Whistleblowing

'The Promise and Perils of Tech Whistleblowing' by Hannah Bloch-Wehba in Northwestern University Law Review (Forthcoming) comments 

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private. 

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete control over corporate information, shielding their activities from oversight and scrutiny by regulators and the public. Secrecy, however, begets leaks, and leaks have become the de facto source of crucial information for lawmakers, regulators, and the public. Today, whistleblowing is an important part of broader efforts to bring accountability and transparency to the tech industry. 

Yet existing frameworks for protecting whistleblowers are partial and haphazard. The law often permits firms to retaliate against internal critics, leakers, and organizers. The result is an informational environment shaped by selective disclosures on the part of tech whistleblowers, and enormous discretion for tech firms that can choose whether and how to respond. Whistleblowing is therefore an incomplete, but still significant, source of information in the absence of meaningful, rigorous, and systematic transparency rules. I make the case that broader protections for whistleblowing are a necessary component of systemic regulation of the tech sector.

Right to Health

'Lodestar in the Time of Coronavirus? Interpreting International Obligations to Realise the Right to Health During the COVID-19 Pandemic' by Judith Bueno de Mesquita, Claire Lougarre, Lisa Montel and Sharifah Sekalala in (2023) 23(1) Human Rights Law Review comments 

While the right to health has gained significant momentum in international law over the past two years, there is little clarity on what it means for States to comply with this right in times of COVID-19. Taking Articles 2(1) and 12 of the International Covenant on Economic, Social and Cultural Rights as a starting point, our article follows an approach guided by the rules of treaty interpretation under the Vienna Convention on the Law of Treaties to suggest how right to health obligations to prevent, treat and control infectious diseases should be interpreted in relation to COVID-19, and how these obligations interact with general obligations of immediacy, progressive realisation, minimum core and international assistance and cooperation in this context. This article makes a novel contribution to clarifying the right to health during COVID-19, thus enhancing capacity for the oversight of this right; its incorporation in global health law; and the understanding of its corresponding obligations in future global health emergencies.

The authors argue 

 Since the outbreak of COVID-19, multiple international human rights bodies have expressed particular concern about the impact of the pandemic on the realisation of the right to health, calling on States to foreground this human right in their COVID-19 responses. Indeed, Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the central international human rights obligation on States vis-à-vis infectious diseases, requires them to take steps necessary for the ‘prevention, treatment and control of epidemic, endemic, occupational and other diseases’ (Article 12(2)(c)). However, there has been limited analysis of what this obligation entails by these international human rights bodies, including UN treaty bodies and Special Procedures and regional bodies, and by scholars. Article 12(2)(c) was given cursory attention in General Comment 14 of the UN Committee on Economic, Social and Cultural Rights (CESCR), the most authoritative interpretation of Article 12. It was also neglected during other recent public health emergencies of international concern such as Ebola, MERS, SARS, Swine Flu and Zika. Such limited focus meant that there was little existing analysis that could inform the interpretation of States’ Article 12(2(c) obligations in the context of COVID-19. Since COVID-19 emerged, it has resulted in more than 6 million deaths and half a billion confirmed cases worldwide, yet the requirements of this obligation in relation to COVID-19 remain far from clear. 

Furthermore, clarity surrounding States’ obligations is also muddied by ongoing uncertainties in interpreting the general legal nature of obligations under ICESCR Article 2(1), which provides that: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 

Whilst the requirements of progressive realisation and international assistance and cooperation frame right to health obligations, their nature and scope have remained contested. Financial resources and international cooperation have been critical for COVID-19 responses, yet many States have fallen short. Challenges to progressive realisation have been experienced during the crisis with States arguably taking retrogressive measures in relation to the right to health and other socio-economic rights and failing to meet so-called ‘minimum core obligations’ (‘core obligations’ hereafter). Given this context, surprisingly little clarification about these obligations has been provided by international human rights bodies. States have thus been without specific guidance as to how they can comply with the right to health in their COVID-19 responses. 

This article utilises a doctrinal interpretation of the right to health to fill these interpretive lacunae. Setting out our interpretive approach in Section 1, we employ this approach to suggest an interpretation of the obligation to ‘prevent, treat and control’ COVID-19 in Section 2. With limited existing clarity surrounding prevention and control obligations, we argue that reading the right to health in light of other international instruments, including those that govern global health emergencies, suggests that Article 12(2)(c) should be interpreted in a holistic way to embrace: environmental and social determinants; as well as pandemic preparedness, treatment and control measures that are necessary, proportionate and based in evidence. The breadth of our reading goes beyond the existing approach of the CESCR, which has particularly focused on biomedical measures such as access to treatment and vaccines, and surveillance and health information, an approach which we argue is too narrow. In Section 3, we use the same interpretative methods to delineate the contours of Article 2(1) ICESCR, when applied to the realisation of Article 12(2)(c) in times of COVID-19. While the UN clarified concepts such as immediacy, progressive realisation, core obligations and to a lesser extent international cooperation, by recognising their inherent connection to resource availability, the CESCR seems reluctant to review States’ resources in detail and thus to assess how these concepts operate in practice. Our article argues that the CESCR, and UN Treaty Bodies more generally, should explicitly take into account States’ levels of income when interpreting States’ obligations, to enhance clarity around those concepts. 

Interpretative clarity, which we aim to provide in this article, is acutely needed for several reasons. Firstly, it is required to guide States to respect, protect and fulfil the right to health in their COVID-19 responses and to facilitate accountability where they fail to do so. This task is universally and enduringly relevant as COVID-19 has affected populations worldwide and will continue doing so for years to come, making it a key issue in human rights review and implementation. Secondly, we face an ongoing threat from emerging infectious diseases which may play out in similar ways to COVID-19. Clarity about right to health obligations in relation to COVID-19 will help delineate States obligations to prevent, prepare for and respond to future global health emergencies involving epidemics or pandemics and requiring an international response (hereafter ‘global health emergencies’). Thirdly, the global COVID-19 response has been primarily framed by global health governance instruments under the auspices of the World Health Organisation, including the International Health Regulations 2005 (IHR). The IHR creates obligations on States and recognises the right to health in its preamble. However, the relationship between these obligations and the right to health has remained unclear. If the right to health is to play a meaningful role in the COVID-19 global health governance, both in the interpretation of existing instruments and other instruments under development, including a proposed pandemic treaty and the updating of the IHR, it needs clarification.

2023-2030 Cyber Strategy

The Commonwealth Government has today released a discussion paper on the 2023-2030 Australian Cyber Security Strategy, following a succession of reports, legislation such as SOCI and the Morrison Government's Cyber Security Strategy noted elsewhere in this blog. 

The paper asks the following specific questions

1. What ideas would you like to see included in the Strategy to make Australia the most cyber secure nation in the world by 2030? 

2. What legislative or regulatory reforms should Government pursue to: enhance cyber resilience across the digital economy? 

a. What is the appropriate mechanism for reforms to improve mandatory operational cyber security standards across the economy (e.g. legislation, regulation, or further regulatory guidance)? 

b. Is further reform to the Security of Critical Infrastructure Act required? Should this extend beyond the existing definitions of ‘critical assets’ so that customer data and ‘systems’ are included in this definition? 

c. Should the obligations of company directors specifically address cyber security risks and consequences? 

d. Should Australia consider a Cyber Security Act, and what should this include? 

e. How should Government seek to monitor the regulatory burden on businesses as a result of legal obligations to cyber security, and are there opportunities to streamline existing regulatory frameworks? 

f. Should the Government prohibit the payment of ransoms and extortion demands by cyber criminals by: (a) victims of cybercrime; and/or (b) insurers? If so, under what circumstances? What impact would a strict prohibition of payment of ransoms and extortion demands by cyber criminals have on victims of cybercrime, companies and insurers? 

g. Should Government clarify its position with respect to payment or non- payment of ransoms by companies, and the circumstances in which this may constitute a breach of Australian law? 

3. How can Australia, working with our neighbours, build our regional cyber resilience and better respond to cyber incidents? 

4. What opportunities exist for Australia to elevate its existing international bilateral and multilateral partnerships from a cyber security perspective? 

5. How should Australia better contribute to international standards-setting processes in relation to cyber security, and shape laws, norms and standards that uphold responsible state behaviour in cyber space? 

6. How can Commonwealth Government departments and agencies better demonstrate and deliver cyber security best practice and serve as a model for other entities? 

7. What can government do to improve information sharing with industry on cyber threats? 

8. During a cyber incident, would an explicit obligation of confidentiality upon the Australian Signals Directorate (ASD) Australian Cyber Security Centre (ACSC) improve engagement with organisations that experience a cyber incident so as to allow information to be shared between the organisation and ASD/ACSC without the concern that this will be shared with regulators? 

9. Would expanding the existing regime for notification of cyber security incidents (e.g. to require mandatory reporting of ransomware or extortion demands) improve the public understanding of the nature and scale of ransomware and extortion as a cybercrime type? 

10. What best practice models are available for automated threat-blocking at scale? 

11. Does Australia require a tailored approach to uplifting cyber skills beyond the Government’s broader STEM agenda? 

12. What more can Government do to support Australia’s cyber security workforce through education, immigration, and accreditation? 

13. How should the government respond to major cyber incidents (beyond existing law enforcement and operational responses) to protect Australians? a. Should government consider a single reporting portal for all cyber incidents, harmonising existing requirements to report separately to multiple regulators? 

14. What would an effective post-incident review and consequence management model with industry involve? 

15. How can government and industry work to improve cyber security best practice knowledge and behaviours, and support victims of cybercrime? a. What assistance do small businesses need from government to manage their cyber security risks to keep their data and their customers’ data safe? 

16. What opportunities are available for government to enhance Australia’s cyber security technologies ecosystem and support the uptake of cyber security services and technologies in Australia? 

17. How should we approach future proofing for cyber security technologies out to 2030? 

18. Are there opportunities for government to better use procurement as a lever to support and encourage the Australian cyber security ecosystem and ensure that there is a viable path to market for Australian cyber security firms? 

19. How should the Strategy evolve to address the cyber security of emerging technologies and promote security by design in new technologies? 

20. How should government measure its impact in uplifting national cyber resilience? 

21. What evaluation measures would support ongoing public transparency and input regarding the implementation of the Strategy?

Apart from the usual statements that Australia aspires to be the leading cyber security economy the paper states 

Core policy areas to be included in the 2023-2030 Australian Cyber Security Strategy 

Enhancing and harmonising regulatory frameworks 

We have heard from industry that business owners often do not feel their cyber security obligations are clear or easy to follow, both from an operational perspective and as company directors. There are a range of implicit cyber security obligations placed on Australian businesses and non- government entities, including through the corporations, consumer, critical infrastructure, and privacy legislative and regulatory frameworks. However, it is clear from stakeholder feedback and the increasing frequency and severity of major cyber incidents, that more explicit specification of obligations, including some form of best practice cyber security standards, is required across the economy to increase our national cyber resilience and keep Australians and their data safe. 

To be the most cyber secure nation in the world by 2030, Australians should have confidence that digital products and services sold are fit for purpose and include appropriate best practice cyber security protections. 

There may also be opportunities to simplify and streamline existing regulatory frameworks. For example, stakeholders have encouraged government to streamline reporting obligations and response requirements following a major cyber incident. 

It is clear that a package of regulatory reform is necessary. How this would be implemented, including the potential consideration of a new Cyber Security Act, drawing together cyber-specific legislative obligations and standards across industry and government, and the details of these reforms is something on which feedback will be welcomed. This should also consider whether further developments to the SOCI Act are warranted, such as including customer data and ‘systems’ in the definition of critical assets to ensure the powers afforded to government under the SOCI Act extend to major data breaches such as those experienced by Medibank and Optus, not just operational disruptions. 

Strengthening Australia’s international strategy on cyber security 

Combined with domestic uplift, strengthened international leadership will enable us to seize opportunities and address the challenges presented by the shifting cyber environment. Australia is a respected voice in addressing the challenge of making the world a safer place online. We can leverage this voice through tangible steps to shape global thinking, particularly in relation to new and emerging technologies. 

Cyber resilience is also essential to unlocking economic opportunity and prosperity in our region. Investments in areas such as health, infrastructure, and education are not secure if they are not underpinned by effective cyber security. 

What legislative or regulatory reforms should the Government pursue to enhance cyber resilience across the digital economy? 

Assistant Minister for Foreign Affairs, the Hon. Tim Watts MP, has noted: “This is not a challenge we face alone. We all – Australia, our region and the global community – benefit from a stable and resilient cyber space. Indeed, without cyber security other gains are too easily lost. Whether it’s developing international cyber space laws and norms, holding accountable those that flout the rules, working to lift regional cyber resilience or leveraging our humanitarian response track record to respond to severe cyber attacks, working with partners is essential to a prosperous and secure cyber environment.” 

There are three sets of opportunities to explore through consultation on the 2023-2030 Australian Cyber Security Strategy: 

1. How Australia can elevate the existing level of engagement with international partners through concrete steps to promote cyber resilience? 

2. What opportunities are there to better support the development of international technology standards, particularly in relation to cyber security? 

3. How can government and industry partner to uplift cyber resilience and secure access to the digital economy, especially in Southeast Asia and the Pacific?

How can Australia, working with our neighbours, build our regional cyber resilience and better respond to cyber incidents? 

What opportunities exist for Australia to elevate its existing international bilateral and multilateral partnerships from a cyber security perspective? 

How should Australia better contribute to international standards- setting processes in relation to cyber security, and shape laws, norms and standards that uphold responsible state behaviour in cyber space? 

Securing government systems 

The Commonwealth Government controls and processes some of Australia’s most sensitive data to deliver essential public services. Australia continues to be the target of persistent cybercrime and espionage by a wide range of criminal and state actors, including foreign intelligence services, seeking information on political, diplomatic, military, and personal data. 

Government should stand as an exemplar of cyber security; however the Commonwealth Cyber Security Posture in 2022 report (the Cyber Posture Report) reveals government agencies have a long way to go to properly secure government systems. Only 11% of entities in the Cyber Posture Report reached Overall Maturity Level 2 through the implementation of Essential Eight controls, and the majority of entities are yet to implement basic policies and procedures. 

Public sector cyber security is comprised of both non-technical and technical elements, and it is crucial to consider both when considering how to better secure government systems. Non-technical aspects include things like governance frameworks and accountability mechanisms, cyber security culture, and risk management planning. Technical aspects include elements such as inventory management and legacy systems, variation across government systems and attack surfaces, and the nature of essential services delivered by each entity. 

While acknowledging the work done under previous strategies, these have not achieved the level of progress required to meet the Government’s vision. Leadership and accountability are critical at all levels and in all organisations to deliver the Strategy. Enhancing government cyber posture will require a framework which accounts for: • best practice standards, evaluation, transparency, reporting, and aligned incentives; and • the appropriate support, accountability and leadership for individual government departments and agencies to manage their cyber security risk profile. 

Areas for Potential Action by 2030 

In addition to the core policy areas, where it is clear interventions will be addressed in the Strategy, there are a range of other areas where potential policy options to enhance cyber resilience could be considered in the Strategy. We are seeking views to inform advice to Government on the following potential areas for policy action: • Improving public-private mechanisms for cyber threat sharing and blocking There is a broad spectrum of options available to enhance cyber security threat sharing and blocking through public-private partnerships. This requires analysis of feasible technical approaches, which can be deployed sustainably at scale. However, improved threat sharing should also consider qualitative issues, such as government practice related to information sharing, access, declassification of intelligence, and existing regulatory frameworks such as the Privacy Act and the Surveillance Legislation Amendment (Identify and Disrupt) Act. There are a range of international approaches which Australia could also consider through the Strategy, recognising these would require further consultation to assess. 

How can Commonwealth Government departments and agencies better demonstrate and deliver cyber security best practice and serve as a model for other entities? 

What can Government do to improve information sharing with industry on cyber threats? 

Does Australia require a tailored approach to uplifting cyber skills beyond the Government’s broader STEM agenda? 

What best practice models are available for automated threat-blocking at scale? 

What more can the Australian Government do to support Australia’s cyber security workforce through education, immigration, and accreditation? 

Supporting Australia’s cyber security workforce and skills pipeline 

There is no one single silver bullet for addressing the shortage of skilled cyber security professionals in Australia. Rather, it requires a suite of practical actions conducted under a clear strategy. The Australian Government is pursuing a broad agenda related to science, technology, engineering, and mathematics (STEM) skills, which will support the growth of our future workforce, including in cyber security. 

More broadly, the Government has committed to reaching 1.2 million tech jobs by 2030. 

To the extent that cyber security is embedded in STEM curricula, this agenda will improve the available pool of cyber security professionals. However, it is not yet clear whether this will be sufficient for more specialised cyber security career pathways. The purpose of the discussion paper is to determine whether there are additional steps, specific to the cyber workforce, which should be pursued through the Strategy. 

National frameworks to respond to major cyber incidents 

It is clear that Australians expect the Commonwealth Government to play a role in responding to major cyber incidents. We need to clarify what the community and victims of a cyber attack can expect from the Government following an incident in the context of victim support and post- incident response. Government must ensure that frameworks for incident management and coordination are fit-for- purpose, and conduct post-incident review and consequence management following major cyber incidents. It is also clear that government should share the root cause findings from investigations of major cyber incidents so that we can all benefit from these learnings. There are a range of international models which serve as useful comparisons, and the Optus and Medibank incidents exposed the gaps in Australia’s existing incident response functions. 

The Strategy provides a mechanism to improve the manner in which Australia responds to major cyber incidents. 

How should the Government respond to major cyber incidents (beyond existing law enforcement and operational responses) to protect Australians? 

Community awareness and victim support 

Despite widespread awareness of the potential risks posed by cybercrime, there is no consistent understanding of the practical steps that consumers, small and medium-sized enterprises (SMEs), and other organisations must take to enhance their cyber security. There is an opportunity through the Strategy to invest further in community awareness and skills building for cyber security, including for SMEs. 

As with crimes which have devastating impacts on individuals, businesses, and communities, there is scope for Government to explore opportunities to increase support available to victims of cybercrime. While preventing cyber incidents is important, it is inevitable that major attacks will continue to occur through to 2030 and beyond, and Australia should assess its overall cyber posture by viewing remediation and victim support as a key measure of security. 

Investing in the cyber security ecosystem 

Protective cyber security technologies have been identified as a critical technology by the Government, and cyber security is essential to the secure development and implementation of a broad range of other critical technologies. To become the most cyber secure nation by 2030, Australia must create an environment that attracts investment in cyber security and other critical technologies. There are a range of potential measures which could be explored to promote trade and investment in this space, with clear opportunities for collaboration between federal, state, and territory governments. 

How can Government and industry work to improve cyber security best practice knowledge and behaviours and support victims of cybercrime? 

What would an effective post-incident review and consequence management model with industry involve? 

What opportunities are available for Government to enhance Australia’s domestic cyber security technologies ecosystem and support the uptake of cyber security services and technologies in Australia? 

How should the Strategy evolve to address the cyber security of emerging technologies and promote security-by-design in new technologies? 

Implementation governance and ongoing evaluation 

The Strategy will form the foundation of an evolving approach to cyber security into the future. Implementation will require strong governance and a transparent, meaningful evaluation framework to ensure the Australian Government’s vision is realised, and the Strategy is fit-for-purpose now and into the future. 

How should we approach cyber security technologies future-proofing out to 2030? 

Are there opportunities for Government to better use procurement as a lever to support the Australian cyber security technologies ecosystem and ensure that there is a viable path to market for Australian cyber security firms? 

Designing and sustaining security in new technologies 

There are a number of emerging technologies, such as quantum, communications technologies, the Internet of Things, and artificial intelligence which will significantly impact, and be impacted by, cyber security. Some of these technologies exist now. Others will rapidly develop from 2023 to 2030 and will disrupt the existing landscape of cyber security. The Strategy must be adaptable to account for changes in the strategic and technological environment in the coming years.

Deconstruction

'Queering Queer Theory in Management and Organization Studies: Notes toward queering heterosexuality' by Nick Rumens, Eloisio Moulin de Souza and Jo Brewis in (2018) 40(4) Organization Studies comments 

This article suggests new possibilities for queer theory in management and organization studies. Management and organization studies has tended to use queer theory as a conceptual resource for studying the workplace experience of ‘minorities’ such as gay men, lesbians and those identifying as bisexual or transgender, often focusing on how heteronormativity shapes the discursive constitution of sexualities and genders coded as such. This deployment is crucial and apposite but it can limit the analytical reach of queer theory, neglecting other objects of analysis like heterosexuality. Potentially, MOS queer theory scholarship could be vulnerable to criticism about overlooking queer theory as a productive site for acknowledging both heterosexuality’s coercive aspects and its non-normative forms. The principal contribution of our article is therefore twofold. First, it proposes a queering of queer theory in management and organization studies, whereby scholars are alert to and question the potential normativities that such research can produce, opening up a space for exploring how heterosexuality can be queered. Second, we show how queering heterosexuality can be another site where queer theory and politics come together in the management and organization studies field, through a shared attempt to undermine sexual and gender binaries and challenge normative social relations. The article concludes by outlining the political implications of queering heterosexuality for generating modes of organizing in which heterosexuality can be experienced as non-normative and how this might rupture and dismantle heteronormativity.

The authors argue 

Since its emergence in the early 1990s, queer theory has mainly been used to examine the discursive constitution and regulation of non-normative sexualities and genders, especially those coded as ‘gay’, ‘lesbian’, ‘bisexual’, ‘transgender’ and ‘queer’ (Edelman, 2004; Halberstam, 1998; Sedgwick, 1990; Warner, 1993, 1999). This scholarship challenges the status of heteronormativity as ‘the elemental form of human association, as the very model of inter-gender relations, as the indivisible basis of all community, and as the means of reproduction without which society wouldn’t exist’ (Warner, 1993, p. vii). Critiquing the normative status of heteronormativity and demonstrating the impossibility of any ‘natural’ sexuality, queer theory is widely regarded as a resolutely anti-normative mode of politics because it interrogates and seeks to transform social norms and relations of power (Jagose, 1996; Wiegman & Wilson, 2015). 

Queer theory has also made significant inroads into management and organization studies (MOS) since its debut in Gibson-Graham’s (1996, p. 544) essay, which discussed its potential to disrupt the ‘normalizing effects of discourses of capitalist hegemony’. In MOS as elsewhere, queer theory has typically been mobilized to analytically subvert the heteronormative alignments between sex, gender and sexuality (e.g. Bendl, Fleischmann, & Walenta, 2008; Bendl & Hofmann, 2015; Bowring & Brewis, 2009; Brewis, Hampton, & Linstead, 1997; Courtney, 2014; de Souza, Brewis, & Rumens, 2016; King, 2016; McDonald, 2013, 2016a, 2016b; Muhr & Sullivan, 2013; Rumens, 2010, 2012; Steyaert, 2010). This scholarship aims to unsettle the persistent and harmful binaries (e.g. heterosexual/homosexual, male/female and masculine/feminine) that are discursively (re)produced within and through organizations and modes of organizing. In particular, MOS scholars have deployed queer theory to analyse and problematize heteronormativity, focusing on the discursive construction of ‘minority’1 subjects – again, typically those coded as lesbian, gay, bisexual or transgender, or LGBT – within heteronormative relations of power, and fundamentally questioning this constitutive process. 

A smaller number of MOS researchers have followed Gibson-Graham’s (1996) lead, tapping into queer theory’s anti-normative impulse to make wider methodological claims about its capacity to disrupt discursive regimes that constitute organizational phenomena such as ‘management’, ‘leadership’ and ‘public administration’ (e.g. Harding, Lee, Ford, & Learmonth, 2011; Lee, Learmonth, & Harding, 2008; Parker, 2001, 2002, 2016; Tyler & Cohen, 2008). In this less-developed strand of enquiry, attention to sexuality, gender, identity and sexual politics is uneven, with some scholars all but shearing off these attachments (e.g. Parker, 2002, 2002, 2016). Instead, they capitalize on queer theory’s energy as ‘whatever is at odds with the normal, the legitimate, the dominant’ (Halperin, 1995, p. 62). 

Noting these contributions in MOS research, we observe some missed opportunities to extend queer theory’s analytical purview to include heterosexuality as a site for enquiry. One reason for this might be that queer theory is often used to conceptualize a negative link between heteronormativity and heterosexuality (Beasley, Holmes, & Brook, 2015). Of course, there is good reason why MOS scholars do this. After all, MOS research consistently shows that heteronormativity constrains how LGBT people can live meaningful lives in and outside the workplace in constituting such minority identities as the Others to a heterosexual majority (Bowring & Brewis, 2009; Courtney, 2014; Ozturk & Rumens, 2014). As such, this type of scholarship is crucial and must continue responding to the calls made by researchers to address the ongoing plight of LGBT people in workplaces around the globe (Colgan & Rumens, 2015; Ng & Rumens, 2017). But, these very valuable contributions notwithstanding, we suggest that our discipline has yet to engage fully with queer theory for analysing ‘majority’ sexual identities coded as ‘heterosexual’. More precisely, the non-normative aspects of heterosexuality can be left untouched in MOS research that is concerned with how LGBT identities are marginalized, denigrated and excluded within heteronormative relations of power (e.g. Bowring & Brewis, 2009; Ozturk & Rumens, 2014). Unanswered questions remain about the provisional, contextually contingent discursive dynamics between heterosexuals, heterosexuality and heteronormativity. These missed opportunities are apparent not only within the MOS field. Sullivan (2003) and others (Beasley, 2015; Beasley, Brook & Holmes, 2012; O’Rourke, 2005) aver that queer theory research across the disciplines has often overlooked heterosexuality as an object of analysis. 

Elaborating this, Beasley (2015, p. 143) submits that ‘queer analyses largely ignore heterosexuality, except as the starting point against which queer theory’s concern with non-normalization constitutes itself’. In this scenario, queer theorists neglect to explore how heterosexuality can be queered; to deprive heterosexuality of its status as ‘normal’ and examine the non-normative alignments between heterosexuality and heteronormativity. Relatedly, Beasley et al. (2015) argue that scholarly deployments of queer theory can conflate heterosexuality with heteronormativity by repeatedly demonstrating how non-normative sexualities are associated with LGBT subjects and not heterosexuals, leaving little headroom to imagine how many heterosexuals do not and cannot stand shoulder to shoulder as the guardians of heteronormativity. In these situations, an unhelpful heterosexual/queer binary can be reproduced (Cohen, 1997), one that nullifies queer theory’s anti-normative political impulse. This, in turn, works against Warner’s original proposition that queer is ‘itself against the normal rather than the heterosexual’ (1993, p. 26). By way of contrast, queer theory can play an important role in queering heterosexuality (Heasley, 2005; Renold & Ringrose, 2012; Thomas, 2000, 2009). To realize its potential in this respect, we suggest queering queer theory to expose its own normative tendencies and omissions and orient it towards heterosexuality differently. 

In light of the above, the main focus of this article is the examination of MOS as a theoretical field. One of our principal aims is to encourage MOS scholars to engage critically with queer theory in new ways, in addition to and beyond examining the discursive constitution of LGBT identities within the normative field of heteronormativity, toward a queering of heterosexuality and its relationship with heteronormativity. We suggest that one condition of possibility for this endeavour is a queering of queer theory scholarship in our discipline. As such, after reading this article we hope MOS scholars might mobilize queer theory differently, to expand the remit of queer scholarship in the field that nourishes further opportunities for developing queer modes of organizing politically. To advance these proposals, this article asks: Why should MOS scholars consider queering queer theory?; What are the possibilities for using queer theory to queer heterosexuality and what might this involve?; and What are the implications of queering heterosexuality for engaging with queer as a mode of organizational politics? 

The academic context in which these questions are posed adds further weight to their salience for MOS scholars. We agree with Pullen, Thanem, Tyler and Wallenberg (2016) that MOS is a discipline in which queer theory has not yet become exhausted and clichéd, that it still harbours potential to disrupt the normal business of producing MOS knowledge. In contrast, it appears that queer theory has become institutionalized in parts of the arts and humanities disciplines from which it originated. There, it has been chastised for becoming embedded within the academy (e.g. at academic conferences, in degree programmes and caucuses) which gives the impression that it has a singular and universal set of doctrines and outlook on the world (de Lauretis, 1994; Halperin, 2003). Seen in this way, de Lauretis (1994) famously questioned what was ‘queer’ about ‘queer theory’ as the relevant publications multiplied to such an extent that they soon outstripped any sense of what queer is or could do. If, as Halperin (2003) ponders, queer has become de-queered (that is, stripped of its anti-normative impulse) then queering queer theory becomes a matter of urgency. The oblique angle at which queer theory is positioned within the MOS domain provides a conducive context for us to maintain queer theory’s ‘capacity to startle, to surprise, to help us think what has not yet been thought’ (Halperin, 2003, p. 343). As an instance of this, we want to (re)connect with queer theory’s impulse to fundamentally subvert the ‘normal’ by queering heterosexuality. 

The main contribution of this article is twofold. First, it adds to an emergent literature that advocates queering queer theory in MOS, whereby scholars are alert to and question the potential normativities that such research may otherwise produce. We hope this opens up a space for exploring how heterosexuality can be queered. In particular, we outline why, how and where queering heterosexuality can take place, so MOS scholars can engage with queer theory in reshaping our discipline as a theoretical field. Second, we contribute to queer theory scholarship more generally, which has been sluggish to interrogate heterosexuality, typically using it as a reference point against which queer theory’s anti-normative impulse is constituted. As such, we show how queering heterosexuality can be another site where queer theory and politics can come together in the MOS field; through a shared attempt to rupture sexual and gender binaries and challenge normative social relations. It is not our intention to re-theorize certain iterations of heterosexuality as ‘minority’ identities, a possible outcome if we designate some heterosexuals as ‘queer’. Instead we mobilize queer as a deconstructive practice (i.e. queering) to show how heterosexuality can be queered, with the aim of dismantling heteronormativity inside as well as outside organizations. 

The article is structured as follows. To begin, we highlight the variations in how the term queer has been understood before outlining its emergence as a theoretical project. Here, we provide clarity on how queer is mobilized in this article, primarily through the deconstructive practice of queering. Next we discuss how heterosexuality has typically been mobilized within MOS queer theory scholarship. Developing a particular practice of queering heterosexuality, we then explore what this might involve along three fronts: (1) revisiting the relationship between heteronormativity and heterosexuality, in particular its theoretical underpinnings; (2) queering hetero-masculinities in the workplace as an illustration of where queering heterosexuality can take place and what this may involve; and (3) extending this into a methodological context by examining how we can queer heterosexuality in the research process. Finally, we discuss the implications for queer(er) political modes of organizing that could subvert heteronormativity before outlining our contributions to queer theory per se.

Identitarianism

'Identity politics and social justice' by Jonatan Kurzwelly, Moira Pérez and Andrew D Spiegel in (2023) 47 Dialectical Anthropology 5–18 comments 

Is identity politics (hereafter IP), in its various historically and spatially contextually diverse forms, conducive to sustained social justice? Or does it hinder struggles to achieve a resiliently just and sustainably egalitarian world? These questions stimulated a conference roundtable discussion late in 2021.Footnote 1 Given the current widespread practice of IP, however, they merit further discussion. This article introduces a collection of essays focused on diverse contemporary manifestations of IP and their relation to social justice. The collection sheds light on various context-specific forms in which identities underlie political action and modes of organisation, driven by activists, academics, government policies, or market forces. The resulting scenario allows for broader reflections, which we briefly attempt here.

The authors state

Many contemporary progressive political struggles seem, often to a great extent, to mobilise IP. In doing so they frequently rest to some degree on ‘strategic essentialism’, since each instance in practice requires some working agreement about acceptable forms and contents of the particular identity/ies being mobilised, and thus crystallises each of them into a specific form. Such identity based struggles include, among many others, identitarian heritage and memorialisation claims, identitarian calls for political autonomy, identitarian demands for enforcement of equity employment laws that challenge inequalities based on gender or race in hiring or pay gaps, and identitarian calls for revision and diversification of teaching curricula with unequal identity representations. In what follows, we consider a variety of strategies that might be used to define IP, and whether, and how, they encompass other social phenomena which are not commonly understood as exemplifying IP – for example, governmental migration policy that regulates mobility based on identities, or far-right nationalist agendas of exclusion of national or ethnic others. To this end, we begin by considering whether IP can be neatly defined, and then discuss various critiques of IP, many presented in the collection’s articles, which question its potential to achieve sustained social justice. We conclude with a brief reassessment of the usefulness of the concept of IP. 

Challenges for defining identity politics 

The notion of IP is difficult to define and, in writing this introductory article, we have struggled with how, and whether, to do so. This is a question to which we return in our conclusion. As is evident in the articles included in our collection, IP is utilised in a plurality of ways: contributors to this collection have understood and used the concept differently from each other and related it to diverse social phenomena. Such a multiplicity of meanings might not, however, be conducive to comparative analyses or general assessments of practices that might be considered to exemplify IP at work. Hence some of the challenges we faced when preparing this overview. 

IP can, from one perspective, be understood as a concrete historically practised phenomenon, bound to the socio-historical specificities in which it occurs. Moran (2020), who works from this perspective, argues that the term should be limited to those forms of political action that mobilise explicitly around identity, which, she adds, is a phenomenon that arose in the second half of the twentieth century along with nascent uses of the term in academic literature. Similarly, many trace IP to specific non-governmental progressivist movements, mainly stemming from the social justice struggles of the 1960s and 1970s in the USA. Its origin is often traced back to the Combahee River Collective Statement (2017[1977]) – a manifesto arguing for a type of IP that reflects the specificity of the oppression faced by queer racialised women. In our view, however, such an understanding limits application of the term to a specific socio-historical manifestation and renders it a concept of limited theoretical utility. For us, examples of what we currently call IP can be found across history and socio-geographic contexts, even if the vocabulary of the time or place did not categorise those forms of political action as such. 

An alternative to this approach is to view IP as a conceptual tool for categorisation, analysis and comparison of diverse socio-political forms. This is the path we have chosen for our discussion of the concept as a general analytical tool instead of as an historically specific phenomenon. We begin, in this section, by considering the various characteristics that might lead to practices being considered as IP, and the extent to which such characteristics can or cannot be seen as definitional (that is, as necessary and sufficient conditions for a specific kind of political activity to be understood as IP). In doing this we also focus on various counter-arguments, as we believe that a precise understanding of IP, and of what practices are best described by that couplet, is related to how one deals with various critiques of the concept and its operationalisation. The recurring characteristics we identify can be divided into three distinct, albeit sometimes overlapping, sets which we consider in three separate subsections focused, respectively, on political grievances, on political practices, and on the political aims and outcomes of a particular array of processes and actions.

They conclude that the article described

three different possible ways of characterising IP in relation to specific facets of (or phases in) political processes: identitarian grievances, mobilisation of identities, and identitarian aims and outcomes. Nevertheless, in producing these characterizations we found that all of them are insufficient to establish when, exactly, a political process is (or is not) definitively an exemplar of IP as it is commonly understood today. This lack of consensus over what comprises IP, the imprecision in how the term is used, hinders its use as a comparative analytical tool. Does that mean we need to generate and then demand general use of a thoroughly considered and therefore very precise definition? Or does it mean that we should abandon use of the term and improve our precision when we describe socio-political phenomena in detail? Efforts to use the term for classificatory purposes require something akin to the former; efforts to be analytically clear may be possible by following the latter path. 

This choice is particularly delicate as IP is far from being a merely conceptual issue: it is a political tactic that is currently being applied and defended in all sorts of contexts around the world. The practices usually described by the couplet have gained what Pérez (2023) calls a monopoly within change-oriented social movements and now have currency well beyond the confines of the social sciences, with diverse and often incompatible meanings attached to it. In this context, we would suggest that investing effort into defining what constitutes IP has little if any value. Rather, what is needed is assiduous analysis of concrete political interventions in which identitarian thinking is present, and of the extent of success those have in achieving sustained social justice.