Unknowable Bodies, Unthinkable Sexualities: Lesbian and Transgender Legal Invisibility in the Toronto Women's Bathhouse Raid
| Date | 01 March 2009 |
| Author | Sarah Lamble |
| DOI | 10.1177/0964663908100336 |
| Published date | 01 March 2009 |
| Subject Matter | Articles |
UNTHINKABLE SEXUALITIES:
LESBIAN AND TRANSGENDER
LEGAL INVISIBILITY IN THE
TORONTO WOMEN’S
BATHHOUSE RAID
SARAH LAMBLE
University of Kent, UK
ABSTRACT
Although litigation involving sexual orientation and gender identity discrimination
claims has generated considerable public attention in recent years, lesbian and trans-
gender bodies and sexualities still remain largely invisible in Anglo-American courts.
While such invisibility is generally attributed to social norms that fail to recognize
lesbian and transgender experiences, the capacity to ‘not see’ or ‘not know’ queer
bodies and sexualities also involves wilful acts of ignorance. Drawing from R. v
Hornick (2002) a Canadian case involving the police raid of a women’s bathhouse,
this article explores how lesbian and transgender bodies and sexualities are actively
rendered invisible via legal knowledge practices, norms and rationalities. It argues that
limited knowledge and limited thinking not only regulate the borders of visibility
and belonging, but play an active part in shaping identities, governing conduct and
producing subjectivity.
KEY WORDS
embodiment; governmentality; intelligibility; queer regulation; visibility
SOCIAL & LEGAL STUDIES Copyright © 2009 SAGE Publications
Los Angeles, London, New Delhi, Singapore and Washington DC,
www.sagepublications.com
0964 6639, Vol. 18(1), 111–130
DOI: 10.1177/0964663908100336
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SOCIAL & LEGAL STUDIES 18(1)
INTRODUCTION
DESPITETHErecent proliferation of high-profile cases involving sexual
orientation and gender identity discrimination claims, lesbian and
transgender bodies and sexualities remain largely invisible in Anglo-
American courts (Boyd and Young, 2003; Lloyd, 2005; Smith, 1997; Whittle,
2002). Even in Canada, where significant sexual orientation rights have been
won, lesbians appear as disembodied, desexualized legal subjects (Valverde,
2006). Likewise, although transgender people are gaining increased legal
protection from discrimination, their corporeal experiences and sexual iden-
tities remain largely unintelligible. For transgender persons, such invisibility
results from federal and provincial legal frameworks that do not formally
recognize gender identity as a distinct discrimination ground, and from social
norms that marginalize gender-variant people (Durnford, 2005; Namaste,
2000; Ontario Human Rights Commission, 1999). For lesbians, legal invisi-
bility is often attributed to similar social exclusion and to policing practices
which historically criminalized lesbian sexuality less vigorously than gay
men (Mason, 1995: 70–2; Robson, 1992; Valverde, 2007: 248). Indeed, lesbian
sexuality is often assumed to fall below the radar of state surveillance. Yet the
capacity to ‘not see’ or ‘not know’ queer bodies and sexualities is not simply
a matter of inadvertent omission, but involves wilful acts of ignorance. Parti-
cular facts must remain unspoken, details unquestioned, lines of thinking un-
pursued – especially in the legal domain where selection of evidence is crucial
to case outcomes. As such, I argue that discourses of limited knowledge and
rationalities of ignorance play an active part in the legal disappearance of
lesbian and transgender bodies and sexualities.
Examining R. v Hornick (2002), a Canadian case involving the police raid
of a women’s bathhouse, this article explores how lesbian, queer and trans-
gender bodies and sexualities are actively rendered invisible via legal know-
ledge practices, norms and rationalities. Resisting the temptation to see legal
invisibility as simply the consequence of state indifference or repression, I
suggest legal discourses and organizational rationalities constitute queer
bodies and sexualities as unthinkable and unknowable. R. v Hornick provides
an important case study because lesbian and transgender bodies and sexual-
ities were initially quite visible within the courtroom, but then dramatically
disappeared in the final ruling. As such, lesbian and transgender bodies did
not simply fall below the state’s radar, but were actively reconfigured as
non-queer disembodied subjects. Drawing from governmentality literatures
which examine ways of knowing as techniques of regulation, I suggest legal
forms of limited knowledge and limited thinking regulate borders of (in)visi-
bility, and play an active part in shaping identities, governing conduct and
producing subjectivity.
LAMBLE: UNKNOWABLE BODIES, UNTHINKABLE SEXUALITIES
113
THE ‘PUSSY PALACE’ CASE
On 15 September 2000, five male officers from Toronto Police Services entered
a women’s sexual bathhouse at Club Toronto and proceeded to investigate
for liquor licence violations and criminal sex acts. The sold-out event, known
as the ‘Pussy Palace’1 was the fourth of its kind in Toronto and attracted
several hundred patrons, the majority of whom were scantily clad when the
police arrived. The police spent more than an hour on the premises, searching
private rooms and questioning half-naked women, actions that were widely
denounced by local press (Addis, 2000; Gallant, 2000; Giese, 2000; Gilbert,
2000). Two members of the Toronto Women’s Bathhouse Committee were
subsequently charged with several violations of Ontario’s Liquor Licence
Act, including disorderly conduct and serving liquor outside prescribed areas
and hours. When brought to court, however, Judge Peter Hryn dismissed the
charges, ruling that police had violated the women’s security, privacy and
equality rights under the Canadian Charter of Rights and Freedoms. Hryn
deemed the police conduct analogous to a male-on-female strip search, which,
in the absence of exigent circumstances, could not be justified. The police
evidence was declared inadmissible and the charges withdrawn.
Though hailed as a victory by the Bathhouse Committee, the ruling itself,
as Bain and Nash (2007) argue, did not mark an entirely progressive decision
for queer women’s sexuality. For both judge and defence, the key concern
was neither the state’s efforts to monitor queer sexuality, nor the police abuse
of liquor laws to do so, but simply that a search of semi-naked females was
conducted by males. Why the women were naked, or what they were doing
while naked was largely irrelevant to the court, as were their sexualities. In
fact, nowhere in the final judgment do the words ‘lesbian’, ‘queer’ or even
‘homosexual’ appear (Bain and Nash, 2007: 27). Likewise, despite consider-
able discussion during the court proceedings about the presence of trans-
gender persons at the event (inclusive of male-to-female transwomen and
female-to-male transmen), the words ‘transgender’ or ‘transsexual’ were also
non-existent in the ruling. The absence of these terms is not trivial; such
omission not only marks a gap in the legal representation of queer identities,
but affects how the case is classified and read in future. If a law student
conducts a Westlaw search using the term lesbian or transgender, for example,
the case will not appear. The legal erasure of such identities is particularly
striking in a context where promoting visibility of queer women’s sexuality
was a clear objective of the organizers (Gallant and Gillis, 2001: 153). An
event originally designed to promote a public, transgressive, queer sexuality
was tamed and desexualized by legal discourse in order to produce victims
worthy of state protection. ‘In the end’, argue Bain and Nash, ‘the classic
argument of the danger of the heterosexual male gaze on the defenceless and
naked female body was successfully used by the state to contain the trans-
gressive potential of queer spaces and queer identities’ (2007: 31).
It is tempting to see this case as an example of deliberate state repression
of queer desire. Yet such a reading is too simplistic, for it assumes the case
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SOCIAL & LEGAL STUDIES 18(1)
outcome was the direct result of state intentions, and fails to interrogate the
conditions that made such power effects possible. Further examination
suggests the police actions were a culmination of social, institutional and
political forces, rather than a singular ideological mission by a monolithic
state (Lamble, 2006). Moreover, the key legal arguments that effectively
contained transgressive bathhouse sexuality were not initiated by the state,
but were brought forth by the lawyer representing the Bathhouse Committee,
thereby raising questions about the conditions in which subjects participate
(albeit strategically) in their own regulation. Such regulation arguably arose
in part from appealing to a human rights framework, which, despite its
benefits, relies on universal humanity claims that often erase lesbian and
transgender specificities. Invisibility also emerged from right to privacy argu-
ments, which required that queer women’s bodies and sexualities find their
‘proper’ place in a private rather than public realm (Bain and Nash, 2007:
24–6). Given the legacy of failed privacy claims for queers (e.g. Bowers v
Hardwick, and R. v Brown), the successful deployment of privacy rights in
the Bathhouse case is laudable, but nevertheless reinforced conservative
gender norms. The court’s capacity to employ liberal rhetoric while simul-
taneously confining queer bodies and sexualities is therefore best understood
through a governmentality lens which recognizes how regulation operates
through individual freedoms (Rose, 1999/2004).
LESBIAN AND TRANSGENDER LEGAL INVISIBILITY
Despite the long-standing legal invisibility of lesbian bodies and sexualities,
explanations for such absences are surprisingly under-explored. Conven-
...
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