Dignifying Queerness

In recent years, courts that have affirmed the right of lesbian, gay, bisexual, and transgender (LGBT) people to engage in same-sex activity have often invoked the value of dignity. They have done so in spite of the fact that same-sex activity, and many other kinds of sex, have historically been deemed undignified and subject to criminal prohibition. This Article examines a rapidly growing body of comparative jurisprudence to examine how dignity has become an unlikely cornerstone of efforts to decriminalize same-sex conduct. By invoking dignity, courts have persuasively struck down some of the most immediate and egregious restrictions on sexual rights. They have often done so, however, by referencing dignity in an abstract sense, without either specifying how dignity functions in constitutional adjudication or explaining why a particular dignitary injury is constitutionally impermissible. Relying on a generic conception of dignity is risky for sexual rights, as it threatens to withhold protection from acts that are not deemed sufficiently dignified, extend dignity’s protection in a partial or conditional way, and give cover to legislative and judicial refusals of more transformative movement goals. By drawing from jurisprudence on the decriminalization of same-sex activity, this Article proposes a more precise typology of dignity that advocates and courts might employ to better operationalize dignity as a constitutional value and to refuse a generic jurisprudence of dignity that undermines sexual rights.