Emory University School of Law

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influential, approach to this dichotomy is primarily associated with legal theorist Catharine MacKinnon who posited (hetero)sexuality as the root of female ...

Emory University School of Law Public Law & Legal Theory Research Paper Series Research Paper No. 09-76

Introduction: Feminist and Queer Legal Theory Martha Fineman

This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection

Electronic copy available at: http://ssrn.com/abstract=1516647

Abstract: This essay forms is the introduction to Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, M.A. Fineman, J. E. Jackson, and A. P. Romero, Eds. (Ashgate 2009). The book explores the tensions among feminist and queer theorists. Wendy Brown (UC-Berkeley) sates that it is ―possibly the most useful theory anthology of the decade.‖ In the Introduction the intersecting histories of feminist and queer legal theories are considered and the convergences and departures are addressed.

Electronic copy available at: http://ssrn.com/abstract=1516647


Introduction: Feminist and Queer Legal Theory Martha Albertson Fineman This anthology focuses on the vigorous and sometimes contentious debates between and among feminist and queer legal theorists, bringing into direct dialogue many of the key players in this ongoing set of ―uncomfortable conversations.‖1 Many of the chapters speak directly to one another, debating not only important issues such as intimacy, privacy, sex harassment, and political strategy, but also the very conceptualization of feminism and queer theory. Cumulatively, the chapters pursue the shifting complexities and difficult questions feminist and queer legal theories consider as well as produce. This anthology also maps the different approaches to the concepts of sex and gender that have been articulated over the past decades by feminist and queer theorists. In particular, it explores evolving and contested assertions about the centrality of a positive theory of sexuality to the formulation of critical perspectives on legal, social, political, and cultural institutions. While this collection emphasizes the emerging differences, feminist and queer theories tend to share several important characteristics. They are ―subversive‖ to the extent that they question traditional, hegemonic understandings of sex and gender, for example. In addition, as Elizabeth Weed and Naomi Schor noted more than a decade ago in the introduction to the important book, Feminism Meets Queer Theory (1997), feminist and queer theories are interdisciplinary and, though very present in the academy, connected to political movements more broadly. As intertwined modes of inquiry, feminist and queer theories continuously problematize the relationships between sex, gender, and sexuality, and many affiliated scholars are concerned with dismantling existing social norms and structures so as to serve the larger goals of empowerment, and equality. In fact, the early equality discourses of the feminist movement are part of the root structure of both modern feminism’s many forms and queer theory. Queer theorists tend to acknowledge their intellectual debts to feminist theory and women’s studies and feminist theorists recognize the broadening influence of queer theory. However, there are apparent and growing intellectual tensions between the intertwined theoretical realms that make their relationship more complicated than a basic recognition of commonalities would suggest. This tension is 1 This anthology grew out of a Feminism and Legal Theory Project ―Uncomfortable Conversation‖ conference. The purpose for holding Uncomfortable Conversations is to bring together people with many common, but also some potentially contentious and conflicting ideas. The Conversations provides a space where these ideas can be discussed, debated, and perhaps even improved upon.

Electronic copy available at: http://ssrn.com/abstract=1516647


embodied in Janet Halley’s contribution to this volume, which provocatively suggests that we consider ―taking a break from feminism,‖ as well as Katharine Franke’s chapter, which chides legal feminists for, in her mind, failing to adequately appreciate women’s sexual pleasure. This tension is also present in my own contribution, which sharply critiques the centrality of sexuality to the concept of, and our legal and popular approaches to, family. Feminist Legal Theory As most readers will be well aware, feminism is not a singular entity. However, to a great extent, all approaches deemed feminist elaborate in some form upon a central question: how to understand gender from a critical and equality-driven perspective. History is important to understanding the current feminist projects. For many twentieth-century feminists the primary task in seeking equality and independence was the dismantling of traditional male–female power dynamics, many of which were embedded in laws and legal institutions. Not surprisingly, many feminists gravitated toward law school with the desire to give practical and legal dimensions to the realization that the personal was political. Feminist legal theorists during the 1970s and 1980s built their legal arguments for gender equality reform on the more general feminist claim that biological sex should not determine an individual’s social role. Perhaps overly captivated by rights discourses, legally trained feminists struggled to dismantle laws built upon a foundation that assumed women were significantly different from, and often inferior to, men. In doing so, they exposed the ways in which that unexamined assumption naturalized the hierarchical structure of the traditional family and mandated that women were appropriately excluded from the public and market sphere, confined to traditional gendered roles as wives and mothers. This was an equality project. Various strands of equality theory soon emerged, with formal equality dominating the political and practical wings of feminism well into current times. By contrast, substantive equality critiques and the largely academic feminists who demanded remedial concessions in order to accommodate women’s historic disadvantages and different social roles have been less well received in political and reform circles. The mainstream legal and political actors in the United States tend to be uneasy with, if not actively condemning, affirmative action approaches that appeal for different treatment in order to create a more level playing field. In arguing for conceptual and theoretical innovations concerning legal, cultural, and social equality for women, various feminists approached issues such as female sexuality and desire and the issue of male

Electronic copy available at: http://ssrn.com/abstract=1516647


dominance differently. While feminism, in any form is linked to a conception of gender identity centered on the idea of a female sex (biologically, culturally, legally, and socially determined), the degree to which sex and sexuality are considered necessarily central or an all encompassing component of the feminist analytic remains in dispute, with competing feminist approaches apparent. The issue of dominance and its corollary, subordination, has also created divisions. One early, still influential, approach to this dichotomy is primarily associated with legal theorist Catharine MacKinnon who posited (hetero)sexuality as the root of female subordination (1981, 1989). So called ―dominance feminism‖ holds that women’s gender roles were constituted by subordinate sexual practices driven by male desire, which were the root of female oppression. Sex is equated with domination, and submission to male desire is what prevents women’s social liberation and confines them to perennially controlled and subordinated gendered roles. This branch of feminist legal theory advocated for anti-pornography legislation and generated the theories that created the legal harm of sexual harassment. In its popularized form this form of feminist thought is often distorted and mischaracterized as inherently anti-sex and viciously anti-male. Unfortunately, other rich and varied feminist approaches to gender and gendered lives remain relatively obscure in the popular consciousness. This volume contains feminist theorists who take on such issues as family, work, economy, and capitalism in ways not easily subsumed under a dominance/submission approach. They clearly demonstrate that the tendency to view feminism as uniformly anti-male or as no more than an amalgamation of subordination ideologies would be to ignore the breadth of the work encompassed within the feminist movement. In fact, such critiques of feminism ignore the work of those who have been labeled as ―sex-radical feminists‖ (a.k.a. ―sex-positive feminists‖). These theorists challenged dominance understandings of oppression by rejecting subordination theories. Instead, some of this sex-positive approach casts expressions of women’s sexuality, even within traditional gendered roles, as opportunities for making autonomous and liberating choices. Carlin Meyer’s work (1994, 1995) on pornography is an example of liberationist theory. Others have also found sex and sexuality the source for positive theory. Robin West, whose attention to women’s hedonic and maternal lives has resulted in her being often labeled as a ―cultural feminist,‖ has asserted that feminist legal theory should focus on understanding and maximizing women’s


subjective happiness (1987, 1991).2 She builds on the phenomenologically based assumption that sex can be valuable and pleasurable for women, bringing it (as well as other hedonic female experiences) to the center of her inquiry. In addition, far from being static, as the feminist analytic has begun to take hold in U.S. political and academic discourses it has incorporated additional voices and perspectives, even when they initially were expansions of a critical chorus. Kimberlé Crenshaw (1989, 1991), among others, challenged early legal feminist analyses and offered philosophies of intersectionality that posited a link between sexism and racism, in addition to other positionalities, such as class status. Intersectionality theories argued there were unique lived experiences associated with one’s positions in life that resulted in cumulative, hybrid, and extraordinary oppression that cannot be encapsulated by looking to single axes of inequality. The Emergence of Queer Theory During the 1980s and 1990s, the LGBT community faced a very particular constellation of pleasures and dangers around sexuality. For example, as AIDS and government neglect of the pandemic ravaged the gay community, sex and spaces of sexual culture became suspect and shadowed by public-health panics. Moreover, whereas some feminists considered turning to the state for protection, it was the state itself that was identified as a substantial source of danger for queer communities. This seemed an inevitable conclusion following the 1986 decision Bowers v. Hardwick, which upheld state prosecution of same-sex sodomy. Further, while formal legal barriers were falling for women, it was clear that for LGBT communities many barriers remained and more were being erected. For example, while discrimination on the basis of sex was becoming legally impermissible, discrimination on the basis of sexual orientation remained legal and affirmed: a lesbian could not be fired from work for being a woman, but she could be fired for being lesbian. While there were a variety of responses to this situation, the one that came to predominate gay and lesbian politics tended to naturalize binary sexual identities, even as some theorists criticized that strategy. Further, building upon perceived successes of previous civil rights movements, gay and lesbian political leaders adopted a formal equality model that sought to equate the moral value and political status 2 Other strains of feminist legal thought fall under labels such as ―cultural‖ feminism or ―difference‖ feminism. The labels are of little use analytically and typically used to dismiss without consideration the ideas of someone (and too often, that someone herself) with whom one disagrees. The central point should be how a theorist approaches the equality project, what are their understandings of the current conditions, and how inequities should be addressed. Focusing on this issue brings us into discussion with each other, even if that discussion is sometimes an uncomfortable one.


of homosexuality and heterosexuality. In practical terms, this meant trying to include gays and lesbians in existing antidiscrimination regimes, such as Title VII and Fourteenth Amendment jurisprudence, in order to gain access to existing institutions, such as marriage. There have been both successes and setbacks in this struggle: Bowers was overturned by the U.S. Supreme Court in Lawrence v. Texas (2003), but the policy of ―don’t ask, don’t tell‖ continues in the military. The right of same-sex marriage has been established in some locales, but ―Defense of Marriage‖ acts have become law in others. It is in this context that queer theorists developed their critiques of both feminist and gay and lesbian theories. As Janet Halley points out in her chapter in this anthology, a postmodern antifoundational approach has led to queer skepticism of the identity-based nature of feminist legal theory and politics. One queer criticism of feminism argues that because feminism works from existing identities and social structures its potential for radical change is limited. Eve Kosofsky Sedgwick also applied this criticism in pointing out the ―sexist tendencies‖ of gay and lesbian studies to ―reinscribe the invisibility of specifically lesbian experience/sex/writing/subjectivity‖ (Turner, 2000, p. 133). As is common among queer theorists, Sedgwick’s queer theory rejects the constrained binary of heterosexual/homosexual and understands sexuality as more fluid. There is an appreciation of a multiplicity of sexual possibilities, not a hierarchy in which the heterosexual presides over the homosexual. Many queer theorists blur the rigid line typically drawn between heterosexual and homosexual and seek to radically pluralize sexed and gendered practices (Bulldagger, 2006; Warner, 1999). In its strongest form, the notion that sexuality is fluid virtually erases the categories of heterosexual and homosexual. It is argued that this theoretical move enlarges the political reach of queer legal theories because it encompasses a far greater number of constituents. It is this claim that leads to the assertion that the promise of queer theory is an inclusiveness not found in feminism. Some queer theories reject the primacy of the equality projects’ vision of inclusiveness, however. Laurie Kepros (1999/2000) summarized queer theory’s academic and political inclinations in this regard: While Queer theory operates in the realm of social and political goals, it is not concerned directly with . . . equality. Instead, Queer theory focuses ―on the manner in which heterosexuality has, silently but saliently, maintained itself as a hidden yet powerfully privileged norm; and an implicit, if not explicit, questioning of the goals of formal equality that, on their face simply reify the very categories that have generated heterosexual privilege and Queer


oppression.‖ Within this ideological framework, Queer theory seeks to foster social change by keeping its own status as a theory undefined, its techniques postmodern, and its membership open. (p. 284)

A queer theorist might ask if Kepros hasn’t inappropriately collapsed a diverse intellectual movement into a singular approach. A feminist might ask if some sense of stable categories is necessary in order to accomplish theoretical and political ―progress.‖ One might follow up with a question as to whether the mere identification of sexual hierarchies can serve as the foundation of a political and legal battle against oppressions—sexual and otherwise. There are many different claims made for queer theory. It is argued that being less fixated on a specific sex-identity is critical of identity-based thinking, and instead, positions sex and sexuality as central to the analytic. The chapters by Jack Jackson and Tucker Culbertson and Adam Romero in this volume, by contrast, reject the validity of attempting to define the substantive project of queer theory. Reconciliation within Contradictions? The contemporary debates over feminism and queer theory revolves around multiple interrelated issues that all extend from the emphasis given to gender on the one hand and sex and sexuality on the other. In some cases, feminism has been unfairly condemned as overly moralistic, while queer theory is mistakenly understood to be singularly about pleasure. But this dichotomy, like most, must inevitably fail. Francisco Valdes, whose contribution to this volume provides one framework for queer theory and feminism to consider racial and ethnic differences, has made prior contributions to feminist and queer legal theory. He offered a paradigm for considering sex, gender, and sexuality in ―Queers, Sissies, Dykes, and Tomboys,‖ emphasizing that, ―women and sexual minorities are the groups conflationary bigotries target for subordination‖ (1995a, p. 205). Valdes’s reasoning suggests a necessary linkage between feminist and queer legal theory, as well as the importance of forming ongoing opportunities for feministqueer dialogue: Queer legal theory can, should, and must join the critical enterprise of deconstructing ―sex‖ and ―gender.‖ Feminist legal theory likewise can, should, and must begin to include ―sexual orientation‖ more consciously within its discourse. Through mutual collaboration, the depth and scope of Queer/Feminist legal critiques can help to expand both Queer and Feminist


consciousness while advancing the legal and social interests that are important to each and common to both under conflationary traditionalism. (p. 373)

Further, as Judith Butler (1997) implicitly argues, in order for feminist and queer theory to work in combination, theorists must also accept their duty to work in contradiction: For either set of intellectual movements to remain vital, expansive, and selfcritical, room must be made for the kind of immanent critique which shows how the presuppositions of one critical enterprise can operate to forestall the work of another. (p. 1)

As this collection of essays clearly illustrates, there is much to be gained from negotiating the fault lines and building off the highly critical intellectual energies that the queer–feminist tensions have produced.