The Invention of Bad Gay Sex: Texas and the Creation of a Criminal Underclass of Gay People

The recent progress in the area of lesbian and gay rights in the United States has occasioned a good deal of triumphalism.¹ Many accounts, both scholarly and popular, have not only celebrated the rise of lesbian and gay rights under the Obama administration but also described what appears—at least in retrospect—to have been their steady, surprising, and inexorable expansion since the 1970s. According to that conventional narrative, lesbians and gay men have slowly but surely gained ever-greater access to full citizenship in many spheres of life.²

The received story of homosexual emancipation is not wrong, exactly. Indeed, it is hard to think of another group whose social and legal status has improved so dramatically in the last half century. Lesbians and gay men today are no longer excluded from a wide range of social and legal institutions. The federal ban on gay immigration fell in 1990; the US Supreme Court decriminalized “sodomy” between consenting adults in private in 2003; Congress repealed the military’s “don’t ask, don’t tell” policy in 2011; and gay marriage is now the law of the land. Activists hope a federal ban on workplace discrimination on the basis of sexual orientation will soon expand lesbian and gay rights even further and thereby cap, if not complete, the centuries-old struggle for gay liberation.

There is no denying that many lesbians and gay men, especially those whose sexual lives have fit comfortably within widely accepted canons of propriety, privacy, domesticity, and coupledom, have benefited significantly from these developments. Other sexual minorities, both gay and straight, have fared less well under the new progressive regime. If we view the history of lesbian and gay rights since the 1970s specifically from the perspective of sexually nonconforming individuals, including those whose welfare has actually suffered during this period, such as teenagers, sex workers, and HIV-positive people, the familiar progressive narrative starts to look like a bright pathway narrowly threaded between deep shadows.³ In what follows, I propose to retrace the history that gave rise to different outcomes for gay people whose noncoercive sexual conduct is now lawful and those whose is not and to discover the origin of one of the factors that contributed to their diverging fortunes.

We must begin by looking back to a time when most gay and much straight sex was illegal. Between 1948—the year that Harry Hay started to rally support among male homosexuals in Los Angeles who eventually formed the first homophile organization in the country (the Mattachine Society)—to 2003—the year that the US Supreme Court struck down Texas’s sodomy statute in the case of Lawrence v. Texas—gay activists and their progressive allies, along with feminists and even some conservatives, worked to invent a new standard for acceptable, nonactionable, and constitutionally protected sexual behavior.⁴ This new standard, which came to be known under the catchphrase “consenting adults in private,” was the criterion that the US Supreme Court finally enshrined into constitutional law in Lawrence. The new legal standard sanctified a specific form of gay sex—as well as all noncommercial sexual behavior between consenting adults acting in private—while continuing to disqualify by implication a wide range of behaviors that fell outside of that definition, thereby leaving them exposed to criminalization. The result was the consolidation of a new distinction between “good” and “bad” sex permitting the ongoing criminalization of sexual behavior that did not meet the new constitutional norm by increasingly punitive sex offender laws.

Beginning in the late 1970s, liberals and some feminists who were concerned with combatting rape and child sexual abuse formed an unlikely coalition with conservatives who were likewise invested in criminalizing sexual violence against women and children but also sought harsher punishments for “deviant” sexualities more broadly. Liberals and conservatives again coalesced in the 1980s to criminalize the sexual conduct of HIV-positive individuals.⁵ Together, the efforts of these groups produced a new, unprecedented war on sex offenders that targeted a whole range of...