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The Regulation of Intimacy

In America’s “civil rights revolution,” Joanne Rosen finds the law—and its impacts on health—is changing fast.

Story by Jackie Powder • Photography by Chris Hartlove • Infographic by Patrick Kirchner

Six months after Joanne Rosen introduced her course, Legal and Public Health Issues in the Regulation of Intimacy, she had to scrap much of it. History, in the form of a landmark 2013 Supreme Court decision that sparked a series of challenges to anti-gay measures, had intervened.

“We are in the midst of a civil rights revolution here,” said Rosen, JD, MA, an associate lecturer in Health Policy and Management and associate director of the Clinic for Public Health Law and Policy.

A human rights lawyer in Toronto for 17 years, Rosen designed (and redesigned) the course to explore how laws that impact intimacy and privacy—such as the prohibition of gay marriage, abortion bans or birth control restrictions—affect the health, autonomy and dignity of persons.

“I hadn’t realized how large an overlap there was between traditional discrimination law and laws that can promote or impede good health outcomes,” Rosen says.

Could you describe your course on regulating intimacy?

The intimacy course looks at how various state and federal laws have regulated intimate decisions and actions, with a focus on LGBT issues and reproductive health.

The LGBT section focuses on laws that have banned consensual same-sex intimacy—that is, sodomy laws—and laws that have banned same-sex marriage. Even though the Supreme Court declared sodomy laws to be unconstitutional more than 10 years ago, they remain on the books in some states. The persistence of these laws reflects deep-rooted prejudice, fear, and misunderstanding of same-sex intimate relationships. Enforcement efforts demonstrate that stigma is not simply an abstraction. It is real.

"[Certain laws] have been associated with the internalization of stigma and the creation of an environment that’s more conducive to homophobia and discrimination."

How do these types of laws intersect with public health?

They have been associated with the internalization of stigma and the creation of an environment that’s more conducive to homophobia and discrimination. It’s been documented that certain health problems, including depression, suicidal ideation and substance abuse, tend to be higher in the LGBT population. Laws that explicitly ban behaviors that are central to sexual orientation—who you love and how you express that love—are perhaps the ultimate stigma.

In the area of reproductive health, restrictive abortion laws raise myriad public health concerns, including the closure of some abortion clinics and mandatory waiting periods.

How do you define a civil rights revolution for the gay population?

The U.S. v. Windsor case, which challenged the [1996] Defense of Marriage Act (DOMA), was the tipping point and has been the catalyst for a string of successful legal attacks on same-sex marriage bans across the country.

Under DOMA, “marriage” was defined as the union of one man and one woman for the purposes of every federal law, regulation and policy—over 1,000 in total. Gay and lesbian couples who married in states that allowed same-sex marriage were regarded as single under federal law and denied a wide range of federal benefits.

The Supreme Court found that DOMA’s definition of marriage violated the Constitution. The opinion has provided the legal fuel that has been used to challenge numerous state marriage bans. Fourteen states, post-DOMA, have had their marriage bans overturned. These rulings are under appeal and working their way through the courts. 

That's the Power of Love

18% 18%

Percentage of same-sex U.S. couples that have children

Legal same-sex marriage states 19

States in which same-sex marriage is legal

55% 55%

Percentage of Americans who support gay marriage

Anti-abortion laws 300+

Anti-abortion laws passed by state legislatures in 2013

Despite legal gains for LGBT people in the U.S., this group faces punitive laws in some countries. Tell us about your role in a high-profile Jamaican court case.

A gay man and human rights advocate in Jamaica launched a constitutional challenge to that country’s anti-sodomy law, which carries a penalty of up to 10 years’ imprisonment and hard labor.  The organization supporting the challenge invited Chris Beyrer [Bloomberg School Epidemiology professor and director of the Center for Public Health and Human Rights] to file an expert brief. I helped Chris with the legal framing of the brief.

A Jamaican group used some of Chris’s research on high rates of HIV infection among men who have sex with men to support the law. Their argument is, “If we ban sodomy, then we’re going to get rid of the high-risk behavior and that’s how we’ll reduce the number of AIDS cases.” However, research shows that these bans push sexual behaviors underground and beyond the reach of health care workers who are then unable to provide counseling, testing and treatment.

Do you think that recent gay rights gains in the U.S. will have an impact elsewhere?

I’d like to think so, but I’m not certain.

It’s my hope that the progression in protecting LGBT rights in the U.S. may serve as a beacon to other countries. The rights revolution that has taken place here in the last year was almost unfathomable only a couple of decades ago. So, too, could there be a shift toward equality in other countries.

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