on how open or closed the official definition of sexual minorities is. Like in the case of bisexuals there have also been cases of internal marginalization of these minorities, for example among parts of the lesbian community in the United States, which some decades ago saw rather aggressive attacks on lesbian sadomasochists by lesbians themselves.

Academics have also entered the field the definitional struggle. Some decades ago, a large body of scholars invested much energy in strenuously contending that BDSM sexual preferences in themselves aren’t sufficiently “primary” to form an identity category. This gender-fixated view of sexual orientation has since been considerably modified by post-structural and queer theory. Increasingly, static ideas of gender-defined sexual identity categories are seen as untenable. In fact, already in the mid-1990s, some leading lesbians in the US challenged the view of simplistic gender-defined categories when they put their BDSM identity on par with their lesbian one: In 1994, Pat Califia famously declared that, “if I had the choice between being shipwrecked on a desert island with a vanilla lesbian and a hot male masochist, I’d pick the boy”.

Despite changes in academia, legal definitions of sexual orientation still seem largely stuck in the pre-queer age in many parts of the Western liberal world. Minority relationship to gender (homosexual, bisexual or transgender) remains the exclusive criterion for defining sexual minorities in the legislation of countries like Australia, Ireland, the Netherlands, New Zealand, Norway, Sweden and several states in the USA. The weakness of these rigid approaches is seen in the way the initial dichotomy of straight/gay led to problems for many countries as soon as bisexuals appeared as a separate group. Illustrating the potential for ad absurdum processes, Australia has recently seen parliamentary controversies about the finer points of transgender subdivisions.

Some countries have more open-ended definitions of sexual orientation that at least potentially might offer protection for individuals who see the gender variable as secondary to their sexual identity. They include Belgium, Canada, France, Germany and Switzerland. Canada has refused to define “sexual orientation” but a human rights tribunal ruling from British Columbia in 2010 explicitly envisaged the possibility that it might include sadomasochists. France, Switzerland and some provinces of Germany also have more flexible categories of sexual minorities: France used moeur or lifestyles in a piece of legislation from 1985, Switzerland refers to “way of life” in its new constitution of 1999, and  some German states simply refer to “sexual identity” category, which clearly seems to shift the focus from externally-imposed etic descriptions of sexual orientation towards an emic concept of sexual self-determination. Also the Yogyakarta principles adopted by a group of international experts of 2006 has a relatively open definition of sexual orientation: “Sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.”

The UK presents a mixed scorecard when it comes to protecting sexual discrimination beyond the gender-defined minorities. The UK anti-discrimination (sexual orientation) regulations of 2007 could be seen as refreshing in their apparent simplicity and true egalitarianism. Terms like hetero and gay did not occur in the regulations themselves. Instead, discrimination was described in relation to “a sexual orientation which someone is thought to have”. That could in theory constitute a path-breaking way of rephrasing the whole problem: “Do not use my sexuality in any way to discriminate against me.” Sadly, though, in official explanatory guidelines accompanying the regulations, a more traditional gender-focused approach was used. Even transsexualism was explicitly ruled out as a sexuality, and instead only considered in relation to gender discrimination:  “It does not include transsexuality which is related to gender and is covered in the employment context by sex discrimination legislation.” Accordingly, since transsexual attraction is denied as an acceptable basis for a discrimination complaint, one senses a more narrow conception of sexuality at work. Quite in line with this, the UK Equality Act of 2010 (which superseded the regulations of 2007) seems to reproduce a traditional gender-based focus: “Sexual orientation means a person’s sexual orientation towards  (a) persons of the same sex, (b) persons of the opposite sex, or  (c) persons of either sex.” Still, the fact that heterosexuality is specifically mentioned at least offers some dynamism in that a heterosexual minority group like sadomasochists might plausibly claim protection in the UK. In many other countries, including Norway, one has to deny heterosexuality to be protected by the sexual anti-discrimination clauses of the penal code.

Instead of creating ever more comprehensive lists of protected sexual minorities, general protection against any kind of discrimination or persecution that is sexual in nature is probably the most dynamic way forward for future anti-discrimination legislation. One sometimes hears the counterargument that this could be over-permissive. That really misses the point. Typically, there is fear that pedophilia, bestiality or necrophilia would somehow gain minority-status protection. But in most countries, specific criminal legislation is in place to guard those red lines of sexual behaviour for which criminal prosecution is deemed appropriate.  Indeed, with respect to bestiality, one might argue that the field is so heavily legislated that it offers better protection for practitioners than for example BDSM in terms of establishing what is legal and what is not. Several countries including Finland and Sweden allow bestiality after previous bans on such practices were lifted by the national assemblies.

Meanwhile, a brief look at a Washington Post article that attacked UN arms inspector Jack McGeorge for his heterosexual sadomasochism in 2002 highlights the extent to which discrimination against minorities not defined in gender terms remains an acute problem. It also illustrates how, when a powerful media organisation or the state forces a person’s private sexual preferences into the public sphere, one does not really have the luxury of choosing whether to be a sexual minority or not:

Try, by way of a hypothetical, to substitute “gay” for “sadomasochistic” above, appreciate the impossibility of doing so in the real world of modern Washington DC, and you have the difference between a sexual “minority” and a sexual “sect” in a modern, still emphatically quasi-liberal democracy.