To cite this article: Sturt-Schmidt, James (2018). To what extent is sexuality regulated in the 21st Century?, The Millennial [Online], Available at: (this page URL).
The creation of ‘truths’ around sexuality and relations of power between nation-states and social bodies construct the foundation of a regulation of sexuality in the 21st century. This essay aims to analyse this regulation of sexuality, outlining Foucault’s concept of power which dictates that power relations “permeate and constitute the social body” (Smart, 2002: p72) and paying particular attention to pornography, population and the exercise of disciplinary power and bio-power.
Foucault was critical of previous concepts of power, like those of Nietzsche and Reich, as he believed their reduction of the mechanisms and effects of power to ‘repression’ failed to understand the positive and productive effects of power which he believed could see it defined as a “constituent element of modern societies” (Smart, 2002: p71). Foucault focused on how power is exercised, by what means, and what the effects of the exercise of power are and believed power was not “a property or possession of a dominant class, state, or sovereign but […] a strategy” (Smart, 2002: p70). He saw power relations not as a force imposed upon the powerless but rather a strategy that “invests them, is transmitted by and through them” (ibid.). Perhaps most importantly, Foucault theorised that “where there is power, there is resistance” (ibid.) and that power’s existence relies on the existence of many points of resistance. A key element of Foucault’s concept of power is how power relations are hidden by discourse. The legal system transcends what Foucault called the ‘discourse of right’. Foucault wrote:
“In any society, there are manifold relations of power which permeate, characterise and constitute the social body, and these relations of power cannot themselves be established, consolidated nor implemented without the production, accumulation, circulation and functioning of a discourse. There can be no possible exercise of power without a certain economy of discourses of truth which operates through and on the basis of this association. We are subjected to the production of truth through power and we cannot exercise power except through the production of truth” (Foucault, 1980: p93)
To reveal power relations concealed by the ‘discourse of right’, Foucault outlined five ‘methodological precautions’ (Smart, 2002: p72) which dictate that analysis should focus on “the exercise or practice of power, its field of application and its effects” (ibid.) and examine power through “processes which subject our bodies, govern our gestures, dictate our behaviours” (Foucault cited in Smart, 2002: p72). Another central point is that “power is not a commodity or a possession of an individual, a group or a class, rather it circulates through the social body” (Smart, 2002: p72). Smart explains that this perspective suggests that “individuals are not agents of power, they neither possess power nor have their potential crushed or alienated by it” but rather “the individual is both an effect of power and the element of its articulation” (Smart, 2002: p73). Foucault also suggests that one take an ascending analysis of power, thusly revealing how global forms of domination have appropriated, transformed, colonised and extended mechanisms of power. The final ‘methodological precaution’ outlined by Foucault is that apparatuses of knowledge (sites where knowledge is created) are utilised in the exercise of power (Smart, 2002).
Within a Foucauldian framework, sexuality is “a dispersed system of morals, techniques of power, discourses and procedures” (Grace and McHoul, 1993: p77) designed to make sexual practices meet certain strategic and political aims. In this sense sexuality’s very existence is the product of a greater power over the human body and a power of knowledge exercised to create ‘truths’ around human ‘sexuality’ which are used, in turn, to regulate sexual behaviour. However, resistance to the regulatory power exercised over individuals’ sexual behaviour offers a potential reduction of the extent to which sexuality is regulated in the 21st century. Writing on the topic of pornography, Katrien Jacobs explains that to regulate the sexuality of their citizens, many nation states have strict censorship laws, but goes on to state that many censored sites’ moderators maintain an open dialogue about “nudity between children and non-parental adults in order to resist a generalized representation of this taboo area of sexuality”. Here one can see how disciplinary power is exercised to control sexuality through censorship of certain types of pornography and how, as Foucault theorised, there is resistance to this power. This legal regulation of pornography can be seen most recently in the change to the UK’s 2003 Communications Act which has now banned spanking, caning, aggressive whipping, penetration by objects associated with violence, physical or verbal abuse, urolagnia, role-playing as non-adults, physical restraint, humiliation, strangulation, face-sitting, fisting and, most controversially, female ejaculation (The Independent, 2014). Once again, this exercise of power was met by resistance, in this case in the form of a ‘face-sitting’ protest in Old Palace Yard, Westminster.
One can arguably find the 21st century’s greatest regulation of sexuality in what Foucault called ‘bio-power’, which can be understood historically as a move from disciplinary power to regulatory power, as “the taking charge of life, more than the threat of death” (Foucault, 1979: p143). According to Paul Rabinow, we now live in an era of bio-power that began with “an explosion of numerous and diverse techniques for achieving the subjugation of bodies and the control of populations” (1984: p262). Grace and McHoul explain that sexual practices came to be a political concern which, according to Foucault, “was because sex linked to the two centres of regulation of life which disciplinary power took charge of: the physical body as a biological organism, and the population as a living species body” (Grace and McHoul, 1993: p77). In the 21st Century, government arguably concerns itself more than ever with the living beings that constitute society, controlling and regulating the social body. Rabinow explains that this change from power over death to power over life “needs continuous regulatory and corrective mechanisms” (1984: p266) and that it is now the norm rather than the law that is most effective in regulating social bodies and subsequently sexuality. Arguably, we can see these ‘regulatory and corrective mechanisms’ in action in 21st century society in the way sexuality is shaped by heteronormativity and cultural conceptions of deviance. It could be argued that the bio-power mechanism of normalisation is as, if not more, effective than disciplinary power, as can be seen in the fact that “individuals who express same sex attractions have significantly higher rates of suicide than individuals who strictly express opposite sex attraction” (Schaaff, 2012: p19). Another aspect of this type of power, according to Rabinow (1984), is that it qualifies, measures, appraises and hierarchises. One can see this deployment of power in the way sexuality is hierarchised and subsequently regulated through cultural value, for example how the married heterosexual couple is seen as the ideal, followed by the unmarried heterosexual couple and further down the pyramid homosexual couples, promiscuous homosexuals, transgenders, sex-workers and paedophiles. ‘Institutionalised’ and ‘normative’ heterosexuality marginalise those outside of its boundaries and the social ordering within heterosexual identities further hierarchises sexuality (Jackson, 2011).
The United Nations’ exercise of bio-power is analysed closely by Emma Foster who argues that gender and sexuality identities are formed by a ‘global thrust’ towards population management which is legitimised by the UN’s sustainable development discourses (2013). Foster explains that social bodies are constructed through normalising discourses, ‘regulative apparatuses’ (law, medicine and education) and institutions (prisons, clinics and schools). She believes the construction of the norm is key and is one of bio-power’s “subtle and insidious forms of power” (2013: p1032). According to Foster, the problematisation of the population led to nation-states monitoring and regulating birth-rates, life expectation, housing and life which became mechanisms to police the population. Far from suggesting that disciplinary power has been replaced by bio-power, Foster states that the latter is complemented by the former, adding that bio-power’s discourses “construct gender and sexuality along heterosexualised and racialised lines in an attempt to regulate populations more widely” (2013: p1033). There is an important intersection between race and bio-power in regulating sexuality as racialised discourses legitimise the targeting of developing countries’ populations, for example “the construction of non-white women as over-reproductive and non-white people as over-libidinous” (ibid.). Foster provides an analysis of the UN’s population/ environment discourses (as Foucault believed would uncover power relations) which she separates into three key areas: the construction of resource limits and environmental insecurity, apparatuses/ discourses of discipline and the focal point of sex and sexuality. She explains that Foucault saw discourses of resource limits as “a disciplinary mechanism to consolidate (self) regulation” (Foster, 2013: p1035) as they regulate sexual behaviour using a threat. Foster concludes that “UN population and development discourses reproduce forms of power over sexuality, over the intimate and over pleasure”, giving a key example of how bio-power is exercised to regulate sexuality in the 21st century to a global scale, legitimised and controlled by discourses of truth.
Also writing on the concept of bio-power, Thomas J. Roach describes it as an ‘art of living’ which dictates “thou shalt live a good life as devised by state informed expert knowledge” (2009: p157) and explains that Foucault placed sexuality at the centre of his concept of bio-power. He writes that processes of individualisation and totalisation (what Foucault called “the anatomo-politics of the body and the biopolitics of the population” (ibid.)) produce a docile subject. Foucault called these “two poles in the art of governance” (ibid.) and believed “sexuality is the […] site at which biopower’s individuating and totalizing techniques converge” (ibid.). We can apply this model of bio-power in analysing the relationship between sexuality’s regulation and one of the distinctive elements of the 21st century: the advancement of neoliberalism. Neoliberalism has reshaped the way sexuality is regulated, making it not only a mechanism to control population but also to serve capitalism. The neoliberal discourse of individualism has arguably adapted sexuality, aided by ‘truths’ about our sexual nature, so that one sees one’s sexuality as something to be discovered, to be invented. This construction of sexuality is now a huge industry, encompassing everything from beauty products and salon treatments to sales of sex toys. Neoliberal bio-power’s never-ending discourse of ‘state informed expert knowledge’ (ibid.) regarding sexuality is fed to the people via newspapers, costly magazines and the internet, reproducing the discourse and the subsequent construction/ regulation of sexuality. This ‘expert knowledge’ not only comes to readers at a price, but generally pushes neoliberal norms which commodify sexuality and normalise what could be termed neoliberal sexuality: sexuality based around individualism and the consumption of commodities. Once normalised, as Foucault’s theory states, these norms effectively regulate subsequent behaviour. The ‘two poles of governance’ can be seen in neoliberalism’s individualisation of society and its totalising techniques of capitalist governance.
To determine conclusively the extent to which sexuality is regulated in the 21st century, we must understand ‘sexuality’ itself as a construction designed to facilitate power, particularly bio-power, as an implementation of “the discursive link between sexual desire and self-identity – that is, “sexuality”” (Roach, 2009: p157) to achieve social control. Foucault believed the only way to resist the ‘bio-political administration of life’ is to break the link between sex and truth (Roach, 2009). I would argue that the link between truth and sex is ever-present, being exploited to its full potential through the bio-power of neoliberalism to regulate how sexuality is constructed so that it best meets capitalism’s needs. The exercise of bio-power can also be seen in the global construction of sexuality to meet population management programmes, and disciplinary power’s presence can be identified in the recent changes to Britain’s pornography laws.
Foster, E. A. (2013). International sustainable development policy: (re)producing sexual norms through eco-discipline. Gender, Place & Culture: A Journal of Feminist Geography. July, 2013, Vol 21 Issue 8, p1029-1044.
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The Independent, (2014). A long list of sex acts just got banned in UK porn. [online] Available at: http://www.independent.co.uk/news/uk/a-long-list-of-sex-acts-just-got-banned-in-uk-porn-9897174.html [Accessed 6 Jan. 2015].