Something Old, Something New: Reflections on the Sex Bureaucracy

33 Pages Posted: 5 Dec 2016

See all articles by Melissa Murray

Melissa Murray

New York University, School of Law

Karen Tani

University of California, Berkeley

Date Written: November 2016

Abstract

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation” — one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have persistently and robustly regulated sex and sexuality, including “ordinary sex.” Building on this more historical and nuanced portrait of America’s “sex bureaucracy,” we then identify what is truly new and striking about the slice that Gersen and Suk explore. In the Department of Education’s regulation of sex, we see clearly how consent — and specifically, affirmative consent — has replaced marriage as the boundary marker between licit and illicit sexual conduct. At a time when marriage no longer holds force as the distinguishing feature of lawful sex and sexuality, enthusiastic, unambivalent expressions of consent provide the state with documentable signals of appropriate sex and sexuality, while also, we speculate, reinforcing an ascendant neoliberal logic of citizenship and governance. In short, the “sex bureaucracy” is old, but innovative, and very much deserving of our scrutiny.

Keywords: administrative law, sexual regulation, bureaucracy, sexuality, administrative state, legal history

Suggested Citation

Murray, Melissa and Tani, Karen, Something Old, Something New: Reflections on the Sex Bureaucracy (November 2016). California Law Review, Vol. 7, No. 122, 2016, Available at SSRN: https://ssrn.com/abstract=2880256

Melissa Murray

New York University, School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://www.law.nyu.edu

Karen Tani (Contact Author)

University of California, Berkeley ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: http://www.law.berkeley.edu/php-programs/faculty/facultyProfile.php?facID=15050

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