Defining and Regulating the Boundaries of Sex and Sexuality

Abstract

Sex and sexuality are contentious concepts, blending the deeply personal with the pro- foundly political. They concern most of us in our private spaces of fantasy and mean- ing, relationships and families, pleasure and pain, creation and loss. But sex and sexuality are not solely private matters; with conceptual boundaries moving and being transgressed, they have increasingly been brought into public life and contested in the courts. Should we press on with this use of the law, or not? This special issue of the Medical Law Review looks at cutting-edge medical and legal aspects of sex and sexuality.

Full text

EDITORIAL: DEFINING AND
REGULATING THE BOUNDARIES
OF SEX AND SEXUALITY
NATHAN HODSON
1,
*, BRIAN D. EARP
2
,
LYNNE TOWNLEY
3
AND SUSAN BEWLEY
4
1
Harvard TH Chan School of Public Health, Harvard University, 677 Huntington Avenue, Boston, MA 02115, USA
2
Yale-Hastings Program in Ethics and Health Policy, Yale University, New Haven, CT 06511, USA and The Hastings Center,
Garrison, NY 10524, USA
3
Department of Law, The City Law School, University of London, EC1V 0HB, London, UK
4
Department of Women and Children’s Health, King’s College London, London SE1 7EH, UK
KEYWORDS: Gender, Intersex, Paedophilia, Sexuality, Sex, Surrogacy, Transgender
I. INTRODUCTION
Sex and sexuality are contentious concepts, blending the deeply personal with the pro-
foundly political. They concern most of us in our private spaces of fantasy and mean-
ing, relationships and families, pleasure and pain, creation and loss. But sex and
sexuality are not solely private matters; with conceptual boundaries moving and being
transgressed, they have increasingly been brought into public life and contested in the
courts.
1
Should we press on with this use of the law, or not? This special issue of the
Medical Law Review looks at cutting-edge medical and legal aspects of sex and
sexuality.
Sex, a biological classification of human, other mammalian, and non-mammalian
bodies, has extensive sociopolitical and cultural baggage beyond its putative function
of referring to (and drawing divisions on the basis of) clusters of reproduction-related
bodily features. Sexuality, by which we mean the whole landscape of one’s sexual
desires and activities, has also been decoupled from reproduction in various ways over
the last half-century or more. Section II offers an explanation of the biological territory
on which current arguments and future legal cases may be fought (and can be skipped
by those with a detailed understanding of the science already). Section III considers
regulation. In Section IV, we explain some difficult choices facing us as a society and
the interaction of the various articles in this issue.
V
CThe Author(s) 2019. Published by Oxford University Press; All rights reserved.
For permissions, please email: journals.permissions@oup.com
* Nhodson@hsph.harvard.edu
1 See eg M Weait, ‘Limit Cases: How and Why We Can and Should Decriminalise HIV Transmission,
Exposure, and Non-Disclosure’ (2019) 27(4) Med L Rev 576–96.
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Ultimately, we suggest that law does have a role to play in sex and sexuality, but
that it should aim to steer a path between (i) untethered individualism in how these
concepts and categories manifest in the public sphere and (ii) dogmatic conservatism,
masquerading as realism, that artificially and oppressively constrains such manifesta-
tions. We focus on the UK context to frame our discussion.
II. THE BOUNDARIES OF SEX
For the purposes of this special issue, sex is a biological category that seeks to make a
principled distinction between those members of a sexually reproducing species, such
as our own, who usually produce eggs (females) or sperms (males).
2
This division is
not tidy (there are members of our species who are neither entirely male nor female
along various dimensions, or who exhibit a mix of male and female sex-related fea-
tures),
3
nor without controversy (the appropriate criteria for drawing sex-based dis-
tinctions in the first place are increasingly contested).
4
The UK Equality Act 2010
describes sex as ‘a reference to a man or a woman’,
5
but neither defines these catego-
ries nor indicates the features by which a ‘man’ or ‘woman’ is to be identified. In sec-
tion 7 of the Act, the protected characteristic of ‘gender reassignment’ is described in
general terms as ‘reassigning a person’s sex by changing physiological or other attrib-
utes of sex’, but the only details given are that sex is something which has attributes
and makes one a man or woman.
6
Where, then, should one begin when defining sex? To start to see the contours of
sex as a biological classification, we will commence with some basics. Any complex or-
ganism, or collection of organisms, situated within a given physical and social environ-
ment or ecological niche has many potentially salient features. There are, in principle,
myriad ways to classify such an organism based on its features, either alone or in rela-
tion to its environment, and which features are most appropriate (eg useful) for
grounding a given classification depends on the purpose(s) of the classification.
Biological classifications of sexually—as opposed to asexually—reproducing organ-
isms tend to be concerned with a certain kind of explanation: specifically, a physical or
functional explanation of how sexual reproduction causally occurs, primarily at the
level of cells, anatomy, and behaviour. Accordingly, the features or attributes of a sexu-
ally reproducing organism that are most salient to biologists—and judged to be most
useful for grounding classifications for the purposes of biological research—are those
that, among other things, appear to best explain the phenomenon of interest at the de-
sired level of abstraction.
7
For individual organisms whose physical development
2 In this respect sex is sometimes contrasted with gender, an equally if not more contentious concept, com-
monly taken to refer to psychosocial scripts, expectations, meanings, or relational experiences associated
with, but nevertheless distinct from, sex or sex-based categorisations. For reasons of space we will not be
able to explore the concept of gender in this editorial, but will instead focus solely on sex and sexuality.
3 T Jones, ‘Intersex Studies: A Systematic Review of International Health Literature’ (2018) 8(2) Sage Open
1.
4 C Ainsworth, ‘Sex Redefined’ (2015) 518(7539) Nature News 288.
5 The Equality Act 2010, s11a.
6 ibid, s7.
7 Two points of clarification. First, there may, of course, be other legitimate purposes for which classification
on the basis of other features—or the same features in a different way—would be more useful or appropri-
ate than the purpose described here. Secondly, biologists, like all scientists, are historically situated human
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begins with the union of an egg and sperm, there is typically a set of functionally re-
lated features that cluster together (both structurally in anatomical space and mathe-
matically in statistical space) into one of two main groupings; these feature-clusters
are by linguistic convention referred to as male or female. All human beings were
born and all will die. However, not all will reproduce or leave living offspring, whether
by choice, chance, or misfortune. When reproduction does occur, the resulting off-
spring’s unique genetic configuration
8
originates from one egg and one sperm: two
cells that are highly distinct and differentiated in form and function.
Consider first the ‘female’ cluster of reproduction-related features. The so-called
primary sex characteristics typically associated with egg-producing humans are ovaries,
uterus and fallopian tubes, vulva, and vagina. Most of these organs are internal and
not visible. The reproductive lifespan is marked by signs that are more visible: the on-
set and ceasing of menses (periods), the pubertal then cyclical and menopausal body
changes, potentially interspersed by the non-ovulatory states of pregnancy and breast-
feeding. Histologically, ovaries include follicles in which ova mature, as well as stroma
(the surrounding material). The endocrine function of ovaries includes cyclical pro-
duction of progesterone and oestrogen, as well as testosterone (albeit at lower levels
on average than are usually produced by testes, described below). The clitoropenis of
the egg-carrying (female) class of organisms is largely internal, including relatively re-
cently understood complex erectile structures,
9
with a small external part and a sepa-
rate urethra.
10
As corroborated by people with only one sex chromosome (so-called
Turner syndrome, XO), nearly everyone without an SRY gene—which is usually car-
ried on the Y chromosome—will count as biologically female on this classification sys-
tem (that is, the vast majority of those who do not have a Y chromosome, assuming
typical development).
In the presence of an SRY gene, sperm-producing testes typically develop rather
than ovaries. In addition to internal prostates, the primary sex characteristics of these
SRY humans are testes and penises. Testes are gonads (gamete-producing organs) that
include Sertoli and Leydig cells, which produce sperm and relatively high levels of tes-
tosterone. A penis is an enlarged, primarily external clitoropenis (the clitoris and penis
begin as the same structure in early fetal development and this structure typically only
diverges in utero in response to the presence of testosterone). A necessary but not suffi-
cient condition for the sperm-conveying (male) organism to reproduce—that is, pass
its genes to the next generation—without the aid of technology, is that its penis must
beings operating within cultures. As such, the guiding assumptions of their research and associated means of
pursuing and interpreting empirical findings, including those that may factor into their classification systems,
are influenced by the beliefs and biases of the culture(s) in which they have been socialized and conduct
their work. Thus, implicit or explicit sociopolitical factors have long affected biological research. For an ex-
cellent discussion of some of these factors in shaping biological sex and sexuality categories, see V Sanz, ‘No
Way Out of the Binary: A Critical History of the Scientific Production of Sex’ (2017) 43(1) Signs 1 and B
Bagemihl, Biological Exuberance: Animal Homosexuality and Natural Diversity (St Martins Press 1999). For
further, related discussion, see BD Earp and DM Shaw, ‘Cultural Bias in American Medicine: The Case of
Infant Male Circumcision’ (2017) 1(1) J Pediatr Ethics 8.
8 With the exception of monozygotic twins or triplets.
9 HE O’Connell, KV Sanjeevan and JM Hutson, ‘Anatomy of the Clitoris’ (2005) 174(4 Pt 1) J Urol 1189.
10 J Abdulcadir and others, ‘Sexual Anatomy and Function in Women With and Without Genital Mutilation:
A Cross-sectional Study’ (2016) 13(2) J Sex Med 226.
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have a central urethra that opens near the tip of the organ through which semen (and
urine) pass. This structural and functional arrangement typically follows from the pres-
ence, properties, and potential of the SRY gene (in concert with a host of other factors)
which, as noted, is normally on the Y chromosome. Hence, nearly everybody with an
SRY gene—and therefore the vast majority of those who have a Y chromosome, assum-
ing typical development—will count as biologically male on this classification system.
There are some exceptions. Indeed, there has long been recognition of persons
whose visible sex characteristics were neither clearly female nor male according to the
then-prevailing mode of external classification. But during the twentieth century, with
greater scientific understanding, interest in statistically less common and functionally
atypical sex-development pathways grew. This led to a marked increase in research on
individuals with one or more of a range of variations in genetic, chromosomal, hor-
monal, and gonadal sex-linked characteristics. Having been characterised by a variety
of nomenclature variously considered medicalising or denigrating, these variations are
now collectively referred to as differences of sex development (DSD).
11
Some (but not all) people with some (but not all) recognised DSD identify as ‘in-
tersex’.
12
By ‘identify’ we mean that they refer to themselves as such and typically take
their embodied existence to be most appropriately characterised in such terms. Those
who are unfamiliar with the biological dimensions of DSD but who hear the term ‘in-
tersex’ may think of a person whose sexual anatomy—primarily, external genitalia—
are visibly indeterminate between (i) a characteristically female vulva, including the
small, visible, external portion of the clitoropenis (or clitoris), inner and outer labia,
and vaginal opening and (ii) a characteristically male penis-and-scrotum. Or they may
think of someone whose external genitalia are more or less characteristic of one sex,
but whose internal sex-typed features (eg chromosomes or gonads) are characteristic
of the other sex. A proportion of those with DSD do, indeed, fit something like these
descriptions, although precise estimates garnering widespread agreement among
experts are not available. Nevertheless, current evidence suggests that the majority of
those with a DSD exhibit most, or in some cases, nearly all, of the relevant feature-
cluster components corresponding to one sex category or the other, with only a small
proportion of these components being either indeterminate or characteristic of the
other sex category.
13
This biological framework therefore places most humans, at birth, into one of two
distinct sex categories marked by the future projected production of binary gametes:
egg or sperm. It thus contrasts with a recent claim that biological sex is a spectrum, in-
sofar as that phrasing suggests that the various components of the feature-clusters out-
lined above fall evenly or continuously
14
along a gradient line; that is, in a fully
11 Historical literature and some in the medical community use DSD to mean ‘disorders’ of sex development.
We will use the value-neutral ‘differences’ variant.
12 E Koyama, ‘From “Intersex” to “DSD”: Toward a Queer Disability Politics of Gender’ (2006) <http://
www.intersexinitiative.org/articles/intersextodsd.html>accessed 6 November 2019.
13 See eg PR Lee and others, ‘Global Disorders of Sex Development Update Since 2006: Perceptions,
Approach and Care’ (2016) 85(1) Horm Res Paediatr 158 and L Sax, ‘How Common Is Intersex? A
Response to Anne Fausto-Sterling’ (2002) 39(3) J Sex Res 174.
14 A naturally occurring spectrum might be one like a rainbow (with equal parts of the visible light spectrum),
or it might be a range (like height) with a normal distribution.
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distributed mix-and-match fashion. That is not the case. Rather, the vast majority
(likely above 99%)
15
of Homo sapiens exhibit a concordance of chromosomes, genes,
hormones, and internal and external anatomy that positions them fairly unambigu-
ously on one side or the other; or more accurately, within one of the two clusters of
reproduction-related physical attributes occurring in multi-dimensional anatomical
and biological space.
16
Recent advances in technology make it possible to intervene in, and alter, some of
the individual components of the sex-related feature-clusters we described above. In
addition to surgical alteration of primary sex characteristics,
17
such interventions may
include alterations to secondary sex characteristics (whose development is typically
completed by the end of puberty), for example, by changing the differential hormone
profiles that determine hair growth and distribution, breast development, onset of
menses, voice deepening, maturation of reproductive organs, and brain development.
Alongside social, psychological, and behavioural modalities, these surgical and hor-
monal measures render the boundaries of biological sex—and their composition over
the course of development—increasingly porous and pliable in modern times. As
such, voluntary boundary-crossing (commonly referred to as ‘sex reassignment’) is an
achievable outcome along certain dimensions.
Due to the complex, interlocking nature of these biological and other dimen-
sions, and given the current state of the technology, such interventions are not,
however, risk-free, whether from a physical, psychosexual, or mental health per-
spective. For example, they may risk negative effects on sexual pleasure or impair
future fertility, which would count as harms to someone who valued those experi-
ences or capacities, or who might value them in the future upon reaching maturity.
Moreover, the background motivations, personal and social meanings, and conse-
quences of the interventions for the affected individuals, their families and commu-
nities (both given and chosen), and society at large remain controversial and
politicised.
18
The existence of these internal and external risks and controversies
suggests that a robust, fair-minded conversation about the appropriate policies and
laws, ethical standards, and forms of regulation relating to medical interventions
into biological sex-related features is needed.
15 ibid.
16 N Hodson, ‘Sex Development: Beyond Binaries, Beyond Spectrums’ in M Moore and H Brunskell-Evans
(eds), Inventing Transgender Children and Young People (Cambridge Scholars Publishing 2019).
17 Classically, since 1950s, a binary sex ‘assignment’ was made on intersex children shortly after birth, but this
has been increasingly questioned, especially regarding timing of surgery and sex of rearing, since the 2006
consensus statement: PA Lee and others, ‘Consensus Statement on Management of Intersex Disorders’
(2006) 118(2) Pediatrics e488.
18 D Cohen and H Barnes, ‘Gender Dysphoria in Children: Puberty Blockers Study Draws Further Criticism’
(2019) 366 BMJ l5647; C Richie, ‘A Queer, Feminist Bioethics Critique of Facial Feminization Surgery’
(2018) 18(12) Am J Bioeth 33; M Priest, ‘Transgender Children and the Right to Transition: Medical
Ethics When Parents Mean Well But Cause Harm’ (2019) 19(2) Am J Bioeth 45; F Ashley, ‘Watchful
Waiting Doesn’t Mean No Puberty Blockers, and Moving Beyond Watchful Waiting’ (2019) 19(6) Am J
Bioeth W3.
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III. LEGAL DEFINITIONS OF SEXUALITY
In prevailing discourses, sexuality is often discussed, described, and (ostensibly) un-
derstood in terms of sexual orientation—another contested concept.
19
The UK
Equality Act 2010 defines sexual orientation in a circular way:
Sexual orientation means a person’s sexual orientation towards—
(a) persons of the same sex,
(b) persons of the opposite sex, or
(c) persons of either sex.
20
In addition to its circularity, another problem with this definition is that it rests upon
the notion of ‘sex’ which, as noted above, the Act itself does not clearly or coherently
define. For the purposes of this special issue, sexuality will be understood as referring
simply to ‘all the ways people experience and express themselves as sexual beings’.
21
We see this as a richer, broader concept, which encompasses sexual orientation but
goes beyond it to include various other aspects of a person’s sexual sensations, disposi-
tions, and behaviour. It therefore includes qualitative experiences of desire or pleasure,
pursuit of these in particular activities, and other facets. But what is it about these
desires, activities, etc., that makes them sexual as opposed to something else?
UK law defines the realm of the sexual broadly. On the reductive, negative side,
section 78 of the Sexual Offences Act 2003 defines two ways that an activity can be
sexual.
For the purposes of this Part (except section 71), penetration, touching or any
other activity is sexual if a reasonable person would consider that
(a) whatever its circumstances or any person’s purpose in relation to it, it is be-
cause of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or
the purpose of any person in relation to it (or both) it is sexual.
22
This definition seeks to encompass a wide range of inherently sexual activities or phe-
nomena, as well as contingently or circumstantially sexual activities or phenomena,
based upon what a ‘reasonable person’ would consider to fall within the scope of the
concept. This aspect of the definition gives room for judges and juries, for example, to
19 LM Diamond, ‘What Does Sexual Orientation Orient? A Biobehavioral Model Distinguishing Romantic
Love and Sexual Desire’ (2003) 110(1) Psych Rev 173. See also BD Earp, ‘Can You Be Gay By Choice?’ in
D Edmonds (ed), Philosophers Take on the World (OUP 2016) 95–98; BD Earp and J Savulescu, Love
Drugs: The Chemical Future of Relationships (Stanford UP 2020).
20 The Equality Act 2010, s12(1). For an extensive critique of current prevailing understandings and classifica-
tions of sexual orientation, see RA Dembroff, ‘What is Sexual Orientation?’ (2016) 16(3) Phil Imprint 1.
Dembroff asks what it would mean for a non-binary or intersex person to be sexually oriented towards
someone of the ‘opposite’ sex, and suggests that sexual orientation should be defined in terms of the rele-
vant attributes of the person(s) to whom one is sexually attracted, rather than by reference to one’s own
attributes and a judgement about whether these attributes are relevantly ‘the same’ or ‘opposite’ to those of
potential or desired sexual partners.
21 J Ferrante, Sociology: A Global Perspective (Cengage Learning 2014) 207.
22 Sexual Offences Act 2003, s78. We note that this definition omits a wide range of possible sexual activities.
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interpret activities as sexual by their own lights and standards. In RvH, the defendant
sexually propositioned the victim, attempting to pull her towards him by the pocket
of her tracksuit.
23
The Court of Appeal held that, in interpreting section 78(b), the
jury had to consider two questions; first, did they consider that the touching could be
sexual? Secondly, in the circumstances of this particular touching, did they consider
that it was sexual? Given that section 79(8(c)) of the Sexual Offences Act 2003
includes touching ‘through anything’, contact with the victim’s clothes was within the
scope of sexual assault.
24
Thus, the legal definition appears to be flexible and expansive
enough to be useable for at least some important practical purposes; in this case, iden-
tifying a sexual assault.
Attempts to define ‘sexual’ in a more substantive way have also been made.
Primoratz, for example, argues that the concept has both a narrow biological and a
more holistic (as in whole-person) dimension.
25
Most people are regarded (and re-
gard themselves) as sexual beings in some sense; yet, at the same time, there are
certain specific body parts—including those that appear within the biological feature-
clusters outlined above—that are also widely regarded as sexual.
26
Primoratz attempts
to link these body parts with the whole person to interpret the embodied sexuality of
the self, arguing that sexual pleasure is best understood as ‘the sort of bodily pleasure
experienced in the sexual parts of the body, or at least related to those parts in that if
it is associated with arousal, the [experience of] arousal occurs in those parts’.
27
This
definition accounts for both the sexual (body) parts and the sexual whole (person).
28
Likewise, Jacobsen gives a definition of sexual desire that similarly depends on sexual
arousal, namely: ‘a subject’s desire for something—some activity, person, or object—
in virtue of the effect that it is expected to have on the subject’s own states of sexual
arousal’.
29
Such bridging of subjective sexuality (as experienced by the person) and
bodily functions or sensations rooted in biology, is a point of overlap between the two
approaches.
In a similar vein, we see sexuality as a convergence of (i) a subset of the biological
features described previously and (ii) certain socially-mediated subjective mental
states
30
(desire, pleasure, and so on) that are (iii) experienced as being tied to or
rooted in those biological features.
Needless to say, the biological and psychosocial dimensions of sexuality do not al-
ways cohere in a way that promotes the robust well-being of the person in whom they
23 [2005] EWCA Crim 732.
24 The Sexual Offences Act 2003, s79(8(c)).
25 I Primoratz, Ethics and Sex (Routledge 1999) 46.
26 Brussels Collaboration on Bodily Integrity, ‘Medically Unnecessary Genital Cutting and the Rights of the
Child: Moving Toward Consensus’ (2019) 19(10) Am J Bioeth 17.
27 Primoratz (n 25).
28 This is similar to the proposal regarding gender recently articulated by Alice Eagly, who asks how ‘social,
self, and biological causes together produce the phenomena of gender’. AH Eagly, ‘The Shaping of Science
By Ideology: How Feminism Inspired, Led, and Constrained Scientific Understanding of Sex and Gender’
(2018) 74(4) J Soc Issues 871.
29 R Jacobsen, ‘Objects of Desire’ in G Foster (ed), Desire, Love, and Identity: Philosophy of Sex and Love (OUP
2017) 36.
30 S Johnsdotter, ‘Discourses on Sexual Pleasure after Genital Modifications: The Fallacy of Genital
Determinism (a response to J. Steven Svoboda)’ (2013) 3(2) Glob Disc 256.
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converge (or in some cases, the well-being of others).
31
In particular, tensions may ex-
ist between certain aspects of our physical sexual bodies and our socially situated sex-
ual selves. For example, some of the embodied beings discussed in this special issue
are especially vulnerable to acts, contexts, or environments that facilitate or protect
against acquisition of the HIV virus,
32
while others may be employed to conceive and
gestate a baby that is intended to be handed over and raised by someone else.
33
Some
are attracted primarily to pre-pubescent children,
34
while others may have been
shaped by statistically atypical processes of sexual development resulting in a DSD.
35
Still others may seek to intervene actively in their sexual development in order to har-
monise certain aspects of their bodies and minds in a given social context—for exam-
ple, by pursuing hormonal therapy.
36
Finally, each of these embodied beings has the
potential to manifest their sexuality in ways that are socially, legally, ethically, or politi-
cally salient, in some cases raising the prospect of (some form of) regulation.
IV. CURRENT AND POTENTIAL REGULATIONS OF SEXUALITY
Regulation of (expressions of) sex and sexuality, especially by way of formal legisla-
tion, has become increasingly contentious in recent years.
37
Apart from prohibitions
on adult sexual contact with children, which are widely supported across the political
spectrum, proposed or actual restrictions on adults’ putatively voluntary, consensual
choices about what to do with (or have done to) their sexual bodies have been met
with harsh resistance by more and more people.
38
This has especially been true of po-
litical progressives ever since ‘liberation’ became a watchword over the last 50 years.
Improvements in contraception reduced the risk of unwanted pregnancy following
vaginal–penile intercourse, meaning that sex outside of heterosexual marriages and for
pleasure became ‘safer’ (in some senses) and generally more socially acceptable or at
least tolerated. Recognition of human rights for previously vilified sexual minorities
has rapidly advanced. A new generation of women citizens were raised with the (rela-
tive) freedom to defy traditional sexual boundaries, including second-class positioning
within social hierarchies. In the England and Wales, the development of hormonal
contraception was followed by the Abortion Act 1967, both of which helped to re-
moved key social and health risks associated with sex not intended for procreation, in-
cluding, for women, health-threatening pregnancies or bearing children at a personally
31 Earp and Savulescu (n 19).
32 Weait (n 1).
33 N Hodson, L Townley and BD Earp, ‘Removing Harmful Options: The Law and Ethics of International
Commercial Surrogacy’ (2019) 27(4) Med L Rev 597–622.
34 J Danaher, ‘Regulating Child Sex Robots: Restriction or Experimentation’ (2019) 27(4) Med L Rev 553–
75.
35 E Reis, ‘Did Bioethics Matter? A History of Autonomy, Consent, and Intersex Genital Surgery’ (2019)
27(4) Med L Rev 658–74.
36 T Murphy, ‘Adolescents and Body Modifications for Gender Identity Expression’ (2019) 27(4) Med L Rev
623–39.
37 Eg BD Earp and OM Moen, ‘Paying for Sex—Only for People with Disabilities?’ (2016) 42 J Med Ethics
54 and N Hodson and S Bewley, ‘How Language Hides Violence Against Girls’ (2019) 81(5) JAIDS e162.
38 S Jahnke, ‘Stigmatization of People with Pedophilia: Two Comparative Surveys’ (2015) 44(1) Arch Sex
Behav 21, S Wright, ‘De-pathologization of Consensual BDSM’ (2018) 15(5) J Sex Med 622; see also
ProCon, 29 March 2018 <https://prostitution.procon.org/view.resource.php?resourceID¼000121>
accessed 2 October 2019.
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or socially unacceptable time. The Sexual Offences Act of 1967 decriminalised homo-
sexual acts in private between two men over the age of 21,
39
and was followed by fur-
ther changes in citizenship, equal treatment in the law, and formal relationships of
civil partnership and marriage, for persons of the same sex.
40
By and large, these
deregulations of sex and sexuality have been both politically sound and morally neces-
sary. It might be assumed, especially by those with liberal or laissez-faire political views,
that further deregulation can only enrich society.
However, significant regulation of sex and sexuality pertaining to legal minors, and
especially to prepubescent children, still exists and—as noted above—is widely sup-
ported. Attempts to elide paedophilia and newly deregulated expressions of sexuality
have largely been unsuccessful.
41
As society increasingly accepted homosexuality in
the latter part of twentieth century, pro-paedophilia groups sought to realign them-
selves with ascendant movements, with the prominent paedophile advocacy group,
the North American Man/Boy Love Association, deliberately blurring the lines be-
tween gay rights and child abuse, claiming ‘man/boy love is by definition homosex-
ual’.
42
In the UK, the Paedophile Information Exchange advertised in Gay News and
other gay newsheets which, over time, moved to exclude the organisation.
43
As society
accepted the sexual liberation of adults, culture and law remained resolutely opposed
to sexual relationships between adults and children, although paradoxically often
remaining deaf to the stories of abuse that children would tell about family members,
teachers, clergy, and other exploiters.
44
Sex is not an unmitigated good, depending on the context and the manner in
which it is pursued; ranging from simple accidents or injuries to outright crimes (such
as assault or rape), as well as other forms of abuse or exploitation (a persistent as-
sumption within concerning pornography and prostitution). When harms do occur,
they often disproportionately affect the poor, children, women, ethnic minorities, and
migrants. In recent years, there have been some cultural moves towards an increased
willingness to regulate sexuality and its potential harms more effectively. The
#MeToo movement has highlighted how sexual behaviours between adults with ca-
pacity can still be problematic when steeped in certain power imbalances inherent to
patriarchy and capitalism.
45
Prosecutions of historic child sex offences have been
39 Sexual Offences Act 1967.
40 Civil Partnership Act 2004 and Marriage (Same Sex Couples) Act 2013.
41 K Richards, ‘Born This Way? A Qualitative Examination of Public Perceptions of the Causes of Pedophilia
and Sexual Offending Against Children’ (2018) 39(7) Deviant Behav 835; see also BD Earp, ‘Pedophillia
and Child Sexual Abuse are Two Different Things—Confusing Them is Harmful to Children’ (J Med Ethics
Blog, 11 November 2017) <https://blogs.bmj.com/medical-ethics/2017/11/11/pedophilia-and-child-sex
ual-abuse-are-two-different-things-confusing-them-is-harmful-to-children/>accessed 6 November 2019.
42 J Gamson, ‘Messages of Exclusion: Gender, Movements, and Symbolic Boundaries’ (1997) 11(2) Gender
& Soc 178.
43 SA Smith, ‘PIE: From 1980 Until Its Demise in 1985’, in W Middleton (ed), The Betrayal of Youth: Radical
Perspectives on Childhood Sexuality, Intergenerational Sex, and the Social Oppression of Children and Young
People (CL Publications 1986) 215–45.
44 Richards (n 42).
45 N Minkina, ‘Can #MeToo Abolish Sexual Harassment and Discrimination in Medicine?’ (2019)
394(10196) Lancet 383.
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pursued through the courts, highlighting endemic failures to believe children and to
prevent abuse.
46
Society thus appears to contain a mix of partially discordant motivations. On the
one hand, there is a renewed desire to address putatively harmful manifestations of
human sexuality, in part through the instruments of law and social policy. At the same
time, there is little cultural desire for a generalized return to traditional sexual mores
or heavily constrained social roles based on sex-linked characteristics. Meanwhile, an
increasingly nuanced view of ‘good’ sexuality has been developed by scholars such as
Rebecca Kukla and Joseph J. Fischel. In her paper, ‘That’s what she said: The language
of sexual negotiation’, Kukla examines the speech acts involved in initiating sex. She
claims that sex is usually initiated through an invitation or gift-offer, and that ‘consent’
is an inappropriate response to either of these speech acts. Kula argues that focussing
exclusively on consent wrongly implies that all unethical sex is rape, and all sex that is
not rape is ethical.
47
Similarly, Fischel argues that models that define good sex merely
as consensual sex are inadequate for understanding what sex is good (or even fantas-
tic). He opposes the consent standard’s ‘capture of our imagination’, proposing that
we should be open to incorporating other values into our definition of what makes
sex valuable (although these would be difficult to integrate into any legal frame-
work).
48
Instead of accepting overly simplistic or reductive answers, we must work
out where regulation of sex and sexuality are needed.
In this special issue, several scholars articulate visions of appropriate, and limited,
regulation of sexuality in relation to groups singled out for control. Surrogate mothers
in the global South comprise one such demographic.
49
Becoming a commercial surro-
gate often involves entering into a contract signing away the right to have sexual inter-
course; meanwhile, the same woman may experience a culture-bound manifestation
of ‘slut-shaming’, as her surrogacy is construed as marital infidelity.
50
In their paper
Hodson, Townley, and Earp discusses the possibility that offering the option of com-
mercial surrogacy has adverse consequences for women, even before they consent to
participate. Like the mixing of oil and water, it may not be possible for commercial
and altruistic systems in this area to co-exist stably. The criminalisation of people liv-
ing with HIV in North America, Western Europe, and Australasia has marginalised an-
other group, and Matthew Weait argues that this is unnecessary given extant
regulation. Instead, he argues, decriminalisation of HIV is critical to eradicating the vi-
rus, and as such should be a public health priority.
51
Child sex robot technology is ex-
amined by John Danaher who attempts to balance regulation, rights, and
interventions for paedophilia.
52
He explores the possibility that child sex robot
46 A Smith, ‘They Think They’ve Got Away: How to Catch a Historical Sex Offender’ (BBC News,20June
2016) <https://www.bbc.co.uk/news/uk-england-nottinghamshire-36055744>accessed 8 August 2019.
47 R Kukla, ‘That’s What She Said: The Language of Sexual Negotiation’ (2018) 129 Ethics 70.
48 JJ Fischel, Screw Consent: A Better Politics of Sexual Justice (UC Press 2019).
49 Hodson, Townley and Earp (n 33).
50 RA Akyol, ‘Turkey to Toughen Laws on Surrogacy’ (Al-Monitor, 2006) <https://www.al-monitor.com/
pulse/fa/originals/2017/09/turkey-to-introduce-jail-for-surrogate-mothers.html>accessed 2 October
2019.
51 Weait (n 1).
52 Danaher (n 34).
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technology may be an effective treatment for paedophilia, but demonstrates that this
hypothesis is difficult to test and concludes that regulators should proceed with the ut-
most caution.
Half of this special issue is devoted to boundary issues concerning the sexed nature
of children’s bodies. Everyone has a sexed body, but, as noted above, some people, in-
cluding children with DSD, may have an apparently ambiguous combination of fea-
tures. This often marginalised group, who could be described as inhabiting the
boundaries of sex development, has been exposed to social and physical regulation in
the form of pressure on families to subject their children to early genital operations.
53
Elizabeth Reis argues, from a historical perspective, that medical ethics largely failed
to identify the ethical issues created by surgery to reduce the (appearance of) atypical
sex-typed features of children’s bodies.
54
As we have noted, the vast majority of babies are born with unambiguous male or
female external genitalia, on the biological classification described earlier. An increas-
ing number of children and adolescents now present to healthcare services reporting
dysphoria in relation to these and other sex-typed characteristics of their bodies (or
impending puberty) and/or the social expectations which pertain to those characteris-
tics.
55
Some of them hear about and request, or are offered, interventions to prevent
the usual sequence of puberty events, including acquisition of secondary sex character-
istics, with a view to being perceived as—and on some views, becoming—either ‘non-
binary’ or a member of the ‘opposite’ sex. These children potentially start on a lifetime
of medical intervention. They risk compromising sexual pleasure and fertility (in
some cases before passing through puberty to adulthood when these adult qualities
may become more meaningful), raising heated debates about the appropriate policy
response. Heather Brunskell-Evans argues that the very phenomenon of children iden-
tifying as transgender may have had a different manifestation—one not so readily
appearing to require medical intervention—without the framing which has emerged
from adult transgender advocacy and charities.
56
Offering a different perspective,
Timothy F. Murphy suggests that, where they have capacity, legal minors ought to be
permitted to consent to interventions allowing them to traverse sexual boundaries in
keeping with their gender identity.
57
V. CONCLUSION
This special issue reveals the depth of analysis possible when entertaining limited and
appropriate regulation of sex. Murphy, for example, does not argue wholesale deregu-
lation of interventions into sex is desirable, but rather refocuses the question on the
capacity of the young person to give ethically valid consent. Brunskell-Evans does not
aim or wish to preserve traditional gender roles, but argues that changing sexed bodies
53 For discussion of the long-standing efforts of activists and other stakeholders to raise ethical concerns about
such surgery, see eg A Dreger, Intersex in the Age of Ethics (University Publishing Group 1999).
54 Reis (n 35).
55 G Butler and others, ‘Assessment and Support of Children and Adolescents with Gender Dysphoria’
(2018) 103 Arch Dis Child 631.
56 H Brunskell-Evans, ‘The Medico-Legal ‘Making’ of ‘The Transgender Child’ (2019) 27(4) Med L Rev
640–57.
57 Murphy (n 36).
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in order to reflect a preconceived idea of maleness or femaleness is itself a regulation
of sex. Thus, she argues that imposing certain constraints on what can be done to the
sexed bodies of children is a prerequisite for safely deconstructing social regulation of
the sexes, specifically allowing children to grow up in ways that may violate social
expectations of how ‘boys’ and ‘girls’ ought to look, feel, or behave, without the impli-
cation that medical intervention is necessarily appropriate.
The articles in this special issue are novel, provocative, and eschew orthodoxy.
They are relevant to their immediate topics and of wider theoretical relevance. The
controversial, often personal experiences they cover are of importance to current law
and policy, but still leave much of the wider field of sexual and reproductive health
unaddressed. Nevertheless, these attempts at engagement with contested positions
constitute good faith novel contributions to their respective areas. We hope they
model thoughtful approaches to age-old questions surrounding bodily integrity
58
in a
world where body parts can be bought and sold in the marketplace, and where people
are quick to police and politicise other people’s bodies.
59
Conflict of interest statement. We have no declarations to make and no ethical approvals
to report.
58 For a theoretical account and definition, see BD Earp, ‘The Child’s Right to Bodily Integrity’, in D
Edmonds (ed), Ethics and the Contemporary World (Routledge 2019) 217–35.
59 D Dickenson, Body Shopping: Converting Body Parts to Profit (Oneworld Publications 2009).
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