I have, on at least two occasions, broken the law while having sex. No, not by engaging in non-consensual behaviour but by engaging in consensual same-sex sex with another adult male. One country was in Asia. Another was here in Africa. The sex was great; thanks for asking. No one was harmed in the process (it wasn’t kinky either if you must know). In both countries, the law criminalised same-sex sex.
Think (not too graphically) about that: two adults, not harming anyone, and in private, giving expression to their sexual identities in mutually enjoyable sexual activity. In other words, two grownups simply being human. And yet an elementary feature of their humanity meant they — we — could have been jailed if the moral police stormed the room, and busted us.
How is a homophobe harmed by what queer people do behind closed doors? You are not. The entire history of penal codes that outlaw same-sex desire and sex is a history of oppression that was never justified and can never be justified. If you are straight, ask yourself what it would mean for you to have sex tonight knowing you are breaking the law? You will struggle to even imagine what it feels like because it is not your daily reality. That is why there is no history of “Straight Pride”. Because a world premised on only recognising the humanity and dignity of some bodies is not a world in which every group has a burden to mobilise against oppression and for equality and justice.
In our world, that is the reality for queer people. No one should have consensual sex worrying whether their would be orgasm may be disrupted by an overzealous cop or a mob ready to stone them, ostracise them, lock them up — or even just laugh at them.
It isn’t homosexuality that causes anxiety and mental ill health. It is persecution that creates the conditions ripe for many queer people to experience a spectrum of mental health difficulties including depression and suicidality. The proper diagnosis of the impoverished qualities of lives many queer people live is that homophobia and oppression kill; not being queer as such. We get the analysis the wrong way around, deliberately, to avoid confronting the source of the problem: oppression.
Today’s landmark ruling in Botswana shouldn’t be reported as a “victory for queer people”. It is a “victory for all people”.
Our collective humanity is what shines through when the human rights of minorities are affirmed. No straight person should ever feel happy to be free of persecution for as long as many queer people are persecuted. Landmark judgments like this one should properly be understood as being politically and morally important for all of us.
We should also recognise the project of equality to be both legalistic and non-legalistic in nature. Absolutely it is profoundly important for me to know that if I have gay sex in Botswana, the state does not view me as a criminal. How the state views citizens, matters. At the same time, South African gay rights jurisprudence reminds us that we need both top-down and bottom-up approaches to activism. In our families, communities, churches and society at large we need to challenge attitudes that lag behind progressive court rulings so that laws and judgments can be living and breathing sources of dignity-conferring texts. The law matters. But the war against oppression also requires work outside the courts.
That said, the legal violence that is meted out by states that criminalise same-sex desire is so morally odious that we must celebrate every state that strikes down oppressive laws.
The state has no business policing what consensual adults do when they give expression to their deepest sexual desires. No couple should be guilty of making love.