Over the past 15 years, the LGBTQ movement in the United States has vanquished sodomy laws, the military’s Don’t Ask, Don’t Tell policy, and laws banning same-sex marriage. Despite these formal legal advances, there remains a disparity between social acceptance of same-sex marriage and persistent aversion to sex between men. Even as the U.S. Supreme Court gradually came to embrace same-sex marriage, it was closeting sex between men. This Article is the first to identify a similar fear of sex between men in several long-standing public-health policies, including those of the avowedly pro-LGBTQ Obama Administration. The fusion of sex between men and HIV risk undergirds long-standing policies that ban many men who have sex with men (“MSM”) from donating blood and sperm, and more recent guidelines that encourage even gay men at low risk of HIV infection to take preventative anti-retroviral drugs that had been typically reserved for people who are HIV positive. These policies presume that sexual-minority men have risky sex—and lots of it. The original blood ban imposed what we might call a “one drop” rule: all men who had “sex” with a man “even one time” since 1977 were treated as if their blood was infected with HIV. The Obama Administration revised the policy to allow such men—even those who married under Obergefell v. Hodges—to donate blood only if they have abstained from sex with men for one year. These policies effectively reinstate the long-standing belief that gay and bisexual men are pathological and need medical intervention. Indeed, they serve as government-endorsed “lessons in being gay,” teaching gay, bisexual, and questioning youth what it means to be a sexual minority in the post-marriage equality landscape.
We explain this contradiction by illuminating the law’s bifurcated vision of sex between men as either inherently dangerous—i.e., public-health policies—or as identical to heterosexuality—i.e., Obergefell . While federal public-health authorities have consistently endorsed the stereotype that sex between men is dangerous, various state and federal courts have increasingly rejected government arguments that sought to fuse such sex and HIV. These undersung precedents, rather than the high-profile marriage-equality victories, provide tools for critiquing laws based on a conception of sex between men as pathological. Moreover, our call for attention to policy-level sexual stereotyping has implications beyond the HIV context. It speaks to the current debate about transgender bathroom policies. Drawing on Kimberlé Crenshaw’s scholarship on intersectionality and Angela Harris’s work on gender essentialism, we show that opposition to policies that would guarantee transgender people access to bathrooms of their choice relies on related gender/sexuality stereotypes.