Historically, democratic citizenship in the United States has been underwritten by the freedoms and protections guaranteed by the juridical discourse of rights. These rights have increasingly become a marker of an individual or group's inclusion in civil society and, by extension, equal standing as a citizen. However, access to or exclusion from juridical rights is contingent upon individual and collective identities, with supposed “deviant” identities suffering the effects of marginalization and subjugation at the fringes of society. Consequently, American history has seen numerous identity-based movements struggle for inclusion by appealing to the legal system for full coverage under the protective umbrella of rights. Those with “deviant” sexual identities have been no exception to this history. Because battles for sexual rights have taken place primarily in the courtroom, often with contradictory and paradoxical results, this project critically examines the juridical regulation of sexuality through the deployment of a rights-based discourse.

I explore the limitations of rights-based juridical discourse in establishing the conditions for a truly egalitarian and democratic politics, especially pertaining to issues of sexuality and citizenship. These limitations often manifest in the forms of regulatory and normalizing practices, which I contend are facilitated by adherence to the belief in a “true,” natural, and essential conception of identity. In order to contest these limits, I employ a three-part analysis. I begin with a theoretical overview aimed at contesting the essentiality and immutability of sexual identity. I illustrate how (homo)sexuality is the product of numerous discursive techniques, and that these techniques result in both the production and regulation of (homo)sexual identities. Building off of these discussions, I conduct two case-specific analyses examining the ways in which homosexuality is circumscribed by a discourse of rights that, paradoxically, both enables and limits the expression and practices of sexual freedoms. These examinations focus on appeals made for the right to privacy in opposition to anti-sodomy laws and the struggle for same-sex marriage. Finally, I attempt to articulate a conception of a democratic and pluralistic ethos that is better able to productively engage the paradoxes and limitations endemic to a politics structured by juridical rights and composed of citizens with conflicting senses of identity.