In a monumentally scary new ruling, a Virginia federal court decided that the Constitution does not protect the practice of consensual BDSM sex. The official memorandum reasons that kink has no history and no redeeming benefits, and therefore non-vanilla folks are basically S.O.L. if the government decides to regulate their bedroom activities.
"There is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty," the decision reads. Although the landmark case Lawrence v. Texas challenged and invalidated sodomy laws across the United States and, in effect, set the precedent for keeping the government out of our private sexual affairs, this new ruling says that BDSM practitioners aren't a historically marginalized group like the LGBT community, and therefore do not deserve the same rights under the law.
Whether you're a old school kinkster or a recent dabbler post-Fifty Shades, the implications of this case are far reaching for those into bondage, discipline, domination, sadism, submission, and masochism. To pervert a famous MLK quote, a threat to sexual freedom somewhere is a threat to sexual freedom everywhere. Here are three reasons why this federal court's decision is a problem:
1. It Buries BDSM's Rich History
As an article in Salon points out, the art, literature, and film documenting and exploring alternative sex practices could fill an entire library. The federal court's ignorant proclamation that kink has no basis in history and in America only leads to further obscure its longstanding traditions and perpetuate the misinformed view that BDSM is some newfangled thing the deviants are doing today. On the contrary, records of kink date back to the Fourth Century, and there's even evidence to suggest that Americans flock to the practice more than citizens of any other country.
2. It Stigmatizes Kink Even Further
Thanks to advocates and activists who have spent decades dispelling stereotypes and raising awareness about the benefits of BDSM, it's slightly more acceptable to come out of the kink closet today than in years past. However, legally pathologizing kink adds a whole new dose of stigma to a practice just emerging from the underground — and from inclusion in the DSM. Unfortunately, BDSM practitioners still encounter discrimination because of their consensual sexual practices and face very real consequences as a result.
3. It Makes Other Non-Normative Sexual Practices Vulnerable
Now that all consensual sex between adults doesn't seem to be covered by Lawrence v. Texas, who knows which practices remain most vulnerable? However you feel about any particular act, what two (or more) people practice in private should have no bearing on their human rights. “The danger in advocating only for a specific type of sexual expression is that other forms intimate sexual expression become neglected, resulting in decisions such as the recent ruling in Virginia,” said Ricci Levy, president and CEO of the Woodhull Freedom Foundation. As advocacy groups scramble to respond, the jury is still out on what will come of this prejudicial new ruling — but it's not looking good.
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