How do courts make decisions about people’s sexualities? That is the question at the core of my recent book, Sorting Sexualities: Expertise and the Politics of Legal Classification. The deceptively simple answer is… it depends.

In my book, I examine how courts classify individuals’ sexualities in two legal domains that seem diametrically opposed: LGBTQ asylum law and sex offender civil commitment law.* Yet both settings present the same question: how do we know someone’s sexuality?

I find that courts answer this question in dramatically different ways in these two legal arenas, and that the way they answer depends on a host of factors, including the way we culturally define the subjects under scrutiny and, importantly, the type of expertise that informs legal decision making. This has important implications for the forms of social control we exercise over these different sexual populations and for the reach of the state’s power.

LGBTQ asylum seekers must prove to adjudicators that they are queer in order to attain the protection that asylum affords. But how do they do that? Until recently, adjudicators would often resort to gendered stereotypes of the effeminate gay man or the butch lesbian to decide if someone was truly queer. Yet we know that such stereotypes are inaccurate and, moreover, that they are based on US notions of gender expression. Over the years, advocates for LGBTQ asylum seekers formed a powerful network of academic experts (mostly anthropologists and sociologists), lawyers, and human rights activists that reoriented the law away from this focus on the body and toward narrative accounts of one’s sexual identity.

This movement, I argue, makes more room for the cultural specificities of sexualities and identities in a way that hackneyed bodily stereotypes do not. In this way, asylum advocates have been able to expand the range of sexualities and sexual expressions that can be protected under asylum law (i.e., from gay men to lesbians to bisexual people to trans folks) and have also moved standards of proof away from a focus on the body.

In the legal domain of sex offender law, we see a very different story. Here, courts must determine what a sex offender’s sexuality is and whether it poses a risk to society. Where asylum law now depends on narrative proof of one’s sexuality contextualized within specific cultural settings, sex offender law remains heavily reliant on bodily indicators of sexuality and “universal” technologies thought to apply across cultural lines. But much like the legal domain of asylum, proof of sexuality in sex offender law is determined in large part by the experts who inform courts—in this case, forensic psychologists.

One of the most startling of these technologies is the penile plethysmograph, or PPG. The PPG essentially consists of a silicone ring that is placed around a man’s penis, which is connected to a device that monitors the level of engorgement of the penis. The man is shown pornography or listens to pornographic audio vignettes, and his penile response is gauged. This is understood to be a straightforward measure of sexual arousal and thus of sexual attraction. So, if a man exhibits a penile response to a vignette involving an underage child, he is presumed to be a pedophile (notably, pedophilia is often considered to be akin to a sexual orientation among forensic psychologists).

These different technologies of knowing sexuality imply divergent understandings of what sexuality is. Is it something that can be known via one’s bodily response? Is penile tumescence really an indicator of sexual orientation? Is sexual attraction and response universal or culturally specific? The different experts who weigh in on asylum and sex offender adjudications answer these questions very differently. While anthropologists and sociologists tend to see sexuality as socially structured and dependent on a range of cultural and social factors, forensic psychologists tend to view sexuality as a more individual phenomenon.

These differing views of sexuality, in turn, have implications for how we manage these sexual populations. If we see sexuality as more expansive and socially structured, as asylum law tends to do, then we make more room for protecting a range of sexual subjects. This view is more in line with the mandate of asylum law to offer humanitarian protection. Conversely, if we see sexuality as an individual attribute, it is easier to assign blame and punish that individual. This is more in line with the punitive aims of the criminal legal system.

At a broader level, however, how we govern sexuality also affects how (and how widely) the state wields power. As the examples of asylum and sex offender law show, sexuality is a little-recognized mechanism for the exercise and expansion of state power. Sexuality serves to expand the state’s reach more broadly over populations and more deeply into individual bodies. This is not a new phenomenon, but it is one that is taking on more and more significance as governments limit the freedoms of LGBTQ communities, curtail reproductive rights, and endanger sex workers through misguided laws. If we are to understand the full reach and range of state power, we cannot ignore the role of sexuality in exercising that power.

By Stefan Vogler

Stefan Vogler is a research scientist at NORC at the University of Chicago. His research focuses on gender, sexuality, and the law. His newest project examines LGBTQ experiences with and attitudes toward law enforcement.

@svogler17

Vogler, Stefan. 2021. Sorting Sexualities: Expertise and the Politics of Legal Classification. Chicago: University of Chicago Press.

*As a brief aside for those who see these two cases as not comparable, it is worth noting that until 2003 with the Lawrence v. Texas Supreme Court decision, gay people were considered sex criminals in nearly half of the U.S. Still today, conservative politicians and pundits continue to link homosexuality and sexual criminality, especially pedophilia. Thus, part of the point of comparing institutional responses to different forms of sexualities is precisely to understand how the cultural lenses of criminalization and medicalization affect how we understand and govern sexuality and sexual populations. For a fuller explanation of how these two cases inform each other, I would refer you to Chapter 1 of my book.