Disciplining the Unruly: Sexual outlaws, Little Sisters and the Legacy of Butler

Abstract

This article examines the legal regulation of sex and sexuality through two landmark cases: R v. Butler, and Little Sisters Bookstore and Art Emporium v. Canada. With a focus on the ruling and arguments in Little Sisters, this article addresses Criminal and Customs prohibitions on obscene materials as an exercise in disciplinary governance, and discusses its particular effects on gay and lesbian sexuality. The Butler decision upheld the constitutionality of Criminal obscenity provisions and created the ‘community standards test’ to determine what would be considered harmful and obscene. In little sisters, Customs regulations based on the criminal provisions are challenged as discriminatory towards gay and lesbian sexually explicit materials. This article evaluates the arguments against the Butler test submitted in the Little Sisters challenge, and ultimately agrees with their conception of Butler’s harm principle as a vague, conservative and majoritarian morality unfriendly to marginal sexual expression. Finally, the article concludes that the court’s attempt to discipline marginal sexual expression as reinforced in Little Sisters will be ineffective as these sexual subjects are not disciplining themselves but are continuing to struggle, and because previously marginal sexual expression is increasingly normalized by other discourses such as mainstream media.