For years Ronald Dworkin has been a leading academic defender of individual rights. The political and jurisprudential theory underlying his defense has had enormous influence. Defense of the rights of homosexuals has been a prominent theme in his writings. In 1966 he published his well-known critique of Lord Devlin’s critical essay on the Wolfenden’s Committee’s recommendations that sexual relations in private between consenting homosexual adults be de-criminalized (reprinted in 1978b, ch. 10). In recent writings, he has condemned key rulings by American courts that denied certain basic rights to homosexuals. References to the rights of homosexuals are made in many of his works. But nowhere does Dworkin present a developed argument for homosexual rights. He appears to think that support for the rights of homosexuals follows naturally from his political-legal theory. But does it? If so, how? And how adequate is such a defense?

In this article, I shall examine sexual orientation as a human rights issue. The reasons why discrimination on the grounds of sexual orientation should be considered an issue of human rights have been articulated by others, and I do not propose to repeat their arguments here. Rather, I seek to examine in a more critical way some of the analytical problems that may arise in fashioning human rights protection. While the substantive goals of human rights struggles are surely commendable—freedom from persecution and from invidious discrimination, or more positively framed claims to the means necessary to live a decent life—the discourse of rights has been the subject of critique, for example, by the Critical Legal Studies movement in the United States. Rights claims, it has been argued, reinforce the separation of the individual from community. The focus on abstract rights undermines the substantive claims of groups and individuals within society by reifying formal (but ultimately alienating) individual rights. Of course, the CLS critique itself has been subjected to sustained criticism, particularly from the schools of Feminist Legal Theory and Critical Race Theory (and the intersection of the two). The CLS attack on rights is criticized for its failure to recognize both the substantive and the symbolic impact of concrete rights victories. Furthermore, it has been argued that rights struggles can be contradictory and complex.

This celebration of fidelity to oneself gives voice to a central theme of modern consciousness: the search for authenticity. The idea that there is an ‘intimate self’ whose needs cannot be fulfilled by following ‘borrowed truths’ is a familiar modern notion and one that contrasts sharply with traditional outlooks. In many pre-modern societies value was believed to be less responsive to the individual: gods, natures, or history were the sort of things that inscribed value on states of affairs, and thus on our lives. Living well was not, therefore, a matter of being true to ourselves, but being true to our creators, natures, or traditions. Moral truths were precisely those things that were borrowed; that was what made them true

Outing is conceptually linked to the notion of the “closet”; “coming out of the closet” amounts to publicly acknowledging one’s homosexuality, or at the least one’s participation in sexual activities with persons of the same sex. Outing makes someone’s homosexuality public; they are forced out of the closet, so to speak. Richard Mohr has described it this way: “outing [makes] publicly acknowledged the sexual orientation of a homosexual without regard to whether the person is willing to have this information publicly acknowledged”. Leslie Green provides this definition: “the practice of publicly exposing someone’s presumed sexual orientation, against his or her will, in circumstances where the revelation may be damaging.”

—Ursula Le Guin

Law controls sexuality not only by its coercive powers, but also through its discursive constructions. While there are other social forces and influences in play, sexual identities and sexual practices are framed within the ample reach of law’s linguistic domain. As well as enforcing prevailing moral norms and deciding the scope of socially-validated sexual behaviour, law also determines what counts as sex in the tableau of human behaviour. Although the relationship of law, sexuality and sex is always ideologically fraught, it is particularly so in regard to graphic representations of sex and sexuality. The debate around this so-called pornography hits a very sensitive nerve in the body politic. Indeed, in recent years, few social practices have managed to arouse as much intellectual angst and political anger as pornography. In part, this is because the debate seems to cut across traditional political lines; it sets traditional enemies against each other and fosters strange alliances among them. None of this should be too surprising as pornography touches profound issues which strike at the very heart of those dilemmas, difficulties and denials that comprise the human condition.

A woman awakens surrounded by four men who remove her from her bed and take her to another room. Despite protests and physical resistance, the men engage in a series of sexual acts with her. She files a complaint and the men are charged, tried, and convicted. They appeal, claiming they believed she was agreeable to their actions. They had been told by her husband that she had unusual tastes in sexual matters, and liked simulated gang rape. Because they had thought she was willing, they had not intended to rape her and therefore should not have been convicted.