Center for Gender & Sexuality Law
When I was living in New Haven a number of years ago, a miracle happened that drew people by the thousands to witness evidence of the Divine. A crucifix had been found to appear in the body of an oak tree in the middle of Worchester Square. I went-after all, how often do you get to see that kind of thing? Not surprisingly, at first I couldn't see anything but the usual trunk and limbs of a tree. Yet a believer took the time to show me what was really there, something that my untrained eye could not at first see: the cross upon which Jesus Christ had been crucified. Well, maybe there was something there.'
To the believers, the shape of the oak tree was evidence of something that was really there-a corporeal manifestation of an omnipresent Divine Being. For them, once you've seen the crucifix, you really can't not see it, you can't un-see it.
For most people, sex is like the Divine Being: It is an obscure and powerful domain that reveals itself in expected and unexpected places, and which is immediately visible to the trained eye. Indeed, once you see it, it's hard to look away. Like the tree in Worchester Square, the human body is an "inscribed surface"2 which is discursively marked in such a way that renders certain body parts and particular behaviors essentially sexual.
What are we seeing when we recognize something as sexual? How do we know what makes a practice sexual in nature? That is, how do we distinguish a practice which is fundamentally sexual from one which is not? I ask these questions in order to beg two more normative questions: Why do we do so, and what happens to what we "know" once we have done so? My curiosity derives from a concern that to call something sexual is at once to say too much and not enough about the meaning of a practice so named.
When men in a workplace make life intolerable for their female coworkers by calling them sexual names, putting up pictures of naked women, and touching their breasts and behinds, their conduct-unwelcome conduct of a sexual nature-is legally described as sexual harassment. When a group of male police officers viciously assault a man in their custody by shoving a toilet plunger up his anus, those cops are charged with aggravated sexual abuse. When an adult male forces a tenyear- old boy to fellate him, this man is arrested for having sexually molested a minor. These offenses receive special legal regulation by our civil and criminal laws as sexual misconduct. Yet the use of excessive violence when placing handcuffs on a suspect, the aggressive use of choke-holds, or chaining a stranger to a pipe in the basement-whatever crimes these are, they are not sex crimes.
By focusing, often exclusively, on what we regard to be the sexual aspect of conduct of this kind, we tend to ignore or eclipse the ways in which sex operates "as an especially dense transfer point for relations of power"3 -often gender, race, or sexual orientation-based power. For a complex set of reasons, we almost intuitively label some behavior as sexual-take workplace sexual harassment for instance. Yet, if pressed, most people would not be able to either identify or defend a set of criteria they apply in such nominalist moments. To uncover a satisfactory and stable definition of sex is, to borrow an expression from Abraham Lincoln, like undertaking to shovel fleas: "You take up a shovelful, but before you can dump them anywhere they are gone."' It is the initial regulatory move, the marking of behavior as fundamentally sexual, that I want to interrogate. If it is in fact true that "there is not some ahistorical Stoff of sexuality, some sexual charge that can be simply added to a social relationship to 'sexualize' it in a constant and predictable direction, or that splits off from it unchanged,"' then it is worth asking what we are doing and what we are missing when we assume that such Stoff exists.
The questions I ask directly here are ones I first considered in my earlier work on sexual harassment. In What's Wrong With Sexual Harassment?, I explored how workplace sexual harassment could be a species of sex discrimination.6 I criticized both courts and commentators who identified the wrong of sexual harassment to lie in the sexual nature of the conduct.7 Rather, I argued, sexual harassment must be understood as a technology of sexism, that is, as a tool or instrument of gender regulation which feminizes women as sexual objects and masculinizes men as sexual subjects.8
Katherine M. Franke,
Putting Sex to Work,
Denv. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/402