Poppers ban: Be gay, but don’t have sex

Poppers have never done much for me. A flushed face and pounding heart does not – for me at any rate – enhance the mood. Yet they remain popular amongst gay men – a staple of ‘lifestyle’ shops such as Clone Zone, Bent and Prowler that go by the name ‘aromas’ – along with being a regular sight for sale in gay bars, clubs and saunas.

They are ingrained elements of the expression of same-sex male desire for many. Sometimes used simply for a mild (and brief) high, they are typically used as part of a sexual encounter.  Let’s be clear why many guys use them; they make it easier for ‘bottoms’ to be f*cked. With a history way back into the last century and popular since the 1970s, poppers have a long history of use. In countless bedside draws across the UK, the bottles of lube clink against the bottles of poppers.

Not for much longer. The UK Government is embarking upon a conservative war across a series of fronts. Repeal of the Human Rights Act, gaining new rights to see all citizens emails and web histories, and a ban on a series of drugs that are currently legal to use (so called ‘legal highs’) are among measures currently being promulgated by the Cameron Government.

The Psychoactive Substances Bill has already completed its run through the House of Lords and is now at the Report Stage in the House of Commons. It takes broad interpretation to ‘psychoactive substances’ defining them in clause 1 as something that “is capable of producing a psychoactive effect in a person who consumes it”. This necessitates a series of exemptions contained in Schedule 1. This currently includes alcohol, caffeine and tobacco products (along with medicines etc).

Gay Star News is reporting that attempts to have poppers added to this list continue to fail with the Government adamant that they will fall within the ban.

So, maybe in this brave new world without poppers, you might want to help a friend out by sharing some of your stash. Well, then you’d be guilty under clause 5 of the Bill of supplying or offering to supply, as well as a possession to supply offence. Perhaps you’re thinking you’ll just buy them on your next trip to Gran Canaria or Berlin.

Well, make sure you don’t try to bring them back or you may be guilty of an importing offence under clause 8. Still have some in your toiletry bag and hopping on a flight abroad? Clause 8 also covers the exporting of poppers. Possession is not per se an offence under the legislation, but if like me, you only have them in the house for others, you’re going to fall within the scope of the Bill. The penalty for any of these offences could be upto a year imprisonment and/or a fine.

There is also scope within the legislation for saunas or other queer spaces to have an order imposed upon them that creates an additional duty to ensure that no offences take place in the venue. This can be imposed by a local authority or the Police.

Let’s take a typical example of someone at the sauna getting f*cked, they’re sniffing poppers and turn to another guy and ask if they want a sniff/want some. This would arguably constitute a supply offence and thus, the sauna by creating a space where this supply is occurring, is enabling the activity. Whilst they wouldn’t have a duty per se to stop this activity, they would  if the clause is enacted by the local authority/Police. This would mean saunas would then have a burden of monitoring and stopping such behaviour, or they could find themselves liable.  Police raids could follow.

This is not trivial law. It’s draconian and it’s appallingly drafted, grappling with a challenging area of law and policy and making a botch of it. I’m not sure however that when the Conservative Party talked about tackling ‘legal highs’ that either they or the public thought that gay men using poppers was to be the key target. There’s no strong lobbying voice within the ‘gay community’ to argue for a poppers exemption.

Turning gay men into criminals once again for the sex that they have is not a sign of a progressive government. Same-sex marriage legislation instilled in many the belief that the law has significantly evolved in its attitude to homosexuality. It has in many ways but just as consummation was left out of the marriage legislation, queer sex is once again proving problematic. Be gay, just make sure you don’t actually have sex.

Chris Ashford is professor of law and society at Northumbria University. This blog was originally published in November 2015 when the legislation was first being discussed.