Unsettling Sexual Citizenship
Brenda Cossman, Sexual Citizens: The Legal and Cultural Regulation of Sex
and Belonging. Stanford, Cal.: Stanford University Press, 2007. Pp. 244 [cloth
$55 (U.S.].
Ruthann Robson and Tanya Kessler*
that despite
legal status and
In a time of burgeoning repression of undocumented
immigrants in the United States, this review/essay argues that
sexual citizenship theorizing should be more cognizant of
citizenship as a formal
its attendant
circumstances.
The review/essay situates Brenda Cossmans book
Sexual Citizens in the context of citizenship discourse. Sexual
citizenship discourse emerged from the critique that dominant
citizenship theories failed to recognize citizenship as gendered,
racialized and sexualized. Cossman, like other theorists,
employs the term citizenship to include forms of belonging,
recognition, and participation in a nation and society. Using
examples from popular culture, she seeks to illustrate that
the emerging sexual citizenship in the United States is overtly
sexual, yet also privatized and self-disciplined. The authors
argue
trenchant observations, Cossman’s
conception of sexual citizenship is too elastic to be useful in
legal theorizing.
Using Cossmans book as an example, the authors
suggest that notions of sexual citizenship must be grounded in
the legal consequences of sexual minorities access and denial
of access to citizenship. Failing to address formal legal status
erases individuals who do not have access to even the basic
rights of citizenship. Sexual citizenship discourse must include
understandings of the ways in which immigration law regulates
sexual practices and should explore the relationships between
the regulations of noncitizens and sexual minorities in both
concrete and metaphorical terms. Although the language of
citizenship is an apt response when the state invokes
citizenship,
the notion of
citizenship itself. While the regulation of nation-states needs
rigorous theorizing, the rubric for this theorizing should not be
citizenship, because it risks perpetuating the exclusion of
noncitizens. The authors thus propose that other terms should
replace citizenship, suggesting the language of personhood.
this response must confront
une poque de rpression croissante des immigrants
sans-papier aux tats-Unis, cette recension/critique affirme que
la thorisation en matire de citoyennet sexuelle devrait
sattarder davantage sur la citoyennet comme statut formel et
juridique et sur ses effets concomitants.
La recension/critique traite du livre de Brenda Cossman
Sexual Citizens dans le contexte du discours sur la citoyennet.
Le discours de la citoyennet sexuelle a merg de la critique
selon laquelle les thories dominantes de la citoyennet ne
reconnaissaient pas que celle-ci est marque par le genre, la
race et le sexe. Cossman, comme dautres thoriciens, emploie
le terme citoyennet pour inclure les formes dappartenance,
de reconnaissance et de participation une nation et une
socit. Utilisant des exemples de la culture populaire, elle
cherche illustrer que le courant mergeant de la citoyennet
sexuelle aux tats-Unis est fortement sexualis, bien quil soit
aussi privatis et auto-disciplin. Les auteurs affirment quen
dpit de ses observations incisives, la conception de la
citoyennet sexuelle de Cossman demeure trop lastique pour
tre utile la thorie juridique.
En se rfrant au livre de Cossman en tant quexemple,
les auteurs suggrent que les notions de citoyennet sexuelle
doivent trouver leurs fondements dans les consquences
juridiques pour les minorits sexuelles de laccs ou non la
citoyennet. Ne pas prendre en considration le statut juridique
formel ngligerait les individus qui nont mme pas accs aux
droits fondamentaux de la citoyennet. Le discours de la
citoyennet sexuelle doit chercher comprendre la manire
dont le droit de limmigration rglemente les pratiques
sexuelles et explorer les relations qui existent entre les
rgulations des non-citoyens et des minorits sexuelles, de
manire concrte comme mtaphorique. Bien que lemploi du
langage de la citoyennet soit une rponse approprie lorsque
ltat
la citoyennet, cette rponse doit aussi
confronter la notion mme de citoyennet. Bien que la
rgulation des tats-nations ait besoin dune thorisation
rigoureuse, cette thorisation ne devrait pas se faire sous la
rubrique de la citoyennet, puisque lusage de ce terme risque
de perptuer
lexclusion des non-citoyens. Les auteurs
suggrent ce titre de remplacer le terme citoyennet par
personnalit (personhood).
invoque
* Ruthann Robson, Professor of Law & University Distinguished Professor, City University of New
York School of Law. I am indebted to conversations about citizenship with Janet Calvo and
conversations about sexuality with Sarah Valentine. Tanya Kessler, J.D. Candidate, City University of
New York School of Law, 2009. Many thanks to Elvira Morn.
Ruthann Robson and Tanya Kessler 2008
To be cited as: (2008) 53 McGill L.J. 535
Mode de rfrence : (2008) 53 R.D. McGill 535
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 53
536
Introduction
537
540
540
541
543
545
554
558
558
561
566
567
569
571
I. Citizenship Discourses
A. Foundations of Citizenship Theory: Marshall and his
Critics
B. Defining Sexual Citizenship
C. From Foucault to Globalization
II. Cossman on Sexual Citizens
III. Questioning Sexual Citizens
IV. Rethinking Sexual Citizenship
A. Denaturalizing Citizenship
B. Sexual Regulation of Citizenship Status
C. Confronting the States Invocation of Citizenship
D. Analogies of Citizenship and Sexuality
E. Citizens or Persons?
Conclusion
2008]
R. ROBSON & T. KESSLER UNSETTLING SEXUAL CITIZENSHIP
537
Introduction
Across Canadas southern border, contemporary issues of citizenship are
contentious, often ugly, and occasionally violent. As white settler nations, both the
United States and Canada have difficult histories dealing with citizenship claims by
aboriginal peoples and by nonwhite immigrants. However, the current situation in the
United States has reached alarming proportions.
Testifying before the United States House of Representatives, Michael Graves
described a December 2006 Immigration and Customs Enforcement (ICE) raid on the
meat-packing plant where he worked: he was stopped by a man in full SWAT
uniform with a gun, then handcuffed for an hour, interrogated about his citizenship,
place of birth, and the route to his parents house, marched outside in the Iowa winter
without coat or gloves, and then held with hundreds of his coworkers for the next
seven hours without access to food, water, or the means to communicate with the
outside world. Although Graves testified he is a U.S. citizen, born and raised in Iowa,
and had never been overseas in his life, he stated that no oneregardless of
citizenship statusshould be treated the way he and his coworkers were treated.1 At a
different hearing, Secretary of Homeland Security Michael Chertoff stated that ICE
had dramatically improved the enforcement of [U.S.] immigration laws, heralding
the more than 4,300 arrests and apprehensions in the 2006 fiscal year.2 Some of
these apprehensions led to confinement in prison and mistaken deportation of
citizens; some left minor children without adult supervision.3 Additionally, local
police have been empowered since 2000 to enforce national immigration laws.4 This
1 U.S., Problems with ICE Interrogation, Detention, and Removal Procedures: Hearing Before the
Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law of the
Committee on the Judiciary, House of Representatives, 110th Cong. (Washington, D.C.: United States
Government Printing Office, 2008) at 38-39 (written statement of Michael Graves), online: United
States House of Representatives Committee on the Judiciary
2 U.S., Comprehensive Immigration Reform: Hearing Before the Committee on the Judiciary,
United States Senate, 110th Cong. (Washington, D.C.: United States Government Printing Office,
2007) at 125 (written statement of Michael Chertoff), online: United States Government Printing
Office
3 Supra note 1 at 40-42, 53-55 (testimony of Karla Hartzler, Florence Immigrant & Refugee Rights
Project).
4 The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 439, 110 Stat.
1214 at 1276, codified as amended at ) and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (Pub. L. No. 104-208, 133, 110 Stat. 3009-546 at 3009-563-564 (codified
as amended at 8 U.S.C. 1357(g) (2000)) [IIRIRA]) expanded the role of local law-enforcement
agencies in enforcing federal immigration law. IIRIRA introduces 287(g) of the Immigration and
Nationality Act (infra note 223), which allows the Attorney General of the United States to permit
designated officers and employees of these authorities to perform a function of an immigration
officer in relation to the investigation, apprehension, or detention of aliens (IIRIRA, ibid.).
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power is subject to abuse,5 and it is a power that the police may not always welcome.6
Furthermore, a law mandating fencing the southern border of the United Statesand
studying the feasibility of a state of-the-art infrastructure security system along the
northern border with Canadawas passed by Congress and signed by the President
of the United States in late 2006.7
Drawing on citizenship theory, Brenda Cossman, a Canadian law professor and
author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging,8
locates her theorizing of sexual citizenship in the United States. Citizenship discourse
began by noting three components of citizenship: civil, political, and social. More
recent scholarship examines the ways in which citizenship is gendered, racialized,
and sexualized. In particular, theorists of sexual citizenship argue that citizenship
claims are based on heterosexual and male privilege. Cossman does not analyze direct
connections between citizenship and sexuality such as the per se immigration ban on
sexual minorities, which characterized these minorities as sexual deviates and was
only repealed by the United States Congress in 1990,9 or the ability of sexual
minorities to apply for asylum based on membership in a social group if they have a
well-founded fear of persecution in their country of origin.10 Instead, her work is
situated within the developed theoretical construct of sexual citizenship. This
construct is built on the accurate perception of sexual minorities as second-class
citizens. If citizenship confers certain rights, denying some citizens those rights
means those persons are not full citizens. In the United States, the denial of the
right (or responsibility) of military service to homosexuals is a seemingly obvious
example.11 The example is more complicated than it seems, however, because
noncitizens canand doserve in the U.S. military.12
5 See Hannah Gladstein et al., Blurring the Lines: A Profile of State and Local Police Enforcement
of Immigration Law Using the National Crime Information Center Database, 2002-2004 (Paper
prepared for the Migration Policy Institute, New York University School of Law, 2005), online:
Migration Policy Institute
6 See Major Cities Chiefs Association, Immigration Committee Recommendation for Enforcement of
Immigration Laws by Local Police Agencies (June 2006), online: Major Cities Chiefs Association
7 Secure Fence Act of 2006, Pub. L. No. 109-367, 3, 4(a), 120 Stat. 2638 at 2638-39 (codified as
amended at 8 U.S.C. 1103 (2007)). See also David Stout, Bush Signs Bill Ordering Fence on
Mexican Border The New York Times (26 October 2006).
8 (Stanford, Cal.: Stanford University Press, 2007).
9 8 U.S.C. 1182(a)(4) (1990), as rep. by Immigration Act of 1990, Pub. L. No. 101-649, 601, 104
Stat. 4978 at 5067-77.
10 See e.g. Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997).
11 10 U.S.C. 654(a)(13) (1994) (including a finding that the prohibition against homosexual
conduct is a longstanding element of military law that continues to be necessary in the unique
circumstances of military service).
12 The National Defense Authorization Act for Fiscal Year 2006 established a uniform citizenship or
residency requirement for enlistment in the Armed Forces of the United States, and authorized
539
R. ROBSON & T. KESSLER UNSETTLING SEXUAL CITIZENSHIP
2008]
Cossmans attention to sexual citizenship concentrates on the more metaphorical
notions of citizenship. Sexual citizenship here does not pertain to formal regulations
of citizenship, but to legal regulations of sexuality: sexual practices, sexual speech,
public entitlements (welfare), and marriage. While certainly these regulations can and
do link to citizenship status, as a debate about requiring proof of citizenship for a
marriage licence illustrates,13 Cossman is mainly concerned with the relationship
between legal regulations of sexuality and notions of social worth. She is also
attentive to cultural representations of sexuality. She argues, for example, that legal
discourse and television programs such as Dr. Phil, Sex and the City, and Desperate
Housewives influence one another to construct sexual citizenship as practices of
belonging.14 Cossman is not the only theorist to focus on cultural belonging rather
than legal citizenship. The scholars who have not addressed nationality or
naturalization as part of sexual citizenship were early proponents of a theory of sexual
citizenship.15 The contemporary discourse is often more nuanced, but nevertheless the
construct of sexual citizenship needs to be grounded in the realities of citizenship.
This review/essay argues that the theoretical construct of sexual citizenship
merits serious reconsideration. Part I provides an overview of the development of
sexual citizenship discourse. Part II summarizes Cossmans book, Sexual Citizens.
Part III engages with the elastic definition of citizenship throughout Cossmans book.
It highlights the problematic limitations of Cossmans approach by, among other
things, examining two groups of sexual minoritieslesbians and transgender
peoplewhose concerns in relation to citizenship are generally absent from
Cossmans analysis. Part IV contends that for sexual citizenship to remain a useful
analytic tool, it must be more than a metaphor: it must be grounded in the legal
consequences of sexual minorities access and denial of access to citizenship. While
the language of metaphor can be useful, it cannot be disconnected from the reality of
sexual minorities lives. This part describes the impact of U.S. immigration policy on
sexual minorities, and explores other metaphors available to sexual minorities.
enlistment for [a]n alien who is lawfully admitted for permanent residence (Pub. L. No. 109-
163, 542, 119 Stat. 3136 at 3253 (codified as amended at 10 U.S.C. 504 (2007)).
13 See Buck v. Stankovic, 485 F.Supp.2d 576 (M.D. Pa. 2007) (granting a preliminary injunction
(discussing new possibilities of self and identity without addressing formal legal status).
prohibiting clerks from requiring proof of citizenship for the issuance of a marriage licence).
14 Supra note 8 at 18.
15 See e.g. Jeffrey Weeks, “The Sexual Citizen” (1998) 15:3 Theory, Culture & Society 35
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I. Citizenship Discourses
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A. Foundations of Citizenship Theory: Marshall and his Critics
The formative theorist of citizenship T.H. Marshall divided citizenship into three
parts: civil, political, and social.16 Civil citizenship comprised the rights necessary to
individual freedom, such as liberty of the person, freedom of speech, the right to
own property and the right to justice.17 The political aspect of citizenship was the
right to participate in the exercise of political power.18 The social aspect ranged from
the right to economic welfare and security to the right to share in the social heritage
and to live the life of a civilised being according to the standards prevailing in the
society.19 In Marshalls view, citizenship evolved: civil rights developed in the
eighteenth century, political rights in the nineteenth century, and social rights in the
twentieth century.20
Marshall has been critiqued for a simplistic evolutionary view and for his
omission of important aspects of citizenship such as the cultural and the economic.21
Expanding on these critiques, cultural citizenship has subsequently been defined as
the capacity to participate effectively, creatively, and successfully within a national
culture.22 The economic aspects of citizenship include the interplay between the state
and the market, increasingly defined in terms of consumerism.23 Moreover, Marshalls
citizenship theories have been criticized as failing to recognize citizenship as
racialized, gendered, and sexualized.24 For example, Sylvia Walby argues that
Marshalls theory of citizenship progression fails to account for the fact that prior to
the 1920s, women in the United Kingdom and the United States lacked full civil and
political citizenship, as well as liberty of the person with regard to access to abortion
and contraception, the right to own property as married women, the right to vote, and
to a large degree the right to work.25 Walby contends that without political citizenship,
16 See generally T.H. Marshall, Citizenship and Social Class and Other Essays (Cambridge:
Cambridge University Press, 1950).
17 Ibid. at 10.
18 Ibid. at 11.
19 Ibid.
20 Ibid. at 14, 23-43, 70-83, 102-07.
21 See Bryan S. Turner, Citizenship and Social Theory (Cambridge: Cambridge University Press,
1993) at 7-8 (summarizing the criticisms of other scholars).
22 Ibid. at 12.
23 David T. Evans, Sexual Citizenship: The Material Construction of Sexualities (London:
Routledge, 1993) at 4-5.
24 See e.g. Sylvia Walby, Is Citizenship Gendered? (1994) 28 Sociology 379; Evans, ibid. at 9;
Diane Richardson, Theorising Heterosexuality (Buckingham, U.K.: Open University Press, 1996) at
16-19 [Richardson, Theorising]; Floya Anthias & Nira Yuval-Davis, Racialized Boundaries: Race,
Nation, Gender, Colour and Class and the Anti-Racist Struggle (London: Routledge, 1992).
25 Ibid. at 380-81.
541
R. ROBSON & T. KESSLER UNSETTLING SEXUAL CITIZENSHIP
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women cannot achieve civil or social citizenship.26 In her view, citizenship is about
not just changing class relations, but about a transition from private to public
patriarchy.27
Scholars focusing on sexual aspects of citizenship have expanded on gender
critiques, arguing that citizenship claims are based on heterosexual and male
privilege.28 Scholars have also integrated the cultural and economic theories of
citizenship with issues of sexuality. Although grounded in Marshalls theories of
citizenship, the field of sexual citizenship has become an independent inquiry.
B. Defining Sexual Citizenship
One of the pioneers in sexual citizenship studies, the British sociologist Diane
Richardson, has observed that there is no agreed-upon definition of sexual
citizenship.29 In some instances, sexual citizenship is used to denote a collection of
legal or political rights. In other instances, the emphasis is on the relation of the
consumption of goods and services to sexual practices and identities. At times,
scholars stress the cultural aspects of sexuality and citizenship. Most often, theorists
of sexual citizenship deploy various meanings of citizenship. This latter approach
may be appropriate, because, as Richardson has argued, every conception of
citizenship, whether Marshallian, communitarian, within a human-rights framework,
cultural, or consumer, is gendered and sexualized.30
Richardson has argued that because citizenship is premised on institutionalized
heterosexuality, gays and lesbians lack legal protection from discrimination or
harassment, have limited political rights, and have limited access to full social
citizenship, even in the realms of welfare, education, parenting, employment, and
housing.31 Gays and lesbians are tolerated as partial citizens: they must conform to
the condition that they remain in the private sphere and do not seek public
recognition or membership in the political community.32 With homosexuality viewed
as a threat to the nation-state, gays and lesbians are excluded from the construction
of nation and nationality.33 She notes that resistance to exclusion and negative
portrayals of gays and lesbians in popular culture and the press initially took the form
of subcultural efforts on the part of gays and lesbians, though such efforts are
becoming increasingly mainstream.34 Popular depictions of gays and lesbians can be
26 Ibid. at 389.
27 Ibid. at 392.
28 See e.g. Richardson, Theorising, supra note 24.
29 Extending Citizenship: Cultural Citizenship and Sexuality in Nick Stevenson, ed., Culture and
Citizenship (London: Sage, 2001) 153 at 154 [Richardson, Extending Citizenship].
30 Diane Richardson, Sexuality and Citizenship (1998) 32 Sociology 83.
31 Ibid. at 88-89.
32 Ibid. at 89.
33 Ibid. at 90.
34 Extending Citizenship, supra note 29 at 160.
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viewed as an important form of acknowledgement, or alternatively, as a process of
commodification and assimilation into dominant culture.
Richardson has also noted the increasing use of the language of sexual citizenship
in contrast to the language of sexual liberation.35 Indeed, queer scholars such as
Jeffrey Weeks, Ken Plummer, and Shane Phelan have each made liberatory claims for
sexual minorities in the language of sexual citizenship, albeit with different
inflections. Weeks argues that the sexual citizen breaches the publicprivate divide by
bringing sexuality into the public sphere.36 He posits that sexual movements such as
feminism and the gay and lesbian movement have two elements: a moment of
transgression, in which a new sense of self is reinvented and traditional institutions
are challenged, and a moment of citizenship, in which equal rights and equal legal
protections are claimed.37 The claim to sexual citizenship arises from cultural shifts
that are undermining traditional hierarchical relationships.38 With economic and
cultural changes that tend to exalt the individual over the collective, the idea of
individual freedom has led to a new moral fluency.39
Plummer similarly concludes that intimacy in Western countries has been shaped
by an ideology of individualism that increasingly seems to create a world of
choices.40 He proposes a new concept, intimate citizenship, that examines rights and
duties involved in the intimate spheres of lifewho to live with, how to raise
children, how to handle ones body, how to relate as a gendered being, how to be an
erotic person.41 This inclusive concept, transcending sexuality and gender, includes
four arenas of analysis: public spheres, culture wars and the need for dialogue,
narrativization and moral stories, and globalization.42 He adopts feminist scholars
conception of multiple, hierarchically layered and contested public spheres and
notes that emerging zones of the modern public sphere include new social-
movement worlds, media worlds, educational worlds, and art worlds.43 Echoing
Weeks, he observes the emergence of moral conflicts in deeply pluralised public
worlds, and suggests that day to day stories of new ways of living are needed to
supplant abstract debates on morality.44
35 Diane Richardson, Claiming Citizenship? Sexuality, Citizenship and Lesbian/Feminist Theory
(2000) 3 Sexualities 255 at 256 [Richardson, Claiming Citizenship].
36 Supra note 15 at 36.
37 Ibid. at 36, 37.
38 Ibid. at 40.
39 Ibid. at 43, 44.
40 Ken Plummer, The Square of Intimate Citizenship: Some Preliminary Proposals (2001) 5
Citizenship Studies 237 at 239.
41 Ibid. at 238 [emphasis in original].
42 Ibid. at 242.
43 Ibid. at 243-44 [emphasis in original].
44 Ibid. at 247-48.
543
R. ROBSON & T. KESSLER UNSETTLING SEXUAL CITIZENSHIP
2008]
Linking cultural and sexual citizenship, American political scientist Shane Phelan
argues that sexual minorities in the United States are strangers excluded from full
citizenship.45 Her definition of stranger is cultural: the stranger is a figure of
ambivalence who troubles the border between us and them.46 For Phelan, citizenship
requires that one be recognized fullynot in spite of ones unusual or minority
characteristics, but with those characteristics understood as part of a valid possibility
for the conduct of life.47 She views acknowledgement as the heart of citizenship;
in this sense, citizenship goes beyond claims of legal and political rights, but includes
a claim on public attention and concern.48
One of the most extensive treatments of sexual citizenship is found in David Bell
and Jon Binnies book The Sexual Citizen: Queer Politics and Beyond.49 Bell and
Binnie argue that all citizenship is sexual citizenship because the foundational tenets
of being a citizen are all inflected by sexualities.50 At the same time, we are not
equal sexual citizens.51 Thus, the authors argue it is important to be mindful of who
loses and who wins in rights claims.52 Bell and Binnie examine claims to sexual
citizenship rights of marriage and to join the military, arguing that while the denial of
the right to fight or marry marks sexual dissidents as second-class citizens, a
symbolic victory in a fight for such rights does not necessarily radically change the
parameters of sexual citizenship.53 Yet they also link love (and friendship) with
citizenship: relying on Michel Foucaults call for as yet unforeseen kinds of
relationships, they extrapolate a rethinking of as yet unforeseen kinds of
citizenship.54
C. From Foucault to Globalization
Citizenship theorists are concerned with the relationship between individuals and
the statethe concept of citizenship has little relevance without a nation or quasi
nation. For theorists of sexual citizenship, Foucaults analysis of governmentality
government practices that monitor and shape individuals’ conduct55and self-
45 Shane Phelan, Sexual Strangers: Gays, Lesbians, and Dilemmas of Citizenship (Philadelphia:
Temple University Press, 2001) at 5.
46 Ibid. at 5, citing Zygmunt Bauman, Modernity and Ambivalence (Ithaca, N.Y.: Cornell University
Press, 1991).
47 Phelan, ibid. at 15-16.
48 Ibid. at 17.
49 (Cambridge: Polity Press, 2000).
50 Ibid. at 10.
51 Ibid. at 142.
52 Ibid. at 144.
53 Ibid. at 66.
54 Ibid. at 140, quoting Michel Foucault, Sexual Choice, Sexual Act in Sylvre Lotringer, ed.,
Foucault Live (New York: Semiotext(e), 1989) at 229.
55 Michel Foucault, “Governmentality” in Graham Burchell, Colin Gordon & Peter Miller, eds., The
Foucault Effect: Studies in Governmentality (Hemel Hempstead: Harvester Wheatsheaf, 2005) 87.
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disciplinethe ways in which individuals act upon themselves56has obvious
relevance. When citizenship transcends national boundaries, new questions arise,
such as which government or international entity is regulating individuals.
Carl Stychin, a pre-eminent queer legal theorist and native Canadian, views the
Foucaultian claim that citizenship has a disciplinary function as intuitively
persuasive, but maintains that rights and citizenship retain an unruly and
unpredictable political and social edge.57 In this sense, discipline is resistable.58 He
argues that historically citizenship has been built on exclusions through binary
divisions, with two primary axes: private/public and active/passive.59 Examining
European citizenship, he identifies an unruliness in the broadening of the concept of
European citizenship from one representing a mere economic impetus to one that
includes a normative rationale, with equality as a fundamental tenet.60 Sexual
citizenship articulates sexuality in the public sphere, by way of claims for rights and
participation, while also claiming a right to spaces for subcultural life.61 Stychin
sees in European citizenship, like in sexual citizenship, a tension between the need
to construct meaningful categories of belonging and the need to live with the
differences which challenge and undermine fixity of boundaries which contain the
categorization.62 Ultimately he argues for a language of coalition and affinity,
recognizing that community boundaries are open to dispute.63
It is not only community boundaries but also national boundaries that are open to
dispute. American legal scholar Linda Bosniak argues that citizenship can be located
beyond the boundaries of nation-states; this entails an understanding of citizenship
that is multiple and overlapping.64 She contends that while citizenship is being
dramatically reconstituted in Europe, EU citizenship is still subordinate to national
citizenship.65 Although scholarship traditionally assumed that the site of citizenship
is the national society, the emergence of post-World War II international rights
regimes set out rights that transcend the boundaries of nation-states.66 Because such
rights are not self-executing, the notion that these regimes create transnational
56 L.H. Martin et al., Technologies of the Self: A Seminar with Michel Foucault (London: Tavistock,
1998) at 16.
at 13 [Stychin, Governing Sexuality].
57 Governing Sexuality: The Changing Politics of Citizenship and Law Reform (Oxford: Hart, 2003)
58 Ibid.
59 Ibid. at 8-9.
60 Ibid. at 15.
61 Ibid. at 17.
62 Ibid. at 19.
63 Ibid. at 21.
64 Citizenship Denationalized (19992000) 7 Ind. J. Global Legal Stud. 447 at 450 [Bosniak,
Denationalized].
65 Ibid. at 458.
66 Ibid. at 466-67.
R. ROBSON & T. KESSLER UNSETTLING SEXUAL CITIZENSHIP
2008]
citizenship is problematic.67 Bosniak examines the concept of citizenship as active
engagement in the life of the community, which can cross national boundaries,68
finding that such conceptions of transnational citizenship have value in their
expansive view of the common good and the public domain.69 Yet she
acknowledges that a sociological discourse of feeling of citizenship might risk
producing a concept of citizenship that begins to mean very little since it can so
readily mean so much.70
545
II. Cossman on Sexual Citizens
In her book Sexual Citizens, Brenda Cossman acknowledges that historically the
term citizenship has denoted formal legal status of membership in a nation state,71
but makes clear that she will employ the term more broadly to suggest forms of
belonging, recognition and participation in the nation state, as exemplified in
popular cultural representations of sexuality.72 She argues that citizenship is about
the process of becoming recognized subjects, about the practices of inclusion and
membership.73 At the same time, new practices [of citizenship] are producing newly
bad or failed sexual citizens, implicating a process not only of becoming but of
unbecoming citizens.74 Cossman examines the role of legal discourse in constructing
and disciplining sexual citizens, looking at court cases involving the right to privacy,
the rights of gays and lesbians to marry, as well as marriage rights and welfare
statutes. Using examples from popular television shows and movies, Cossman argues
that the sexual citizenship that is emerging may well be overtly sexed but [is]
simultaneously privatized and self-disciplined.75 The television show Queer Eye for
the Straight Guy illustrates such a new modality of citizenship in which practices of
belonging for gay and heterosexual subjects alike are being increasingly sexed but not
too much, privatized through a celebration of market consumption, and transformed
into projects of self-governance.76
In the first chapter, Consensual Sex and the Practices of Citizenship, Cossman
argues that sexual citizenship is being transformed as the borders of old are
transgressed and the citizens of new are domesticated.77 She notes that the
sexualities of the four single women depicted in Sex and the City, a popular American
67 Ibid. at 467-68.
68 Ibid. at 474.
69 Ibid. at 479.
70 Ibid. at 487.
71 Supra note 8 at 195.
72 Ibid. at 3.
73 Ibid. at 2.
74 Ibid. at 3.
75 Ibid. at 195.
76 Ibid. at 2.
77 Ibid. at 21.
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television show set in New York, are a crucial part of their citizenship in the republic
of New York City.78 The show represents the normalization of sex and recuperation
of the sexual outlaw in popular culture … , a normalization that remains
controversial in popular culture and the law.79 Cossman then rehearses U.S. doctrine
under the Fourteenth Amendment of the United States Constitution, which arguably
protects sexual autonomy. She argues that the right to privacy protects good but not
bad sexuality, discussing cases of the Supreme Court of the United States on
constitutional privacy from the 1960s and early 1970s.80 To introduce her section on
sodomy laws, Cossman notes that the late 1990s were marked by a Wildean
moment in which plays, a film, and books on Oscar Wilde remade Wilde into a
sexual citizen as well as a victim of injustice, critic of outdated values and sexual
hypocrisy.81 The film Wilde recuperat[es] … sodomy as a defining gay male act.82
Cossman argues that in this context, Bowers v Hardwick,83 in which the Supreme
Court of the United States upheld a sodomy statute against constitutional challenge,
was out of sync with the cultural discourse around gay sex, and that depictions of
gays and lesbians, while mostly asexual, contributed to the legal transformation in
which Bowers was later overturned.84 In Bowers, the court expressed anxiety about its
ability to police the border between legitimate and illegitimate sex if consensual gay
sex were to be recognized as a right.85 Taking up Lawrence v. Texas,86 in which the
Supreme Court of the United States reversed Bowers seventeen years after it had been
decided, Cossman contends that the court recognized a liberty righta right to make
certain private choices about intimate matters even while carefully circumscribing
the right by emphasizing the private, the domestic, the home as the location of the
liberty interest.87 Noting that the majority uses the term “adult sexual intimacy”
rather than the term “sodomy,” she argues that decision marks the transformation
of sodomite as outcast to gay subject engaged in sodomy as sexual citizen.88
Cossman then turns to sexual speech under the United States Constitutions First
Amendment, arguing that the film The People vs. Larry Flynt reconstitutes a sexual
78 Ibid.
79 Ibid. at 22.
80 Poe v. Ullman, 367 U.S. 497 (1961); Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v.
Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973).
81 Supra note 8 at 25-26.
82 Ibid.
83 478 U.S. 186 (1986) [Bowers].
84 Supra note 8 at 28, citing Bowers, ibid. Unfortunately, Cossman does not elaborate on this
assertion. She generally does not examine the effect of cultural representations on social and legal
discourses or vice versa, instead presenting them as reflections of each other. Nor does she address
questions regarding which cultural representations are
the
representations, and how they function to influence legal discourse.
influential, who
is producing
85 Ibid. at 27.
86 539 U.S. 558 (2003) [Lawrence].
87 Supra note 8 at 28.
88 Ibid. at 31, citing Lawrence, supra note 86 at 564.
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outlaw as a political citizen.89 She contends that the widespread presence of sexual
imagery challenges the categories of pornography and obscenity themselves, and
thus the borders of legitimate sexual speech are shifting.90 Cossman compares the
cases of two border speakers, hip hop artist Sarah Jones and hard core
pornographic filmmaker Lizzie Borden. She asserts that Jones ended up on the side
of speakability and legitimate sexual citizenship by shoring up the very borders that
divide citizen from outlaw.91 On the other hand, Lizzie Borden challenged the limits
of speakability and could not cross the border into citizenship because she rejected
its line drawing92
Cossman devotes the second of her four chapters to Marriage, Sex and Adultery
as Practices of Self-Governance, arguing that intimacy is becoming individualized,
resulting in practices of responsibilization, wherein individuals are being called
upon to manage the risk of the increasing fragility of their relationships.93 Sexuality
within marriage has been transformed, from a form of regulation by law and social
sanction to a way of increasing self-governance.94 Marriage, more than a right of
citizenship, is one of citizenships central and constitutive practices.95 Furthermore,
the norms of marriages sexual practices define who is a good or bad citizen.96
Cossman supports her argument with a discussion of television-pop-psychologist Dr.
Phils approach, which emphasizes that individuals have the power to change if they
89 Ibid. at 44.
90 Ibid. at 46.
91 Ibid. at 48. Jones sued the Federal Communications Commission (FCC) after it had fined a radio
station for airing her poemrap song Your Revolution, which the FCC found indecent (Jones v. FCC,
2002 WL 2018521 (S.D.N.Y. 2002) [Jones]). The song critiques misogynistic hip-hop music by
quoting and denouncing macho lyrics. Jones argued that her song was not indecent but was a protest
against indecency in popular culture (Cossman, ibid. at 52). Cossman contends that this approach
tacitly accepted the power of the FCC to draw these lines and reinforced the category of indecency
for future use (ibid.). For an excellent analysis of Jones, see Nasoan Sheftel-Gomes, Your
Revolution: The Federal Communications Commission, Obscenity and the Chilling of Artistic
Expression on Radio Airwaves (200607) 24 Cardozo Arts & Ent. L.J. 191.
92 Cossman, ibid. at 57. Cossman further argues that the self-disciplining citizen needs an unruly
subject against which to emerge (ibid.). In examining U.S. v. Extreme Associates (431 F.3d 150 (3d
Cir. 2005)), Cossman finds that, in contrast to Jones, the producers of pornography in that case are
challenging the limits of speakability (ibid. at 57). Compare Sienna Baskin, Deviant Dreams:
Extreme Associates and the Case for Porn (200607) 10 N.Y. City L. Rev. 155 at 158 (arguing that
the issue is personal autonomy rather than free speech and obscenity).
Cossman concludes that the citizenship of pornography entrepreneurs is constituted in the neo-
liberal discourse of the market … as long as they self-discipline (ibid. at 63). Noting the racialized
and gendered constructions of citizenship, Cossman asserts that as an African-American woman,
Jones could not be cast as a successful entrepreneur, as Larry Flynt had been, and therefore she had
to wrap herself in the flag by invoking political speech (ibid. at 68).
93 Ibid. at 70.
94 See ibid.
95 Ibid.
96 Ibid. at 71.
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take responsibility for their lives,97 and she notes that individuals are being called on
to treat their marriage as a project.
The project of marriage includes sex, according to both Dr. Phil and the courts.98
Reviewing American decisions that separate consummation from child bearing and
define consummation as heterosexual sexual intercourse, Cossman contends that the
act of consummation transformed the marriage contract from civil contract to
something larger, more sacrosanct, more public.99 It is the act of sexual
consummation that produced the legitimate sexual citizen.100 Indeed, [m]arriages
without sex are marriages at risk of infidelity and divorce and therefore of citizenship
failure.101
While adultery is seldom prosecuted as a criminal offence, its meaning is
culturally produced: adultery is a failure of self-discipline … [T]he adulterer is
becoming a new kind of unbecoming citizen.102 After briefly reviewing American
criminal adultery cases and noting the historical double standard that once treated
female adulterers more harshly than males,103 Cossman discusses adultery in films
and television programs such as Unfaithful, Desperate Housewives,104 and Oprah.105
She also notes the rise of covenant marriage laws, in which couples agree to limit the
grounds for divorce.106 The new laws operat[e] within the logic of individual choice
and
through
responsibilization.107 However, Cossman find it significant that adultery nonetheless
remains a ground for divorce within this legal framework. [G]ood citizens do not
have sex outside of marriage, or, if they do, they confess, apologize and recommit to
self-governance because
reduce divorce
they
aim
to
97 Ibid. at 69-70.
98 Ibid. at 75-77.
99 Ibid.
100 Ibid. at 78.
101 Ibid. at 80.
102 Ibid. at 84.
103 Ibid. at 85-86. She observes that some courts have broadened the definition of adultery to include
sexual encounters other than heterosexual sexual intercourse (ibid. at 86-88). Cossman argues that
adultery is now framed as not just a sexual but an emotional betrayal, citing the ClintonLewinsky
scandal and surveys indicating that most people think oral sex constitutes adultery (ibid. at 88-89).
104 Adultery is similarly portrayed in the television show Desperate Housewives as a crossing of
the line that unleashes the wave of relationship destruction (ibid. at 104).
105 Cossman describes the treatment of adultery on Oprah and Dr. Phil with a marked emphasis on
the possibility of redemption after the fact (ibid. at 97). She argues that both television hosts take an
approach of self-help as the path to the American Dream (ibid. at 99).
106 Ibid. at 108.
107 Ibid. at 108-09.
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the relationship.108 Those who fail to redeem their citizenship become the
unbecoming citizens.109
The strong connection between sex, marriage, and the success or failure of
citizenship is also manifested in sexual stereotypes of African-Americans, as
discussed in the chapter entitled Unbecoming Citizens: Welfare Queens, Deadbeat
Dads, and the Privatization of Dependency. Cossman begins with a description of
the movie Claudine, which she contends challenged stereotypes of welfare recipients
and the creeping pathologization of African-American families.110 She reviews the
history of welfare statutes in the United States, noting that states historically excluded
African-American mothers from aid through the use of various eligibility criteria. As
the number of black women receiving welfare benefits increased, due in part to the
civil-rights and welfare-rights movement, black women became the new face of
welfare: the trope of the welfare queen was created.111 In Cossmans view, both
conservative and neo-liberal criticisms of women on welfare are properly understood
as accusations of failures of citizenship. Social conservatives viewed illegitimacy as
the cause of welfare dependency; strategies to end welfare included sexual abstinence
programs and programs to encourage women to marry their childrens father. This
approach casts the welfare queen as a failed citizen because she fails to sexually self-
discipline, to choose marriage and to adopt appropriate gender roles as wife and
mother within a traditional family.112 The neo-liberal view stresses work, casting the
citizenship failure of the welfare queen in market terms.113
In a section on deadbeat dads, Cossman argues that the stereotype of the
deadbeat dad emerged out of the divorce revolution.114 He was a market citizen,
whose citizenship failure lay in not supporting his dependents … He was an
unbecoming citizen because he was not assuming his familial responsibilities … 115
108 Ibid. at 111.
109 Ibid. The meaning of Cossmans term unbecoming citizen is somewhat unclear; it seems to
denote bad citizen.
110 Ibid. at 115. The mother of six played by Diahann Carroll works hard to care for her children, but
faces numerous obstacles, including an unhelpful welfare worker. Her love interest is a man who is an
absentee father but eventually commits to Claudine and her children (ibid. at 116). Cossman contrasts
the movies complex characters with the emergence of the welfare queen and deadbeat dad as
icons of bad citizenship (ibid. at 117). She argues that neo-liberal and neo-conservative discourses
produced the stereotypes, constructing them as failing to abide by the privatized and self-disciplining
codes of belonging, with particularly racialized and gendered narratives (ibid. at 118). The myths
were used to dismantle the limited American welfare state, replacing it with the authoritarian
deployment of the rhetoric of self-governance (ibid.).
111 Ibid. at 120.
112 Ibid. at 123.
113 Ibid. at 121.
114 Ibid.
115 Ibid. at 130-31.
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Both the welfare queen and deadbeat dad stereotypes have thus become specters of
bad citizenship, haunting all African-Americans, regardless of income.116
The controversy among some in the African-American community over R&B
artist Lauryn Hills unmarried motherhood demonstrates that even those very few
black women who reach the apex of success are still at risk of being caught in [the]
shadow of the stereotype of the welfare queen.117 The Sean Combs child-support
case is analyzed in a similar fashion, with Cossman arguing that although Combs is
a self-made market citizen, a highly successful entrepreneur, and a pop culture icon,
his citizenship remains precarious at best because of the racialized script of
irresponsibility.118 Cossman also uses the films Disappearing Acts (which refuses
the association of African-American women with the welfare queen yet bumps up
against its legacy)119 and Baby Boy and My Babys Daddy120 (which tell contested
narratives of self-governance, of the need of African-American men to step up and
transform themselves into responsible, privatized, and self-disciplining citizens)121 to
assert that [b]ecoming a citizen for the unmarried African-American parent remains
an elusive challenge, even for those who appear to have otherwise met the criteria of
citizenship.122
In seeking to enrich the same-sex marriage debate through the lens of sexual
citizenship, Cossman places particular importance in the ambivalence of the
metaphorical borders that separate legitimacy from illegitimacy. In her final chapter,
Queer as Citizens, Cossman begins by contrasting the movie Kissing Jessica
Steina story about citizenship as normalizationwith the television series Queer
as Folka story about sexual citizenship that refuses normalization and
assimilation.123 She argues that these poles reflect the debate within gay and lesbian
communities about same-sex marriage, viewed by some as fundamental to the full
citizenship of gay men and lesbians and by others as normalizing and
domesticating, undermining and excluding the more subversive dimensions of queer
identities.124 Cossman asserts that the debate is oversimplified and that the film and
television show can be reread to embody more complexity. The two female
protagonists in Kissing Jessica Stein have a fluid sexuality, and their identities are
116 Ibid. at 142.
117 Ibid. at 145-46.
118 Ibid. at 152-53.
119 Ibid. at 147.
120 She notes that the latter was poorly received and critically panned, but asserts that it is worth
examining because of its message articulated by an otherwise serious filmmaker (ibid. at 156). In
the absence of any context or analysis of who is producing and who is consuming cultural
representations, the inclusion of an unpopular movie to demonstrate popular representations of
African-American men makes little sense.
121 Ibid at 156.
122 Ibid. at 157.
123 Ibid. at 159-60.
124 Ibid. at 160.
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not derived from these sexualities.125 The film thus destabiliz[es] the line between
heterosexual and homosexual.126 In Queer as Folk, the gay men are consumers, and
many of them come to embrace monogamy and marriage.127 Citing Judith Butlers
assertion that there are middle zones and hybrid formations between legitimacy and
illegitimacy, Cossman explains her intention to use the ambivalence of border
crossing as an entry point into the same-sex marriage debate … 128
In a section entitled Same-Sex Marriage and the Zones of Ambivalence,
Cossman examines the portrayal of same-sex marriage in Queer as Folk and finds
that same-sex marriage involves a process of becoming that brings with it new
choices and transforms identity.129 An episode in which two characters get married
performs a multiplicity of border crossings, including a literal one.130 Crossing the
U.S.-Canadian border, the couple is prohibited from using a single customs form.
The process of crossing the territorial border is simultaneously a recrossing of the
social citizenship border; they are cast back into noncitizens, or less than full citizens,
as they are reconstituted as unmarried.131 Cossman continues to rely on the border
metaphor, arguing that the cultural border between gay/straight, married/not married
undergoes its own transformation.132 In the final scene of the episode, the two men
have sex with their wedding bands on their fingers: they may be highly domesticated
subjects, but they refuse to be de-eroticized.133 Cossman compares this to the
portrayal in Wilde and to the Lawrence decision, in which citizenship is
accomplished not through an erasure of the act of sodomy but, rather, in and through
it.134 She argues that the consummation scene in Queer as Folk represents a
Butlerian middle zone between marriage and nonmarriage, between legitimate and
illegitimate citizenship.135
Examining the legal recognition of same-sex marriage in the United States in a
section entitled Real Marriage in Real Time, Cossman further asserts this
ambiguity, arguing that the constitutional challenges related to same-sex marriage
laws invoke all of the hopes and fears of border crossings and border patrol.136
Courts are divided not only on the legitimacy of same-sex marriage but on the
underlying question of the nature of marriage, which she terms border patrol of the
125 Ibid. at 161.
126 Ibid.
127 Ibid.
128 Ibid. at 162, citing Judith Butler, Undoing Gender (New York: Routledge, 2004) at 108.
129 Ibid. at 164.
130 Ibid.
131 Ibid. at 165.
132 Ibid.
133 Ibid.
134 Ibid.; Lawrence, supra note 86.
135 Ibid. at 166.
136 Ibid. at 167.
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institution of marriage.137 Cossman reviews state court decisions that view marriage
as heterosexual at the definitional level, noting that these decisions often link
marriage, procreation and childrearing, even while courts begin to recognize that
same-sex couples are having children.138
The push for constitutional amendments prohibiting same-sex marriage also
reflects the new begrudging acknowledgment of limited citizenship.139 Unlike the
debates over the Defense of Marriage Act,140 the more recent debates over the Federal
Marriage Amendment141 are not so focused on moral condemnation of homosexuality.
Instead, proponents of the amendment deny the charge that it is discriminatory,
implying that discrimination against gays and lesbians is not acceptable.142
Furthermore, in reviewing the decisions that have held unconstitutional U.S. laws
prohibiting same-sex marriages, Cossman finds that marriage is increasingly defined
in the language of commitment and intimacy.143 Broader social transformations in
relations of intimacy have made same-sex marriage imaginable.144 Yet in these court
decisions, marriage is all about social stability through the orderly distribution of
rights and responsibilities, the privatization of dependency, and raising children, and
this resembles the view of marriage articulated by decisions that oppose same-sex
marriage.145 According to Cossman, the courts insistence in Goodridge v. Department
of Public Health that its decision does not disturb the fundamental value of
marriage in our society is a performance of border patrol akin to Justice
Kennedys in the Lawrence decision.146 While gays and lesbians are now included in
the category of good citizen, the border between good and bad citizens is maintained.
Cossman asserts that as they cross the border into marriage, same-sex couples
will find themselves subject to its regulatory practices.147 [M]essages of self-
137 Ibid. at 168-69.
138 Ibid.
139 Ibid.
140 Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified as amended at 1 U.S.C. 7, 28 U.S.C.
1738C (2000)) [DOMA].
141 The Federal Marriage Amendment is a proposed amendment to the United States Constitution
that would limit the definition of marriage to heterosexual unions. Various versions of the amendment
have been introduced to both the United States House of Representatives and the United States Senate,
but none has yet been adopted. See e.g. U.S., H.R.J. Res. 56, Proposing an Amendment to the
Constitution of the United States Relating to Marriage, 108th Cong., 2003; U.S., S.J. Res. 43,
Marriage Protection Amendment, 110th Cong., 2008.
142 Cossman, supra note 8 at 172.
143 Ibid. at 173, citing Hernandez v. Robles, 794 N.Y.S.2d 579 (N.Y. Sup. Ct. 2005).
144 Ibid. at 174.
145 Ibid. at 174-75.
146 Ibid. at 175 [emphasis removed], citing 798 N.E.2d 941 (Mass. 2003); Lawrence, supra note 86
at 578.
147 Ibid. at 177.
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regulation are starting to appear in the cultural domain of same-sex marriage.148
For example, on the television show Queer as Folk, a lesbian in a long-term
relationship has an affair, an infraction that is particularly egregious because her
partner is pregnant with their second child.149 The fact that her affair is with a man
raises questions about her sexual identity, which confuse the gay/straight
dichotomy.150 In contrast to this fluid sexuality, there is no narrative ambivalence
over the infidelity.151 Cossman notes that another couple on the show is
nonmonogamous but with rules; these rules create their own version of fidelity.152
The blurring of the borders of citizenship that these changing regulatory practices
engender is depicted in Queer Eye for the Straight Guy. Circling back to the show,
Cossman argues that the Fab Five (the five main characters) are heroic citizens …
com[ing] to the rescue of domesticity, heterosexuality and masculinity.153 With gay
men coming to the rescue of a straight man, showing him how to dress, decorate,
groom himself, become cultured and cook in order to become a better boyfriend or
husband,154 the show delivers the message that marriages, and relationships
generally, are projects.155 Both the show and same-sex marriage, Cossman argues,
represent the queering of citizenship, in which the boundaries that produced gay
and straight, citizen and non-citizen, hero and outlaw … begin to blur.156 Throughout
the book, Cossman remains faithful to the examination of the legal and cultural
regulation of sex and sexuality through the lens of citizenship because the idea of
citizenship directs analytic attention to questions of belonging and borders.157
Citizenship requires borders, and borders require exclusion.158 Cossman suggests
that further inquiry should address the sexually excluded, and asserts that the
denunciation of promiscuous gay men has created a new outlaw.159 One area of
inquiry she suggests is an analysis of not just figurative borders of social belonging
but also literal geographic borders of more traditional invocations of citizenship.160
She says that anxieties about the borders of marriage have played out in the arena of
immigration, describing the mail-order-bride industry and its representations in
popular culture.161 The industry exemplifies the way in which [m]arriage remains a
site of contestation and anxiety in contemporary citizenship practices and
148 Ibid.
149 Ibid. at 179-80.
150 Ibid. at 182.
151 Ibid.
152 Ibid. at 183.
153 Ibid. at 187.
154 Ibid. at 188.
155 Ibid. at 189.
156 Ibid.
157 Ibid. at 196.
158 Ibid. at 197.
159 Ibid. at 197-98.
160 Ibid. at 199.
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transnational border crossings.162 Cossman describes depictions of mail-order brides
in three relatively recent movies, noting that while in legal discourse, the men have
become suspect citizens, and the women are their potential victims, these roles are
reversed in the movies.163 Despite these differences, she finds that both legal and
cultural representations of mail-order brides reflect the idea that sexual practices are
central to contemporary citizenship.164
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III. Questioning Sexual Citizens
Cossmans book exhibits the risk identified by Linda Bosniak: the concept of
citizenship can begin to mean very little since it can so readily mean so much.165
Throughout Sexual Citizens, the idea of citizenship is elastic and remains ill-defined.
Cossman explicitly frames citizenship as including not only legal and political
practices but also cultural practices and representations, and clearly focuses on the
latter.166 Yet the significance of the cultural practices and representations discussed in
the book can be unclear. Legal decisions and statutes are products of a particular
government. Cultural representations such as Queer Eye for the Straight Guy are not.
If a television show constructs persons as citizens, what are they citizens of? By
watching Queer Eye for the Straight Guy, does a person belong to the nation-state
that produced the show? What if the person is watching the show in Canada, or South
Africa? Or does one become a member of the nation of Queer Eye for the Straight
Guy viewers? For a popular show, the viewers may indeed constitute a kind of nation.
But what about films that are not popular? Are all cultural representations equally
worthy of analysis? Describing a film as a representation of belonging is certainly
valid, but the contention that the film constructs citizenship is less convincing.
The relationship between culture and citizenship is certainly worth examining.
Leti Volpp has argued that citizenship is constructed as culture-free in contrast with
culturally encumbered minorities, a construction that assumes a neutral state that
must either tolerate or ban cultural differences.167
The citizen is assumed to be modern and motivated by reason; the cultural
other is assumed to be traditional and motivated by culture. In order to be
assimilated into citizenship, the cultural other needs to shed his excessive and
archaic culture. Citizenship emerges through its distinction from the cultural
other, who is measured and found wanting for citizenship. We should therefore
understand that the cultural other is constitutive of the citizen.168
162 Ibid.
163 Ibid. at 201-02.
164 Ibid. at 203.
165 Denationalized, supra note 64 at 487.
166 Supra note 8 at 5.
167 The Culture of Citizenship (2007) 8 Theor. Inq. L. 571 at 574.
168 Ibid.
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In analyzing the French law banning students from wearing conspicuous religious
symbols in educational institutions, Volpp finds that although the law was presented
as culturally neutral, it was in fact exclusionary.169 Volpps conception of citizenship is
not limited to formal legal status. She relies on Linda Bosniaks articulation of four
types of citizenship: citizenship as formal legal status … , citizenship as rights,
citizenship as political activity, and citizenship as identity/solidarity.170 Volpp points
out the exclusionary assumptions underlying popular understandings of citizenship.
Like Cossman, she is concerned with the values that preclude some from citizenship.
Unlike Cossman, however, her critique encompasses actual present and historical
exclusions from legal citizenship and naturalization,171 a dimension necessary to any
full discussion of cultural aspects of citizenship.
Critics have suggested that the discipline of cultural studies too often ignores
the political economy of cultural production, exaggerat[ing] the freedoms of
consumption and daily life, a critique that also applies to Cossman.172 Debates
about sexual citizenship are marked by questions of geography,173 but Cossman
does not highlight geographical or political considerations. As a Canadian law
professor analyzing media representations from the United States, Cossman might
have engaged with Canadas cultural sovereignty policies.174 For example, does it
matter that the television series The L Word is set in Hollywood, California, but
sometimes filmed in Vancouver, British Columbia? Is this connected at all to different
conceptions of citizenship or different regulations of sexuality in the two nations?
Cossman sees citizenship at its most general as invoking a set of rights and
practices denoting membership and belonging in a nation state.175 This generalized
notion of citizenship is effectively illustrated in a description of an episode of Queer
as Folk:
As the Liberty Ride comes to the Canada/U.S. border, Ben and Michael have
their first newlywed encounter with the U.S. state, as they attempt to cross the
border as a married couple. The U.S. federal government does not recognize
169 While France claims to embrace secularism, its national holidays are Christian and the
government funds Catholic schools and Catholic chaplains in public schools (ibid. at 590-91).
Furthermore, Volpp argues that the ban on religious display selectively favors Christians and targets
Muslims and Jews (ibid.).
170 Ibid. at 578, citing Bosniak, Denationalized, supra note 64 at 456-88.
171 Ibid. at 580-82.
172 Nicholas Garnham, Political Economy and Cultural Studies: Reconciliation or Divorce?
(1995) 12 Critical Studies in Mass Communication 5.
173 David Bell & Jon Binnie, Editorial: Geographies of Sexual Citizenship (2006) 25 Political
Geography 869 at 869.
174 Canada, Library of Parliament, Parliamentary Research Branch, The Arts and Canadas Cultural
Policy, Current Issue Review 93-3E (15 October 1999) at 2-3 (authored by Joseph Jackson & Ren
Lemieux), online: Library of Parliament
175 Supra note 8 at 5.
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same-sex marriage and therefore refuses to allow them to submit a single
customs card. The process of crossing the territorial border is simultaneously a
recrossing of the social citizenship border; they are cast back into noncitizens,
or less than full citizens, as they are reconstituted as unmarried. As the subjects
cross the territorial border, their marriage is effectively annulled. Yet, the
cultural reality of their marriage does cross the borderthe couple wears their
wedding rings, they made their commitment, they know in their hearts that their
marriage is real.176
Yet this analysis of an episode of a television series obscures some important realities.
It may seem that the power of the United States is limited to determining who may
share a customs form rather than determining who is allowed to cross the border at
all. The border, as in so much of Cossmans book, is more like a metaphor than a
military station with armed government agents. The use of this metaphor is based on
a presumption that formal legal citizenship has been attained.
Similarly, marriage is also a metaphor: its importance is in their hearts rather
than in the benefitsincluding citizenshipthat might flow from a marital
relationship.177 Cossman elaborates on the Canadian marriage of Ben and Michael in
Queer as Folk as a way of discussing the underlying gender politics of the show.178
She trenchantly observes that the marriage of the gay male couple means it is no
longer simply the heteronormativized lesbians who embrace familial identity and
further that the gay men may even be better at sexual matrimony than lesbians, given
the plot twist of the lesbian couples separation because one of them is having a
sexual affair with a man.179 For Cossman, the lesbian characters have stumbled on
the terrain of citizenship and are bad citizensnot by being outside marriage, but
by failing within its terms.180
Yet Cossmans treatment of lesbians as sexual citizens is uneven, revealing
important limitations with her metaphorical approach to citizenship. While Cossman
discusses lesbians in the context of television shows and films such as Queer as Folk
and Kissing Jessica Stein, she does not address whether sexual citizenship treats gay
male and lesbian sexuality differently. She might have engaged more with the work
on lesbian citizenship of Diane Richardson, who has noted that sexual obligations are
often implied in citizenship and queries whether the obligations of lesbians are
different from those of heterosexual women.181 A comparative normwho do
lesbians seek to be equal to?is often absent in discussions of lesbian citizenship.
One approach to lesbian equality rejects attempts to attain citizenship status within
176 Ibid. at 164-65.
177 Cossman does devote attention to the shifting legal terrain of same-sex marriages in the United
States (ibid at 167-77), but although her analysis is sound and insightful, again it could have profited
from Canadian comparisons.
178 Ibid. at 166.
179 Ibid.
180 Ibid.
181 Claiming Citizenship, supra note 35 at 268.
557
R. ROBSON & T. KESSLER UNSETTLING SEXUAL CITIZENSHIP
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the present structure in favour of developing a lesbian-specific system of rules of
justice governing claims to citizenship.182 This idea has been criticized for assuming
that lesbian interests are commonly shared, where the term lesbian includes a diverse
group of women and lesbian/feminist theory recognizes the fluidity of lesbian
identities.183 Yet Richardson argues that the theoretical and political shift towards
sexual citizenship is problematic from a lesbian/feminist perspective: attempting to
attain rights in a system that depends on defining lesbians as outsiders to confirm
the normality of heterosexuality runs the risk of upholding heterosexual
institutions and gender hierarchies.184 She suggests that both the pursuit of rights in
the political sphere, and the pursuit of symbolic representations of gays and lesbians
are antithetical to the radical challenge of lesbian/feminist theory.185 She concludes
by arguing that it is important to acknowledge that citizenship discourses have
reproduced a particular version of the responsible/good citizen based on
assimilationist norms and values, even while acknowledging the increasing power of
the language of citizenship.186
While lesbian citizenship might be incompletely theorized in Cossmans book,
more troubling is the virtually complete absence of any discussion about how
concepts of sexual citizenship relate to transgendered persons.187 Perhaps the
omission of transgendered persons points to the problem with relying upon cultural
representations of citizenship. While there are transgendered representations in
popular cultureand some would even argue that transgendered representations are
pronounced188they are much
lesbian
representations. In the legal regulation of citizenship, however, transgendered persons
face particular difficulties, especially with regard to immigration into the United
States. Post-9/11 initiatives to verify immigrants identities rely on physical
appearance as well as the matching of data, such as birth date and sex, which are also
presumed to be unchanging. Disparities in records can lead to harsh legal penalties
and increased scrutiny on transgender immigrants.189 Transgender immigrants access
to marriage-based immigration is also severely limited: a subdivision of the
than gay and even
less prominent
182 Ibid. at 264, citing Ruthann Robson, Lesbian (Out)Law: Survival Under the Rule of Law (Ithaca,
N.Y.: Firebrand Books, 1992).
183 Richardson, Claiming Citizenship, ibid. at 264.
184 Ibid. at 265-66.
185 Ibid. at 269.
186 Ibid.
187 The index does have an entry for transsexuals that lists three pages. The first of these pages is a
mention from another theorist, the second two pages are the appearance of the term transsexuals in a
list of prohibitions in an adult-entertainment guideline (supra note 8 at 243, 247, 260, 263).
188 Theyre everywhere: transsexuals, intersexed individuals, and others of uncertain gender
classification. Transgender issues have come out of the closet as popular culture seems to have
discovered a new favorite (Susan Frelich Appleton, Contesting Gender in Popular Culture and
Family Law: Middlesex and Other Transgender Tales (2005) 80 Ind. L.J. 391 at 391).
189 Adam Francoeur, The Enemy Within: Constructions of U.S. Immigration Law and Policy and
the Homoterrorist Threat (2007) 3 Stan. J. C.R. & C.L. 345 at 366-67.
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Department of Homeland Security issued an interpretive internal memorandum in
2004 directing immigration officials to not recognize the marriage, or intended
marriage, between two individuals where one or both of the parties claims to be a
transsexual, regardless of whether either individual has undergone sex reassignment
surgery, or is in the process of doing so when a partner seeks a spousal or fianc
visa.190
Whether Cossmans work on sexual citizenship might be useful to transgendered
persons making citizenship claims is uncertain. In the last pages of Sexual Citizens,
Cossman gestures toward further inquiries in sexual citizenship studies.191 She
points to her brief foray into the problem of mail-order brides (five pages, more
than half of which discuss several nondocumentary movies on the subject) as an
example of how the analysis of sexual citizenship she developed might be deployed
when formal legal citizenship is at stake. The example, however, is not illuminating.
Cossman states that she has not argued against the relevance of legal regulation of
mail-order brides, but for a more expansive analysis of the modes of regulation.192 Yet
how this contributes to citizenshipas opposed to cultural understandingsremains
unclear. Cossman evocatively mentions that legal regulation sought to balance
concerns about marriage fraud (to obtain citizenship) and domestic violence,193 yet
why citizenship should be so prized and how citizenship relates to marital violence
are questions left unexplored.
This is not to argue that sexual citizenship must be confined to matters of formal
legal citizenship. It is, however, to argue that formal legal and political citizenship, far
from tangential, are integral to any discussion of sexual citizenship. Cossmans resort
to citizenship studies as a frame for her theorizing is understandable given the
elasticity of citizenship studies. Perhaps the time has come, however, to rethink
sexual citizenship and what it should mean. In the next section, we offer a few
suggestions for reconceptualizing sexual citizenship.
IV. Rethinking Sexual Citizenship
A. Denaturalizing Citizenship
Queer theorists have explained that arguably natural sexual identities and
practices are constructed, contested, and hierarchal. Similarly, citizenship theorists
190 Interoffice Memorandum by William Yates, Associate Director for Operations, United States
Citizenship and Immigration Service (16 April 2004) at 3 [unpublished], online: immigration.com
Queer Marriage: The Nexus of Transsexual Marriages and U.S. Immigration Law (200506) 9 N.Y.
City L. Rev. 209 at 224-25.
191 Supra note 8 at 197ff.
192 Ibid.
193 Ibid.
559
R. ROBSON & T. KESSLER UNSETTLING SEXUAL CITIZENSHIP
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have argued that categories and practices of citizenship are constructed, contested,
and hierarchical. However, in some sexual citizenship theorizing, formal legal
citizenship has become naturalized: it is the assumed condition, as if citizenship were
not a product of nation-states but of nature. Sexual citizenship theorizing should be
more cognizant of citizenship as a formal legal status and its attendant consequences.
To overlook the status of citizenship is dangerous and imperialistic: it assumes that
everyone is a legal citizen exercising what Cossman calls choices about how to
exercise citizenship.194 It equates metaphorical unbecoming citizens by sexual
choices with deportation and confinement.
As the repression of undocumented immigrantsand those perceived to be
undocumented195burgeons in the United States and the immigrants-rights
movements gain momentum, this is no time for a discourse of sexual citizenship that
is disconnected from real-world events. In 2006, about twelve million legal
permanent residents196 and almost as many unauthorized immigrants were living in
the United States.197 In Canada, in 2006, there were just over 250,000 permanent
residents198 and 268,000 temporary residents.199 Since 1925, more than forty-four
million noncitizens have been ordered to leave the United States.200 From 2001 to
2004, over 720,000 noncitizens were formally removed; more than four million were
expelled pursuant to a voluntary departure.201 Detentions are on the rise. The
194 Ibid. at 15.
195 Workplace and home raids affect undocumented and lawful permanent residents alike, as well as
American citizens. See supra note 1 and accompanying text. See also Second Amended Class Action
Complaint, Aguilar v. Immigration and Customs Enforcement, ECF Case Civil Action No. 07 CIV
8224 (JGK) (FM) at paras. 14, 22 (S.D.N.Y. 30 May 2008), online: Latino Justice PRLDEF
residents, undocumented immigrants and U.S. citizens, all Latinos, without informing them of their
rights or producing warrants).
196 U.S., Department of Homeland Security, Estimates of the Legal Permanent Resident Population
in 2006 by Nancy Rytina (February 2008) at 1, online: United States Department of Homeland
Security
197 U.S., Department of Homeland Security, Estimates of the Unauthorized Immigrant Population
Residing in the United States: January 2006 by Michael Hoefer, Nancy Rytina & Christopher
Campbell (August 2007) at 1, online: United States Department of Homeland Security
198 Citizenship and Immigration Canada, Facts and Figures: Immigration Overview: Permanent
and Temporary Restraints, 2006 (Ottawa: Minister of Public Works and Government Services
Canada, 2007) at 2, 62.
199 Ibid.
200 Daniel Kanstroom, Deportation Nation: Outsiders in American History, vol. 3 (Cambridge,
Mass.: Harvard University Press, 2007).
201 Ibid.
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number of noncitizens detained in the United States increased 129 per cent from
around 9,000 in 1996 to over 20,000 in 2006.202
Issues of formal legal citizenship do not merely involve citizens of one nation
seeking to become citizens of a different nation. Some persons do not have
citizenship in any nation. There are an estimated eleven million people in the world
who are stateless. Stateless persons are essentially international orphans who do not
have the status and claims of citizenship in any nation. Further, despite a United
Nations mandate governing stateless persons, they are generally unprotected and
unaided by international aid organizations or by particular nations.203
Obviously, some percentage of immigrants and stateless persons are sexual
minorities. Whether one names this fact intersectionality or multiple oppressions
or simply common sense, it is important to remind ourselves that noncitizens and
sexual minorities are not mutually exclusive groups. This is especially important
when the group interests are presented as oppositional. For example, the openly gay
Dutch politician Pim Fortuyn, who was a leading candidate for prime minister when
he was murdered in 2002,204 based his populist appeal on an anti-immigrant platform,
part of a backlash against immigrants to the Netherlands from Turkey and
Morocco.205 He advocated for the closing of Dutch borders and called Islam a
backward culture,206 comparing the status of women and sexual minorities in the
Netherlands and in Islamic countries: In Holland, homosexuality is treated the same
way as heterosexuality: in what Islamic country does that happen?207 An outspoken
and flamboyant gay man,208 Fortuyn promoted a form of xenophobia ideally suited
to a nation that prides itself on its tolerance.209
Additionally, whether sexual minorities or not, all noncitizens are entitled to
sexual freedom. No sexual citizenship theorist would approve regulating the sexual
practices of immigrants or stateless persons by an extreme measure such as castration,
202 U.S., Congressional Research Service, Immigration Enforcement Within the United States, CRS
Report for Congress by Alison Siskin et al. (6 April 2006) at 22, United States Department of State,
online:
203 M. Lynch, Lives on Hold: The Human Cost of Statelessness (February 2005), online: Refugees
International
discussion of statelessness, see Audrey Macklin, Who is the Citizens Other? Considering the Heft of
Citizenship (2007) 8 Theor. Inq. L. 333.
204 See Elizabeth Kolbert, Beyond Tolerance: What did the Dutch see in Pim Fortuyn? The New
Yorker (9 September 2002) 106.
205 See Tjitske Akkerman, Anti-immigration Parties and the Defence of Liberal Values: The
Exceptional Case of the List Pim Fortuyn (2005) 10 Journal of Political Ideologies 337.
206 Kolbert, supra note 204 at 106; Akkerman, ibid. at 347.
207 Kolbert, ibid. at 110.
208 See e.g. Ian Buruma, Murder in Amsterdam: The Death of Theo van Gogh and the Limits of
Tolerance (New York: The Penguin Press, 2006) at 39, 54 (describing Fortuyn as proudly, even
flamboyantly, homosexual).
209 Kolbert, supra note 204 at 112.
R. ROBSON & T. KESSLER UNSETTLING SEXUAL CITIZENSHIP
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for example. Less clear, however, is the extent to which the regulations of sexuality
being theorized in the context of citizenship apply to noncitizens. Citizenship is an
exclusionary term. Using it in a naturalized mannerand in a manner that is perhaps
meant to be inclusiveperpetuates imperialism and invisibility.
561
B. Sexual Regulation of Citizenship Status
The United States has a plethora of regulations pertaining to citizenship, many of
which are aimed at sexual practices. To begin with, formal marital status is a
building block of U.S. immigration law.210 As Janet Calvo has argued, marital status
in immigration law often retains the character of common law coverturethe notion
that a wife is subordinate to her husbandwhich was incorporated into early
immigration law and sometimes strengthened by contemporary reforms.211 U.S.
immigration laws privileging of formal marital status results in family-based
immigrant visas that are available only to immediate family members, including
spouses, and marital status can qualify an immigrant being denied entry or facing
deportation for an exception or waiver.212 Immigration law privileges citizens
sponsorship of spouses over the sponsorship of spouses by legal permanent residents
and generally grants the power to petition for a spouse or family member to the
citizen or resident rather than the immigrant seeking a visa.213
Family-based immigration provisions subject immigrants and their families to
regulation and government scrutiny. Immigration law involves itself in relationships
even prior to marriage, by granting fianc visas that require couples to marry within
ninety days of the immigrant partners entry.214 After marriage, applicants for
immigration status based on marriage must prove that their relationship is bona
fidei.e., that it was not entered into solely for immigration purposes. Couples are
subject to intense scrutiny by immigration officials, who examine the marriage for
evidence of cohabitation, financial commingling and childbearing. Marriages that fail
to conform to these forms of evidence, or to the expectations of immigration officials,
may be deemed fraudulent.215 The sponsoring relative must show that his or her
210 Kerry Abrams, Immigration Law and the Regulation of Marriage (2007) 91 Minn. L. Rev
1625 at 1634 (arguing that immigration law functions as a form of family law for those regulated by
it).
211 Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture (1991) 28 San
Diego L. Rev. 593; Janet Calvo, A Decade of Spouse-Based Immigration Laws: Covertures
Diminishment But Not Its Demise (2004) 24 N. Ill. U.L. Rev. 153.
212 Abrams, supra note 210 at 1634-35. Abrams notes that family-based immigration is the largest of
the four avenues to obtain permanent-legal-resident status, accounting for nearly half of all legal
immigration in 2005, with spousal immigration accounting for over one-quarter of all immigration
(ibid. at 1635).
213 Ibid. at 1636.
214 Ibid. at 1651-52.
215 Ibid. at 1683-85.
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income is at least 125 per cent of the federal poverty level, to prevent the sponsored
immigrant from becoming a public charge.216
Access to citizenship for the children of U.S. citizens further illustrates the
gendered nature of immigration determinations in the United States. In Miller v.
Albright, a plurality of the Supreme Court of the United States upheld an immigration
statute that treated mothers and fathers differently in the conferring of citizenship
status on children.217 While a child gains the status of citizen by virtue of simply
being born to a U.S.-citizen mother, in order for an unmarried citizen father to
transmit citizenship, he must acknowledge paternity or be subject to adjudicated
paternity before the child reaches the age of eighteen. In Nguyen v. I.N.S., the
Supreme Court of the United States rejected a challenge to a statute imposing
different requirements for the acquisition of citizenship by a child born outside of the
United States depending on whether the citizen parent is the mother or father.218 The
statute provides that a child born out of wedlock acquires at birth the nationality
status of a citizen mother who meets specified residency requirements, but where the
father is the citizen parent, the child only acquires citizenship if the father agrees to
provide financial support for the child and the child is legitimated or paternity is
acknowledged or established by adjudication.219 In upholding the statute, the court
noted that given the 9-month interval between conception and birth, it is not always
certain that a father will know that a child was conceived, nor is it always clear that
even the mother will be sure of the fathers identity, and that this fact takes on
particular significance in the case of a child born overseas and out of wedlock.220
The court was also concerned with young people, men for the most part, who are on
duty with the Armed Forces in foreign countries.221 On this view of sexuality, male
members of the military have no responsibility when they are overseas.222
Sexual minorities current place in immigration law and policy follows almost
forty years of per se exclusion from entry into the United States. The 1952
Immigration and Nationality Act223 provided for the exclusion of immigrants from
entry into the United States on a number of grounds, including political ideology and
psychopathic personality, epilepsy or mental defect.224 Psychopathic personality
and mental defect were categories that were sufficiently broad to also exclude
homosexuals and sex perverts, according to an opinion from the U.S. Public Health
216 Ibid. at 1700.
217 523 U.S. 420 (1998); 42 U.S.C. 1409 (1988).
218 533 U.S. 53 (2001) [Nguyen].
219 8 U.S.C. 1409(a) (2000).
220 Nguyen, supra note 218 at 65.
221 Ibid.
222 In her dissenting opinion, OConnor J. described the statute as paradigmatic of a historic regime
that left women with responsibility, and freed men from responsibility, for nonmarital children, and
noted that domestic child custody law has departed from these notions of inequality (ibid. at 92).
223 Pub. L. No. 414, 66 Stat. 163 (1952).
224 Ibid., 212(a) at 182.
563
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Service provided to Committee on the Judiciary of the United States Senate.225 In a
case in 1967 upholding the deportation of a Canadian citizen who had been arrested
for sodomy, the Supreme Court of the United States held that the inclusion of lesbians
and gays in the category of psychopathic personality was in keeping with the United
States Congress intent to exclude from entry all homosexuals and other sexual
perverts.226 In 1979, the Surgeon General announced that the Public Health Service
would no longer issue certificates certifying that an alien was excludable based on
suspicion that the alien was homosexual,227 but the Immigration and Naturalization
Service (INS) then adopted a new procedure wherein aliens were excluded if they or
another party disclosed their homosexuality.228 Although a decision of the United
States Court of Appeal for the Ninth Circuit in 1983 held that the INS could not
circumvent Public Health Service certification by way of its own guidelines,229 the
exclusion was not formally lifted until the passage of the Immigration Act of 1990.230
While the per se exclusion of sexual minorities has been repealed, immigration
policies continue to exclude sexual minorities. The same statute that lifted the per se
exclusion of sexual minorities reinforced the structural family-unification policy in
immigration law, which excludes same-sex couples.231 Adam Francoeur has argued
that two laws passed in 1996 have combined to renew ideological exclusions of
LGBT immigrants … 232 The Defense of Marriage Act defines marriage as only a
legal union between one man and one woman as husband and wife,233 and gives
permission to states to refuse to recognize same-sex marriages, even if they are
performed and recognized by another state or jurisdiction.234 The Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 makes it easier for immigrants to
225 See U.S., Revision of Immigration and Nationality Laws: Report of the Committee on the
Judiciary, 82nd Congress (S. Rep. No. 82-1137) (Washington, D.C.: United States Government
Printing Office, 1952) at 9, cited in Francoeur, supra note 189 at 353.
226 Boutilier v. Immigration and Naturalization Service, 387 U.S. 118 at 122 (1967).
227 56 Interpreter Releases 387 at 398 (1979); Robert Foss, The Demise of the Homosexual
Exclusion: New Possibilities for Gay and Lesbian Immigration (1994) 19 Harvard C.R.-C.L.L. Rev.
439 at 457 (noting that the American Psychiatric Association had removed homosexuality from its
classification of psychiatric disorders in 1973).
228 57 Interpreter Releases 440 (1980); Foss, ibid. at 458. Under the new policy, while aliens were
not to be asked about their sexual orientation, if such information was disclosed, the person would be
asked to sign a statement declaring his or her homosexuality. Refusal to sign could result in indefinite
detention (ibid.).
229 Hill v. United States I.N.S., 714 F.2d 1470 at 1472 (9th Cir. 1983).
230 Pub. L. No. 101-649, 104 Stat. 4978 (codified as amended at 8 U.S.C. 1182(a)(4) (1990)).
Although the Surgeon General issued a policy in 1979 stating that homosexuality was no longer to be
considered a mental disease or defect, INS guidelines the following year created a dont-ask-dont-
tell policy, in which the INS had authority to deport noncitizens if their homosexuality was somehow
revealed (Francoeur, supra note 189 at 355).
231 Francoeur, ibid. at 357; Immigration and Nationality Act, supra note 223.
232 Ibid. at 356.
233 Supra note 140, 3 at 2419 (codified as amended at 1 U.S.C. 7 (1994)).
234 Ibid., 2(a) at 2419 (codified as amended at 28 U.S.C. 1738B (1994)).
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be removed from the United States and makes family-based waivers one of the only
removal exemptions.235 Although family law is generally state-based, the definition of
spouse under federal immigration law is ruled by DOMA; same-sex couples thus
have no legal access to immigration benefits conferred by marriage.236 Congressional
proposals to ameliorate this rule, such as the Permanent Partners Immigration Act of
2000237 and the Uniting American Families Act of 2007,238 have failed.
In contrast, immigration to Canada based on same-sex partnership (recognized as
a common law marriage) or legal marriage is much easier than in the United States.239
Before 2001, same-sex couples could petition for visas under the Humanitarian &
Compassionate Consideration of the then-existing immigration law.240 However,
Canada reformed its immigration laws in 2001 and passed the Immigration and
Refugee Protection Act, which allows for same-sex couples to petition for
immigration status under the class of visas reserved for Family Class without using
the humanitarian and compassionate consideration (which is used in only rare cases
now).241 Canada will recognize same-sex marriages performed
in Canada,
Massachusetts, or any country that permits same-sex marriage. However, if neither
partner (in either a same-sex marriage or partnership) is a Canadian citizen or
resident, one partner must petition under an employment-based visa, and then file a
petition for her/his partner based on common law marriage (if the relationship has
lasted more than one year).242
In the United States, the problem is not simply non-recognition of same-sex
relationships to provide favourable immigration treatment. Indeed, recognized same-
sex relationships can have negative consequences for immigrants. As Francoeur
points out, temporary visa holders and petitioners must show that they have no intent
to remain in the United States beyond the term of the visa, and the formalization of a
same-sex relationship might be a family tie that indicates an inappropriate intent to
remain in the United States.243 Additionally, harboring provisions in U.S. immigration
235 Supra note 4.
236 Francoeur, supra note 189 at 358-59.
237 U.S., Bill H.R. 3650, 106th Cong., 2000 (providing a mechanism for citizens and legal
permanent residents to sponsor their permanent partners). See also U.S., Bill H.R. 690, Permanent
Partners Immigration Act of 2001, 107th Cong., 2001; U.S., Bill H.R. 832, Permanent Partners
Immigration Act of 2003, 108th Cong., 2003; U.S., Bill H.R. 3006, Permanent Partners Immigration
Act; Uniting American Families Act, 109th Cong., 2005.
238 U.S., Bill H.R. 2221, 110th Cong., 2007 (allowing permanent partners … to obtain lawful
permanent resident status in the same manner as spouses … ).
239 Immigration Equality, Binational Couples: Canadian Options, online: Immigration Equality
240 Immigration Act, R.S.C. 1985, c. I-2, s. 114(2).
241 S.C. 2001, c. 27, ss. 12-13.
242 Canadian Immigration for Same-sex Partners, The Canadian Immigration System: An
Overview, online: Canadian Immigration For Same-sex Partners
243 Supra note 189 at 360.
565
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law subject to criminal sanctions those persons who afford shelter to unauthorized
aliens.244 While these provisions can affect all kinds of relationships, including
married and unmarried people, they acutely affect same-sex couples, who have no
access to spousal, family-based immigrant visas.245
Asylum law has begun to recognize sexual minorities as a social group deserving
of protection from persecution,246 but this recognition has serious limitations. To
qualify as a refugee, applicants for asylum must prove membership in a social
group,247 which focuses on identity rather than conduct.248 This construction may limit
the ability of sexual minorities who were not out in their country of origin to
prevail in their claims.249 Even the developing recognition that sexual minorities
constitute a social group is inconsistent: the precedent set by In re Toboso-Alfonso is
not binding on circuits that have yet to decide whether homosexuality constitutes a
social group.250 Furthermore, because U.S. laws continue to criminalize the sexual
conduct of sexual minorities,251 asylum seekers from countries with similar criminal
244 Ibid. at 362, citing 8 U.S.C. 1324(a)(1)(A)(iii) (2000).
245 Francoeur, ibid.
246 See In re Toboso-Alfonso, 20 I. & N. Dec. 819 at 820-24 (B.I.A. 1990) [Toboso-Alfonso] (finding
a gay Cuban man eligible for withholding of removal on the basis of his membership in the particular
social group of homosexuals); Hernandez-Montiel v. I.N.S., 225 F.3d 1084 at 1087, 1091-99 (9th Cir.
2000) [Hernandez-Montiel] (holding that a gay Mexican man with female sexual identity is a
particular social group for the purposes of establishing eligibility for asylum and withholding of
deportation). For a detailed discussion of asylum laws treatment of sexual minorities, see Hollis V.
Pfitsch, Homosexuality in Asylum and Constitutional Law: Rhetoric of Acts and Identity (2006) 15
Law & Sexuality 59. See also Suzanne B. Goldberg, Give Me Liberty or Give Me Death: Political
Asylum and the Global Persecution of Lesbians and Gay Men (1993) 26 Cornell Intl L.J. 605.
247 See 8 U.S.C. 1101(a)(42)(A) (2006).
248 Pfitsch, supra note 246 at 70.
249 Goldberg, supra note 246 at 612 (noting that many lesbians and gay men who fear persecution
deny their identity and avoid association with others as a matter of self-preservation). See also
Deborah A. Morgan, Not Gay Enough for the Government: Racial and Sexual Stereotypes in Sexual
Orientation Asylum Cases (2006) 15 Law & Sexuality 135 at 144-47 (recounting the story of
Mohammed, a gay asylum seeker from Iran whose deportation order was overturned only after he
presented affidavits from gay organizations, friends and a boyfriend that he was gay).
250 Pfitsch, supra note 246 at 66, n. 49, citing In re Tenorio, No. A72-093-558 (Immigration Court,
26 July 1993), cited in 70 Interpreter Releases 1100 (1993) (following Toboso-Alfonso). C.f.
Pitcherskaia v. INS, 118 F.3d 641 at 647-48 (9th Cir. 1997) (refusing to follow Toboso-Alfonso).
251 See e.g. State v. Limon, 83 P.3d 229 at 232 (Kan. Ct. App. 2004), revd 122 P.3d 22 at 40-41
(Kan. 2005). The court upheld the conviction for criminal sodomy of a mentally disabled eighteen-
year-old who had performed oral sex on a mentally disabled fourteen-year-old. Under a state Romeo
and Juliet law, the same act performed on a girl would have resulted in a sentence of 13 to 15
months. The court found that Limons sentence of 17 years was not unconstitutional, because unlike in
Lawrence, this statute involved children, and Limons claim was a violation of equal protection, which
Lawrence had not addressed (ibid. at 234-35).
See also 10 U.S.C 925 (2000) (codifying Uniform Code of Military Justice, c. 169, 125, 64 Stat.
108 at 141 (1950)). 925 subjects any person [in the military] who engages in unnatural carnal
copulation with another person of the same or opposite sex to court martial and criminal sanction
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laws may not be granted asylum.252 Asylum has been granted for gay and lesbian and
transgender immigrants,253 but the success of their claims depends less on the facts of
their case than on the individual adjudicator.254
Thus it is clear that governments award or deny citizenship in ways that directly
relate to sexuality. Certainly this should be a preoccupation of sexual citizenship
studies. This should not, however, be the sole concern of sexual citizenship
theorizing.
C. Confronting the States Invocation of Citizenship
The language of citizenship, even if abstract, is an apt response when the state
invokes citizenship. For example, legal and political theorist Davina Cooper, in
examining former U.K. Prime Minister John Majors Citizens Charter,255 which she
views as a move toward rearticulating citizenship with right-wing discourse,256
defines citizenship as concerned with the process of inclusion and exclusion, either
in terms of membership of the public realm or as rights and responsibilities vis–vis
the state.257 She notes that citizenship has a key place in modern U.K. political
discourse, connoting empowerment, membership and rights.258 The Citizens
Charter, an initiative with the stated goal of providing better quality, choice and
information on public services, affirms the citizen as customer of the state even
while trying to evade state responsibility for public services.259 By privileging the
rights of paying customers, such as British Rail users, over the rights of welfare
recipients, whose rights are nonenforceable, the Citizens Charter spells out
paradigms of citizenship. It shapes who is a citizen by determining who uses a
particular service and by keeping some public services outside of its framework.260
Despite the Citizens Charters promise of public accountability, central government
has cut funding and localized implementation of centralized goals, diffusing
(ibid.). Accord U.S. v. Marcum, 60 M.J. 198 at 206 (C.A.A.F. 2004). The court reasoned that a
soldiers conviction for nonforcible sodomy was constitutional even after Lawrence: In the military
setting, … an understanding of military culture and mission cautions against sweeping constitutional
pronouncements that may not account for the nuance of military life (ibid.).
252 See Pfitsch, supra note 246 at 82-83.
253 Hernandez-Montiel, supra note 246 at 1099 ([t]hrough police harassment and rape, Geovanni
suffered past persecution in Mexico on account of his sexual orientation for being a gay man with a
female sexual identity). Accord Reyes-Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004).
254 Pfitsch, supra note 246 at 72-73.
255 The Citizens Charter was a political initiative introduced in 1991 with the objective of
improving government services to citizens. See Davina Cooper, The Citizens Charter and Radical
Democracy: Empowerment and Exclusion within Citizenship Discourse (1993) 2 Soc. & Leg. Stud.
149.
256 Ibid. at 149.
257 Ibid. at 155.
258 Ibid. at 150.
259 Ibid. at 166.
260 Ibid. at 157.
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responsibility. At the same time, users of public services have not had input, but are
instead positioned as consumers, and thereby depoliticized.261
Cooper compares the conception of citizenship in the Citizens Charter with
Chantal Mouffes idea of radical democratic citizenship, which decentres the state,
viewing citizenship as a process rather than a product. Mouffes radical democracy
can be defined as the struggle to force liberal society to live up to its promise.262
Mouffe advocates for distinct domains between private morality and public politics, a
notion that Cooper finds deeply problematic.263 Even so, Cooper values the radical
democratic focus on the expression of difference within civil society and the
participation in a shared political community of values.264 She concludes that the
benefits of advocating for citizenship rights depend on historical circumstances.265
When responding to governmental invocations of citizenship, it is certainly
appropriate and often important to inflect them with sexual concerns. Yet it is also
important to confront citizenship itself. The positioning of citizens as consumers of
services is a dilution of citizenship. However, citizenship is already diluted because it
connotes that noncitizens do not useor are not entitled to usestate services. It is
this connotation that must be addressed whenever one responds to citizenship
discourse from the state.
D. Analogies of Citizenship and Sexuality
Sexual citizenship should explore the relationships between the regulations of
noncitizens and the regulations of sexual minorities in both concrete and
metaphorical terms. A model is the scholarship of Carl Stychin, who notes that
migration has been significant in constituting gay and lesbian subjectivities, and that
escape, displacement and the search for place are important to gay and lesbian
consciousness, as well as legal discourse.266 His analysis encompasses both
metaphorical and real-world approaches to citizenship, interrogating the relationship
between the two.
Just as travel can be a metaphor for identity, migration can be a metaphor for gays
and lesbians crossing of borders and boundaries … in refusing to continue to live in
old ways.267 At the same time, mobility is limited by its relationship to consumption
and class, which are tied to race and gender. Stychin says that in Western nation-
261 Ibid. at 159.
262 Ibid. at 161, citing Chantal Mouffe, Democratic Citizenship and the Political Community in
Chantal Mouffe, ed., Dimensions of Radical Democracy: Pluralism, Citizenship, Community
(London: Verso, 1992) 225.
263 Ibid. at 164, 167.
264 Ibid. at 167.
265 Ibid. at 168.
266 Governing Sexuality, supra note 57 at 94-95.
267 Ibid. at 96.
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states, group migration often triggers social anxieties and fears of disorder.268 He
contrasts movement within nation-states, termed mobility and viewed as desirable by
governments and corporate interests, with movement between nation-states, termed
migration and viewed as illegitimate. Stychin argues that the historical desire for the
social control of homosexuality is closely related to the desire for control over
movement and borders.269 Both require reading and controlling bodies, and both
suggest a dangerous difference that threatens order, consensus, nation state, and a
way of life.270 He examines specific immigration policies and debates excluding
homosexuals in the United States and the United Kingdom and argues that claims to
mobility are susceptible to the same problems as rights discourse generally: both
potentially discipline gay and lesbian subjects.271 Citizenship and inclusion are tied to
paid employment and the encouragement of stable relationships; these are bases of
good, responsible citizenship.272 He observes that same-sex immigration rights
accompany a requirement to replicate an idealised model of heterosexual romance,
citing the example of Australia, where immigration policies based on the privatization
of financial responsibility subject migrants to surveillance and regulation.273 He
observes a similar disciplinarity of legal recognition in the Constitutional Court of
South Africas decision striking down a statute that excluded same-sex life partners
from preferential treatment in immigration.274 Same-sex couples were required to
prove permanence, stability and location in a particular place,275 especially ironic in
a country that imposed forced mobility on many under apartheid.276 In examining how
recognition, social inclusion and citizenship claims come at a price, he raises the
question of whether alternative ways of imagining a legal regime that recognizes
spousal-type relationships is possible.277
Other metaphorical analogies could prove enlightening. For example, although a
physical border fence has not yet been built between the United States and Mexico,278
one might argue that the Defense of Marriage Act is a fence of sorts, as it creates an
insurmountable barricade to legal-permanent-resident status for immigrant same-sex
partners.279 Similarly, Jessica Chapin has pointed to metaphorical treatments of
citizenship in which homophobic imagery is deployed to depict a threat to U.S.
nationhood. She notes that anxieties
268 Ibid. at 98.
269 Ibid. at 99.
270 Ibid. at 100.
271 Ibid. at 103.
272 Ibid.
273 Ibid. at 104-05.
274 Ibid.; National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, [2000] 2 S.
Afr. L.R. 1 (S. Afr. Const. Ct.) [National Equality].
275 Stychin, Governing Sexuality, ibid.
276 Ibid. at 109-10.
277 Ibid. at 113.
278 See supra note 7 and accompanying text.
279 Supra note 140.
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about undocumented immigrants are often expressed in terms that suggest a
homosexualization of USMexico relations, an inversion of hierarchies. The
threat of anal penetration, a loosening of the sphincter in order to let something
in instead of to push something out, is homophobically cast as a perversion of
the natural order and a threat to the social order.280
Thus, sexual citizenship theorizing canand shouldbenefit from the use of
metaphors and analogies. However, using citizenship itself as a metaphor, as
Cossman does, can cause confusion. The term citizen, when used to denote being a
member of a nation-state, is both accurate and inaccurate. It can seem especially
inaccurate during times and in cases when citizenship is a fraught and politically
charged notion.
E. Citizens or Persons?
It is clear that the regulation of sexuality by nation-states needs rigorous
theorizing. That the rubric for this theorizing should be citizenship is less clear. As
Carl Stychin has noted, it may be surprising that citizenship has been adopted as a
theoretical tool by sexual minorities given citizenships exclusionary history.281
Stychin states that queer theorys appropriation of citizenship speaks to the power of
citizenship, and to the lack of alternative languages which express both a desire for
rights and participation.282
Yet the language of personhood may be similarly powerful. Indeed, in the
United States, the existence of the term person in the Bill of Rights and Fourteenth
Amendmentrather than the term citizenshas been the source of hope for
protection for noncitizens. As the Supreme Court of the United States stated in
Zadvydas v. Davis, the Due Process Clause applies to all persons within the United
States, including aliens, whether their presence here is lawful, unlawful, temporary, or
permanent.283 In the U.S. context, it is this same concept of personhood or
personal autonomyagain, rather than citizenshipthat has been the source of
sexual rights for sexual minorities and women.
The notion of personhood in the human-rights framework is potent, although like
the notion of citizenship, personhood may be subject to criticism as gendered and
sexualized.284 Yet human-rights frameworks promise that outside the boundaries of
nation states, persons still possess some inherent rights. These international human
280 Jessica Chapin, Closing Americas Back Door (1998) 4 GLQ 403 at 412.
281 Governing Sexuality, supra note 57 at 12.
282 Ibid.
283 533 U.S. 678 at 693 (2001).
284 See e.g. Wayne Morgan, Queering International Human Rights Law in Carl Stychin & Didi
Herman, eds., Sexuality in the Legal Arena (London: Athlone Press, 2000) 220 (arguing that notions of
privacy and tolerance in human rights law reinforce the construction of sexual difference as other).
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rights can be important in particular contexts such as indigenous land rights285 or
sexual rights.286 The construction of the individual in the international human-rights
framework undoubtedly does raise concerns about natural rights, universality, or
the imposition of Western neo-liberal conceptions.287 But it is not only a Western
conception. Finding the death penalty unconstitutional, the Constitutional Court of
South Africa relied on the African concept of ubuntu, which recognises a person’s
status as a human being, entitled to unconditional respect, dignity, value and
acceptance from the members of the community … 288 It is this personhood that may
be a more suitable concept than citizenship.
This notion of personhood might be viewed as integral to the idea of ethical
territoriality, which suggests rights and recognition should extend to all persons
who are territorially present within the geographical space of a national state by virtue
of that presence.289 Linda Bosniak asserts that despite its shortcomings,290 ethical
territoriality represents the best argument for immigrants rights that we have.291
Bosniak notes that the Supreme Court of the United States has acknowledged that
rights attach to persons by reason of their presence: [Fundamental rights] are not
confined to the protection of citizens … These provisions are universal in their
application to all persons within the territorial jurisdiction, without regard to any
differences of race, colour, or nationality.292 Yet, of course, at times the very problem
285 Stychin has noted that in Australia, courts have found rights in international law that declares
the existence of international human rights (Carl F. Stychin, A Nation by Rights: National Cultures,
Sexual Identity Politics, and the Discourse of Rights (Philadephia: Temple University Press, 1998) at
159, citing Mabo v. Queensland (1992), 174 C.L.R. 1 at 42 (H.C.A.)). He asserts the language of
universality can resonate in the legal arena (ibid.).
286 The Supreme Court of the United States decision in Lawrence noted that the contention that
sodomy was contrary to the values of Western Civilization was contradicted by the European Court of
Human Rights holding that laws criminalizing sodomy are invalid under Europes Convention for the
Protection of Human Rights and Fundamental Freedoms (4 November 1950, 213 U.N.T.S. 221 at
223, Eur. T.S. 5 (entered into force 3 September 1953)) (supra note 86 at 573, citing Dudgeon v.
United Kingdom (1981), 45 E.C.H.R. (Ser. A) 1).
287 Morgan, supra note 284 at 208 (noting that human rights law is based on a Western European
tradition).
288 State v. Makwanyane, [1995] 3 S. Afr. L.R. 391 at para. 224 (S. Afr. Const. Ct.).
289 Linda Bosniak, Being Here: Ethical Territoriality and the Rights of Immigrants (2007) 8
Theor. Inq. L. 389 at 389-90 [Bosniak, Being Here]. Bosniak credits Michael Walzer for articulating
this approach (ibid. at 392-93, citing Michael Walzer, Spheres of Justice: A Defense of Pluralism and
Equality (New York: Basic Books, 1983) at 59).
290 Bosniak suggests that ethical territoriality is flawed in its presupposition that the existence of
borders around the territory in question, the fact that borders are implemented internally and thus
function to thwart ethical territorialism’s own internal universalist project (Being Here, ibid. at
398). Further, it raises questions about why the fortuities of birthplace and parentage should
determine peoples rights, as well as what the scope of a nation-states territory should include, as the
question of the rights of detainees at Guantanamo Bay has illustrated (ibid. at 399, 401).
291 Ibid. at 410.
292 Ibid. at 393-94, citing Yick Wo v. Hopkins, 118 U.S. 356 at 369 (1886).
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at issue is whether all persons possess the same rights, or any rights at all. Persons
are rights holders, even as the rights they hold may be derived from particular nation-
states. The extent to which those rights derive from citizenship status is a contested
issue. Moving toward a theory of personhood rather than an imprecise use of
citizenship may serve to illuminate the rights that inhere in our existence rather than
in our formal legal relation with any particular state. Rights attached to personhood
should be more enduring than rights dependent upon shifting national boundaries,
politics, and documentary evidence.293
Conclusion
The theoretical construct of sexual citizenship relied upon so strongly by Brenda
Cossman as well as many others needs serious rethinking. By focusing on a
conception of citizenship that ignores formal legal status, such analysis trivializes the
struggles of people who lack formal citizenship status. Wielded by sexual minorities,
the notion of sexual citizenship threatens to exalt citizenship over personhood, thus
excluding members of our own communities and our allies. Certainly, this is not the
intent of any theorist of sexual citizenship. Nevertheless, although the theory of
sexual citizenship is nuanced and complex, it risks perpetuating an imperialistic
version of the nation-state. Instead we must envision a broader approach, in which the
metaphors and language of citizenship are more carefully deployed to reveal who is
excluded. In these dangerous xenophobic times, we should do no less.
293 In her Canadian study of lesbians view of medical power of attorney, Elizabeth Finnis includes
an overview of conceptions of sexual citizenship. She attempts to incorporate this theoretical
framework into her description of fieldwork in Northern Ontario to suggest the importance of the
lived experiences of lesbians and gay men in the context of the theory (Elizabeth Finnis, Sexual
Identity, Citizenship and Medical Power of Attorney: Case Illustrations from Northern Ontario,
Canada (2004) 8 Citizenship Studies 159 at 161). She then describes the reactions of four lesbians to
the creation of medical power of attorney, arguing that the medical power of attorney can highlight
the social/cultural, political and civil exclusion that lesbians experience (Iibid. at 173). Her
description of her fieldwork supports this assertion, but her use of citizenship discourse throughout the
article is superfluous. Her subject does not need or benefit from the discourse of sexual citizenship:
she can illuminate the issues of civil rights and social inclusion implicated in medical power of
attorney just as easily without it. As persons living in the nation-state of Canada who are its juridical
subjects, the lesbians in Finnis study are worthy of examination. Yet their transformation into sexual
citizens seems to make them less than fully human.
