The New Sexual Deviancy
An unprecedented wave of legislation targeting LGBTQ+ communities has swept across the country in recent years. The scope of this legislation is vast, targeting LGBTQ+ people in key areas such as education, healthcare, public accommodations, civil rights, free speech, and child welfare. Dozens of recent anti-LGBTQ+ bills have become actual law, and the ones that have not still stigmatize LGBTQ+ communities. Many of these laws are being challenged in state and federal courts, and in the 2024–25 term, the U.S. Supreme Court will intervene in this space by deciding whether states can ban access to gender-affirming care for minors. This Article argues that severe polarization in U.S. society and the erosion of U.S. democratic institutions and norms have fueled conditions in recent years for opponents of LGBTQ+ rights to weaponize moral panics about LGBTQ+ people as a means of executing right-wing populist and Christian nationalist agendas that subjugate LGBTQ+ people in law, politics, and society. The main contribution of this Article demonstrates how a complex web of antiquated sexual deviance concepts from different intellectual traditions is providing the backbone for new legislation targeting LGBTQ+ communities and legal strategies to defend this legislation nationwide—a phenomenon that I label in this Article as “the new sexual deviancy.” This new anti-LGBTQ+ legal agenda breathes life into discredited sexual deviance concepts and harnesses institutional power in the criminal legal system, medicine, and other major societal institutions (for instance, families and schools) to subjugate LGBTQ+ people and suppress LGBTQ+ ideas in society. As discussed, these sexual deviance concepts are grounded in dated sociological and psychological theories of deviance and propagate harmful stereotypes of LGBTQ+ people as deviants, sinners, mentally ill, sexual predators, and dangers to children. This Article contends that it is crucial to understand the new sexual deviancy as moral panic and a vehicle for enduring anxieties about sexual deviance in society. As argued, the new sexual deviancy pushes us back to a time when sexual deviance concepts rationalized and justified LGBTQ+ people’s subordinate status under the law. This Article identifies several major categories of harm that the new sexual deviancy poses for LGBTQ+ communities today, including encouraging anti-LGBTQ+ societal discrimination, harassment, and violence; worsening LGBTQ+ mental health outcomes and disparities; and undermining LGBTQ+ social visibility in society. These harms are especially devastating for transgender people and LGBTQ+ youth who are already highly vulnerable and are being targeted most under the new sexual deviancy. The new sexual deviancy also poses broader harms to society as a whole by threatening core liberal democratic values of pluralism and peaceful coexistence. Although challenging the new sexual deviancy will be difficult, this Article concludes by prompting some meaningful questions for LGBTQ+ social movements and charting some potentially promising avenues of reform. Those strategies include coalition building, litigation, protest and community organizing, and voting.
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