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Contents lists available at SciVerse ScienceDirect

Geoforum
journal homepage: www.elsevier.com/locate/geoforum

2 Kissing is not a universal right: Sexuality, law and the scales of citizenship
3 Q1 Phil Hubbard
4 School of Social Policy, Sociology and Social Research, University of Kent, Chatham Maritime, Kent ME4 4AG, United Kingdom
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a r t i c l e i n f o a b s t r a c t
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11 Article history: Equalities legislation has provided the basis for lesbian and gay-identified individuals to create new 21
12 Available online xxxx spaces of sexual inclusion in the UK. However, national rights to sexual orientation equality do not always 22
translate into equal rights to sexual expression at the local scale. The paper demonstrates this by focusing 23
13 Keywords: on an instance where a display of homosexual intimacy a same-sex kiss was legitimately removed 24
14 Sexual citizenship from a licensed premise despite the existence of legislation outlawing homophobic discrimination. This 25
15 Legal geography seeming contradiction demonstrates the limits of a perspective that regards citizenship as something 26
16 LGBT
negotiated solely at the scale of the nation-state, with those charged with maintaining public order at 27
17 Licensing
18 The body
the local scale often appearing indifferent to nationally-secured rights. The paper accordingly warns 28
19 against essentialist notions of the state, concluding that the interplay of a heterogeneous set of actors 29
operating on different jurisdictional scales ultimately determines the limits of sexual citizenship. 30
! 2012 Published by Elsevier Ltd. 31

32
33

34 1. Introduction Taking Staehelis suggestion seriously, this paper conceptualises 57


citizenship as contingent on the scalar legal geographies which 58
35 Since Smith (1989) called for geographers to re-engage with combine, sometimes in contradictory manners, to shape the rights 59
36 political issues by exploring the relationship between civil society we possess in particular spaces. Rather than suggesting that there 60
37 and the nation-state, citizenship has been a prominent concept in is an immutable social contract between the nation-state and its 61
38 geographical research. Yet because this work has taken manifold citizen-subjects, citizenship is taken here to represent an ongoing 62
39 forms, sometimes invoking citizenship as a normative ideal, and process wherein the rights secured at the national level can be 63
40 Q2 sometimes as an empirical lived reality, Staeheli (2011) concludes overridden or undermined by laws enacted at other, lesser, scales. 64
41 citizenships conceptual value has diminished. In effect, citizenship This papers consideration of the interplay between national equal- 65
42 has become a chaotic concept that can obscure as much as it re- ities legislation and municipal law brings this multi-scalar per- 66
43 veals. However, rather than consigning citizenship to the concep- spective into sharper focus. Key here is that the former fixates on 67
44 tual scrapheap, Staeheli argues that geographers might usefully the rights and responsibilities of individuals and the latter on the 68
45 conceptualise citizenship as a process involving multiple sites and use of land and property (Valverde, 2005). This incommensurabil- 69
46 practices. In arguing this, Staeheli (2011, p. 399) stresses there are ity means that the rights secured at the national or supra-national 70
47 no stable, fixed answers to the question of where citizenship and scale do not always translate into rights to space, with those 71
48 citizen-subjects are located. In this sense, she proposes that citizen- charged with maintaining public order in the here-and-now often 72
49 ship is not simply negotiated at the level of the nation-state through indifferent to wider questions of fairness and equality. 73
50 acts of boundary-drawing that mark out some as less deserving of To make this argument, this paper focuses on the contested le- 74
51 legal rights, and others as more deserving. Rather, she speaks of cit- gal geographies of a same-sex kiss, exploring an instance where a 75
52 izenship as relational, with the tight link between the nation state couples rights to sexual expression and intimacy were over- 76
53 and citizenship having been weakened by the emergence of post- whelmed by appeals to public orderliness underpinned by munici- 77
54 national, transnational, cosmopolitan and global citizenships as pal law. This exploration takes in debates in socio-legal studies 78
55 well as local and regional ones (see also Fenster, 2005; Isin, 2011; about the scales at which law operates (e.g. Blandy et al., 2006; 79
56 Trudeau, 2012 on the re-territorialisation of citizenship). Butler, 2009; Valverde, 2010), as well as debates about rights to 80
space as expressed, for example, in diverse literatures on the right 81
to the city (e.g. Mitchell, 1997; Purcell, 2003; Blomley, 2010). 82
However, given the example raises particular arguments about 83
sexual and intimate rights, I begin by showing how notions of sex- 84
ual citizenship have been invoked in the debates surrounding gen- 85
E-mail address: P.Hubbard@kent.ac.uk der and sexual equality. 86

0016-7185/$ - see front matter ! 2012 Published by Elsevier Ltd.


http://dx.doi.org/10.1016/j.geoforum.2012.08.002

Please cite this article in press as: Hubbard, P. Kissing is not a universal right: Sexuality, law and the scales of citizenship. Geoforum (2012), http://
dx.doi.org/10.1016/j.geoforum.2012.08.002
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22 August 2012

2 P. Hubbard / Geoforum xxx (2012) xxxxxx

87 2. Sexual citizenship and the law and Article 8 (on respect for private and family life), it has become 152
somewhat easier for LGBT groups to overturn discriminatory and 153
88 Famously, Arendt (1986, p. 277) defined citizenship as the right homophobic practices in the UK.1 154
89 to have rights. Despite the ideal of universal rights, in practice the Reviewing these legal changes, Weeks (2009) argues that there 155
90 affiliation forged between the individual, the state and the commu- is now equivalence between lesbian, gay, bisexually and hetero- 156
91 nity means that this right cannot be extended to all. This implies sexually-identified citizens in the UK (indicated by the title of his 157
92 that citizenship is an inherently exclusionary concept. One major book The World we Have Won). Some commentators insist this rep- 158
93 conclusion of citizenship studies is that the rights associated with resents an assimilation of gay and lesbian identities into existing 159
94 citizenship are accordingly freighted with understandings of social orders, leading to talk of homonormativity (Bell and Binnie, 160
95 appropriate subject-positions and identities (Isin, 2011). Feminist 2002; Duggan, 2002; Halberstam, 2008). Achievement of sexual 161
96 perspectives have been particularly valuable in this respect, show- citizenship is posited as one of the ways that gay and lesbian cul- 162
97 ing that state citizenship has, in its modern Westphalian version, tures are becoming effectively heterosexualised, the move into a 163
98 been defined around unachievable masculine norms, with the cit- mainstream world of rights and responsibility representing a mo- 164
99 izen idealised as a public man (Fenster, 2005). Queer perspectives ment of assimilation that blunts the transgressive potential of 165
100 have pushed this critique further by arguing that this ideal citizen queer identification (Bell, 1995; Hubbard, 2001; Richardson, 166
101 is also heterosexualised, with certain rights of self-determination 2005). Nonetheless, not all sexual identities have been assimilated, 167
102 and sexual autonomy being denied to those whose sexualities fall with commentators noting a variety of sexual positions and prac- 168
103 outside the heterosexual ideal (Richardson, 1998; Bell and Binnie, tices which are clearly not accommodated within the states defini- 169
104 2002). Rubins (1984, p. 91) much-cited analysis of sexual morality, tions of citizenship, despite campaigns arguing for equal 170
105 for example, describes how the state strips rights away from citi- treatment: examples here include the lack of rights granted to 171
106 zen-perverts, defined as those who lifestyles and sexual proclivi- the multiply-partnered (Aviram, 2008), those ambiguous in gender 172
107 ties fall outside the charmed circle of sexualities regarded as identity (Grabham, 2007) or those who choose to sell sex (Scoular, 173
108 healthy and holy. As Bell (1995, p. 150) writes, the figure of the 2007). Also of note here is the uneven landscape of sexual rights 174
109 citizen-pervert operates, then, as a constant reminder of the limits bequeathed to individuals and groups of different ethnic and 175
110 of the spaces of sexual citizenship; a figure tucked between the ri- migratory backgrounds (Puar, 2006). 176
111 gid notions of public and private, between sin and crime, disrupt- The concept of sexual citizenship is thus valuable both as a nor- 177
112 ing, destabilizing, disordering. mative framing for rights campaigns as well as a critical lens for 178
113 This notion of sexual citizenship has proved highly significant in exploring the legalities of different sexual identity-positions and 179
114 studies that relate sexual marginalisation to practices of statehood, practices. However, the connections between individual rights 180
115 often via Foucauldian notions of governmentality (see especially and those granted to couples are not always straightforward 181
116 Weeks, 1998). More significantly, perhaps, and despite a counter- (Richardson, 1998). For example, Stychin (2008) argues that na- 182
117 current of queer anti-sociality which questions the benefits of full tional campaigns for the legitimation of same-sex partnerships 183
118 citizenship (Halberstam, 2008), discourses of sexual citizenship were successful not because there was a recognition of individuals 184
119 have been important in encouraging many lesbian and gay activists right to sex, but because the state recognised the rights of LGBT 185
120 to adopt a language of rights (Evans, 1993). While such claims to identified individuals to love and care for one another.2 Conversely, 186
121 sexual citizenship often relate to matters of sexual practice (i.e. Langdridge (2006) notes that BDSM practitioners are denied rights as 187
122 sexual consent, autonomy, and pleasure), Richardson (1998) ar- sexual citizens because the sexual practices which they pursue, 188
123 gues that these also encompass rights to express sexual identities, while consensual and legal, appear to be divorced from notions of 189
124 and have them acknowledged as legitimate in the public sphere. love and care (at least in the eyes of legislators). This suggests that 190
125 For such reasons, sexual citizenship implies the movement of the in debates about citizenship, sexual rights and intimate rights are of- 191
126 sexual from the private, intimate sphere into a public sphere of ten entwined. As defined by Plummer (2003, p. 7), intimate citizen- 192
127 rights and responsibilities (Hubbard, 2001). For example, in many ship concerns rights to choose what we do with our bodies, feelings 193
128 jurisdictions the fight to have civil partnership and/or gay marriage and emotions. Developing this, Sasha Roseneil defines intimate citi- 194
129 legally recognised has involved claims to citizenship in which zenship as the freedom to construct and live relationships safely, se- 195
130 responsibilities (e.g. to recognise the laws of the land) are seen to curely and according to personal choice, with respect, recognition 196
131 go hand-in-hand with rights (e.g. to have ones relationship pub- and support from both state and civil society (Roseneil, 2010; see 197
132 licly and legally recognised) (Stychin, 2006; Browne, 2011). also Oswin and Olund, 2010). Here, there is recognition of the oscil- 198
133 The question of how citizenship is constituted through sexual lation between sexual intimacies and extimacies, with private rela- 199
134 norms is therefore an important theme in citizenship studies, tionships being represented and articulated in public institutions 200
135 and one that is continuously in need of revision given the rights (see also Wilkinson, 2009). The implications of this expanded model 201
136 that have been granted to sexual minorities in many Western na- of sexual citizenship is that sustained attention needs to be paid to 202
137 tions over the last few decades (McGhee, 2004; Weeks, 2009; Mon- the ways that sexual autonomy and relational autonomy are regu- 203
138 ro, 2010). For example, legislative reform (e.g. Civil Partnership Act, lated via legislation and policy that is concerned not just with sex it- 204
139 2004; Equality Act, 2010), and associated changes in UK equalities
140 policy, has had significant impact on those whose sexualities have 1
The European Court of Human Rights has a substantial body of jurisprudence that
141 traditionally fallen outside the putative boundaries of normativity backs up human rights issues in relation to sexual identity. Key cases have
142 (Stychin, 2006; Monro, 2010). Such shifts have granted lesbian, gay encouraged the decriminalisation of same sex sexual activity (e.g. Dudgeon v. United
143 and bisexually-identified individuals the right to work, the right to Kingdom, Application No. 7525/76, 22 October 1981; 1982 4); equalised the
homosexual and heterosexual age of consent (e.g. Sutherland v. United Kingdom,
144 social security, rights to adopt, a right to civil partnership, and the
Application No. 25186/94, 1 July 1997); reversed the military ban on recruitment of
145 right to freedom from violence and harassment (Kollman and lesbians and gay-identified individuals (e.g. Smith and Grady v. United Kingdom,
146 Waites, 2011). Significantly, many of these rights have been se- Applications Nos. 33985/96 and 33986/96, 27 September 1999; LustigPrean and
147 cured with reference to citizenships negotiated at the EU level, Beckett v. United Kingdom, Application No. 31417/96, 27 September 1999) and
148 with the UK incorporating the European Convention on Human asserted transsexual identity rights (Goodwin v. United Kingdom (2002) 35 EHRR
548; I. v. United Kingdom, Application No. 25680/94, 11 July 2002).
149 Rights in the UK Human Rights Act (1998). Given the existence 2
At present, there remains concern that there is inequity between heterosexual
150 of Article 14 of the European Convention (which prohibits discrim- marriage and same-sex civil partnerships in the UK: notably, the sexual rights group
151 ination on grounds of sex, race, colour, religion or political opinion) Outrage! have organised a campaign termed Equal Love (see http://equallove.org.uk/).

Please cite this article in press as: Hubbard, P. Kissing is not a universal right: Sexuality, law and the scales of citizenship. Geoforum (2012), http://
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205 self, but the nature of relationships and coupledom in general. How- The gendering of this quote suggests that a kiss between two 252
206 ever, in contrast to studies of the municipal regulation of sex busi- men might be construed differently to one between two women 253
207 nesses (e.g. Papayanis, 2000; Hubbard, 2001; McCleary and (see especially Valentine, 1996). Irrespective, gay, lesbian or queer 254
208 Weinstein, 2009) or the environmental regulation of public sex kissing has often been a source of embarrassment, pleasure and 255
209 and cruising environments (Ravenscroft and Gilchrist, 2009; Anders- spectacle for heteronormative society when it becomes visible in 256
210 son, 2012; Ashford, 2012), the regulation of intimate conduct in pub- public space (Berlant and Freeman, 1996, p. 309). This has made 257
211 lic space remains only fleetingly examined in socio-legal studies.3 In the same-sex kiss a potent weapon in the battle for LGBT rights. 258
212 this context, exploring how intimacy is displayed in public life pro- For example, Queer Nation, the short-lived activist organisation, de- 259
213 vides a useful way of exploring the limits of conventional models of ployed its own version of the kiss-in as part of a wider project of 260
214 sexual citizenship. presence and disruption in the 1990s. One aim of the Queer Nation 261
kiss-ins was to make same-sex desire seem simultaneously outra- 262
215 3. A kiss is just a kiss? geous and normal by making it visible in prominent heteronorma- 263
tively-coded public spaces (Turner, 2000, p. 146: see also 264
216 Kissing is both a bodily gesture and a social ritual in Western McDonald, 2008 on lesbian kiss-ins at US national basketball 265
217 societies, its meaning contingent on the object of the kiss (a hand, games and Ussher and Mooney-Somers, 2000, on the tactics of 266
218 a cheek, a mouth), its connections to other touches and gestures the Lesbian Avengers in the 1990s, which including a kiss-in at 267
219 (e.g. an embrace, a handshake, a clinch) and, importantly, the time New Yorks Rockefeller Center). 268
220 and place where it occurs (Frijhoff, 1991). The kiss can connote def- Making queer intimacy visible via same-sex kissing stakes a 269
221 erence, a familial greeting or a symbol of friendship depending on claim to other sexual rights, part of a queer politics that has se- 270
222 its cultural context. However, amorous kissing in public is poten- cured rights for LGBT groups. As described above, in the UK these 271
223 tially transgressive as it provides a means for two people to build rights are not just rights of tolerance but entail a more through- 272
224 a wall around their intimacy, denying the norms of a public sphere going inclusion of sexual minorities through the criminalisation 273
225 where acts of love and sex are typically pushed back into private by of intolerance (see McGhee, 2004). Accordingly, homophobia has 274
226 a host of social conventions, laws and proscriptions (Bell, 1995). become bracketed alongside racism and sexism as a form of dis- 275
227 For all that, in most Western societies, there are no laws prohibit- crimination, with Section 146 of the Criminal Justice Act 2003 276
228 ing consensual kissing in public, and, like holding hands and other empowering courts to impose tougher sentences for offences moti- 277
229 tie-signs, it is deemed relatively normal within codes of civic com- vated or aggravated by the victims sexual orientation, while dis- 278
230 portment so long as the kissing is consensual4 and not considered crimination in the provision of good and services is prohibited by 279
231 obscene.5 the 2007 Equality (Sexual Orientation) Regulations.6 Cobb (2009) 280
232 The same-sex kiss, however, has often proved something of an describes this as a bed and breakfast paradigm of rights given it 281
233 exception: while a woman and man kissing in public rarely attracts has become illegal to refuse to serve gay or lesbian identified indi- 282
234 attention or comment (Valentine, 1996), same-sex couples have viduals in situations where others would be served.7 While this 283
235 frequently appeared to lack the same rights of sexual expression, new model of citizenship has been labeled as homonormative and 284
236 their kissing in public viewed as out of place in those spaces consumerist (Richardson, 2005; Taylor, 2011), it has undoubtedly 285
237 where heterosexuality is assumed: provided important legal protections for many of those who might 286
be otherwise discriminated against on the basis of their sexual orien- 287
238 The sight of a similarly-aged heterosexual couple kissing pub- tation. Cobb (2009) argues that gay and lesbian identified couples 288
239 licly might not be noticed at all or, if registered, would merely can now represent themselves in both the public and political realm, 289
240 signify a largely sanctioned expression of mutual pleasure, as well as being able to access goods, venues and services as openly 290
241 affection, love. A gesture at once banal and iconic, the public gay or lesbian couples. 291
242 kiss by members of the opposite sex represents metonymically On this basis, when Jonathan Williams, 26, a financial journalist, 292
243 the shared cultural embrace of heteronormative values and wrote the following on Twitter, it excited considerable discussion 293
244 behavior. That same kiss between two men, however, consti- across the twittersphere: 294
245 tutes a marked and threatening act, a performance instantly
246 understood as contrary to hegemonic assumptions about public Seven years in London & Ive never been made to feel bad for 295
247 behavior, and the public good, because it invites certain judg- being gay: 45 min ago the John Snow pub, W1F, had me 296
248 ments about the mens deviant sexual behavior and its imag-
249 ined encroachments, violations and contagions, judgments
250 that inevitably exceed the mere fact of their having a mutually 6
Regulation 3 of the Equality (Sexual Orientation) Regulations (2007) suggests For
251 affirming encounter (Morris and Sloop, 2006, p. 2). the purposes of these Regulations, a person (A) discriminates against another (B)
if. . .on the grounds of the sexual orientation of B or any other person except A, A
treats B less favourably than he treats or would treat others this constitutes direct
discrimination, while if they employ a provision, criterion or practice (a) which he
applies or would apply equally to persons not of Bs sexual orientation (b) which puts
persons of Bs sexual orientation at a disadvantage compared to some or all others (c)
3
Possible exceptions include studies related to ideas of shame, modesty, and which puts B at a disadvantage compared to some or all persons who are not of his
contamination, such as public urination (Eldridge 2010), nudism (Cooper, 2011) and sexual orientation then this constitutes indirect discrimination. While the Equality
breast feeding (Smyth, 2010) all of which might be best encompassed within an Act 2010 superseded the 2007 Regulations, these obligations for businesses remain in
understanding of intimate, rather than sexual, citizenship. place.
4 7
Goodrich (1998) comments on the legal difficulties that arise in determining This so-called bed and breakfast paradigm indicates the states willingness to
whether a kiss is consensual or constitutes a form of sexual harassment: noting the redefine the boundaries of public and private in the interests of gay and lesbian
lack of jurisprudence or case law on this matter, he suggests that the kiss has groups, with the rights of bed and breakfast owners not to admit gay or lesbian
generally been interpreted as representing a public statement of amorous, rather than couples to their home denied via a classification of these small premises as
filial or agapic, love, and therefore deemed as unwanted sexual attention when it is commercial premises falling within the ambit of discrimination legislation In Hall
not consensual. vs Preddy (4 Jan 2011), Justice Andrew Rutherford underlined that homosexuals in
5
The idea that a kiss might be considered legally obscene hinges on consideration civil partnerships should not be at a disadvantage when compared with married
of who is viewing it and the likelihood for offence to be caused: in societies where the persons when seeking paid accommodation given there is no material difference
threshold of obscenity law is low (such as India, where the relevant acts are detailed between these two legal forms of relationship.
in the Indian Penal Code, 1860) couples can be arrested for kissing in public if a
complaint is made (Kapur, 1997).

Please cite this article in press as: Hubbard, P. Kissing is not a universal right: Sexuality, law and the scales of citizenship. Geoforum (2012), http://
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297 removed for kissing a date (Tweeted by @jpw84 Wednesday 13 are not going to see such a thing, then probably Broadwick 342
298 April 2011).8 Street is not such a good choice as, ooh, somewhere in the mid- 343
dle of Dartmoor?13 344
299 Following this initial tweet, more details emerged as the story
300 was picked up by the national press (the story made the front page Alluding to a moral geography of gay acceptability, and an 345
301 of The Guardian, prompted a BBC Radio Two phone-in on the Jeremy imagined distinction between the metropolitan (Soho) and the rur- 346
302 Vine Show and featured in many national newspapers).9 Williams al (Dartmoor), Henscher suggested that the couple could have re- 347
303 had been with James Bull, 23, at the John Snow public house10 in acted differently, arguing that there is a better response than 348
304 Soho, central London, on a first date. Bull later recounted the story calling the police and invoking the law: that is, simply leaving 349
305 of their ejection to the national press: and take ones custom elsewhere. As he argued, I wouldnt like 350
to be asked by the landlord of a pub to stop snogging my husband, 351
306 We were kissing and a guy who claimed to be the landlord came
either. . .[but] on the other hand, I probably wouldnt make a point 352
307 over and told us to stop. . .I dont want to see that. It offends
of snogging my husband in a straight bar in any very intense way, 353
308 me, he said. We had just kissed. It was nothing obscene. He said
either. Interestingly, he did not question whether a heterosexu- 354
309 if we didnt tone it down, we would have to leave. We were going
ally-identified kissing couple might be legitimately ejected from 355
310 to finish our drinks and leave but another person at the bar said
a homosexually-coded space (see Iveson (2007) on justifiable 356
311 the man had no right to do that. . .We had another drink and, get-
exclusions). The assumption of Henschers piece was that some de- 357
312 ting up to leave, I gave Jonathan a quick peck on the lips. A
gree of self-regulation is required on behalf of gay consumers, rein- 358
313 woman claiming to be the landlady came over and said: You
forcing ideas that LGBT individuals need to recognise heterosexual 359
314 need to leave, youre being obscene. . .The man who said he
norms, and not vice versa. 360
315 was the landlord grabbed Jonathan by the collar before we left.11
While reactions to this story obviously differed with some 361
316 Later, press stories indicated that the landlord was responding defending the rights of the landlord to eject individuals on the ba- 362
317 to a complaint from another patron identified in the press as Gary, sis of their behaviour rather than their sexuality the furore gen- 363
318 a 57 year-old man: erated prompted the formation of a support group on social 364
networking site Facebook. The Queers and Allies organised a 365
319 Youve gone out for the evening with your wife and youre hav-
kiss-in event at the John Snow pub on the evening of Friday 15th 366
320 ing a quiet drink in the pub and the guys on the next table are
April, attracting over 300 people and prompting its closure at 367
321 giving each other a full-on snog and fondling one another in
3.30 in the afternoon. Festooned in rainbow flags, and with signs 368
322 ways that I thought were inappropriate, hence my complaint. . .I
arguing Gays want to drink and kiss and Gay kisses are not ob- 369
323 know Soho is a little bit different and you can expect to see a
scene, the event provided numerous photo opportunities for the 370
324 little bit more, but they were asked by the barman to moderate
media (see Fig. 1). A similar event was held on the 21st April, again 371
325 their behaviour, which they didnt do. . .12
forcing the closure of the pub, while on 17 May 2011 a 1087-signa- 372
326 As this quote suggests, the location of the John Snow pub gave ture petition was delivered to the pub demanding an apology from 373
327 this story particular resonance in the pink press. Standing on the the owners (Samuel Smiths Old Brewery) and an explanation as to 374
328 corner of Broadwick Street and Lexington Street, the John Snow why the couple had been evicted.14 To date, no apology or explana- 375
329 pub was spoken of as being at the heart of Soho, an area whose tion has been forthcoming. 376
330 permissive cultures have rendered it a significant site in the queer
331 life of the metropolis (Mort, 2010) to the extent it is described as
332 Londons prime gay village (though see Andersson, 2009). The 4. Sexual rights and municipal law 377

333 apparent discrepancy here between the actions of the landlord


334 and the reputation of Soho as sexually permissive was something In the context the new landscape of gender and sexual equal- 378

335 gay-identified Independent newspaper columnist Philip Henscher ity, it might be expected that the rights to expression enjoyed by 379

336 emphasised: sexual minorities would be equivalent to those enjoyed by major- 380
itarian, heterosexually-identified groups. To the contrary, the 381
337 Mr Williams and Mr Bull might reasonably have thought that a example detailed above shows that the ability of same-sex couples 382
338 pub in Soho was a fair enough place to start kissing. Its frankly to publicly express their love for one another often remains con- 383
339 a little bit surprising that the landlord and landlady of a pub in strained when compared to those proclaiming heteronormative 384
340 such a place could go on being surprised and shocked by the identities. Here, it is important to recognise that national legisla- 385
341 sight of two men kissing. If you want to run a pub where you tion can be circumvented at the local level by laws intended to se- 386
8
Cited in http://www.dailymail.co.uk/news/article-1377152/John-Snow-pub-kiss-
cure public order. Crucial here are those local government 387

protest-gay-couple-thrown-snogging.html. regulations and practices that provide the basis of municipal 388
9
See, for example, Hundreds attend kiss-in outside John Snow pub after venues closes law. For Valverde (2005, p. 36) municipal law revolves around ac- 389
its doors, http://www.guardian.co.uk/uk/2011/apr/15/john-snow-kiss-in-london; Gay cess to, control over, and enjoyment of spaces, buildings, parcels of 390
kiss pub protest at Sohos John Snow, http://www.bbc.co.uk/news/uk-england-london-
land, and other largely material entities. For example, municipal 391
13096519; Kiss-in protest planned after gay couple claim mistreatment, http://
www.metro.co.uk/news/860999-kiss-in-protest-in-pub-planned-after-gay-couple-
law shapes space through the development control and building 392
claim-mistreatment; Gay couple kicked out of London pub for kissing, http://www.tele- regulations that shape the production of the built environment 393
graph.co.uk/news/uknews/8452789/Gay-couple-kicked-out-of-London-pub-for-kiss- (see Cunningham, 2010; Keenan, 2010), as well as through the stri- 394
ing.html; Soho pub shuts its doors hours before gay kissing protest http:// ation of space into distinct urban and rural zones where different 395
www.independent.co.uk/news/uk/home-news/soho-pub-shuts-its-doors-hours-before-
laws apply (see Herbert and Beckett, 2009). Valverde (2005) insists 396
gay-kissing-protest-2268623.html, all accessed June 2012.
10
The term public house designates a premise licensed under the terms of the that this focus on land use rather than individuals conduct per se 397
2003 Licensing Act for the sale and consumption of alcohol on the premise: it is bequeaths local government with considerable power to impose 398
distinct from other premises licensed under the Act such as clubs, cafes and a moral geography that is not easily challenged with reference to 399
restaurants only in so much as it is understood to be primarily open for the sale of rights claims made on other scales (such as rights to sexual free- 400
alcohol.
11 13
Cited on http://www.bbc.co.uk/news/uk-england-london-13091833, accessed http://www.independent.co.uk/opinion/commentators/philip-hensher/philip-
June 2011. hensher-kissing-in-public-is-not-a-universal-right-2268647.html.
12 14
Cited in http://news.pinkpaper.com/NewsStory/5215/16/04/2011/man-who- See http://www.thepetitionsite.com/14/open-letter-to-the-john-snow-pub-and-
sparked-john-snow-furore-claims-couple-were-fondling.aspx. samuel-smith-brewery/, accessed June 2011.

Please cite this article in press as: Hubbard, P. Kissing is not a universal right: Sexuality, law and the scales of citizenship. Geoforum (2012), http://
dx.doi.org/10.1016/j.geoforum.2012.08.002
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401 dom secured at the national scale). This given, the deployment and ceptions of what might be regarded as acceptable by a venues 456
402 local interpretation of municipal law is described by Valverde as a regular clientele. This stresses that order is maintained in accor- 457
403 fundamentally important form of governmentality, albeit one dance with the landlords perceptions of what is normal rather than 458
404 whose role is often overlooked in critical legal scholarship. In this any legally-sanctioned notion of orderliness: 459
405 respect, it is significant that municipal law is overseen by minor
As a technology of governance, then, licensing involves a certain 460
406 bureaucrats including planners, environmental health inspectors,
devolution of responsibilities, including the responsibility to 461
407 licensing officers and local councillors, rather than the police (see
spot and define both current problems and potential, future 462
408 also Brown and Knopp, 2010; Proudfoot and McCann, 2008).
dangers. . .The license holders are held responsible for their 463
409 These arguments are relevant to the furore over the John Snow
own actions and those of their employees, not just in terms of 464
410 kiss in so much that debates centred on the dubious legality of the
civil liability but also in terms of what one might call a semi- 465
411 landlords action. According to most onlookers, the behaviour of
legal duty to know. The knowledge useful for averting future 466
412 Williams and Bull was not obscene in any legal sense of the word
dangers is of course often of an expert, professional kind. But, 467
413 (i.e. likely to corrupt or deprave the onlooker), meaning that the
contrary to the tendency of socio-legal scholars to make knowl- 468
414 exclusion of the couple seemed to represent outright discrimina-
edge coterminous with science and/or expertise, the knowledge 469
415 tion This was certainly the argument of the Peter Tatchell Founda-
that is expected of people such as bartenders. . .is not scientific. 470
416 tion, which named Williams and Bull as victims of homophobia:
It is a prescientific, qualitative, commonsense type of knowl- 471
417 Jonathan Williams and James Bull were not behaving indecently edge (Levi and Valverde, 2011, p. 825). 472
418 or committing any kind of sex act. There was no groping. It was
In this regard, notions of order are judged situationally by land- 473
419 just a kiss on the lips, like straight couples do every day. If the
lords, based on their experiential knowledge (OBrien et al., 2008), 474
420 landlord cannot prove that heterosexual couples are also
This is a point made by Daniel Griffiths, ex-president of the Feder- 475
421 ejected for kissing, the pub is guilty of unlawful discrimination.
ation of Licensed Victuallers Association, when he commented on 476
422 Businesses that provide a service to the public have a duty
Jonathan Williams complaint: 477
423 under the law to not discriminate. The Peter Tatchell Founda-
424 tion will support the two men if they decide to pursue legal From a personal point of view, whether they were gay, whether 478
425 action. There is nothing obscene about gay or straight kissing. they were lesbians or whether they were heterosexuals, I would 479
426 It is a human rights issue.15 still have thrown them out. Its very, very hard times and we 480
have got to keep as many people in the pub as possible. We 481
427 In noting this, gay rights activist Peter Tatchell referred to the
make the house rules and we stand by those house rules. If he 482
428 fact that the 2007 Equality Regulations make it illegal for busi-
doesnt like the house rules, he shouldnt use the pub. . .When 483
429 nesses including banks, estate agents, hotels and bars to turn away
he was asked at quarter to 10 to leave or to stop doing it, if 484
430 gay customers or discriminate against them when providing goods
he intended to carry on he should have left them (sic) premises, 485
431 or services. Although not mentioned by Tatchell, it could have been
in an orderly fashion, and gone to premises where the matter is 486
432 argued that the actions of the landlord of the pub went beyond dis-
accepted and stayed there.18 487
433 crimination given secondary guidance under the Clause 61 of Cor-
434 oners and Justice Act 2009 suggests there is a low threshold for any Though neither the landlord of the John Snow pub or the Sam- 488
435 act to be interpreted as hatred against persons on grounds of sex- uel Smiths Old Brewery deigned to comment on the decision to 489
436 ual orientation.16 eject the couple for kissing, it certainly the case that where the 490
437 It is here that contradictions in the law emerge. For while dis- landlord is judged as a fit and proper person by the local authority, 491
438 crimination on grounds of sexuality is illegal, under the terms of they are responsible for maintaining good order. As Valverde 492
439 the Licensing Act 2003, the landlord of a licensed premise commits (2003, p. 239) argues, if maintaining order, monitoring risks and 493
440 an offence if he (sic) knowingly allows disorderly conduct on the preventing disorder are made into conditions of a licence, in theory 494
441 premises.17 Within a locally-administered licensing system where the licensee will become a more efficient producer of order than 495
442 the management of risk is devolved to the private sector, repeated any state official. The landlord is clearly not a state official, there- 496
443 complaints about disorder from the police or residents would be fore, but has a general duty to know and manage risks, this respon- 497
444 likely to prompt licensing review or revocation. While disorder sibility being imposed by the state through relevant licensing 498
445 most obviously refers to serving alcohol to someone who is already authorities. In this regard, a landlords responsibility for maintain- 499
446 drunk, or those under 18, this duty gives the landlord considerable ing order means that they must make situational decisions that are 500
447 discretion to manage their premises in a way that they consider will grounded in the here and now, and not necessarily informed by 501
448 maintain orderliness. Smith (1985, p. 35) contends that the extent to more abstract notions of human rights or sexual equality. While 502
449 which a publican or licensee is actually under the scrutiny of the the discretion of a landlord to serve who he wishes cannot be total 503
450 statutory authority is highly variable, albeit that the constant threat (given the existence of the Equality Act 2010), charges of homo- 504
451 of license revocation is usually sufficient to encourage the landlord phobic discrimination against the landlord of the John Snow pub 505
452 to manage the legal requirement imposed upon the public house would have had to be based on evidence that the landlord would 506
453 work situation. This said, Smith notes the tendency for landlords not have thrown out a heterosexual couple that refused to stop 507
454 to create a licensed familiarity whereby the social norms of behav- kissing when asked. Significantly, despite talk of the couple having 508
455 iour within a premise fall into a pattern shaped by the landlords per- a case for pursuing a court action against the pub, no legal action 509
was ultimately taken by, or on behalf of, the couple, suggesting 510
15
http://www.petertatchellfoundation.org/releases/pub-ban-on-gay-kisses-is-ille- that the burden of proof required to press charges is high indeed. 511
gal-under-equality-laws.pdf.
16
Under the terms of the Criminal Justice and Immigration Act 2008.
17
The implication is that the landlord is required to take reasonable steps to
circumvent the possibility of any disorder that would cause harassment, alarm and 5. Heteronormativity as cause and effect 512
distress or require the intervention of the police. Section 140 of the 2003 Licensing
Act states that this duty extends to any individual who works on the premise in a The example of how a licensee can legally prevent non-obscene 513
capacity that authorises him (sic) to prevent the conduct. The principal public order sexual conduct occurring in a publicly-accessible space serves to 514
offences are outlined in the Public Order Act (1986), though where the influence of
18
alcohol is considered instrumental then the clauses relating to drunk and disorderly Cited on http://www.bbc.co.uk/news/uk-england-london-13091833, accessed
behaviour in section 91 of the Criminal Justice Act (1967) are relevant. June 2011.

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Fig. 1. Queer and Allies kiss-in, 21st April 2011, John Snow pub, Soho, London (Photo source: Metacheer, 2011, licensed under Creative Commons 2.0 Generic CC BY-SA 10).

515 illustrate the more general argument that rights determined at the that municipal law does not seek to promote particular forms of 556
516 level of the nation state do not always translate into rights at the consumption or accumulation as that is not its remit: rather, its 557
517 local level. This is something stressed in the scholarship that has aim is to enforce an instrumental model of sidewalks where they 558
518 begun to explore laws role in the production of space. Two key tra- must function as spaces of circulation. The effect may be the same 559
519 ditions are evident here: namely, work on the legal production of a privileging of exchange values over use values but municipal 560
520 property (e.g., Blomley, 2004; Blandy et al., 2006) and work on law is ultimately underpinned by a desire to secure orderliness 561
521 the regulation of public space (e.g. Blumenberg and Ehrenfeucht, rather than promoting consumer capitalism per se. 562
522 2008; Carr, 2010). Collectively, such work shows that even though At the municipal level it therefore appears that general rights 563
523 dominant notions of citizenship are based on certain assumptions and responsibilities enter a realm where technicalities and rational- 564
524 about the right to enjoy ones property, as well as rights to access ities hold sway: everyday use and occupation is always privileged 565
525 public spaces of the city freely and without fear, conflicts between over more abstract claims to human rights and responsibilities. As 566
526 these different rights claims are always resolved locally with refer- Millie (2008, p. 383) notes, such processes can encourage the de fac- 567
527 ence to the public good (Valverde, 2005). Rights secured via the to criminalisation of behaviour that is not necessarily harmful or 568
528 nation or federal state right to assembly, freedom of expression, illegal, but is simply regarded as contrary to the values that the 569
529 rights to development, etc. are frequently over-turned where it is majority hold dear. The implication here is that those charged with 570
530 deemed in the best interests of a municipality to do so: maintaining orderliness make context-specific judgments about 571
amenity and order that are infused with ideas about what the 572
531 At the local level, use is an absolutely crucial legal technology,
majority finds unpleasant or distasteful (something Millie explores 573
532 whose effects are best understood if we contrast governing
in the context of street graffiti and billboards). Majoritarian moral- 574
533 through use to governing through persons. One difference with
ity and aesthetics can accordingly come to dominate at the local le- 575
534 crucial political effects is that while the governance of persons
vel, with the opening of specific forms of municipal decision- 576
535 through law has in recent decades undergone a number of
making to the public (via consultations or public hearings) further 577
536 changes increasing due process rights and antidiscrimination
raising the possibility that majoritarian middle class ideas of taste 578
537 protection, uses, unlike persons, are not rights bearers at all.
and judgement prevail in contextual decisions about public order. 579
538 Changes in such areas as planning law thus proceed from causes
As such, bureaucratic decision-making can (inadvertently) support 580
539 other than political changes in rights consciousness or rights
particular forms of middle-class consumption, meaning that no- 581
540 allocations (Valverde, 2005, p. 38).
tions of amenity and profitability often align (Blomley, 2004). 582
541 Pedestrianism provides a vivid example (Blomley, 2010). In This perspective on municipal law has only fleetingly been con- 583
542 most jurisdictions, one of the activities undertaken by municipali- sidered in literatures on sexuality and space, primarily in writing 584
543 ties is to regulate the use and occupation of sidewalks and pave- considering how planning helps to perpetuate majoritarian, heter- 585
544 ments. This is something exercised through a diverse set of osexual norms (Frisch, 2002; Doan, 2011; Hubbard, 2011; Prior, 586
545 municipal agencies, including planning departments, civil engi- 2008). Even though planning was never conceived as a means of 587
546 neers, and utility companies (Blumenberg and Ehrenfeucht, imposing heteronormativity, this literature demonstrates that the 588
547 2010). Perceived part of the commons, in the eyes of regulators situated decisions of planners about the appropriate locations for 589
548 there is often too much life on the street, and they are forced to family and non-family housing have implicitly rendered it a het- 590
549 adjudicate between different uses and users. The removal of pros- erosexist project. Assumptions that some sexualities are more dis- 591
550 titution, panhandlers, street vendors and political activists from orderly than others thus informs planning processes, and allows 592
551 the streets is commonly interpreted as an attempt to privatise morality to infuse bureaucratic procedure (see Crofts et al., forth- 593
552 the commons, removing bodies whose presence threatens the coming). In terms of licensing, it is clear that notions of hetero- 594
553 prime function of the neoliberal city as a space for leisured con- normativity can similarly inform local authority judgments about 595
554 sumption (see Papayanis, 2000; Atkinson, 2003; Hubbard, 2004). the suitability of premises in given locales (see also Coulmont and 596
555 Blomley (2010), however, defers from this perspective, arguing Hubbard, 2010), as well as the situated judgements of licensees. 597

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598 This consideration of licensing as a potentially heterosexist argued that the rights claims made at the scale of the nation state 661
599 technique of governmentality likewise underlines the importance can carry little weight in instances where state actors are empow- 662
600 of municipal law in perpetuating everyday sexual inequities. ered to deploy common sense understandings of what and who be- 663
601 Licensing is a process by which privately-owned spaces become longs where. Municipal law exemplified here via licensing 664
602 subject to police-like powers (Valverde, 2003), theoretically pro- allows those charged with maintaining order to legitimately eject 665
603 viding a cost-efficient, flexible and liberal means of promoting a couple from a licensed premise simply because they regard their 666
604 civility in sites that are regarded as potentially crimogenic (e.g. behaviour as out of place. While discrimination on the basis of 667
605 spaces of drinking, gambling and sexual consumption) (see also sexual orientation is now outlawed, it is clear that certain sexual 668
606 Talbot, 2011). Valverde (2003) argues that licensing manages risk rights (i.e. the right of a couple to display affection for one another) 669
607 by focusing on spaces (premises), temporalities (opening hours) can be overruled at the local level by an appeal to the public good 670
608 and activities (primarily, drinking). Licensing is interested in indi- and the maintenance of order (see also Proudfoot and McCann, 671
609 viduals only insofar as they engage in those activities or occupy 2008). This underlines that when we talk of sexual citizenship, 672
610 those spaces (Valverde, 2003, p. 239). Yet given the local state we must consider not only high forms of legal jurisprudence but 673
611 has neither the ability or responsibility to regulate behaviour and also the situated enactment of municipal law, with the latter some- 674
612 comportment in licensed spaces, it is landlords, premises supervi- times infringing on human rights in quite extreme ways (Valverde, 675
613 sors and bouncers who have discretion to decide what, and who, is 2009, p. 150). 676
614 orderly, controlling conduct on the basis of their experiential Although there is significant interest in the deployment of crim- 677
615 knowledge (see OBrien et al., 2008). inal law as it shapes the geographies of sexualities (e.g. Bell, 1995; 678
616 This ultimately means that a landlords judgment about what Knopp, 1997; Iveson, 2007), I have suggested here that it is equally 679
617 behaviour is appropriate in specific premises cannot be easily over- important to consider the implications of municipal law, and 680
618 turned with reference to human rights secured at other scales. This acknowledge the potential for contradictory outcomes to emerge 681
619 means it is impossible to claim that being thrown out for same-sex as national and local laws entwine. For example, a key feature of 682
620 kissing is an instance of discrimination unless one can prove that licensing law is that it focuses on spaces and activities (use), mean- 683
621 this refusal of service would not apply to heterosexual kissing. Gi- ing that it can reinforce heternormative moralities by supporting a 684
622 ven decisions to refuse service or eject a customer from a venue are landlord who takes the view that a same-sex kiss is likely disturb 685
623 made situationally on the basis of experiential knowledge, there the social norms endemic to a specific venue. From some perspec- 686
624 are accordingly few grounds for contesting refusal of service if a tives, this supports Talbots (2011, p. 90) view that the range of 687
625 responsible licensee suggests that a customers behaviour or com- powers granted to local licensing authorities promotes a worrying 688
626 portment was compromising the safety, welfare and well-being of degree of social conformism and stifles opportunities for the crea- 689
627 other customers: the discretion of the landlord is not total, but it is tion of landscapes of equality. However, this is not licensings aim 690
628 self-evidentially exercised in a way that belies the fact they are but an unforeseen outcome. Licensed spaces can of course also be 691
629 charged with maintaining order as they see fit. This means that spaces of sexual and intimate freedom, with queer-friendly pre- 692
630 while queer activists have fought to undermine the inherent het- mises co-existing within the same licensing system as ones that 693
631 eronormativity of the law, resulting in notable legislative victories normalise homophobia. We cannot ignore the fact that the subver- 694
632 (Cooper, 1996; Stychin, 2003), at the municipal level homophobia sive can carve out space in the city through the law as social norms 695
633 can still be transmitted via the actions of individuals charged with shift and community practice changes (Cooper, 1996; Keenan, 696
634 maintaining public order on the basis that they regard particular 2010). 697
635 acts likely to cause alarm, harassment or distress. Unless it can Cunningham (2008) has argued that citizenship can only exist 698
636 be shown that the actions of those charged with maintaining urban in so much we can see it to exist, implying that there should be 699
637 order are de facto unreasonable, this means that there is little basis no mismatch between rights we have in the here and now and 700
638 for challenging such actions. the citizenship rights secured at the national level. But if hetero- 701
639 Given the resultant lack of ability that sexual minorities have to sexual moralities and attitudes dominate among those charged 702
640 express their love for one another in certain spaces, the implication with regulating conduct at street level, it is not surprising that 703
641 here is that new landscapes of equality (Browne, 2011) are both the new equalities landscape is not always evident at the local 704
642 contingent and contested. While this suggests a failure of the state scale. The privileging of the local in this paper, therefore, is not 705
643 to uphold equalities legislation and to ensure that principles of an attempt to suggest that sexual citizenship is best examined at 706
644 inclusion are adhered to in all times and places, this failure is expli- this scale rather than at the level of the nation-state, rather it is 707
645 cable if we recognise that the state is not a coherent actor, but an a call to consider the geographies of sexual citizenship and the 708
646 array of competing actors with different objectives (Gill, 2009). The way these are determined through jurisdictional scale. In this 709
647 implication here is that state actors are not interchangeable sense, when we investigate citizenship rights, we should not be 710
648 (Puwar, 2001). Specific state actors can exercise discretion within prioritising examination of the local-state over the nation-state, 711
649 the law in ways that often contradict the goals and intentions of but recognising that rights and responsibilities are only partly 712
650 other state actors.Therefore, it is unsurprising that state-scale or determined by national laws. 713
651 global-scale constitutional rights are rarely coordinated or harmo-
652 nised with low-level municipal regulations (Valverde, 2009). On
653 this basis, the continuing marginalisation of particular LGBT iden- 7. Uncited references 714
654 tities and practices in many licensed spaces does not necessarily
655 expose the limitations of national equal opportunities legislation, Layard (2010), Smyth (2007) and Staheli (2010). Q3 715

656 but licensing laws that allow heteronormative social morality to


657 be translated into landlords practice.
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Please cite this article in press as: Hubbard, P. Kissing is not a universal right: Sexuality, law and the scales of citizenship. Geoforum (2012), http://
dx.doi.org/10.1016/j.geoforum.2012.08.002