legal theory: critical theory



During the 1969 Stonewall Riots, gay men and lesbians protested police raids of gay bars in New York City. These protests sparked the start of a national civil rights movement pressing for equal rights for gay, lesbian, bisexual, and transgendered individuals. (Transgender is an umbrella term encompassing any individual who combines elements of "male" and "female" sex and/or gender identities, including transsexuals, intersexuals, and people who are or seek to be androgynous). Legal strategies figured prominently in the movement from the start. Advocates sought legal protections against discrimination in employment, housing, and the military and the end of harassment by government actors and private individuals. Advocates also sought official recognition of gay and lesbian relationships. Over time, some legal scholars turned to critical theories already launched in law and queer theories emerging in literature and cultural studies to dissect the ways that law itself suppressed homosexual identity and constructs heterosexual dominance.

Just a the struggle for a chosen name has been part of the social movement against oppression of homosexuality, the struggle for a chosen name appears in the works of legal theorists concerned with these issues. Some favor queer legal theory, others "queerlaw," or "gaylaw." Lesbian legal theorists warn that the gaylaw invokes an image of the gay male and risks eliding lesbiansí voices and experiences. "Queer" seems to many to afford a radical way of turning negative social messages about sexual "deviance" into a positive movement for change; it also appears a more inclusive term.

Queerlaw shares and builds upon many of the insights about sex and gender articulated by feminists, and notably critical legal feminists. Queerlaw also addresses the choice to remain "in the closet" and involuntary "outing", and here builds upon critical race scholarship that has theorized the politics of "passing." Queer legal theorists nonetheless center their work on the experiences of queer people and note the frequent omission of gay and lesbian issues and perspectives in other kinds of critical scholarship. Some ask for examination of sexual orientation in critical race work while urging greater attention to race in queer legal scholarship and thereby seek to build bridges in what Mari Matsuda has termed "outsider jurisprudence."

A basic strategy of queer legal theorists is to challenge the lawís conflation of sex, gender, and sexual orientation. Sex refers to biological or anatomical distinctions. Queer theorists challenge the assumption that sex is binary by pointing to the existence of intersexuals (hermaphrodites). Even pluralized in this way, sex must be distinguished from gender which refers to the series of roles, practices and acts that a given society or subcommunity expects and assigns to people presumed to have a particular sex. Masculinity and femininity are genders, and they must be performed and produced by culture; they are not automatic consequences of sex. There may be more than two genders and also variety in the content of particular gender performances expected by class, race, religion, and other subcommunities. Gender and sex are further distinct from sexual orientation, which involves the identity of those with him an individual seeks as a sexual partner or subject of sexual fantasy. Again, binary oppositions between gay and straight are inadequate given bisexuals and a continuum of desire that characterizes some peopleís preferences and experiences. Queer theory emphasizes that sex, gender, and sexual orientation need not be aligned; though law often presumes that they are.

Legal scholars building on these ideas seek to find in the notions of performance and fluidity grounds for dislodging the hierarchies and constraints involved in intimate relationships and social treatments of women, gays, lesbians, and transgendered people. Assisted by postmodernist approaches, a student Note recently explained,

[E]ven feminine women and masculine men are playing a role. Thus when a woman exhibits feminine characteristics, she is engaged in a performance that signals sexual identity precisely as drag does for a drag queen. A straight manís relationship to masculinity is the same as that of the butch lesbianís: both imitate a phantasmic ideal. [14]

If masculinity and femininity are simply roles to be played, the systemic devaluation of the feminine is neither inevitable nor justified. And if sexism is neither inevitable nor justified, neither is homophobia.

Queer legal theory addresses and challenges the ways that law in particular tries to locate and treat as natural majoritarian social unease with sexuality and sexual "deviance." Thus while many kinds of critiques can be mustered against the Supreme Courtís decision in Bowers v. Hardwick, queer legal theorists do not simply mount a disagreement with the Courtís refusal to extend fundamental privacy rights and approval of a state law criminalizing sodomy. Queer theorists also note how the Court asserted that the Georgia statute only forbade homosexual sodomy, when in fact it prohibited forms of sexual conduct commonly practiced by heterosexuals as well.

Queer legal theory further presses against the ways that courts try to ignore or tamp down uncertainty and variability in sex, gender, and sexual orientation. They urge advocates to resist the temptation to treat homosexuality as a biologically-based trait while acknowledging that opponents eagerly seize on suggestions of choice and preference as grounds for urging queers to change their ways.

Generated by concerns about the status and treatment of gays, lesbians, and transgendered people, queer law has focused on particular questions, such as whether same-sex harassment can and should count as illegal sex harassment, and whether gay couples and lesbian couples should be allowed to marry. Inquiry into these questions generates debate and disagreement. On the marriage question, for example, some seek inclusion and others join feminist critics of marriage as an institution that reinforces patriarchy. Critical theorists tend to identify the conflicting dimensions of arguments on both sides of the issue and the ways the issue itself risks freezing rather than opening up for reconstruction so basic an institution as marriage. Queer legal theorists also introduce questions about notions central to law, such as consent, identity, and agency, and invite re-readings of seemingly stable doctrinal distinctions between, for example, equal protection and freedom of expression. [15]

Little explicit legal scholarship has emerged to take on queerlaw directly, although the moves involved in deconstruction, identifying social construction, and demonstrating uncertainty parallel similar critical moves drawing a range of opponents.