Policing Queer Sexuality

Abstract

Texas considers gender-affirming healthcare child abuse. A ban on gender-affirming hormone therapy was signed into law by the governor of Arkansas in 2021, the year the Human Rights Campaign called the “worst year in recent history” for repeated legislative attacks on trans rights. In 2020, a federal appeals court overturned a city’s ban on gay conversion therapy, holding that the free speech rights of therapists predominate over the government’s interest in protecting queer adolescents. Eleven states require individuals seeking abortions to be told that the procedure causes depression, infertility, or breast cancer. None of these policies withstand scientific scrutiny. The scientific consensus says that hormone therapies are safe and necessary, that abortion does not cause psychological or physical harm, and that conversion therapy is torture and dangerous. Facts and scientific expertise are under assault in the lawmaking and adjudicative processes.

Against this backdrop of cultural retrenchment, distorted expertise, and “alternative facts” comes a page turner of legal history from Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle Over Urban Gay Life Before Stonewall. This painstakingly researched and exhaustive account of the criminalization of sexual identity from the 1930s to the 1960s is not about gender-affirming care. Nor is it about LGBTQ+ teens, conversion therapy, or abortion. Nevertheless, Vice Patrol offers powerful lessons for today’s civil rights battles, both in the courts and online. The book uses a case study of state enforcement of anti-vice laws against gay people to tell a larger story about an epistemological struggle over facts and knowledge, as well as the limits, if any, they place on power. Seen through this lens, we can push Lvovsky’s detailed and nuanced work even further than she may have imagined. In this Review, I argue that the book’s illustration of the criminal justice system’s construction of legal knowledge about queer communities in the middle of the twentieth century mirrors how two very different, yet nevertheless powerful institutions today—the state and the information industry—approach expertise and socially construct knowledge about sexuality and sexual freedom.

Keywords: LGBTQ, anti-vice laws, surveillance, legal history, content moderation, informational constitutional law, misinformation, sexuality, sexual expression, free speech, social media, abortion, conversion therapy, civil rights, constitutional law