America's War On Sex

Marty Klein

Part 14

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The public-izing of s.e.x attempts to mobilize the community to protect the American hearth, to contain the power of s.e.xuality. The antis.e.x community fears this power can spread from one home to another like a contagion. Like witchcraft did. Like heresy did. Like the 1960s did. That's one reason they're so committed to maintaining the myth of kids' s.e.xual innocence-kids are seen as the generational firewall that helps contain the contagion.

In reality, s.e.xuality encompa.s.ses a broad range of our self: what we think and feel, do with our bodies, fantasize, how we choose partners, and express ourselves. More pragmatically, it involves what we wear, contraceptive choices, role-playing, toys, and more. Public-izing our s.e.xuality attempts to limit or eliminate a broad swath of these options, which is a lot of our human heritage to lose. And Americans are not safe from further losses: as you read this, churches, morality groups, legislators, and prosecutors are busy narrowing your s.e.xual choices even more.

Americans deserve to reclaim the intrinsic privacy of private s.e.x. Fulfilling the American promise demands it. To do so, we need to reestablish the comprehensive concept of private s.e.x. Outside of s.e.x, this principle is already established throughout our culture: personal activity is considered private unless it involves coercion, fraud, or the forced, disruptive partic.i.p.ation of the public.

Playing soccer during rush hour in the center of Times Square is, rightly, prohibited. Making love there should be, too-for exactly the same reason, no more, no less. The s.e.x part is irrelevant.

But "There is no fixed consensus on privacy and s.e.xuality, in spite of the fact that most people feel their bodies are private," says Kinsey Inst.i.tute Executive Director, Dr. Julia Heiman.4 Antis.e.x forces have found many ways to create a gray zone between private and public s.e.xual expression. The War on s.e.x pursues that gray zone with 160 160 legal, economic, and political pressure. Zoning laws, morality crusades, powerful but meaningless anecdotes, and undoc.u.mented claims of secondary effects transform private activity into gray zone activity, and gray zone activity into public activity. And so Phoenix, Arizona, was able to close private swingers'

clubs by declaring them places offering "live public s.e.x acts," and an Arkansas strip club has been forced to stop offering erotic "birthday spankings" because "people can get hurt." Texas has actually made it illegal to educate customers while selling s.e.x toys; the seller has to state "these are novelty items only."

When "pa.s.sion consultant" Joanne Webb refused to pretend that in 2003, she was arrested.

WHO'S ALLOWED TO PRACTICE s.e.x UNRESTRICTED?

Throughout history, legal or religious codes have restricted various people in expressing their s.e.xuality: the unmarried, elderly, adolescent, mentally ill, physically handicapped, terminally ill, warriors in training, menstruating women.

And, in many cultures, anyone having s.e.x with someone of the same gender.

In most modern societies, those restrictions are either gone or facing chal enges. In their place, however, Americans now face other restrictions.

They're based on the discomfort and superst.i.tions of those who legislate, and the vocal minority that alternately critiques and supports them. Whether it's a zoning board, city council, district attorney, family mediator, or police chief, the story is almost always the same: Adults shouldn't be al owed to do just any s.e.xual thing they want, even when everyone involved consents and no one complains. Certain activities, relationships, and equipment are judged both bad for partic.i.p.ants, and bad for the community.

Or to put it more honestly, "That stuff seems weird and it scares me," or, "That stuff seems exotic and exciting and it scares me," or, "If that's allowed, then other stuff that's even scarier might be allowed, and it scares me."

As New York City prosecutor (Special Victims Unit) Linda Fairstein said in 2001 when describing why she was prosecuting S/M activity that she knew was consensual, she doesn't believe that "one human being should be allowed to do that to another, even if it is consensual."5 And as Robert Peters, President of Morality in Media says, "Conclusive scientific data is not necessary" when restricting s.e.xual activity.6 A bunch of people being scared or disgusted is apparently all that is. It works in Iran, it worked for the Taliban, so I guess there's no reason it can't work here.

There's a word that accurately describes this policy: discrimination.

Discrimination against those who enjoy inflaming their own pa.s.sion (l.u.s.tism?), and against those who enjoy s.e.xual activity of which others disapprove (kinkophobia?). When people are denied rights simply because society disapproves of who they are or what they do, it's cal ed discrimination.

Kinkophobia and l.u.s.tism are like racism and s.e.xism. Remember when jobs were advertised according to gender? And houses were rented according to race? Now access to jobs and housing (and to s.e.xual expression) is available Battleground: s.e.xual Privacy and s.e.xual Minorities 161 s.e.xual Privacy and s.e.xual Minorities 161 according to s.e.xual preference/orientation: "House for rent: no swingers, please." "Job promotion available: no gays, please." "s.e.x al owed: nothing kinky, please."

WHAT'S A s.e.xUAL MINORITY?

As we look at this question, do keep in mind your experience with whatever minority you're most familiar: racial, ethnic, religious, and so forth. You'l see that "s.e.xual minority" fits the familiar model of ethnic minority almost perfectly.

During three centuries of American history, "minorities" have included immigrants, Jews, African Americans, "Orientals," Mexicans, Quakers, Mormons, and Catholics. The designated "other" against which the majority defines itself, ethnic minorities have typically been described as: * a h.o.m.ogeneous group; * less than adult, perhaps even less than human; * not "normal"; * proselytizing or seducing "normal" people; * dangerous and therefore needing to be controlled; * pract.i.tioners of secret, exotic rituals; * impulsive and/or compulsive.

American society has historically maintained myths about minority groups, their activities, and the consequences of allowing minorities to follow their "nature." At the same time, society often lacks awareness about the extent to which minorities are deprived or in pain.

This is what it's like to be gay or bis.e.xual in America, or to prefer s.e.x that involves variations such as swinging, S/M, exhibitionism, cross-dressing, s.e.x toys, or adult entertainment. The tens of millions of people in one or more of these categories know that their activities could cost them their job, their apartment, their physical safety, or their freedom at any time. They also know that anything that involves their s.e.xuality may be met with ignorance, hostility, or both.

The way professionals are trained, and the services they provide us, are an example. To protect consumers by guaranteeing a minimum level of competence, al states credential professionals such as physicians, attorneys, and psychologists.

Thus, everyone has the right to expect their doctor, lawyer, marriage counselor, social worker, and physical therapist to understand a variety of clients; lawyers are expected to understand that some children are cut out of their parents' wil s.

Physical therapists know that not everyone is right-handed.

When it comes to s.e.xuality, training in all professions is limited, and many s.e.xual minorities cannot expect expert or non-judgmental services. Because of lack of training and cultural ignorance/prejudice, a physician might misdiag-nose an S/M-playing patient with bruises as an abuse victim (and be legally required to file a police report). A marriage counselor who doesn't understand 162 162 open relationships might a.s.sume that a swinging couple coming for communication skills are afraid of intimacy. Many psychologists would mishandle a bis.e.xual patient ambivalent about committing to marriage. Even Oprah's therapy guru, Dr. Phil, responded to a question about swinging with derision and ignorance. Calling a caller's boyfriend "a loser" and "slime," he cautioned her not to "wh.o.r.e yourself and screw his friends."7 The 1999 National Coalition for s.e.xual Freedom survey of those in alternate s.e.xual lifestyles, for example, found that 30 percent of the respondents experienced discrimination, while 36 percent suffered violence or hara.s.sment (including losing jobs or custody of children).8 Similarly, Dr. Joseph Marzucco's 2004 study of 786 people regularly involved in sadomasochism showed that men and women were significantly concerned about getting adequate medical care if physicians saw the physical results of their s.e.xual play.9 The majority remain unknown to their physicians. With millions of Americans practicing S/M regularly or occasionally, studies like these reflect a serious public health problem.

Similarly, a majority of women who self-identify as lesbians do not disclose their s.e.xual behavior or orientation to their physicians. This can prevent them from receiving appropriate medical and psychological information and services.10 Let's turn now to some of the ways that s.e.xual minorities-millions and millions of tax-paying, mind-their-own-business Americans-are facing legal and economic violence from judges, prosecutors, and other authorities.

"But blacks can't help being black," you might say, "while s.e.xual expression is a choice, so a democratic society can pathologize any s.e.xual choices it wishes." Actually, much s.e.xual expression is inborn the same way race is.

s.e.xual orientation-same-gender or other-gender-is, for almost everyone, fixed at birth or very early childhood. Millions of other people experience s.e.xual preferences so strong that they function as an orientation. These can include sadomasochism, cross-dressing, exhibitionism, and a rigid erotic at-tachment to objects such as leather or rubber garments.

More to the point, America has also outlawed discrimination in employment and public accommodation against a person's religion-which is adopted, not inborn. The right to wear a turban or cross in public is protected no matter how uncomfortable it makes others. There is no reason that someone's choice to go to a swing club can't be as protected as his or her choice to go to church (and yes, lots of Americans do both, swinging on Sat.u.r.day night, praying on Sunday morning).11 CASE STUDY: CRIMINALIZING YOUR RIGHT TO SWING.

Swingers' clubs-private places where couples and individuals can congregate and have s.e.x with each other in a safe environment-have quietly existed in Battleground: s.e.xual Privacy and s.e.xual Minorities 163 s.e.xual Privacy and s.e.xual Minorities 163 most major metropolitan areas since the 1970s. Fueled by the aging of the baby boomer generation and their belief in personal liberty and s.e.xual expression, the phenomenon has grown every decade since. By most estimates, there are now at least 5,000,000 swingers in the United States.12 By 1966, the military had some 50,000 swingers in its ranks under investigation, intending to court martial and discharge all of them.13 When civilian aeros.p.a.ce engineer Robert McGinley was identified as one of these "s.e.xual deviants," he lost his Air Force security clearance (and therefore his job). In 1975, McGinley founded the Lifestyles Organization (LSO); in less than five years, LSO was hosting weekend conventions attended by 500 or more couples. Soon, hotels and resorts throughout southern California were bidding for their lucrative convention business. They had learned that these thousands of couples were relatively affluent, well-behaved, and often returned-with their friends. They were perfect customers.

But in 1996, some California state officials decided to discourage swinging, and to "run LSO out of the state of California."14 Since swingers weren't doing anything illegal, how could this be arranged? By declaring that their s.e.xual behavior was dangerous: that it was immoral, which led to the breakdown of family values, and therefore bred crime. The police had no authority to stop this legal legal behavior, but the state did have an agency mandated to protect the behavior, but the state did have an agency mandated to protect the "public morals" in places it licensed: the Department of Alcoholic Beverage Control (ABC).

And so, in October 1996, the ABC told the Seaport Marina Hotel in Long Beach that their liquor license could be revoked if they hosted the Lifestyles Halloween Banquet and Ball. Six weeks later, the ABC temporarily suspended the liquor license of the Town and Country Hotel in San Diego that had hosted the lifestyles convention that August. In response, the hotel cancelled the contracts it had signed with LSO for the next three years.

A few months later, the ABC warned that any California hotel hosting the 1997 LSO convention (of 4,000 swingers) could lose its license. ABC District Supervisor Dave Gill declared that their morality rules applied even at events at which no alcohol was served. Even more astonishing, he added that the ABC rules applied even to hotel sleeping rooms, since they were on the premises of license holders: "The regulations apply at all times to their facilities regardless of whether the activity is private or public in nature." The ABC was declaring that adults could not swing in their own locked hotel rooms.

Frightened hotels and convention centers were breaking contracts with LSO left and right, creating financial havoc.15 In subsequent court hearings, the American Civil Liberties Union described the ABC as "drunk with its own power." Robert Burke, president of the University of California, Los Angeles, Law School, accused the agency of practicing "state Gestapo-ism."16 Ultimately, a 9th Circuit judge ruled that the ABC was aggressively misusing its authority in order to suppress expression, and invalidated the regulations that prevented "any depiction of s.e.x in any 164 164 manner" at licensed venues. In addition, the ABC had paid the city of Long Beach to uncover dirt about LSO; the city was fined when it was discovered its police officers had lied about the debauchery they supposedly found while undercover at an LSO event.17 "From 199699, there were over 30,000 swing club gatherings in North America," reports multipleaward-winning investigative journalist, Terry Gould. "They were verifiably peaceful. . . I couldn't doc.u.ment a single 911 cal placed from a club. But local police nationwide persisted in raiding these private clubs, arresting and humiliating couples inside. Sometimes tipping off TV stations ahead of time, police would drive people out into the glare of waiting cameras," he revealed in his landmark study, The Lifestyle. The Lifestyle. "Swinging is peaceful activity that the government insists on treating like criminal behavior."18 "Swinging is peaceful activity that the government insists on treating like criminal behavior."18 But the nationwide crackdown was just getting rolling.

You couldn't describe Phoenix as sleepy when the fuss there started, and you certainly wouldn't now-with a million and a half people, it's America's fifth largest city. By 1998, it had an active community of tens of thousands of swingers, with gay bathhouses, mixed-gender clubs, and regularly scheduled house parties. Lots of people got laid, and no one complained.

But then the Phoenix City Council adopted the Live s.e.x Act Business ordinance. Drafted primarily by the Christian-based National Family Legal Foundation, it declared that s.e.x at a private swing club was a "live s.e.x act," and that clubs are "detrimental to the health, safety and morals" of residents. It was adopted as an emergency ordinance, so the city could declare declare a problem rather than having to a problem rather than having to prove prove it. And so the city could ignore the vocal input of "the community"-swingers. it. And so the city could ignore the vocal input of "the community"-swingers.

The first U.S. law specifically banning swingers' clubs, the city's reasons for it were phony from the start: * Eliminating prost.i.tution, although not one complaint or arrest was ever made; * Limiting overuse of police services, although no unusual level of calls was ever noted, and no one was ever arrested prior to the ordinance; * Preventing STDs, although al clubs required safer s.e.x practices, although no one has ever shown higher rates of STDs among swingers than non-swingers. Not only did al clubs provide condoms, the gay club The Chute offered free HIV testing, often at their own expense;19 * Preventing blight, although the clubs were in industrial and other non-glamorous neighborhoods. The building that housed The Chute was eventual y sold for three times its original cost. Wouldn't you love to suffer such blight?

* Zoning infractions: The relentless, discriminatory inspections required club bathrooms to be cleaner than a restaurant's. Some inspectors promised to return daily. Clubs were cited for missing lightbulbs.

Battleground: s.e.xual Privacy and s.e.xual Minorities 165 s.e.xual Privacy and s.e.xual Minorities 165 Other problems the city's swing clubs and bathhouses never experienced were drunkenness, violence, guns, s.e.xual a.s.sault, gambling, safety problems, financial irresponsibility, corruption, illegal drugs, or underage people. This is a record of public decorum unmatched by the Phoenix 7Elevens or the Arizona State University football program.

And yet, ordinance in place, the Phoenix police hounded swing clubs. At a cost of millions of taxpayer dollars, they sent in undercover officers week after week (hazardous duty, to be sure-"Honey, it was all in the line of duty. I swear I didn't enjoy it."). When the busts came, it was by cops in riot gear, with guns drawn. Did they imagine the swingers had concealed weapons? It's hard to imagine a bunch of naked 40-year-olds in the middle of kissing, sucking, lick-ing, and s.c.r.e.w.i.n.g becoming a dangerous mob.

The night that police raided Flex, there were 10 felonies in the area, including car theft. It was a great example of how Phoenix's obsession with s.e.x clubs distorted their public safety priorities.

Club owners spent hundreds of thousands of dollars in legal fees simply for the right to stay in business. They met with the city and attempted to compromise; the response was everything from bizarre applications of arcane hotel regulations ("no more than six in a bed") to falsified police reports. Courts disallowed doc.u.mented facts while relying on the "common sense" of city and church officials, anonymous zoning inspectors, and reports by cops who per-jured themselves. Phoenix City Attorney James Hays says he was instructed to do whatever was necessary to close down the clubs, especially the most elegant, Club Chameleon.

In 2002, a federal court ruled "there is no First Amendment protection for the physical s.e.xual conduct."

By 2005, the owners and staffs of six different clubs had been arrested and booked on charges ranging from facilitating live s.e.x acts to "moral turpitude"

(yes, really). They were told to expect serious jail time and large, punitive fines.

Chute co-owner Donnel McDonnel was threatened with having to register as a s.e.x offender for life. To lighten their sentences, most owners agreed to close their clubs (forfeiting their right to make a living). The very few that remained open were reduced to a desultory, cheap motel blandness, nothing like the vi-brant joyfulness once enjoyed by so many. The sophisticated, nonviolent, non-problematic Phoenix swing scene and bathhouse scene was destroyed.

And now, eight years after the ordinance's enactment? Couples still swing, and gay men still cruise. Except both groups do it in settings far less safe, less controlled, less healthy, and less dignified than they used to. "Some of the s.e.x has moved to public parks," says McDonnel bitterly, "probably with fewer condoms used. The Vice Squad says they're going after that next-having chased it there, from when it was safely behind our closed doors." "People are not going to stop what they are doing because there is no Club Chameleon,"

agrees former club owner Milo Fencl. "They'll find other ways to do what they want, even if they feel less comfortable with it."20 166.

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Legitimate business owners like the Fencls have learned that religious big-otry, not due process or ethical government, runs Phoenix. Current city council members who helped push the discriminatory ordinance, like Peggy Bilstein, refuse to discuss the matter today.

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