Libidinal Politics: The Role of Sexuality and Desire in Legal Embodiment
Embodiment is a concept essential to political philosophy, and yet it is disquieting. If we apply embodiment to politics, then we are challenged to grapple with our vulnerabilities as well as desire. Jean Francois Lyotard exemplifies the role of desire, by drawing on sexuality in The Libidinal Economy:
“Open the so-called body and spread out all its surfaces: not only the skin with each of its fold, wrinkles, scars, with its great velvety planes, and contiguous to that, the scalp and its mane of hard, the tender pubic fur, nipples, nails, hard transparent skin under the heel, the light frills of the eyelids, set with lashes — but open and spread, expose the labia majora, so also the labor minora with their blue network bathed in mucus, dilate the diaphragm of the anal sphincter…Work as the sun does when you’re sunbathing or taking grass.”1placeholder
Lyotard’s usage of desire in a political economic philosophy text is unique. It recognizes the importance of desire in our lives and hints that economic decisions are as driven by desire as they are by reason. Lyotard’s sexualization of philosophy is striking from a contemporary context, in which political philosophy has distanced itself from the frankness of sexual desire. However, desire and sex are at the heart of many political debates. A popular critique of abortion by anti-abortion activists is that it is used as birth control by people who want to have sex without contraception. Their sexual desire is framed as voracious, a person who does not or perhaps refuses to control their sexuality with their reason. Although this argument has been addressed by numerous individuals who study abortion access and the reasons behind people pursuing abortion, the argument rests upon how sexual desire ought to be expressed. Sexual desire is framed in terms of heteronormativity and traditional patriarchal conceptions in which feminine desire is not prioritized. Laws against abortion access are a demand for people to embody a proper expression of sexual desire. If political philosophy is to engage with the ways in which legislation such as abortion law impacts individuals, it cannot do so without recognizing sexuality.
Abortion law is not the only form of legislation which is based upon regulating sexuality. Discrimination against LGBTQ+ people, such as Florida’s “Don’t Say Gay” law, repeats arguments that queer people are sexual predators and are “grooming” children to “become” queer. Sexual orientation is posed as something that can be directed or redirected, depending upon the sexuality of the people who play a prominent role in a child’s life. The “Don’t Say Gay” law is vague, but it outlaws any teacher from discussing a subject of sex, sexuality, and gender in the classroom.2placeholder A teacher was fired for using the gender neutral “Mx” as disobeying the law, for it expresses the person’s gender identity.3placeholder Likewise, a teacher could face felony charges if they have books which mention sex or sexuality in any way, this aspect of the law has had significant impact on teachers, who have had to remove books from their classrooms.4placeholder Art history books are also in question for David’s nudity could bring up questions around gender and bodies in a way that could place teachers in a fireable position.
Behind the “Don’t Say Gay” law, among other such legislation, is the encouragement of a specific type of gender expression and sexuality. Desire and identity that misaligns with traditional heteronormative patriarchal conceptions is framed as unsafe for children. It is perverted, in much the same way that a woman who pursues an abortion due to having sex is also perverse. Sex is the matter at hand, and yet political philosophy skirts around the frankness of sexuality and desire, leaving it to queer theorists. However, if we are to engage with embodiment and the law, political theorists must, like Lyotard, recognize desire.
Recent legislation in the United States focuses upon the development and suppression of desire seen as deviant. To understand the implications of these laws, it is imperative to engage with legal embodiment. Abortion restrictions potentially limit a person’s sexuality. If a person does not have access to contraception, or may be inhibited from accessing it, they must stay celibate if they are having sex that could result in a pregnancy to avoid abortion. Or they may have sex, but it must be non-procreative to ensure there cannot be a pregnancy. However, if a person can access contraception, and can travel for an abortion, their sexuality is not limited. Instead, it maintains as the same. The Turnaway Study by Diana Greene Foster demonstrates the primary reason for abortions in the United States is financial concern.5placeholder Legislation that limits abortion access may have significant ramifications on the poor, not the wealthy. Moreover, unintended pregnancies may limit a person’s ability to pursue an immediate goal, such as changes in employment or educational opportunities. Poor people’s sexuality, particularly women’s, is turned into something to be controlled and regulated for a woman to access opportunities. Sexuality is penalized, particularly if it is sexuality outside of marriage and without the intent of pregnancy. The sexuality that is supported is that of privileged people and the traditional heteronormative conceptions of how sex and sexuality ought to be expressed, which is in a heterosexual marriage with the intent for procreation.
And yet, in terms of women’s sexuality, the only options are celibacy or non-procreative sex, or sodomy. These each result in a lack of children. Lee Edelman argues in No Future that children are shaped as the future, and thus any sex that will not end in children is driven solely by pleasure – perhaps even the death drive. Sexuality that ends with a child, ideally in a traditional two parent heterosexual household, is the only sexuality with a future.6placeholder The current attempts to control sexuality without a future is, in many ways, a promotion of a specific future, that of a traditional sexuality, which is legally heterosexual and cisgender. Our future and our politics cannot escape our desires. Moreover, it cannot escape sexual desire. If political theory intends to examine those ways in which law shapes our realities, it must reengage with sexual desire and reacquaint itself with the body.
Edelman argues that queer sex is an expression of jouissance, a pleasure immersed in transgression. Jouissance compels us to transgress prohibitions and linger. Eros and the erotic drive have frequently been understood as anarchic and lawless. Edelman’s theory draws attention to society’s regulation of sexuality as safeguards against eros. If a society were to envelop eros and allow for a level of lawlessness, what society would that be? Edelman would argue it’d be a queer society. Within abortion restrictions, there is an implicit allowance for some forms of sodomy. This tolerance is at clear odds with the attempts to hide queer sexuality and queer sodomy from children. Even so, the acceptance of some non-procreative sex demonstrates an awareness that eros can never be fully controlled.
The current regulations of sex and sexuality, primarily focus upon purposeless sex. Lyotard and Edelman each use sexual desire and pleasure for philosophical purposes. Martha Nussbaum’s work on disgust and shame interrogates how our ideas of what is perverted or deviant shapes our reaction to them. It is equally important to examine what forms of sex and sexuality are promoted by the establishment of some forms of sexuality as taboo or illicit. One can do this best not only through disgust and shame, but also through sexual desire.
Laws that limit abortion access and laws that limit queer sexuality, or the expression of queer sexuality, encourage traditional heteronormative forms of sexuality. The advancement of legislation that frames queer sexuality as dangerous poses it in contrast to heteronormative sexuality as safe. Lawrence v Texas struck down sodomy laws as unconstitutional; however, that does not mean that queerness cannot be legally forced into the closet through legislation that removes LGBTQ+ books from public libraries. Queer sexuality is thereby silenced and erased. The only sexuality that is seen is that of heterosexual cisgender couples, who have sex for correct reasons. Inherent to this is the presence of purposeless pleasure.
Novelist Lillian Fishman in her work Acts of Service frames sapphic desire as exciting due the suspension of normative roles, “What a pleasure it was to be obvious, even if what was obvious was merely my body.” Fishman’s work revolves around the argument that sexual desire, expressed without expectations of suppression, is subversive. Fishman’s novel raises the point that even after America’s Sexual Revolution of the 1970s, we still struggle with a frank engagement with sexuality. Purposeless sex is a threat to the rigid heterosexual patriarchal expressions of desire. These legislative projects, in many ways, seek to tame eros and make desire purposeful.
The regulation of desire raises significant concerns. During the 90s, before Lawrence and the legal protection of consensual adult sexual acts in private, ACT UP organizers pointed out how the lack of government movement on AIDS research was a political act. Politicians regularly pointed towards celibacy as a way to prevent AIDS, thereby implying that AIDS deaths were a failure of self-control and linking queer sexuality to death. In much the same way that women are derided for pursuing abortions rather than practicing celibacy. By diminishing the importance of AIDS research, the State diminished the importance of queer lives, particularly gay and bisexual men’s lives. Regulating desire illustrates the importance of a specific form of life. Thereby, the increasing limitation of abortion access as well as legal actions to push queer people out of the public sphere, point towards an enhanced importance of traditional heterosexual patriarchal expressions of sexuality and of individuals who adhere to that form of life. It remains to be seen what future will emerge from this reaction to curb desire. However, if we are to engage with a political philosophy of futurity, we ought to reconsider Edelman’s suggestion that jouissance ought to replace the Child as the future. Jouissance pushes us towards a future of transgression, in which the limitations of traditional heterosexual patriarchal forms of desire are upended, and, rather than the Child, we now see the fulfilled adult as the future.
Jean-Francois Lyotard, Libidinal Economy (Bloomsbury, 2021), 19. This article is part of a larger research project on legal embodiment and sexuality.
“Parental Rights in Education,” HB 1557, 2022, https://www.flsenate.gov/Session/Bill/2022/1557
Mathew Rodriguez, “A Florida Teacher was Fired for Using ‘Mx.’ Instead of Gendered Honorific,” Them, November 13 2023, https://www.them.us/story/florida-teacher-fired-mx-complaint
Joan Walsh, “Florida Teachers Hide Their Books to Avoid Felonies,” The Nation, February 1 2023, https://www.thenation.com/article/politics/book-bans-florida-public-schools/ ; Andrea Phillips, “I’m a Teacher in Florida. Here’s What the DeSantis Book Bans Look Like in My Classroom,” Independent, February 1 2023, https://www.independent.co.uk/voices/florida-book-bans-ron-desantis-b2273922.html
Diana Foster Greene, The Turnaway Study: Ten Years, A Thousand Women, and the Consequences of Having – Or Being Denied – An Abortion (Simon and Schuster, 2021).
Lee Edelman, No Future: Queer Theory and the Death Drive (Duke University Press, 2004)