By Jonathan Garcia and Richard Parker
Sexual rights are said to embrace human rights that are already recognized in national laws, international human rights documents and other consensus documents. These include the right of all persons, free of coercion, discrimination and violence, to: the highest attainable standard of health in relation to sexuality, including access to sexual health including reproductive health care services; seek, receive and impart information in relation to sexuality; sexuality education; respect for bodily integrity; choice of partner; decide to be sexually active or not; consensual sexual relations; consensual marriage; decide whether or not, and when to have children; and pursue a satisfying, safe and pleasurable sexual life. The responsible exercise of human rights requires that all persons respect the rights of others (World Health Organization, 2002).
On one level, sexual citizenship can be associated to having fundamentals right to free expression and just desert. Freedom of expression usually refers to expression in the public domain, while sexuality and gender relations have typically been relegated to the private sphere. In general, the types of rights that are associated with the public sphere include political, civil, and economic liberties, which are distributed and protected by the state. The idea of sexual rights brings forth the ability to express sexual diversity in the public sphere – especially if political, civil or economic rights are contingent on sexual orientation and gender, for example. Sexual rights, in this sense can include the right to divorce, the right to marry, the right to choose sexual partner(s), the right to be protected from violence, the right to inherit, the right to adopt, and the rights to receive public services such as education and healthcare, an so forth. Often sexuality is lurking but is not acknowledged as a factor that colors our basket of fundamental rights. Thus, the conventional language of rights (if sexual rights are not included) is often heteronormative and sexist by nature – excluding parts of our selves that behave, identify, or have interpersonal relations outside of sociocultural norms. At some level, one of the strategic uses of the phrase “sexual rights” is precisely to undercut or question this heteronormativity.
If our fundamental rights are contingent on sexuality or gender, are they rights or are they privileges? We argue that a public distribution of goods that does not abide by the principle of equality is inherently unjust, and that ‘rights for some’ equates to rights for no one. If either through legal mechanisms or through stigmatization and shaming a transgender woman does not have access to health services or to employment other than sex work, then we can see concretely how infringing on sexual rights can also deny economic rights, political and civil rights. The rhetoric of rights loses its meaning if it is applied arbitrarily or according to factors such as ethnicity, gender, sexuality, class, etc. Thus, the idea of sexual rights takes into account the importance of considering sexual diversity and gender equality as key to reaching true citizenship.
On another level, it is important to re-question the division of private and public domains. Sexual violence, rape, and abuse often happen in closed quarters, and even within the sanctity of the heterosexual marriage. Who should prevent these types of rights violations? Should the state be allowed in the bedroom? Should the state become a form of barrier protection during sexual intercourse? Here is where the limitations of legal protection are most salient. What happens to rights when the state cannot clearly administrate their distribution? In many contexts, women are considered to be the property of men – essentially categorizing women as objects bereft of human dignity. These matters are further normalized as cultural or social norms in some contexts. This discussion goes without further explanation because it seems clear, prima facie, that distributing rights differentially according to gender denies citizenship to women. Even so, some argue that a cultural right (the right to express one’s culture) supercedes the right to gender equality (Saiz, 2005) This argument not only assumes that any established social order is inherently just, but it also highlights the necessity of classifying sexual rights as fundamental and inalienable.
The same reasoning can be applied to inequality based on sexual orientation or on being transgender, for example. Although diverse sexualities and forms of expression are considered abominations and dangerous to the social thread in almost all societies (primarily through the influence of fundamentalist and conservative fronts), rights should not be denied to a person because of their sexual identity, unless a harm to others can be coherently argued. Let us steer clear of those that attempt to equate sexual diversity with pedophilia and bestiality in order to avoid muddling the waters. Whereas pedophilia and bestiality may be seen to violate human or animal rights, being homosexual and/or transgender are individual lifestyles with no harm to other individuals. We argue that exposing society to diversity is not a moral crime – but conversely, dehumanizing a person based on sexuality does violate equality, freedom and human dignity. …