Summary: Unknowable Bodies, Unthinkable Sexualities: Lesbian and Transgender Legal Invisibility in the Toronto Women’s Bathhouse Raid, by Sarah Lamble

Summarised by Yoyo Lau (Associate).

Sarah Lamble, Unknowable Bodies, Unthinkable Sexualities: Lesbian and Transgender Legal Invisibility in the Toronto Women’s Bathhouse Raid. Social & Legal Studies. 2009; 18(1):111-130. doi: 10.1177/0964663908100336 

The Legal Invisibility of the Lesbian and the Transgender

Despite the recent discussion of cases involving sexual orientation and gender identity, lesbian and transgender bodies and sexualities are still invisible to a large extent. Concerning lesbians, they are not regulated under buggery laws; their rights are absent in the era of gay rights litigation; and they are deemed as disembodied, desexualized legal subjects in cases about lesbians. The legal silences of the lesbian appear to constitute a deliberate attempt to regulate lesbians by denying their existence. In relation to the transgender, they are treated as biological, medical and psychological specimens in cases involving the transgender; and there are preconditions for the recognition of their gender identity. It is apparent that there are many obstacles in addressing the specificity of the transgender.

The Bathhouse Raid Case

The Canadian case, R. v Hornick (2002), is an example showing that lesbian and transgender bodies and sexualities are actively rendered invisible through legal knowledge practices, norms and rationalities. On 15 September 2000, five male police officers entered into a women’s sexual bathhouse for the investigation of liquor license violations and criminal sex acts. They spent more than an hour on searching private rooms and questioning half-naked women. In the court, it is held that the police had violated the women’s security, privacy and equality rights under the Canadian Charter of Rights and Freedoms. However, the focus of the judgment shifts from queer women’s sexuality to simply a search of semi-naked females conducted by males. Also, keywords such as “transgender” and “transsexual” are omitted in the judgment, implying a deliberate repression of the lesbian and transgender identity.

The Role of Limited Thinking in the Bathhouse Raid Case

The case of R. v Hornick plays an important role in demonstrating the invisibility of the lesbian and the transgender in three different aspects. Firstly, the male police officers failed to recognize the queer identity of the women in the bathhouse and failed to think about their discomfort of being gazed and searched by males. This shows the police officers’ careless thinking while carrying out the raid. Secondly, both the judge and the defence lawyer display their limited thinking in upholding the ban on cross-gender strip searches since they wilfully ignored the rationale behind the ban and deliberately blurred the sexual and gender identities. Lastly, the judge prevented uttering the words “lesbian” and “transgender” in the courtroom and referring to the queer sexuality in his final ruling, implying the judge’s refusal to know or consider matters related to the queer. In a nutshell, R. v Hornick serves as an essential case study for examining the legal regulation of bodies and sexualities through modes of invisibility and unthinkability.

Comments

Legally speaking, the case of R. v Hornick is a strong evidence that the lesbian and transgender sexualities are not formally recognized by law and in the courtroom. There is a deliberate self-censorship of the queer sexuality by avoiding to address matters related to the lesbian and the transgender. It appears to be disadvantageous to the development of the queer community and the advocacy of their rights. However, practically speaking, the silences of queer sexuality in the case highlights the special gender identity of the lesbian and the transgender, and thus the case generates massive public attention. The surprising effect of the case helps with the promotion of the specificity of the queer identity. Therefore, the R. v Hornick case is worth studying regarding the relationship of law and the queer community.
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