On March 9, 2011 at 5-7p.m. at Harvard Law School Professor Libby Adler presented her article entitled, “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform”. Following Professor Adler’s presentation, Adrienne Davis, William M. Van Cleve Professor of Law at Washington University Law and Shannon Minter, Director of the National Center for Lesbian Rights responded to her piece. Professor Adler’s article can be read below. Video of the discussion is available here.
In addition, a variety of commentators’ with backgrounds ranging from practice, to academia and even activism, have responded to Professor Adler’s call for “decisionism.” Their responses can be found by clicking on their names below Professor Adler’s article. Upon review and digestion of these pieces, we invite readers respond on the message board below.
Gay Rights and Lefts:
Rights Critique and Distributive Analysis for Real Law Reform
A common rebuke against critical legal work is that it has a tendency to undermine without substituting.[i] It might seem outrageous then, for a critic to persist, obdurately, in his or her failure by taking an explicit stand against reconstruction – a deliberately irresponsible and even nihilistic[ii] position, unworthy of any claim to leftism. This particular version of anti-critical condemnation is built on a colossal oversight. It conflates reconstruction—the act of elaborating a new totalizing theory that justifies one’s law reform agenda[iii]—with the agenda itself.
In recent articles, I have critiqued the formal equality ideology that animates the contemporary gay rights movement in the United States.[iv] In its stead, I have not offered a newly reconstructed theory that purports to explain why lesbian, gay, bisexual, transgender and gender non-conforming (LGBT-GNC) people are entitled to a set of equalizing (or dignifying or liberating) law reforms, nor do I intend to do so. I have, however, begun an arduous course of reimagining a concrete law reform agenda that I hope holds some potential for improving the legal conditions faced by those living furthest out on the margins of sexuality and gender.[v]
This paper explains how the critique and the concrete ideas combine to exemplify a critical approach to law reform agenda setting. The methodology rests on a distinction between reconstruction and decisionism. Decisionism, according to my usage, consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the costs of one’s choices.[vi] Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective.[vii]
The critique of rights has a history that does not have much to do with the rights of LGBT-GNC people.[viii] Beginning in the 1980s and creeping into the 1990s, an informal association of legal scholars interested in critical legal studies (CLS)[ix] (a.k.a. the crits) offered several strands of critique. That critique was ambivalently received by devotees of critical race theory[x] (a.k.a. the race crits) and a subgroup of feminist legal theorists[xi] (a.k.a. the fem crits). No gay crit or queer crit contingent appeared in those early conversations.[xii]
Even now that there is a burgeoning literature on LGBT-GNC legal issues, my research turned up no fully elaborated discussions of the critique of rights in that context;[xiii] my own work is in part an effort to fill that gap. William Eskridge, the well-known proponent of same-sex marriage, has addressed some of the arguments against same-sex marriage emanating from the left,[xiv] but—as far as I could find—has not discussed the critique of rights discourse specifically. In at least one spot he positions himself against rights-critics, but without a substantive rebuttal.[xv] The closest I was able to locate came in his lengthy article on “identity-based social movements” in which he explains “limited judicial activism” constrained by politics (discussing gay rights and other rights), but he does not squarely confront any critique that would cast doubt on the very assumptions of activism or constraint.[xvi] Suzanne Goldberg has engaged the critique of identity, but in the context of rights-oriented litigation that was otherwise assumed.[xvii] Paisley Currah has responded to rights-criticism from communitarian quarters, in which the animating concern is for the “common good” (against which identity-based rights claims tend to chafe), but not to the critique of rights emanating from the crits.[xviii]
That conversation about rights-critique has occurred mainly with regard to the rights of racial minorities and women.[xix] Still, an analogous, sharp disconnection exists between those engaged in the ongoing architecture of the gay rights agenda and those writing in queer and other critical traditions. I take this to be evidence that antecedent discussants from the other two civil rights contexts have cast long shadows and that persons concerned with the sexuality and gender margins have assumed corresponding positions. What has happened since the initial discussions among the various critical strands, both in the domain of law reform on behalf of LGBT-GNC people and in the evolution of queer theory, warrants revisiting the critique of rights with a fresh eye and a focus on issues of sexuality and gender. I do that here.
Our current historical moment provides a more general reason to revisit the debate over the critique of rights, beyond those reasons presented by developments specific to the sexuality and gender margins. The Rehnquist Court delivered a bit of a beating to the left using the club of rights, and the Roberts Court—still in its early years—seems unlikely to provide a respite. Cases such as Bush v. Gore,[xx] McDonald v. City of Chicago,[xxi] and Citizens United v. FEC[xxii]—all right-wing victories premised on rights—are more than just politically demoralizing to the left. Decisions such as these could undermine what faith there is in rights as a path toward progressive change. It seems that every generation of leftists will have to learn the hard way the lessons of Lochner[xxiii] unless and until the left takes seriously the hazards of rights first observed by the legal realists, elaborated by the crits, and further elaborated in certain respects by queer theory. Embrace of the critique of rights does not lead inexorably to nihilism if we can let go of reconstruction as our only conception of how to make a positive contribution and teach ourselves instead to be rigorous distributive thinkers in the service of concrete change.
II. Revisiting the Debate over Critique of Rights
I begin by briefly reviewing some of what I found in the writings of my progenitors, borrowing what seems most applicable from their indispensible work.[xxiv] I consider how pertinent arguments play out in the LGBT-GNC rights context and discuss how insights drawn from queer theory could enrich critical analysis in that same context. It is my contention that one can assemble from these critical traditions an eminently responsible legal leftism for the benefit of persons living on the margins of sexuality and gender. Through diligent, even painstaking attention to a broad array of legal conditions, the critical approach to agenda-setting developed here can be used to generate concrete law reform proposals that, while imperfect, neither replicate the deep problems of rights nor make themselves vulnerable to charges of nihilism.
A. Indeterminacy vs. Utility
The indeterminacy of law is perhaps the most familiar crit thesis.[xxv] Rights, according to some CLS writers, are “unstable,” so that a right that brings a favorable result for a minority in one case might easily fail to do so in the next.[xxvi] This is because a right is an abstraction, not a tight description of what a litigant actually seeks.[xxvii] We might easily, therefore, have different ideas about the meaning of a right, such as equality, which, for example, supports a program of affirmative action according to one definition and precludes it according to another.[xxviii]
Moreover, rights often conflict with one another, so that a judge must choose between them in a given case, rather than identify the sole right that is at stake and deduce his or her way to a case outcome.[xxix] In the LGBT-GNC context, this phenomenon is easy to spot. Gay and transgender rights to equality and against discrimination have vied against opponents’ right of expressive association,[xxx] right to vote,[xxxi] right against harassment,[xxxii] and right of privacy.[xxxiii] As I have argued elsewhere,[xxxiv] on the LGBT-GNC frontier of the culture war, assertion of an equality right sometimes even seems to provoke the generation of a countervailing right, and this provocation can do quite a bit of damage.
Importantly, the devotees of critical race theory and feminist critical legal theory did not directly refute these arguments on their merits. In fact, some seemed rather convinced by them, occasionally even insinuating that they did not require such an elaborate case to know that the legal regime that oppressed them was rife with indeterminacy and room for abuse. As Richard Delgado wrote, “[w]e know, from frequent and sad experience, that the mere announcement of a legal right means little.”[xxxv] He nonetheless lamented what he perceived as disregard for the strategic utility of rights, observing that “[f]or minorities . . . rights serve as a rallying point and bring us closer together.”[xxxvi] Elizabeth Schneider agreed: “[r]ights discourse can express human and communal values; it can be a way for individuals to develop a sense of self and for a group to develop a collective identity.”[xxxvii]
Others noticed, however, that rights could just as easily prompt a “loss of collectivity.”[xxxviii] After the achievement of formal equality, which is likely to leave the most disadvantaged segments of a community behind, it might be more difficult to unify everyone in a group behind a common political objective.[xxxix]
Critics of rights and critics of the critics were arguing on slightly different planes. Contrast two archetypal disputes: between a crit and a defender of liberal legalism, the argument might sound like this: “Rights are indeterminate. Let me show you in an example.” The liberal defender answers: “But the system of adjudication can work fairly and neutrally. Let me show you how Hercules[xl] would make a decision.” Between crits and devotees of critical race theory or feminist critical legal theory who are worried about the demise of rights for strategic reasons, however, the argument might sound more like this: “Rights are indeterminate. Let me show you in an example.” The reply comes back: “Yes, I knew that already, but we need them anyway for strategic purposes. Don’t ruin them or we’ll have nothing.” The commonality, it seems to me, among the writers in the critical traditions, is acceptance of the indeterminacy thesis.[xli] A point of disagreement is whether a demonstration of indeterminacy in some doctrinal location leaves reformers with nothing to do.
B. Analysis of Identity and Oppression: The Contribution of Queer Theory
Another “critique of the critique”[xlii] of rights is that racism has been at least as significant a factor in the perpetuation of inequality as the indeterminacy of law, so that the absence of an accompanying robust analysis of race and racism renders the crit analytic tool kit incomplete. As Kimberlé Crenshaw argued, “[i]f racism is just as important as . . . liberal legal ideology in explaining the persistence of white supremacy, then the CLS scholars’ single-minded effort to deconstruct liberal legal ideology will be futile.” [xliii] Presumably, it would be analogous to urge the necessity of an analysis of sexuality and gender, and homophobia and transphobia, alongside any critique of LGBT-GNC rights.[xliv] Queer theory has much to offer such an enterprise.
Queer theory comes to us from the humanities[xlv] but it has yielded a number of concepts and critiques that could be valuable to legal thinkers. Writers such as Michel Foucault,[xlvi] Judith Butler,[xlvii] John D’Emilio,[xlviii] and Jonathan Ned Katz[xlix] have formulated rich and sophisticated conceptions of the production of identity, so that categories such as men and women, gay and straight, start to seem historically contingent rather than naturally occurring, yet discursively powerful, forming us as subjects and shaping our understanding of ourselves and our world. Wendy Brown[l] has developed specifically the negative effects of discursive entrenchment of injured subjectivity on political efficacy. Leo Bersani[li] and Lee Edelman[lii] have written of the value of ecstatic states and disorganization (as opposed to consolidated identity and rationality) in confronting problems of oppression. Eve Kosofsky Sedgwick[liii] demonstrated how thoroughly the hetero-homosexual dichotomy structures Western thought, and Michael Warner[liv] and Gayle Rubin[lv] have explored the hazards of normalization and criticized the moral devaluation of marginalized sexualities.[lvi]
It is probably anathema to queer theorists to sum up their work as a set. Rather than attempt to do so, I suggest merely that there is plenty with which to work if one seeks to enhance the critique of LGBT-GNC rights with a sophisticated analysis of sexuality, gender, homophobia and transphobia. Queer theory is thick with reflection on the material and discursive conditions that have produced identities and subjectivities, and have given meaning to sexual acts and gender performances. In many cases it provides, as well, ideas for disrupting this knowledge.
A few legal writers have attempted to import some of the ideas associated with queer theory into legal analysis,[lvii] and I have tried to do so myself,[lviii] but regretfully the process of migration has been slow-going and the wealth of insight available to legal thinkers has gone terribly underutilized. A real benefit of queer theory for the legal left, as I see it, is in more fully assessing the costs of legal strategies. We ought to be able to think through the ways in which the legal discourses in which we participate might affect the ongoing production of gendered and sexualized identity categories, or will contribute to normalizing or anti-sex moralism. Bringing these analytic tools to bear is not heading off on an intellectual holiday. To the contrary, it is no longer responsible to behave as if we did not have access to them as we develop law reform goals and approaches, or to pretend that our choices have nothing to do with the adverse consequences that occur in these registers.
C. The Problem of Legitimation and Beyond
Everyone writing in a critical tradition whose work I encountered seemed to agree that arguing in the language of rights serves a dangerous legitimating function.[lix] It is a mammoth concession to the logic of the legal regime and it carries the risk that after one’s formal rights have been vindicated, remaining inequities will seem fair, as if they are the result of natural inequalities rather than legally created ones.
Surely persons concerned with LGBT-GNC constituencies must recognize this danger. Imagine a future in which sexual orientation and gender identity have been added to every anti-discrimination law in the land, and same-sex marriage has been constitutionally required of every jurisdiction. Will all of our legal problems be solved? Will whatever trouble remains be due to our own inherent oddity or moral inferiority? What will we say when we have formal equality, but our youth are still disproportionately homeless, in foster care, abusing substances and suicidal? What will we say when we have formal equality, but HIV or some as yet unknown sexually transmitted successor ravages some segment of our community? What will we say when we have formal equality, but—unable to afford crucial gender-affirming health care—the impoverished among us are still taking street quality hormones, injecting silicone, and subjecting themselves to arrest—including police and prison violence—after engaging in sex work and other criminal activity to survive and to pay for health-related needs? What will we say when we have formal equality, but somehow, subtly, and always with some accompanying rationale, we find ourselves more vulnerable than others to allegations of obscenity, sexual impropriety, or predation?
In the context of race, Crenshaw made the compound observation that while rights argumentation sometimes legitimates an oppressive status quo, it simultaneously gains an imperative for just causes by being a discourse that is recognized as legitimate.[lx] “Demands for change that do not reflect the institutional logic . . . and . . . reinforce the dominant ideology—will probably be ineffective.”[lxi] Schneider, discussing women’s rights, made a related observation: “[b]y claiming rights, women asserted their intention to be taken seriously . . . . [their] interests, previously relegated to the private sphere, and therefore outside the public protection of law, now received the protection of the Constitution.”[lxii] “For blacks,” Crenshaw added, “the task at hand is to devise ways to wage ideological and political struggle while minimizing the costs of engaging in an inherently legitimating discourse.”[lxiii] That formula seems designed to maximize the benefits that can be extracted from rights while minimizing the costs of rights, which seems sensible enough—if one accepts that rights are the only or best way to obtain the benefits. I do not.
Moreover, I do not think that the term “legitimation” captures the problem adequately; it sounds too much as if fully formed subjects were delivering an effect on a system external to themselves. Participation in rights discourse does more than legitimate the existing legal order. It also eclipses from reformers’ view possibilities that lie outside the regime of rights. The choice to engage in a rights-based legal strategy is not a simple question of good faith or bad faith, but of shaping one’s faith. In the LGBT-GNC context, particularly the struggle for formal equality, including same-sex marriage, the persistent drum beat of equal rights has made it difficult to conceive of law reform goals not in sync with that beat. This is the powerful effect of discourse, as Foucault instructed; it produces knowledge and shapes our desires.[lxiv] To take seriously its power, we should recognize its effect on those who participate in it to achieve strategic ends. We should not imagine that calculating lawyers can deploy rights discourse in a purely instrumentalist manner to achieve litigation victories, persuading courts while they and their constituencies remain utterly unaffected. It gets harder and harder for LGBT-GNC people and their lawyers to tear their gaze away from the shining star of formal equality as we call for it again and again in courts, at rallies, and through news media. It is not impossible, but it takes a deliberate effort.
III. Reconstruction vs. Decisionism
My recent work has been such an effort. It endeavors to identify and also to generate law reform possibilities that do not simply materialize as self-evident within the terms of equality discourse. My goal has been to shine a light on and articulate concrete tasks that lawyers can evaluate and realistically undertake if they deem them good bets for improving the lives of marginalized people at acceptable cost levels. This section will further develop that methodology, which I conceptualize as a critical approach to agenda-setting. The methodology begins with critique, understood not as a strictly negative enterprise as its many detractors have characterized it,[lxv] but as a crucial step in evaluating reformist options, in which indeterminacy and provocation of competing rights are recognized as costs.[lxvi] I will assume that step to be familiar.[lxvii] The methodology picks up not with reconstruction, in the sense of elaborating a new meta-theory of LGBT-GNC emancipation, but with more of what I hope will be a slightly improved (but no doubt improvable) distributive analysis, and will conclude in a decisionist posture, driving toward commitment to tangible law reform tasks—not because they promise total equality or emancipation in some other mode—but because we are willing to accept their costs as the price of the benefits that we hope they will bring, eyes wide open to the fact that we cannot be sure.
Some critics of the critique of rights complained that “CLS scholars are often hazy about what would provide minorities comparable protection if rights no longer existed,”[lxviii] describing the CLS program as “Utopia.”[lxix] Some emphasized the need for a substitute strategy of equivalent efficacy while others insisted that a reconstructive effort is necessary to rehabilitate critique and render it something more worthwhile than a self-indulgent exercise in trashing.[lxx] While some work associated with CLS over the years has stressed critique over decision, I had no trouble at all locating alternatives to rights argumentation in critical work. Whether from the crits’ early days or in more contemporary writing, one can discern a strong thread of distributive analysis designed to inform reformist decision-making.[lxxi]
This certainly qualifies as a strategy, but is not the same as reconstruction, which is perhaps the crux of the problem—a problem that I would characterize as one of recognition. That is, when a work evaluates a modest legal option and attempts to trace its (positive and negative) implications throughout a complex distributive map, rather than offering a theoretically consistent push toward a shining telos on a hill, it might be hard to recognize that as reformist. It could require some self-conscious retraining to recognize law reform options that do not come in the form of fully reconstructed theories. Using examples from the latest generation of critical work, my goal here is to make the modest contribution of identifying the work as reformist in a distributive rather than reconstructive sense. The examples are an endeavor to make distributive analysis recognizable as a positive undertaking. Critique is a component of that analysis, one that is well-suited to revealing certain costs and perils of considered law reform alternatives.
Critique doesn’t leave us with “nothing,” in the sense of making it impossible to decide what to do….Those of us who are not moral realists (believers in the objective truth of moral propositions) are used to committing ourselves to projects, and deciding on strategies, on the basis of a balancing of conflicting ethical and practical considerations. In the end, we make the leap into commitment or action . . . . [even if] we don’t believe we can demonstrate the correctness of our choices . . . .[lxxii]
The last piece of this thought is crucial to the methodology I am advocating, because it distinguishes reconstruction from decisionism. Reformers might be accustomed to turning to legal academic writers for theoretic justification that will situate a specific law reform item in an accepted, overarching, philosophic objective such as equality. Legal thinkers are also making a contribution, however, if they help reformers speculate in an informed fashion about the costs and benefits of possible reform strategies before reformers must “make the leap into commitment or action.”[lxxiii]
For example, Hila Shamir has written a detailed analysis of the effects of regulation of the child care market in the United States on the allocation of domestic responsibilities between men and women within a household and on the distribution of wealth among families.[lxxiv] She traces the impact of federal child care subsidies, tax credits, and welfare rules, combined with other market regulating factors such as “high tolerance for employment law violation”[lxxv] in the heavily migrant child care work force, on the likelihood of women in different classes participating in the paid economy and on the portion of the domestic burden they are likely to shoulder in relation to men.[lxxvi] Here is a fragment of her much larger analysis: tax credits for child care combined with lax enforcement of immigration and labor laws enable middle- and upper-income women to join the paid work-force and privatize significant portions of domestic labor at low costs on the “supply side.”[lxxvii] Low-income women, on the other hand, while benefiting from subsidized child care available under federal welfare rules, also face time limits on their eligibility; when considered together with the constraints of a tight employment market, the rules push such women into family-formations with men.[lxxviii] The allocation of domestic labor between men and women in low-income households depends on the local employment market: “due to the growing service economy, in some urban settings women are more employable than men,” and men may therefore end up with greater domestic responsibility.[lxxix]
Shamir compared her U.S. findings to the regulation of the market in private care for the elderly in Israel and conducted a similar analysis, looking for both allocation of household responsibility by sex and effects by class stratum and immigration status.[lxxx] The result again, made especially vivid by virtue of the comparison, is a complex map of the apparent effects of laws regulating markets on the distribution of domestic burdens and wealth.
Shamir might have used a rights-based approach that focused on women, the poor or immigrants to address her normative concerns, which she states to be “increasing women’s equality and decreasing class stratification.”[lxxxi] She bypassed the limits of that species of analysis, however, and provided something much more hard-nosed and full of reformist opportunity. With so many potential targets of reformist intervention so clearly and methodically evaluated, it would be folly to charge her with “utopian” thinking.
In another example, Prabha Kotiswaran has carefully analyzed the potential effects of various rules on bargaining endowments among differently situated sex workers, brothels, patrons, landlords, and police within the economy of a major red light district in India called Sonagachi.[lxxxii] Kotiswaran begins by setting forth the two poles at or between which most feminist approaches to sex work appear:
[first, is] a subordination approach, which is typically against the commodification of sex; [those who embrace this approach] view sex work as nothing but coercion and violence and view sex workers as victims who lack agency and are slaves to institutionalized violence. Individualists or sex work advocates [on the other hand,] adopt an autonomy approach, are indifferent to the commodification of sex, and they understand sex work in terms of choice and work and view sex workers as agents who can negotiate within institutions as individuals.[lxxxiii]
Urging that the latter view “is undertheorized . . . with the result that it falls back on the
. . . discourse around choice, consent,” and other liberal concepts,[lxxxiv] Kotiswaran undertakes a critical and legal realist project of depicting “sex work as a form of work [while] at the same time [remaining] attentive to questions of power.”[lxxxv] She does this by evaluating the impact of actual and proposed rules on bargaining among different stakeholders in the sex work industry in Sonagachi.
She speculates, for example, on the effects that partial decriminalization of sex work—i.e., criminalizing the acts of patrons, brothel-keepers, traffickers, and others who might benefit from the exploitation of sex workers, but decriminalizing the acts of the sex workers themselves[lxxxvi]—might have on bargaining within the red light district.[lxxxvii] Her analysis, like Shamir’s, is elaborate and intricate. I only sample from it here.
For purposes of speculation, Kotiswaran explicitly assumes that the police would enforce the (proposed) revised law, under which a landlord could be criminally prosecuted for knowingly allowing rented property to be used as a brothel.[lxxxviii] If the landlord leased a room to an independent sex worker however, the sex worker’s practice would likely not, according to Indian law, fall under the definition of a brothel.[lxxxix] Another section of the law would criminalize the leasing of property for prostitution even without the element of a brothel, but the proposed definition of prostitution would require sexual exploitation or abuse,[xc] presumably intended to target traffickers while leaving the mere exchange of sex for fee outside of the criminal law’s purview. As a result, Kotiswaran surmises, not only would the sex worker’s acts be exempt from criminal liability, but so might her landlord’s, who could argue that the tenant was not exploited, but working for herself.[xci]
The criminal law’s impact on the landlord could in turn have effects on the positions of differently situated sex workers trying to rent apartments in Sonagachi. Landlords would be forced (or perhaps freed) to evict brothels and prostitutes in order to avoid criminal liability. Only independent sex workers would be protected against eviction.[xcii] Other sex workers, however, who previously thought that they had relatively secure housing at a stable rent level—security for which they had paid a premium[xciii]—would be subject to eviction and loss of their security payment.[xciv] Landlords would be in a position to rent to new tenants and collect new securities, likely a prohibitive deal for those who would have just been dispossessed of their last deposit.[xcv] Meanwhile, the improved reputation of the district could bring in more prospective tenants, causing rents and security rates to increase.[xcvi] As Kotiswaran concludes, “[o]nly independent self-employed sex workers with secure tenancy rights would continue to live and do sex work in Sonagachi.”[xcvii]
Kotiswaran could have approached the regulation of sex work as so many others have,[xcviii] as a question of what degree of agency to accord to sex workers, and assessed the partial decriminalization bill based solely on her ideology regarding sex worker autonomy, but her work is not so abstract. Her inquiry drives directly to such matters as the availability of rental housing and the loss or not of valuable security payments. She traces the effects of potential reformist interventions on crucial material matters in an effort to help reformers assess their reform proposals for much more than ideological satisfactoriness. The question is not merely “am I for or against prostitution?,” or even “does this law appropriately characterize villains and victims?,” but “how might a change in the criminal law affect rents and other material realities?”
For several years, I have been working with yet another example,[xcix] that of LGBT-GNC youth who are disproportionately likely to be homeless as a result of conflict with their parents.[c] Some equal rights might be of use to them, but the legal conditions that have the greatest impact on their daily reality do not sound in that key. Some of these legal conditions might not even directly concern their sexual orientations or gender identities. For example, homeless youth face
many obstacles to self-support and housing . . . including federal rules requiring runaway and homeless youth shelters to report the whereabouts of youth to their custodians within seventy-two hours, limits on youth capacity to contract (e.g., for rental housing), rules against sleeping in parks, labor laws limiting the hours and conditions under which young people can work, and the ineligibility of minors to serve as payees for their own child support.[ci]
These legal conditions are not unique to LGBT-GNC youth; they affect all homeless youth, whatever their sexuality or gender identity. Still, by intervening in these conditions, law reformers might be able to use law to affect the concrete reality lived by some of the most marginalized among the sexuality and gender constituencies—if they are willing to forego the gratifications of identity-based reform.
Of course, every one of the rules listed above has a purpose, and it would be foolhardy to run headlong into eradicating any one of them without a full—if speculative—evaluation of the possible effects of doing so. Take, for example, limits on youth capacity to contract. Minors are not entirely without contractual capacity, but they are limited by a doctrine called the power of avoidance or disaffirmance,[cii] which permits them to void their contracts unilaterally for any reason or no reason. Obviously, this provides a powerful disincentive to landlords to rent to them and to businesses to extend them credit.[ciii] That legal condition is a tough one for homeless youth, who must find a way to subsist independently, and (combined with other legal disabilities) probably contributes to the high rate of survival sex in this population.[civ] The importance of having full contractual capacity, including the ability to bind oneself to an expectation of performance, is generally a right-wing position.[cv] That position typically does not extend to minors,[cvi] but it might be that full capacity is good for youth in this circumstance because it would remove one of the barriers to obtaining housing.
On the other hand, the limit on youth capacity was designed to protect minors from their own immature judgment and from unscrupulous adult actors who might take advantage of them.[cvii] Usually, it is a left-wing position that it is better to protect weaker parties from the dangers of bargaining autonomy [cviii] though a wider range of thinkers probably accept that position when it comes to minors. Moreover, LGBT-GNC youth are disproportionately represented in the foster care system[cix] and a stunningly high percentage of youth in that system reach the age of majority with their credit history already damaged by adults (sometimes birth family members, sometimes foster family members) who steal their names and social security numbers to open utility accounts or credit cards.[cx] Theoretically, the youth are not liable for any debt that accrued during their minority, but as many people know first-hand, it is not easy to correct errors in one’s credit history or repair the damage that results from identity-theft, and young people just emerging from the foster care system are probably less equipped to navigate that process than many middle-class adults who have had plenty of difficulty doing so.
Back on the first hand, however, if minors cannot get credit, then they have no opportunity to develop a good credit history, either. This could disadvantage them when they try to rent an apartment.[cxi]
Neither contractual autonomy nor protection against it is an ideal solution for homeless youth, LGBT-GNC or otherwise.[cxii] Distributive analysis does not yield perfect solutions any more than rights do. It might be that through careful deliberation, intermediate or partial solutions would emerge, such as an exception to the power of disaffirmance for apartment leases, low-cap credit lines for minors, accelerated repair of credit history for eighteen year-olds, a slight lowering of the age of majority for contract purposes, or revisiting the prerequisites for or effects of emancipation under state law.[cxiii] Of course, it also might be that the contract rules ought to remain as they are and reformers should turn to child support rules, or elsewhere. In the course of rigorous distributive analysis, the law reform proposals must be considered in context, with as much information on the table as possible. No once-and-for-all answer to the question “should minors have contractual autonomy for the sake of their own welfare?” is likely to be right, but some law reform possibility could emerge as the best bet to address a given problem, i.e., it could, based on informed judgment, appear likely to produce the most benefit at a tolerable cost. Costs, it bears repeating, would include those discovered using the tools of critical and queer theory, such as the perils of indeterminacy and any anticipated effects on LGBT-GNC identity. Then, once the weighing is done… jump. The methodology leaves us with no new theory, but it does end with a decision.
Critical theory (by which I mean to include all of the multifarious strands discussed above) is not merely a luxury of the academy that real law reformers cannot afford to indulge. To the contrary, if put to deliberate use in service of a redistributive agenda, critical theory can enhance one’s capacity to participate in law reform responsibly by laying bare more and more (perhaps never all) of what law reformers ought to want to anticipate as they ponder their next steps, especially what costs might result from their well-intended initiatives. The methodology that I have described cannot do everything;[cxiv] it cannot bring the triumph of emancipation over oppression, equality over hierarchy, or dignity over discrimination. But through patient, at times painstaking, attention to the lives as experienced under law by the most marginalized among us, small victories might be found, one or a small handful at a time. Perhaps someone, some day, will come up with the meta-theory that saves us from the mixed government of laws and men that we have. Until that day, however, I urge reform-minded thinkers to generate numerous and dispersed possibilities, each the product of specific and local consideration for its concrete, distributive impact, readiness to bear the costs that may come, and acceptance of the difficult reality that we cannot know in advance how everything will turn out.
† Professor of Law, Northeastern University School of Law. My genuine thanks go to the editors of the Harvard Civil Rights-Civil Liberties Law Review for deciding that this topic was worth making the subject of a colloquium, and especially to Victoria Baranetsky for championing the idea. As always, I took wise counsel and indispensible feedback from Janet Halley. Rashmi Dyal-Chand provided comments on an earlier draft as well as her customary intellectual and general camaraderie. Frank Cooper recommended important readings. Duncan Kennedy and Karl Klare did, as well, and pushed my analysis forward. Finally, my deep thanks go to Adrienne Davis and Shannon Minter for lending their great insights to this conversation, both on-line and at the live forum.
[i] See, e.g., Anthony E. Cook, Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr., in Critical Race Theory: The Key Writings that Formed the Movement 85, 86 (Kimberlé Crenshaw, Neil Gotanda, Gary Peller, Kendall Thomas eds., 1995) (“In short, what values and concerns will guide us in this reconstructive moment? The failure to address these important questions constitutes the most significant shortcoming of the CLS [Critical Legal Studies] project”); Jose A. Bracamonte, Foreward, Minority Critiques of the Critical Legal Studies Movement, 22 Harv. C.R.-C.L. L. Rev. 297, 298 (1987) (“The CLS movement has failed to propound a rhetorical or ideological discourse to replace the rhetoric of rights.”).
[ii] Duncan Kennedy, A Critique of Adjudication (fin de siècle) 359-63 (1997) (hereinafter: A Critique of Adjudication) (discussing opposition to reconstruction and the charge of nihilism).
[iii] See id. at 295-96.
[iv] See Libby Adler, The Gay Agenda, 16 Mich. J. of Gender & L. 147 (2009) (hereinafter: The Gay Agenda); Libby Adler, T: Appending Transgender Equal Rights to Gay, Lesbian and Bisexual Equal Rights, 19 Colum J. Gender & L. 595 (2010) (hereinafter: T).
[v] See The Gay Agenda, supra note 4 at 197-216; T, supra note 4 at 612-15.
[vi] Carl Schmitt is famously associated with the term due to his valorization of a decision’s having been made by the proper authority over the nature of or basis for the decision; this is often linked to his support for National Socialism. See, e.g., Pierre Schlag, Formalism and Realism in Ruins (Mapping the Logics of Collapse), 95 Iowa L. Rev. 195, 221 n. 86 (2009), citing Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 66 (George Schwab trans., Univ. of Chi. Press 2005). I am not eager to ratify a total absence of basis for a decision, or any suggestion that the mere fact of a legal authority making a decision renders the decision legitimate. To the contrary, my use of the term is meant to urge law reformers to take responsibility for their choices after considering the widest possible array of factors—utilitarian as well as normative—and notwithstanding the likelihood that any singular justificatory theory they invoke might not hold up to critique. It is that last piece that recalls Schmitt, but my usage is otherwise distinct..
[vii] My writing has focused on critique of rights-oriented theories associated with the sexuality and gender margins, and has not critiqued every conceivable theory that could support law reform in that arena. I have not, for example, critiqued an economic analysis of sexuality such as that proposed by Richard Posner. See Richard A. Posner, Sex and Reason (1992). Perhaps some theory out there is or will be the right one. My posture toward theoretic reconstruction is skeptical, however, and part of my idea in this paper is to urge reformers to place less faith in reconstructive theory as the best or only route to reform.
[viii] This is not a resentful remonstration, merely an observation.
[ix] Some representative works include: Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984); Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex L. Rev. 1563 (1984); Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387 (1984); A Critique of Adjudication, supra note 2. Kennedy wrote several pertinent articles in the 1980s, but I rely instead on this retrospective work which recounts and consolidates many of the crucial critique of rights arguments that he and others have made.
[x] Some representative works include: Cook, supra note 1; Bracamonte, supra note 1; Kimberlé Williams Crenshaw, Race Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, in Critical Race Theory: The Key Writings that Formed the Movement 103 (Kimberlé Crenshaw, Neil Gotanda, Gary Peller, Kendall Thomas eds., 1995); Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-CL. L. Rev. 301 (1987); Patricia J. Williams, The Alchemy of Race and Rights (1991).
[xi] Some representative works include: Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women’s Movement, 61 N.Y.U. L. Rev. 589 (1986); Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 Yale L.J. 1860 (1987). Olsen, supra note 9, should also be placed among the fem crits, as she is a self-identified feminist, but I included her in the earlier note listing crits because I read her to be staunchly aligned with the critique of rights side of the debate rather than with the side that is worried about the demise of rights for feminist purposes.
[xii] This, of course, is not to say that none of the individual participants in the debate were gay-identified or interested in anything of relevance to LGBT-GNC constituencies, just that I discerned no collection of writers with a self-identified gay perspective or with the cohesiveness of the race crits or fem crits.
[xiii] Individual exceptions can be found. See, e.g., Peter M. Cicchino et al., Sex, Lies and Civil Rights: A Critical History of the Massachusetts Gay Civil Rights Bill, 26 Harv. C.R.-C.L. L. Rev. 549, 617-26 (1991). I would not place this article quite in league with those of the race crits or the fem crits, in the sense that it was not entirely dedicated to discussing the critique of rights, did not generate or participate in a discrete genre, and while borrowing and applying it, did not advance or critique the critique. Still, a significant portion of the article engages with the critique of rights emanating from CLS and notes its utility for understanding the Massachusetts gay civil rights law, using the example of the conflict of rights between gay tenants and anti-gay landlords who do not wish to rent to them. Among the article’s conclusions is that reformers who succeeded in getting the law enacted fell prey to the perils identified by the crits because they were too easily satisfied with immunity (a.k.a. negative) rights and did not do enough to make the case that homosexuality was good. Other individual exceptions include Janet E. Halley, Reasoning About Sodomy: Act and Identity In and After Bowers v. Hardwick, 79 Va. L. Rev. 1721 (1993) and Kendall Thomas, Beyond the Privacy Principle, 92 Colum. L. Rev. 1431 (1992).
[xiv] See, e.g., William N. Eskridge, Jr., The Ideological Structure of the Same-Sex Marriage Debate (And Some Postmodern Arguments for Same-Sex Marriage), in Legal Recognition of Same-Sex Partneships: A Study of National, European and International Law 113 (Robert Wintemute & Mads Andenæs eds., 2001); William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 Va. L. Rev. 1419, 1486-93 (1993).
[xv] William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet 100 (1999) (“Contrary to its critics, rights discourse with all its fuzzy edges tangibly worked to the benefit of the most despised minority in America, at least by empowering gays in their interactions with antigay police, censors, and state employers. Indeed, rights created for the benefit of blacks and the poor may have benefited white middle-class gay people more than they actually helped blacks and poor people.”) Strangely, Eskridge does not seem to take this latter observation as a good reason to critique rights.
[xvi] William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2370-72 (2002).
[xvii] Suzanne B. Goldberg, On Making Anti-Essentialist and Social Constructionist Arguments in Court, 81 Or. L. Rev. 629 (2002).
[xviii] Paisley Currah, Politics, Practices, Publics: Identity and Queer Rights, in Playing With Fire: Queer Politics, Queer Theories 231, 233 (Shane Phelan ed., 1997). Two other contributors to this colloquium, Shannon Minter and Aziza Ahmed, were kind enough to recommend Paisley Currah, Transgender Rights Imaginary, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 245 (Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero eds., 2009). In this essay, Currah embraces and analogizes to arguments made by some of the race crits, and notes that those arguments came in response to critiques made by the crits, but does not engage the crits’ work directly.
[xix] This is not to say that no one engaged in the debate ever mentioned gay rights. See, e.g., Gabel, supra note 9, at 1578.
[xx] 531 U.S. 98 (2000).
[xxi] 130 S.Ct. 3020 (2010).
[xxii] 130 S.Ct. 876 (2010).
[xxiii] Lochner v. New York, 198 U.S. 45 (1905).
[xxiv] This is not meant as a comprehensive survey; for that an interested reader ought to turn to the original sources. My account is purposive and skips over fine distinctions among the thinkers as well as over arguments that I deemed irrelevant to my purposes.
[xxv] See, e.g., Mark Kelman, A Guide to Critical Legal Studies 258-62 (1987). The critique of rights spans well beyond constitutionalism, anti-discrimination and equality rights, but I focus this section on that cluster.
[xxvi] Tushnet, supra note 9, at 1364-71.
[xxvii] Id. at 1382-84. Tushnet says more, especially about alienation, but I have not covered the whole argument.
[xxviii] See Crenshaw, supra note 10 at 105 (discussing “the expansive view and the restrictive view” of equality).
[xxix] See Olsen, supra note 9, at 387.
[xxx] See Boy Scouts of American v. Dale, 530 U.S. 640 (2000) (holding that the Boy Scouts may exclude gay scout master as an exercise of First Amendment right).
[xxxi] See Largess v. Supreme Judicial Court of Mass., 373 F.3d 219 (1st Cir. 2004), cert. denied, 543 U.S. 1002 (2004) (unsuccessfully challenging state same-sex marriage decision as a violation of the federal Guarantee Clause).
[xxxii] See Cruzan v. Special Sch. Dist. #1, 294 F.3d 981, 983-84 (8th Cir. 2002) (a teacher unsuccessfully alleged hostile work environment against her employer school district based on a trans woman’s use of the women’s restroom).
[xxxiii] See Aaron Belkin & Melissa S. Ember-Herbert, A Modest Proposal: Privacy as a Rationale for Excluding Gays and Lesbians from the U.S. Military, 27 Int’l Security 2 (2002).
[xxxiv] See The Gay Agenda, supra note 4 at 175-79 and T, supra note 4 at 600-06.
[xxxv] Delgado, supra note 10, at 304.
[xxxvi] Id. at 305.
[xxxvii] Schneider, supra note 11, at 590-91, 611-12 (Schneider continued, “[r]ights discourse can also have a dimension that emphasizes the interdependence of autonomy and community. It can play an important role in giving individuals a sense of self-definition, in connecting the individual to a larger group and community, and in defining the goals of a political struggle, particularly during the early development of a social movement”). See also Minow, supra note 11, at 1873 (using the secondary school disciplinary process as an example of rights “reconfirm[ing] community.”).
[xxxviii] See Crenshaw, supra note 10, at 117-118.
[xxxix] See id. See also Gabel, supra note 9, at 1566-81 (arguing that rights contribute to alienation rather than “authentic connection”).
[xl] See Ronald Dworkin, Law’s Empire 238-241 (1986).
[xli] I have papered over a bit here to sharpen a point. Tushnet, for example, addresses the utility argument head-on, arguing that not only are rights indeterminate, they are also not useful and in fact harmful. See Tushnet, supra note 9, at 1384-94.
[xlii] Crenshaw, supra note 10, at 110.
[xliii] Id. See also Delgado, supra note 10 at 314 (“To date, Crits have not articulated a psychological or political theory of the origin of racism or of how it could be eradicated.”). Cf. id. at 316-320 (discussing theories of race and racism and urging these analyses on CLS). There is a related, but not identical, argument in the race-crit literature that the differing capacities to appreciate the importance of rights are rooted in the differential experiences of legal thinkers of different races, which position people differently with regard to awareness of unconscious racism. See, e.g., Patricia J. Williams, The Pain of Word Bondage, in The Alchemy of Race and Rights 146, 152 (1991). I have not taken up this argument. Cf. Schneider, supra note 11 at 648 (“The legal formulation of [women’s] rights grew out of and reflected feminist experience and vision….”).
[xliv] This is not to neglect the pertinence of race to sexuality and gender. As Kimberlé Crenshaw is perhaps best known for explaining, intersecting analyses are often useful. See Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991). See also Patricia Hill Collins, Black Sexual Politics: African Americans, Gender, and the New Racism (2005). The post-colonial literature, too, is rich with intersecting analyses, broadly understood to mean analyses that account for both race (or ethnicity or nationality) and gender, but might take a postmodern/anti-coherentist approach to either or both. See, e.g., Gayatri Chakravorty Spivak, Can the Subaltern Speak?, in Marxism and the interpretation of Culture 271 (Cary Nelson & Larry Grossberg, eds., University of Illinois Press 1988).
[xlv] See Janet Halley, Split Decisions: How and Why to Take a Break from Feminism 107-279 (2006), for a genealogy.
[xlvi] See Michel Foucault, The History of Sexuality: An Introduction (Robert Hurley trans., 1978) [hereinafter: Foucault, Vol. I]; Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans., Vintage Books 2d ed. 1995) (1978).
[xlvii] See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990).
[xlviii] See John D’Emilio, Capitalism and Gay Identity, in Making Trouble: Essays on Gay History, Politics and the University 3 (1992).
[xlix] See Jonathan Ned Katz, The Invention of Heterosexuality (1995).
[l] See Wendy Brown, States of Injury: Power and Freedom in Late Modernity (1995).
[li] See Leo Bersani, Is the Rectum a Grave?, in AIDS: Cultural Analysis, Cultural Activism 197 (Douglas Crimp ed., 1987).
[lii] See Lee Edelman, No Future: Queer Theory and the Death Drive (2004).
[liii] See Eve Kosofsky Sedgwick, Epistemology of the Closet (1990).
[liv] See Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (1999).
[lv] See Gayle Rubin, Thinking Sex: Note for a Radical Theory of the Politics of Sexuality, in Pleasure and Danger: Exploring Female Sexuality 267 (Carole S. Vance ed., 1984).
[lvi] This is nothing near an exhaustive list, but merely a sample of writers and concepts that have been useful to me. Queer theory has become voluminous, and much of it, while fascinating, I have not—as a lawyer—quite figured how (or whether) to use yet. See, e.g., Judith Halberstam, In a Queer Time & Place (2005).
[lvii] See, e.g., Bernard E. Harcourt, Forward: “You are Entering a Gay and Lesbian Free Zone”: On the Radical Dissents of Justice Scalia and Other (Post-) Queers, [Raising Questions About Lawrence, Sex Wars, and the Criminal Law], 94 J. Crim. L. & Criminology 503 (2004); Dean Spade, Documenting Gender, 59 Hastings L.J. 731 (2008); Katherine M. Franke, Putting Sex to Work, in Left Legalism/Left Critique 290 (Wendy Brown & Janet Halley eds. 2002); Ian Halley, Queer Theory By Men, 11 Duke J. Gender L. & Pol’y 7 (2004).
[lviii] See, e.g., The Gay Agenda, supra note 4 at 161-72, 179-97.
[lix] See, e.g., A Critique of Adjudication, supra note 2 at 236-63, and Crenshaw, supra note 10 at 112.
[lx] See Crenshaw, supra note 10 at 111 (“People can demand change only in ways that reflect the logic of the institutions they are challenging.”).
[lxii] Schneider, supra note 11 at 625-26.
[lxiii] Crenshaw, supra note 10 at 119.
[lxiv] See Foucault, Vol. I, supra note 46 at 92-102.
[lxv] See, e.g., Louis B. Schwartz, With Gun and Camera Through Darkest CLS-Land, 36 Stan. L. Rev. 413, 422-23 (1984) (“The [CLS] movement is utopian and theoretical. Its expositors decline to offer or consider particular programs. They are ‘jurisprudes’ in search of the ultimate insight that will explain the harsh world…. CLS writers have not yet found that insight, but they believe devoutly that their exposure of the ‘incoherence’ and ‘contradictions’ of liberal philosophy will cause a new correct thinking to cohere and grow.”).
[lxvi] While I have not stressed the point in this paper, I have noted in the past and note again here, that a rights-based strategy might sometimes look like the best course of action. Critique is still crucial to anticipating its hazards, but I do not foreclose the possibility that a rights argument might sometimes be worth the anticipated costs. What should be crystal clear, however, is that rights are not the only option for advancing the interests of persons on the sexuality or gender margins. Inability to think of anything other than equal rights as a strategy should not be the reason for pursuing an equal rights strategy. See The Gay Agenda, supra note 4 at 216.
[lxvii] If not, see The Gay Agenda and T, supra note 4, for examples in the domain of sexuality and gender or see supra note 9 for a more general selection.
[lxviii] Delgado, supra note 10 at 305. See also Crenshaw, supra note 10 at 111 (lamenting that no strategy for supplanting rights has yet been articulated).
[lxix] Delgado, supra note 10 at 305.
[lxx] See supra note 1. See also A Critique of Adjudication, supra note 2 at 360 and Crenshaw, supra note 10 at 111 on trashing. In Richard Michael Fischl, The Question That Killed Critical Legal Studies, 17 Law & Soc. Inquiry 779 (1992) (book review), Fischl defends the refusal of adherents of critical legal studies to offer an alternative program to the rule of law. I do not believe that I am contravening Fischl here. That is, I do not imagine myself to have offered anything as grand as an alternative to the rule of law that somehow levitates above all of the contradictions and indeterminacies that critique reveals. The pitch here is much more modest. It is a recasting of critique as a tool for assessing the costs of a broad array of strategies, each of which will be imperfect—in part because it would occur in the context of the system we have.
[lxxi] See, e.g., from the early days, Olsen, supra note 9 at 406-12 (assessing the costs and benefits of several proposals to regulate statutory rape); Karl E. Klare, Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform, 38 Cath. U. L. Rev. 1 (1989) (offering short and long-term proposals for the reform of labor law in pursuit of a more democratic work place); Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L.J. 705 (1990) (making a critical, post-modern argument in favor of radically expanding affirmative action specifically in law schools because they are political institutions that wield significant power); and more recently, Prabha Kotiswaran, Born Unto Brothels—Toward a Legal Ethnography of Sex Work in an Indian Red-Light Area, 33 Law & Soc. Inquiry 579 (2008) (assessing the potential distributive effects on sex workers and others of various interventions in the criminal law and political economy in Sonagachi, a large red-light district in India); Hila Shamir, The State of Care: Rethinking the Distributive Effects of Familial Care Policies In Liberal Welfare States, 58 Am. J. Comp. L. 953 (2010) (assessing the potential distributive effects on care workers in the United States and Israel of various possible interventions in the political economies of those countries); Janet Halley et al., From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J.L. & Gender 335 (2006) (evaluating several feminist reforms using distributive analyses).
[lxxii] A Critique of Adjudication, supra note 2 at 361-62.
[lxxiv] See Shamir, supra note 71.
[lxxv] Id. at 969.
[lxxvi] Id. at 962-77.
[lxxvii] Id. at 969-70.
[lxxviii] See id. at 967-68.
[lxxix] Id. at 974.
[lxxx] See id. at 977-984.
[lxxxi] Id. at 984.
[lxxxii] See Kotiswaran, supra note 71.
[lxxxiii] Id. at 581.
[lxxxv] Id. at 582.
[lxxxvi] The Indian government was deliberating on a partial decriminalization bill at the time of her writing, but the analysis is also useful because partial decriminalization has been emerging as a consensus position among “many feminists who, despite their many differences, are almost unanimously against complete criminalization, but are at the same time ambivalent about both legalization and complete decriminalization, which some feminists perceive as legitimizing the inequalities of the sex industry.” Id. at 617.
[lxxxvii] Kotiswaran conducted an elaborate ethnographic study in Sonagachi, located in West Bengal, from which she learned about the complex economy of the district and its differently situated economic actors. See id. at 580.
[lxxxviii] See id. at 618-19.
[lxxxix] See id. at 619.
[xc] See id.
[xci] See id.
[xcii] See id. at 620.
[xciii] This “right to rent,” called selami, is the most secure among three different kinds of tenancies in Sonagachi. Id. at 595. The article lays out species of tenancy in detail. See id. at 595-606.
[xciv] See id. at 620.
[xcv] See id.
[xcvi] See id.
[xcviii] See, e.g., Kathleen Barry, The Prostitution of Sexuality 57-58 (1995).
[xcix] For still more examples, especially concerning LGBT-GNC people, women, and sex workers, see The Gay Agenda supra note 4, at 202-16 and T, supra note 4 at 612-13.
[c] See Nat’l Ctr. for Lesbian Rights, et al., National Recommended Best Practices for Serving LGBT Homeless Youth (2009), available at http://www.nclrights.org/site/DocServer/national-recommended-best-practices-for-lgbt-homeless-yo.pdf?docID=5821.
[ci] T, supra note 4 at 612-13.
[cii] See 7-27 Corbin on Contracts § 27.2 (LEXSTAT 2010).
[ciii] See id.
[civ] See Nat’l Ctr. for Lesbian Rights et al., supra note 100.
[cv] See Duncan Kennedy, Distributive and Paternalistic Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 42 Md. L. Rev. 563, 633 (1982).
[cvi] One who embraces the position that it is generally good for people to be able to bind themselves to a contract probably would want to ensure that contract is not deprived of its key rationale—voluntariness—by being exercised by incompetent persons. See id. at 569-70.
[cvii] See id. at 569.
[cviii] See id. at 620.
[cix] See Lamda Legal Def. and Educ. Fund, Youth in the Margins: A Report on the Unmet Needs of Lesbian, Gay, Bisexual, and Transgender Adolescents in Foster Care, 11 (2001), available at http://data.lambdalegal.org/pdf/28.pdf.
[cx] See Jesse Ellison, Sabotaged by the System, Newsweek, Feb. 7, 2009, available at http://www.newsweek.com/2009/02/06/sabotaged-by-the-system.html#.
[cxi] See id.
[cxii] Cf. Klare, supra note 71, at 24-25 (Demonstrating in the labor law context that the abstract ethic of antipaternalism and contractual liberty, to the extent that it has “philosophical content,” or “is linked to . . . human fulfillment and self-determination, [raises] very complex and problematic empirical difficulties in showing that particular… rules actually serve such ideals.” Klare points to a need for “contextualized inquiry.”).
[cxiii] A similar analysis could be done regarding child labor laws. Obviously, compulsory schooling and limits on the hours during and conditions under which children can work were established for some pretty sound reasons. For homeless youth, however, those sensible policies do nothing to eradicate the need to earn money, so their effect is to push the youth toward sex work and other survival activity. One hardly wants to return to the days of child labor, of course, and a significant relaxation of child labor laws could increase school drop-out rates and cause wages to drop. Cautious weighing of possible costs and benefits of small-scale alternatives, however, could yield something helpful to LGBT-GNC youth, something that helps them subsist and makes not engaging in sex work a realistic choice.
[cxiv] One writer is critical of what he perceives as a CLS tendency to reject piecemeal reform. See Delgado, supra note 10, at 307. Without speaking for anyone whom he might accurately be describing, I hope it is clear by this point in the paper that I have not taken any cues from any such work and my own deployment of some of these critical tools does not lead in any such direction.
Assistant Professor of Law at Northeastern University School of Law.
The Value of Critique and Distributive Analysis to Addressing the Needs of Sex Workers in the Context of HIV: A Response to Libby Adler’s “Gay Rights and Lefts”
In Professor Libby Adler’s article “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform,” she highlights the need to bring critical tools to bear on legal reform strategies. According to Adler:
Decisionism . . . consists of making difficult choices about which law reform initiatives to undertake based on broadly informed distributional hypothesis and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, always prepared to bear the cost of one’s choices. [ii]
In my brief response I will focus on the importance of Adler’s insights in the context of HIV. In particular I will consider the grave consequences resulting from 1) refusing to engage in a cost-benefit analysis, and 2) developing a legal reform strategy that does not minimize identifiable costs. While it is not possible in the short space offered here to conduct a comprehensive distributional analysis and construct a legal reform strategy based on Adler’s idea of decisionism, I provide a glimpse of what is accomplishedby analyzing costs and how a way forward for sex work and HIV might look when one engages in decisionism.
To accomplish this goal I examine the legal reform agenda of abolitionist feminists[iii] who seek to end prostitution through an advocacy agenda that places a limitation on U.S. funding for HIV/AIDS programs known as the “anti-prostitution pledge.”[iv]
The Anti-Prostitution Pledge
In 2003, President George W. Bush announced that the United States would commit fifteen billion dollars to address the Global HIV/AIDS epidemic. Soon after, the U.S. Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“PEPFAR”) was enacted, making the United States the largest government donor to HIV and AIDS prevention globally. PEPFAR contains within it a limitation on how funds might be spent known as the “anti-prostitution pledge.” This pledge states that no PEPFAR funds can be utilized to “promote or advocate the legalization or practice of prostitution or sex trafficking.”[v] The anti-prostitution pledge language in PEPFAR is seen as a victory for abolitionist feminists who work in coalition with conservative and religious organizations to ensure that no U.S. money goes toward programs that work with sex workers (without a rescue component). This has included programs that have had proven positive effect for the health of sex workers.[vi] The primary concern of the abolitionist feminist legal reform agenda is ending prostitution – an institution understood to be central in the ongoing oppression of women and girls.[vii]
Feminist Theorizing on Sex Work
Prabha Kotiswaran offers a summary of the oppositional frameworks that underpin the feminist legal reform projects on sex work.[viii] The abolitionist feminist position emanates from the subordination feminist understanding that women do not have agency in sex work; rather, sex work is a product of coercion and violence.[ix] According to Kotiswaran, the “oppositional” position advocates for sex worker individualism and autonomy; he suggests this position is undertheorized and that it does not adequately examine issues of power in sex markets. Trapped in the bounds of the liberal legal regime, these oppositional positions often focus on criminal law, either criminalizing or decriminalizing sex work, as the primary vehicle for accomplishing their objectives.[x] Kotiswaran argues that it is necessary to shift one’s lens away from criminal law and consider instead local-level laws that operate in sex markets. In this way we are able to see how changes in small rules alter a range of bargaining endowments. This understanding may then help illuminate what a new legal reform project might look and how a new “feminist vocabulary” on sex work might sound.[xi] Applying Adler’s method of assessing costs and engaging in decisionism, we also see how to overcome the blindness created by the ideologies animating these various positions on sex work how to move towards a more careful legal reform agenda.
III. Assessing the Costs
Adler’s method tells us that a cost benefit analysis is not only necessary but that it is “no longer responsible”[xii] to behave as though we do not have access to the analytical tools necessary to understand the consequences of our legal strategy. The analytical tools offered by decisionism can help us develop a critical legal reform project that minimizes negative consequences. Here I seek to determine a few of the costs of successfully enacting the “anti-prostitution pledge” in the context of HIV. Assessing the costs and consequences of the anti-prostitution pledge makes it apparent that the abolitionist feminist response is negatively impacting women’s health. If abolitionist feminists engaged in a cost analysis a complicated array of negative consequences emerge. I highlight two of these costs:[xiii]
First, the anti-prostitution pledge has increased funding for organizations who seek to “raid brothels and rescue women and girls.” In order to carry out this mission organizations rely on the state, and in particular the police, who are often implicated in violence against sex workers.[xiv] In turn, using state agents, including the police, to rescue women into government custody has resulted in physical violence, mistreatment, and lack of access to healthcare once in state custody.[xv]
Second, programs that invest in sex workers as part of the HIV response have been instrumental in slowing the spread of HIV. The United Nations Joint Programme on HIV/AIDS has highlighted many of these programs as employing “best practices.” The anti-prostitution pledge requirement results in the de-funding of such initiatives and in turn undermines the ability of organizations to respond to the needs of sex workers. This is largely because the conflation of trafficking and sex work has meant that programs serving sex workers, including health service providers and health oriented drop-in centers, are construed to be involved in trafficking women. Many such stories have emerged in the aftermath of the “anti-prostitution pledge” including the closure of sex worker programs in Cambodia and Bangladesh. Several of these programs were shut as a result of direct attacks by abolitionist feminists on the programs despite the fact that the programs were the only in existence that adequately served the needs of sex workers and other vulnerable populations.[xvi] The closure of these programs has resulted in lack of access to education, care, support services, and medication. The costs are grave. [xvii]
Adler offers critical analytical methods as a way to escape ideology and move towards a real legal reform project. She offers decisionism as a way of establishing a set of tangible law reform tasks that builds on an assessment of the costs of the strategy. Applied to the anti-prostitution pledge, a legal reform victory for some, it becomes clear that if the goal is to make women’s lives healthier and safer the costs may outweigh any perceived benefit of such a pledge. Utilizing Adler’s method brings the activism to maintain the anti-prostitution pledge in focus: if one is truly concerned about the vulnerability of sex workers to violence it may not be the anti-prostitution pledge that will accomplish this goal. Instead it becomes necessary to shift towards an examination of the “small rules” that alter the bargaining endowments of sex workers. If the goal is to make sex workers less vulnerable to contracting HIV, a decisionist posture might illuminate a range of different legal reform options (some of which reflect the current work of sex-worker networks and harm-reduction organizations). These include working to eliminate prostitution-free zones that facilitate the arrest and harassment of sex workers; ending the use of condoms as evidence of sex work (this practice disincentivize carrying condoms); and utilizing sex-worker networks to document police and client violence against sex workers and assist in condom distribution.[xviii] These efforts move away from the ideological abolitionist position of saving women and instead look to change the bargaining relationships that emerge from smaller rules making sex work safer.[xix]
Adler stresses understanding costs and creating a legal reform agenda that recognizes and minimizes them. The assessment above shows us that it is necessary to take Adler’s decisionist posture to a legal reform agenda pertaining to sex work in the context of HIV in order to minimize vulnerability to HIV. The use of critical tools has not led to nihilism as argued by some.[xx] Much to the contrary, in the case of this analysis, critique enriches our ability to move a more concrete legal reform project and towards healthier lives.
[i] Assistant Professor of Law at Northeastern University School of Law.
[ii]Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, 46 Harv. C.R.–C.L. L. Rev. Amicus __, 1, 2 (2011), available at http://harvardcrcl.org/wp-content/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf.
[iii] For an in-depth examination of the role of feminists in debates on sex work and trafficking, see Janet Halley, Prabha Kotiswaran, Hila Shamir & Chantal Thomas, From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism, 29 Harv. J.L. & Gender 335 (2006), and Janie A. Chuang, Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, 158 U. Pa. L. Rev. 1655 (2010).
[iv] For a longer analysis on the role of feminists in supporting the anti-prostitution pledge, see Aziza Ahmed, Feminism, Sex Work, Power and HIV/AIDS: Consequences for Women’s Health, 34 Harv. J.L. & Gender 226 (2011).
[v] United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, Pub. L. No. 108-25, 117 Stat. 711 (2003) (current version at 22 U.S.C.A. §§7601 et seq (West 2010)).
[vi] Janie A. Chuang, Rescuing Trafficking from Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy, 158 U. Pa. L. Rev. 1655, 1664–69 (2010).
[vii] Halley, supra note 3, at 339-340. Chuang, supra note 6. at 1664–69. For examples of dominance feminist writing on pornography and sex work, see Kathleen Barry, Female Sexual Slavery 9–13 (1979); Andrea Dworkin & Catharine Mackinnon, Pornography & Civil Rights: A New Day for Women’s Equality 24–25 (1988).
[viii] Prabha Kotiswaran, Born unto Brothels—Toward a Legal Ethnography of Sex Work in an
Indian Red-Light Area, 33 Law & Soc. Inquiry 579, 581 (2008).
[ix] Id. at 581.
[x] Adler, supra note 2, at 14; Kotiswaran, supra note 8, at 581.
[xi] Adler, supra note 2, at 15.
[xii] Id. at 8.
[xiii] While I highlight here the costs of one legal reform strategy I am not suggesting that other legal reforms are without costs.
[xiv] See Cheryl Overs, Asia Pacific Network of Sex Workers, Caught Between the Tiger and the Crocodile: The Campaign to Suppress Human Trafficking and Sexual Exploitation in Cambodia (Draft) 7 (2009), available at www.aidslex.org/site_documents/SX-0046E.pdf; Elizabeth Bernstein, The Sexual Politics of the “New Abolitionism,” 18 differences: J. Feminist Cultural Stud. 128, 132 (2007).
[xv] Overs, supra note 14, at 7.
[xvi] Joanna Busza, Having the Rug Pulled from Under Your Feet: One Project’s Experience of the US Policy Reversal on Sex Work, 21 Health Pol’y Plan 329, 330–31 (2006).
[xvii] Earlier insights on the operation of power in sex-working communities are instructive in seeing how this is not the case. In fact, punishing or criminalizing a behavior simply shifts the balance of power (not always in ways that will benefit the sex worker) without necessarily ending the targeted behavior. See Halley et al., supra note 3, at 337 (“We take it as a given, for a distributively focused legal analysis, that punishing conduct as a crime does not “stop” or “end” it, as governance feminists (“GFeminists”) sometimes seem to imagine. Rather, it enables a wide range of specific institutional actors to do a wide range of things.”).
[xviii] Meena Menon, INDIA-AIDS: An NGO Gets Sex Workers to Enforce Condom Use, available at http://www.aegis.org/news/ips/1997/IP970806.html (last visited February 23, 2011); Global Network of Sex Work Projects, Making Sex Work Safe, available at http://www.nswp.org/makesexsafe/ (last visited February 23, 2011) [hereinafter NSWP].
[xix] NSWP, supra note 18.
[xx] For a description of the critique of critical theory suggesting that the latter leads to nihilism, see Adler, supra note 2, at 4.
M. V. Lee Badgett
Director of the Williams Institute and Adjunct Professor at UCLA School of Law
Are We All Decisionists Now? Response to Libby Adler
M. V. Lee Badgett
Libby Adler’s thoughtful article serves as a reminder that there are different strategies that we could call on to achieve greater social equality. Furthermore, her focus on the most marginalized members of marginalized groups—such as homeless LGBT youth or transgender sex workers—keeps the diversity of the LGBT community and the varying life experiences of LGBT people in full view of those engaged in collective efforts to improve the lives of all LGBT people. I also appreciate Adler’s recognition of the practical processes that are part of social change efforts. She understands the necessarily imperfect and difficult choices that organizations, in particular, must make in allocating community resources to different ends.
However, as someone who works along the border of the social sciences and policy analysis, not in legal scholarship, I was troubled by the implicit framing of the debate as the pursuit of formal rights versus her view of critical agenda-setting. On one level, Professor Adler does not seem to be arguing for a strict “either/or” approach, since presumably an organization or litigator could decide that the distributional and other considerations point to the desirability of a rights-based legal challenge. On another level, though, she sets the formal rights approach up against the various critical legal scholarship traditions in a way that suggests that they are substitutes for each other in the range of alternatives faced by legal activists rather than being complements—the perspective that I would take.
I prefer to see policies that promote rights and policies that create structures and resources that give those rights meaning as being complementary—a “both/and” approach as opposed to an “either/or” approach. For one thing, I think that view fits better with the perspectives of those fighting for LGBT rights. Over the last few decades, I’ve talked to and worked with many legal and political advocates and grass-roots organizers in the LGBT social and political movement. They have almost always recognized that having equal rights to housing, employment, or marriage, for instance, are necessary but not sufficient steps toward access to the opportunities and material resources that promote human flourishing. It is also clearly possible to fight for the rights of middle-class LGBT people and for those in more precarious economic positions. The legal groups fighting for LGBT rights do so on a variety of fronts and serve a wide range of clients ranging from LGBT youth in foster care to LGBT professionals. Most LGBT advocacy organizations have a wide range of goals that neither begin nor end with the fight for the right to marry, a particular effort that has drawn much (misguided, in my view) criticism from some legal scholars.
Furthermore, research on and even casual observation of the gay-marriage debate show us that without strenuous efforts to ensure equal rights, barriers to a variety of institutions will persist and will harm LGBT people. Without the right to recourse against acts of discrimination, expanded access to public-sector jobs or training will not help a woman fired for being gay deal with the economic and psychological harms that she might experience. Without the right to marry, a same-sex couple who wants to marry will be deprived of the social, economic, and psychological value that they place on being allowed to enter an important legal institution. Winning those rights cannot be taken for granted, as we can observe in the floundering of efforts to pass federal nondiscrimination laws and in the efforts of marriage-rights advocates as they maneuver their way through state-by-state successes and setbacks.
Could we achieve some of the good effects of expanding rights without a focus on individual rights? Possibly—we would expand access to health care to more people through a single-payer plan with universal coverage than through giving someone in a same-sex couple domestic-partner benefits or the right to marry. We would improve more children’s access to caring parenting (labor by parents) through paid family leave rather than through giving same-sex couples rights under the Family and Medical Leave Act. But to go down those roads with no attention to rights puts us back at the question of access and equal treatment. LGBT people are still vulnerable to marginalization and the denial of access to the institutions that will regulate and implement any imagined policy. We now have lots of evidence of discrimination against LGBT people in employment, housing, health care, education, and social services—why would we think that discrimination would disappear under different ways of organizing the provision of those services and opportunities?
Of course, as current debates about the best way to organize our health care and educational systems demonstrate, making the kind of deep and meaningful changes sought by rights critics is difficult at best. At worst, we get the regurgitation of the 2010 health care reform act with a new Congress and the rise of the Tea Party, for example. (That issue alone should remind us that it is not just rights rhetoric and activism that provokes the generation of countervailing policy claims.) At any rate, it is easy to see why a prudent LGBT “decisionist” might not want to put all of her eggs in a broader institutional-reform basket that will be difficult and uncertain to pass and would not protect the right to access for all LGBT people.
In the end, I think that the value of Professor Adler’s “decisionism” lies less in creating an entirely new law reform agenda, since there is but the fuzziest of sketches of such an agenda here, and more in creating a distributional checkpoint. There would be no harm and perhaps a lot of good if LGBT individuals, activists, lawyers, and organizations built in a broader perspective on the range of needs of the LGBT population, both for action now and in the future.
Professor of Law at Columbia University
Can We Get A Witness?
Katherine M. Franke[i]
As Libby Adler notes in her provocative new essay Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, queer theory, like other critical theory that preceded it (critical legal studies perhaps most prominently in legal scholarship[ii]) finds itself vulnerable to the now familiar attack that its value is substantially undermined by its failure to produce a positive political program, or at least a portable yardstick, with which to measure and evaluate legal and political strategies in queer terms. Law and economics has efficiency, liberal legalism has autonomy, and feminism (or at least some versions of it) urges us to ask “the woman question,”[iii] but queer theory, what does queer theory have on offer besides a method of critique that is deconstructive in nature?
Adler’s response is to urge us to think in complex terms, to take seriously the multiple vectors of vulnerability of homeless youth, of transgender persons and of other durably disenfranchised members of the LGBT-GNC[iv] community. The multiplicity she suggests has twin registers: that of rights and of redistribution. As Adler tells us, when the movement focuses on the needs of its most well-off members, the redistributive component of the LGBT-GNC movement is easily forgotten as rights-based claims are likely to do the trick of curing or addressing their disenfranchisement. But when it comes to the least well-off, rights might be nice, but redistribution is really what justice demands. Adler’s use of examples compellingly illustrates the importance of both rights and redistribution to an effective and responsible LGBT-GNC politico-legal agenda.
Perhaps the essay’s most important contribution to the literature in law will be the importation of a vital on-going debate outside law, inaugurated by Nancy Frasier’s now-famous essay on Rights and Redistribution.[v] Avoiding a false dichotomy between these two aims (that Frasier has been accused of creating), Adler argues reform-minded thinking that is simultaneously committed to both rights and redistribution. While this insight may seem well-worn to political theorists outside law, Adler’s essay provides new evidence of the fact that it bears repeating in mainstream gay rights circles, where rights remain king.
In this way, Adler’s scholarship models what I regard to be queer theory’s important role in larger LGBT-GNC reform projects. Surpassing “mere critique,” queer theorists such as Adler, and queer activism more generally, function as the movement’s ombudsperson. A queer analysis insists that movement strategy take responsibility for the values it promotes by identifying and naming i) whose injuries are regarded as paradigmatic (and thus set the terms of plaintiff-selection criteria in civil rights litigation) and whose are not; ii) what kinds of kinship, attachment, and desire are to honored and treated as respectable (marriage, the couple, and private, consensual sex between adults) and what are not; and iii) what counts as an LGBT issue (discrimination that in an obvious way announces itself as sexual orientation-based) and what is not. Queer theory is committed to foregrounding the terms and consequences of these decisions. This is not to say that LGBT-GNC reform should be about everything or anything, but rather that the development of reform strategy must responsibly grapple with the values and costs of ruling in certain lives and forms of human suffering, while ruling out, or worse exiling and disparaging many others.
The ombudsperson is rarely a popular character. She is not a paper-overer. She resists the urge to tidy up identity in such a way that makes “our” equality claims more palatable. She makes us face the costs of short-term strategy and incrementalism, insofar as the recognition of the civil rights of some come at the expense of the marginalization or immiseration of others.
The kind of analysis that Adler offers in this essay is best understood as queer, and I would insist that it is essential to the responsible politics of reform – particularly one framed in legal terms. The LGBT-GNC movement, for better or for worse, is now largely led by lawyers. Its strategies, horizons and values are largely those that lawyers would formulate: challenges to de jure discrimination (access to marriage and military service), equalization of the treatment of homo- and hetero- sexuality, and the recognition of same-sex relationships as worthy of the dignity and respect that different-sex relationships seem to garner without effort. Surely these must be worthy goals, but as currently formulated they are goals that neglect and sometimes denigrate the lives and practices of people who are unable or unwilling to organize their desires, attachments, and notions of a good life in the vernaculars of the model homo-citizen.
Libby Adler, the queer ombudsperson, as watchdog, insists that we keep these lives and ways of life in view.
[i] Professor of Law and Director of the Center for Gender & Sexuality Law, Columbia Law School. Ó Katherine M. Franke. All Rights Reserved.
[ii] See e.g. Paul Carrington, Of Law and the River, 34 J. Legal. Educ. 222 (1984).
[iii] Katharine T. Bartlett, Feminist Legal Methods, 103 Harv. L.Rev. 829 (1990).
[iv] This is Adler’s term, meaning lesbian, gay, bisexual, transgender and gender non-conforming.
[v] Nancy Fraser, From Redistribution to Recognition? Dilemmas of Justice in a ‘Post-Socialist’ Age, 212 New Left Rev. 68 (1995).
University at Buffalo Law School, State University of New York
University of California-Berkeley School of Law
Comments on Libby Adler, “Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform”
Angela P. Harris
University at Buffalo Law School, State University of New York
University of California-Berkeley School of Law
Libby Adler has written a fascinating, passionate essay—and one that bafflingly keeps shifting ground. I will try to track some of its twists and turns with comments from three different directions.
First direction: Although Adler believes she is engaging with a queer-centered “critique of rights,” she is actually grappling with something quite different—the public-private divide. In the United States, the “public” world of legal rights and legal principles has little to no traction in the “private” world of markets, production, economic security and justice, and wealth distribution. What Adler seems to hate most about traditional, equality-centered, identity-centered legal work for queers is that (1) it has little impact on economic conditions, and (2) it lacks any analysis of economics and law. Having the right to marry or serve in the military doesn’t do much for LGBT-GNC youth without jobs, as Adler points out. This doesn’t have much to do with reconstruction versus decisionism, though. It has to do with the lack of economic rights in the U.S.
Because of the nature of the public-private divide in United States law, recognition rights seldom bring with them redistribution rights (what ever happened to those forty acres and a mule, anyway?). Yet the “real” law reform agenda, as Adler calls it, indeed must be a distributive agenda. That means fighting for economic justice, which might or might not involve promoting economic “rights.” It also means, as Adler suggests, becoming more demanding about where the Big Principles of equality and liberty are going to take real queer people trying to live their lives. But the problem isn’t “rights” as such. It’s how “rights” are framed in our split-level polity, where the economy lives in an entirely different (and well-defended) place than our politico-legal citizenship. (Let me just note in a self-interested way that the ClassCrits project, www.classcrits.org, encourages just this kind of theoretical—and practical—inquiry among law professors.)
Second direction: What Adler means by “decisionism” is simply pragmatism, and she is taking a twirl in the familiar dance between those who think that theorizing means knowing where you are going to end up before you get there, and those who think that it means muddling along a step at a time. (No need to invoke the slightly sulfurous ghost of Carl Schmitt; Richard Posner will do.) I am totally sympathetic to Adler’s pragmatism as a critique of the search for a Theory of Everything. But to be slightly contrary for a minute (since that is my job as a commentator), let me just note that “pragmatism” (this version of it, anyway) really is in a dance with grand theory and is not in any way a substitute for it. If queer people had not had a prior revolutionary moment of declaring themselves inherently free, whole, dignified, and equal as people and as a people—based on Big Theory Principles of sovereignty, liberty, and equality— then strategizing on behalf of LGBT-GNC youth, as such, would be impossible. That brave parade of capital letters signifying the complicated evolution and coexistence of a whole bunch of identity groups was brought to you, in part, by grand theory. So though Adler may be right that we need to move from the big picture to a much more nuanced series of small pictures, the relationship between the two is more dialectical than oppositional.
Final direction: It is wholly appropriate, and delightful, that Adler recognizes critical race theory as an intellectual precursor of queer theory and draws on the work of those like Kimberle Crenshaw, who have also struggled with the legitimation function of rights. Yet it is disappointing that Adler’s brief history of critical legal thought takes for granted that all the coloreds are straight and all the queers are white. (All the feminists, apparently, are also straight; but this brings us to the fraught relationship between feminist legal theory and queer legal theory, to which Janet Halley has recently called our attention, and probably too much ink has been spilled on this already.) It is absolutely true, as Stephanie Phillips has noted, that critical race theorists took an unconscionably long time to take sexuality seriously. Yet there is now a small but important body of work that insists on the interconnectedness of race and sexuality, in theory and in practice. These writers share Adler’s qualms about the dangers of fixation on “the shining star of formal equality.” They are also crafting their work within the legal academy, whereas Adler’s account of queer theory identifies it as a product imported from the humanities. Yet they do not appear in Adler’s pantheon of queer theorists. Where are Elvia Arriola, Berta Esperanza Hernandez-Truyol, Darren Hutchinson, Darren Rosenblum, Catherine Smith, and Frank Valdes, among others?
This is not about politically correct footnoting. It goes to methodology and to the composition of Adler’s imagined community. The recognition that sexuality and race are mutually imbricated, which Adler properly credits to Crenshaw and to Patricia Hill Collins, means that any theorizing taken up on behalf of the queer must wrestle with race as well, and not as an “analogy.” It also means that the communities for whom Adler writes are raced, and it matters whether theorists acknowledge this fact. The writers I have mentioned take this constitutive issue—who are “we”?—as central to their work. It would be nice to see Adler grapple with it, too.
 See Stephanie L. Phillips, The Convergence of the Critical Race Theory Workshop With LatCrit Theory: A History, 53 U. Miami L. Rev. 1247 (1999).
Berta Esperanza Hernández-Truyol
Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin College of Law
A Rose By Any Other Name – A Response to Adler
Berta Esperanza Hernández-Truyol[i]
Libby Adler’s piece urging a holistic analysis for the pursuit of a law reform agenda is a welcome addition to several extensive literatures that predate this work. After almost 30 years in the academy, as someone who has been involved in critical movements and has focused her writing on multidimensionality, particularly with respect to outsiders, I appreciated the continued momentum and vitality of holistic work as displayed in this piece. Existing legal frameworks that seek to solve complicated problems of justice unquestionably fail to achieve equality in law and in fact.
To further the conversation on valuable alternative analytical approaches, recall three geographies that have utilized such methodology. One, feminist pragmatism (FP), combined pragmatism, a philosophic genre that focuses engagement with the world, with feminist theory to generate social action. FP acknowledges the need to include discussion of experience and multiple realities as well as broad participation of involved persons/groups in creating solutions.[ii] For FP, a combination of theory and practice in a multidimensional framework – just as Adler suggests – is the means of reforming the social, political, cultural landscape, one that often recognizes the limitations of rights frames.
Another discourse that acknowledges and embraces the complex web of needs that must be met to attain human flourishing is the human rights field.[iii] The rights include not only civil and political rights (life, non-discrimination/equality, vote, free association, freedom of religion); but also social, economic and cultural rights (health, education, welfare, social security, non-discrimination) as well as group or solidarity rights (peace, development, democracy, healthy environment, patrimony of humankind). Some human rights work overlooks the costs of its choices, but much of it goes further to include substantial attention to distributive outcomes. As I often say, the right to vote is meaningless to a parent whose children are hungry. Or conversely, as Amartya Sen has observed, there has never been a famine in a democracy. Much human rights literature centers on distributive outcomes and some recognizes the inability of human rights to attain distributive change. This criticism is what drives human rights law to be less formalistic.
Finally, and perhaps most resonant for me in the context of Adler’s work, the third piece is LatCrit, which emerged from critical legal studies and critical race theory. Its focus centered on the exclusion of Latina/o identities, interest and communities from critical interventions into law. LatCrit constitutes a left intervention into race discourse and a race intervention into left discourse – all with a big-tent outlook that includes queer-crit legal studies. Latina/o positionalities against entrenched white, male, Anglo privilege in law and life, both public and private, necessitated a bold intervention – the recognition that the voice of law and rights was sorely lacking for this group of people who cross race, color, religion, sex, sexuality, gender, and ability. All of these identities are socially constructed, a factor that makes LatCrit’s focus the submersion of law and rights in power all the more crucial. LatCrit understands strategic analysis and thus “rotates centers” and “shifts bottoms” to engage complex dimensions of peoples, individuals, groups. It also focuses on ensuring that multiple voices are heard; it practices a politics of inclusion, of community building, of not only taking seriously feminist, critical race, queer and post colonial theories, but also of incorporating these into the core of LatCrit theorizing and praxis. It recognizes that there are identitarian classifications and fundamental rights the enjoyment of both of which are necessary for human flourishing, separate categories that Gay Rights and Lefts conflates. LatCrit’s portfolio of projects includes academic events and publications, many of which focus on a critique of rights, even if that specific language is not always present. LatCrit is a story much like the one Adler has sought; one of crafting and practicing theory, developing community, building coalitions, and getting real results.[iv]
Adler’s focus is what she labels the LGBT-GNC population, their exclusions from/invisibility in policy concerns, and their goals. In that regard it is curious that she utilizes for the title of her work language that refers only to men. Moreover, it is surprising that in a subversive piece, challenging the utility of rights, she uses LGBT-GNC language, the language connected to the formalistic movement that seeks inclusion in rights rather than the “queer” language which would be more simpatico and better aligned with her posture.[v] Her attentiveness to cost-benefit analysis deploys law and economics, a linguistic trope that serves to mask the trade off of rights for political advancement.
Yet, the trade-off affected by a cost/benefit analysis nonetheless starts with rights. Adler’s own critique of rights reveals the challenge of such endeavors. Her example of LGBT-GNC youth is illustrative. She specifically mentions “limits of youth capacity to contract…labor laws limiting the hours and conditions under which young people can work” as “legal conditions that have the greatest impact on their daily lives.” Surely, both of these conditions can sound in “rights.” So there is the nagging concession to the utility of rights and indeed of law just as one criticizes them – that “mammoth concession” to the regime of rights that “serves a dangerous legitimating function,” which create the narrative that since “rights” were fixed, any persisting inequalities are natural, normal, not deployed or maintained by structural inequities built into the system of law. Indeed, because of the multidimensionality of identities, it is often difficult to conclusively detail a *single* reason for or path to outsider status. As Adler herself notes regarding the LGBT-GNC youth example, their sexuality may have nothing to do with the legal conditions that most directly affect their daily lives, although their sexuality may well be central to any of a panoply of concerns they have and roadblocks they encounter.
In sum, Adler’s work seeks to advance the existing literature that focuses on praxis. Those of us who engage in such critiques, including self-critiques, are not agnostic to the reality that rights is not the end goal, but that the problematic of rights may undermine their utility, but may also be summoned in support of strategic objectives.
[i] Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin College of Law.
[ii] Pragmatist Feminism, Stanford Encyclopedia of Philosophy, first published August 22, 2004; substantive revision July 9, 2010,available at http://plato.stanford.edu/entries/femapproach-pragmatism/ last visited on March 1, 2011.
[iii] Before expounding on this idea, I must make two observations. One, my suggestion that the human rights ideals merit consideration in analyzing a rights framework/critique should not be interpreted as a wholesale embrace of the existing system. I have elsewhere, as I will briefly state here, criticized the system as heteronormative, classist, racist, sexist, gendered, Northern/Western. However, some foundational aspects, that need not be deployed in those biased ways, are hugely useful. Two, I am in constant search for a linguistic alternative to “rights” as, in this context, the word suggests oppositionality whereas I view the discipline as focused on human flourishing and delineating the parameters of conditions necessary for the fulfillment of the human spirit, for maximizing human capabilities.
[iv] See generally, www.latcrit.org last visited February 28, 2011. Lliterature on LatCrit, its philosophy, aspirations, publications and programs are available at the website. A very useful document is a lengthy power-point presentation by Tayyab Mahmud, LatCrit Theory, Practice Praxis, LatCrit/SALT Faculty Development Workshop, Denver, October 7, 2010, available at www.latcrit.org .
[v] See, Janet Halley, Sexuality Harassment 82 in Left Legalism/Left Critique (Wendy Brown & Janet Halley eds., 2002)(noting that “gay identity projects” envision “there are and should be gay men and lesbians” but “queer theory” on the other hand, “regards the homosexual/heterosexual distinction with skepticism and even resentment, arguing that it is historically contingent and itself oppressive”). Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin College of Law.  Pragmatist Feminism, Stanford Encyclopedia of Philosophy, first published August 22, 2004; substantive revision July 9, 2010,available at http://plato.stanford.edu/entries/femapproach-pragmatism/ last visited on March 1, 2011.  Before expounding on this idea, I must make two observations. One, my suggestion that the human rights ideals merit consideration in analyzing a rights framework/critique should not be interpreted as a wholesale embrace of the existing system. I have elsewhere, as I will briefly state here, criticized the system as heteronormative, classist, racist, sexist, gendered, Northern/Western. However, some foundational aspects, that need not be deployed in those biased ways, are hugely useful. Two, I am in constant search for a linguistic alternative to “rights” as, in this context, the word suggests oppositionality whereas I view the discipline as focused on human flourishing and delineating the parameters of conditions necessary for the fulfillment of the human spirit, for maximizing human capabilities.  See generally, www.latcrit.org last visited February 28, 2011. Lliterature on LatCrit, its philosophy, aspirations, publications and programs are available at the website. A very useful document is a lengthy power-point presentation by Tayyab Mahmud, LatCrit Theory, Practice Praxis, LatCrit/SALT Faculty Development Workshop, Denver, October 7, 2010, available at www.latcrit.org .  See, Janet Halley, Sexuality Harassment 82 in Left Legalism/Left Critique (Wendy Brown & Janet Halley eds., 2002)(noting that “gay identity projects” envision “there are and should be gay men and lesbians” but “queer theory” on the other hand, “regards the homosexual/heterosexual distinction with skepticism and even resentment, arguing that it is historically contingent and itself oppressive”).
Lecturer in Law at University of London
Substantive and Methodological Issues Precipitated by Gay Rights and Lefts.
I am grateful to Libby Adler for her elegantly written Gay Rights and Lefts, which allows many of us ‘crits’ from a recent generation of legal scholars the opportunity of inhabiting and substantively engaging with a moment in the history of the critical legal studies movement. Adler masterfully brings to bear on LGBT-GNC issues the richness of the critique of rights discourse amongst its interlocutors, including liberals and the various camps of critical legal scholars over the years. I laud Adler’s bold call to reinstate the value of critique by charting a move to distributive analysis with a view to enabling decisionism in the context of law reform. I am completely on board with Adler’s call to action and what I offer below by way of comment is only an effort to elicit further clarification from Adler on what is an exciting initiative for all critically minded legal scholars. My comments track the substantive and methodological issues precipitated by Gay Rights and Lefts.
Substantively speaking, at several points in Gay Rights and Lefts, Adler urges us to pay attention to the concrete, specific, lived and local realities of marginalized communities possibly foregoing what she calls “the gratifications of identity-based reform”. This is borne out in her own exmaple of LGBT-GNC youth as well as in the examples she uses to illustrate the redistributive move in recent critical legal work such as Shamir’s work and my work. This leads me to ask if Adler is calling more generally for a move in the context of LGBT-GNC issues, from efforts at recognition to those focused on redistribution to use Nancy Fraser’s terms[i]. This is a particularly significant call because after all, one would typically hold up the LGBT movement as perhaps triggering but definitely exemplifying the contemporary political focus on recognition as opposed to earlier struggles for redistribution. If Adler is indeed calling for a renewed focus on redistribution rather than recognition, what critical theoretical resources on materialism might one draw on? Also, how should we understand the reform efforts of specific social movements? Would the claims of LGBT-GNC homeless youth for redistribution for example also involve some claim for recognition; would their demands constitute affirmative or transformative claims for redistribution to use Fraser’s scheme? Indeed, Adler’s argument suggests that the mapping of political claims to recognition and redistribution may be rather more complicated and messy for specific communities agitating on the ground in comparison to Fraser’s more broad-brush scheme.
I also have a methodological question for Adler. What normative and methodological resources would she suggest in attempting distributive analysis? How might this relate to current trends in American legal academia including empirical legal studies and new legal realism? How might a distributive project informed by critical legal studies and certainly legal realism (as is evident in Adler’s own mapping of the background legal rules affecting LGBT-GNC homeless youth) differentiate itself from these trends? Is there room for incorporating more complex accounts of the law in action as opposed to law on the books from socio-legal scholarship in our distributional analyses? Further, is cost-benefit analysis the only way of assessing decisions even if costs were multi-dimensional and informed by sophisticated critical thinking? More generally, is there a significant difference between a decision arrived at through cost-benefit analysis and the more strategic deployment of rights and identities advocated by critical race scholars and post-colonial scholars (like Spivak), respectively?
Last but not the least, while I laud Adler’s effort to lead us through robust distributive analysis toward redistribution, I ask if we must in fact ‘jump’ as she suggests we do once the weighing is done. In other words, to what extent must we, as we inch toward decisionism in fact make decisions to justify our critical work? Not that a call to action is inconceivable; indeed feminists in the 1980s called for feminist praxis informed by action research. If so, how might this affect the kinds of social action that lawyers might undertake? And what if we don’t? Can we not legitimately remain content while we pause and patiently undertake the long and ardous task of mapping the unintended consequences of bad decisions with ever more nuanced distributive analyses?
[i] Nancy Fraser. Justice Interruptus: Critical Reflections on the Postsocialist Condition. New York and London: Routledge, (1997).
Arthur S. Leonard
New York Law School
When Theory Meets Reality
Arthur S. Leonard, New York Law School
Libby Adler has focused a discerning lens on the LGBT struggle, critiquing the pursuit of rights and suggesting we instead improve the distribution of social goods. Her critique argues that a pursuit of rights loses sight of the needs of the community and creates the possibility for serious setbacks as the very rights established through litigation may later be used to counter the interests of LGBT people. It also argues that achievement of rights—most specifically, the achievement of formal equality—may do little to help those on the margins, whose existence can only be improved through redistribution of social goods.
Professor Adler’s exercise is certainly worth undertaking, and it is hard to argue with the proposition that the “movement” should undertake a more deliberative approach to selecting strategies and targeting resources in order to produce the maximum beneficial effect for the largest number of people. On the other hand, this theorizing may be proceeding in an informational vacuum about how such decisions are made, and by whom they are made. As one who has been observing the legal movement closely for more than three decades, I see that more often than not, actual events guide the development of the law and the deliberative process Professor Adler describes seems chimerical.
My observation is well-demonstrated by the example of the struggle for same-sex marriage. There was litigation over marriage for same-sex couples from the 1970s onward, but it was not until the late 1990s that an LGBT public interest law firm filed a marriage suit, in Vermont, following what seemed like interminable discussions among the legal staff at public interest law firms seeking to promote the values of the LGBT movement (I will call these “movement firms”). The earliest marriage cases were all filed by individual couples on their own behalf or by attorneys not employed by or associated with movement firms. In the late 1980s and early 1990s, movement firms actively discouraged marriage lawsuits and specifically declined to represent plaintiffs, and this was not just because they thought the cases would be unsuccessful. It was in large part because of the internal debate over whether the movement should be seeking marriage.
Some of Adler’s arguments sound eerily familiar to those proposed in the “town hall meeting” debates staged by Lambda Legal Defense Fund’s former executive director, Tom Stoddard, and former legal director, Paula Ettelbrick. Stoddard articulated a traditional liberal equality line, arguing that because marriage was an important social institution that provided a wide-ranging framework of legal rights and protections, it should be made equally available for same-sex couples. In contrast, Ettelbrick questioned whether attaining marriage, a confining and historically stifling institution, should be an LGBT movement goal. She suggested that while marriage might benefit some portion of the community, a larger segment would benefit from seeking to uncouple important legal entitlements and protections from marriage and to provide the means for LGBT people to define their relationships in ways that were meaningful to them. Why privilege couples who wanted a “traditional” socially-sanctioned relationship when the movement was about liberation, autonomy, freedom, and avoidance of the shackles of conventionality? Ettelbrick’s arguments were more persuasive to many movement attorneys, but seemed to carry less weight with the LGBT “proletariat.”
Why did the movement firms change course and join the marriage crusade? When the Supreme Court of Hawaii reversed a dismissal and remanded a same-sex marriage case for trial, Lambda Legal joined the local attorney who had brought the case to ensure that the suit would not founder at trial for lack of resources and to bolster it with the experience of movement lawyers. The movement firms, however, had originally rebuffed the plaintiffs’ requests for representation. Part of their reasoning, of course, was that same-sex marriage cases did not seem winnable in the context of a string of prior losses and the then-recent Supreme Court loss in Bowers v. Hardwick. But the other part of the calculus, as noted above, was that the movement firms were conflicted and had determined that seeking to open marriage to same-sex couples might not be an appropriate strategy to promote LGBT freedoms.
In Hawaii, the optimists prevailed at trial when the court ruled in favor of same-sex marriage, but the pessimists prevailed when the legislature responded by placing a state constitutional amendment on the ballot that took from the courts the power to decide whether same-sex couples could marry. As a sop to gay Hawaiians, the state legislature enacted the Reciprocal Beneficiaries Law, making it the first state to accord a modest menu of rights to some same-sex couples; nonetheless, Hawaiians approved the constitutional amendment overwhelmingly. It is only as this piece is being written that Hawaii has adopted a Civil Union Act.
The Hawaii case had ramifications other than the immediate results of the trial or the local political reactions to it. The Hawaii Supreme Court’s 1993 decision set off a national political panic resulting in passage of the Defense of Marriage Act (DOMA) in 1996, and passage in many states of state constitutional amendments or statutes specifically denying same-sex couples the right to marry or, in some states, to have any kind of recognized legal status. On the other hand, the success at trial disproved the thesis that no court would ever rule in favor of same-sex marriage, and public opinion polls started to show movement towards public support for opening up marriage to same-sex couples or providing some alternative form of legal recognition.
It was at this point that a decisive strategy by the movement firms emerged, resulting in their filing carefully conceived test-cases in Vermont and several other states. Their efforts continued to gain momentum after the public explosion ignited by the Supreme Court’s 2003 decision invalidating a Texas sodomy law in Lawrence v. Texas, and the ruling shortly thereafter for same-sex marriage by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Public Health. The most significant ignition force, however, was totally out of the control or planning of the movement: San Francisco Mayor Gavin Newsom’s reaction to Goodridge (and the incipient anti-Goodridge backlash of a federal anti-marriage amendment backed by the Bush Administration). The mayor directed the city clerk to begin issuing marriage licenses to same-sex couples in February 2004, leading to “copycat” actions in several other locations (Oregon, New Mexico, and New York) and much more litigation. Some of this litigation, however, rushed into the courts without the kind of deliberately laid groundwork of the earlier movement cases, and some of it in jurisdictions that had not been high on the list of places for prospective suits by the movement organizations.
The result of all this: Today same-sex couples can marry in half a dozen jurisdictions and have the options of civil unions or domestic partnerships in several more; the Defense of Marriage Act is under serious attack in the courts; pending litigation in the Ninth Circuit may lead to a Fourteenth Amendment ruling on same-sex marriage by the Supreme Court within a few years; and public opinion has moved substantially towards favoring legal status and rights for same-sex couples. However, the overwhelming majority of states still have constitutional provisions or statutes absolutely forbidding same-sex marriage and, in some cases, also forbidding civil unions or domestic partnerships.
From the viewpoint of Adler’s critique, then, perhaps all of this energy should have instead been spent seeking to transform legal and social institutions so that eligibility for health insurance, family immigrant status, and various other legal entitlements and benefits would not be premised on marriage. This great expenditure of resources and effort did nothing to improve the situation for uncoupled LGBT people, including those arguably most in need—suffering from poverty, educational deprivation, and social exploitation. On a theoretical level, many of the movement attorneys may have prospectively agreed with this critique, and certainly the agendas of the movement firms in the early 1990s reflected these priorities. But the movement lawyers have only a tenuous hold on the direction of events, as it takes only one determined plaintiff and an attorney willing to represent her to set a new lawsuit in motion or one courageous mayor to order a clerk to issue marriage licenses to same-sex partners. In other words, Adler’s critical theory is provocative and it can inspire important reflection, but reality has a way of imposing different priorities.
Nancy D. Polikoff
Professor of Law, American University Washington College of Law
HOW THE EQUAL RIGHTS FRAME FAILS MARRIED SAME-SEX COUPLES
By Nancy D. Polikoff, Professor of Law, American University Washington College of Law
Access to marriage for same-sex couples is the quintessential demand for formal equality. In Professor Adler’s language it is “the persistent drum beat [that] has made it difficult to conceive of law reform goals not in sync with that beat.” As a rights-based legal strategy, she writes, it “is not a simple question of good faith or bad faith, but of shaping one’s faith.”[i]
In this brief comment, I would like to discuss how the arguments for marriage equality are obscuring a distributive analysis of the material consequences of marriage. I am not addressing here the arguments based on the equal worth and dignity of love between two people of the same sex. Advocacy for marriage never rests entirely on such arguments.
Rather, advocates also articulate material ways in which denial of marriage disadvantages same-sex couples. This includes references to the more than 1,100 legal “rights” that are unavailable to same-sex couples who are married in their home states, because the Defense of Marriage Act (“DOMA”) prohibits federal recognition of same-sex marriage. The gay rights litigation group Gay and Lesbian Advocates and Defenders (“GLAD”) has filed two cases challenging that section of DOMA (Section 3), and all the plaintiffs in both cases allege such material disadvantage.[ii] (As I write this commentary, the Attorney General has just announced that the Obama administration will no longer defend the constitutionality of Section 3 of DOMA. It will continue to enforce DOMA, however, until a final judicial ruling or Congressional action.)
But only a subset of married same-sex couples can be plaintiffs in this litigation, because on certain big ticket items only some same-sex couples are worse off being unmarried under federal law. Others are better off. This fact is neither widely disseminated nor explicitly stated, and so it does not factor into determining the best pathways to economic security for gay and lesbian families.
Six of the plaintiff couples in GLAD’s two cases have suffered financial penalties because they cannot file their federal income tax as married. But the structure of federal income-tax liability helps married couples only when there is substantial disparity between the incomes of the two individuals. Single wage-earner couples with one spouse at home fare the best. When both spouses work and earn close to equal incomes, the couple pays more in taxes if they are married. The families who gain the most from this structure are those that replicate the gendered division of labor in marriage. The families that lose are those who equally divide income producing and unpaid homemaking and caretaking tasks.
Our social security system favors the same type of families. Three of GLAD’s plaintiffs claim that they are harmed because of their inability to qualify for social security spousal and survivors benefits. The married couples who pay the least into social security and get the most out are those with a single-wage earner. Equal-earning married couples, on the other hand, pay more in and get less out. Our social security system was designed in the 1930s to benefit white couples with a husband in the workforce and a wife at home. Research shows that even now the system disadvantages African American couples, who are more likely than their white counterparts to have two working spouses. Married same-sex couples who count as unmarried because of DOMA are no worse off than those African American married couples. If DOMA is eliminated, married same-sex couples who replicate the gendered division of labor will move into the group subsidized by the rest of us.
Although not represented among the DOMA-challenge plaintiffs, gay rights groups have also faulted Medicaid rules that do not recognize married same-sex couples. Advocates charge that when one spouse must turn to Medicaid for nursing home care, DOMA prohibits the other from retaining a share of the couple’s assets as the “community spouse.” But when the spouse who does not need nursing home care holds most of the assets, or even half the assets, that person can keep all of his or her assets if the couple is not treated as married. The only married same-sex couples hurt by the lack of federal recognition are those in which one spouse holds the majority of assets and that spouse is the one who requires a Medicaid-funded nursing home. This is a minority of same-sex couples.
Note that I am not questioning here rules that treat all married couples better than all unmarried couples. I have developed those arguments extensively elsewhere.[iii] I am questioning the actions taken by gay rights groups that benefit some married couples and hurt other married couples, when presumably all married same-sex couples are part of their constituency.
The marriage equality frame is antithetical to a distributive analysis of how our income tax, social security, and Medicaid rules affect families. Yet there are numerous non-gay organizations engaged in such analyses. If gay rights law reformers are, in Professor Adler’s words, “willing to forego the gratifications of identity-based reform,” they could join these efforts. The frame for such efforts is one of distributive justice, specifically whether certain types of families, even among married couples, deserve greater economic subsidies than other family forms. Such discussions may seem peripheral to the mandate of national gay rights groups, but they are anything but peripheral to the material well-being of lesbians, gay men, and the families that they create.
[i] Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, 46 Harv. C.r.- C.l. L. Rev. Amicus 1, 2 (2011)) available at http://harvardcrcl.org/wp-content/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf.
[ii] See Gill v Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010); First Amended Complaint, Pedersen v. Office of Pers. Mgmt., No. 310-cv-1750 (D. Conn. Jan. 14, 2011). Information about these lawsuits is available at: http://www.glad.org/doma. The ACLU has filed a similar case, Windsor v. United States. See ACLU, Windsor v. United States: Edie Windsor Challenges DOMA, available at http://www.aclu.org/lgbt-rights/windsor-v-united-states.
[iii] See Nancy D. Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon Press 2008). The claims of the GLAD plaintiffs who are federal employees and cannot add their spouses to their health-insurance benefits fall into this category. For my analysis of this issue, see id at 146-58.
Assistant Professor of Law at University of Florida Levin College of Law
Response to Adler, 2.27.12
In her thought-provoking essay, Libby Adler argues that reform projects committed to the critique of rights can and should support practical strategies for addressing social injustice.[i] Her method, “decisionism,” shares much in common with approaches like feminist pragmatism. Reproductive rights activists, for example, might argue that substantive rather than formal equality, as understood in the language of human rights and women’s lived experiences, can result in the “real” reform Adler has in mind.
However, Adler’s decisionism is skeptical of “the regime of rights.” It rejects the proposition that rights, on balance, have more to offer than they cost. I am presently thinking about why such skepticism should be part of transnational abortion law reform. Courts in countries as diverse as Colombia and South Africa reference an international consensus when legalizing limited grounds for abortion or upholding laws that permit abortion in differing circumstances.[ii] Their decisions emphasize the global influence of Roe v. Wade toward abortion liberalization. At the same time, decisions acknowledge that not all countries have relaxed restrictions, citing German cases upholding constitutional protection of the fetus.
The juxtaposition of American and German jurisprudence as opposite choices in abortion law reform paints a distorted picture of abortion availability in each country. Abortion services may be less available in regions of the United States—where women enjoy a constitutional right to pre-viability procedures—than in Germany, where abortion is still a criminal (although not punishable) act.[iii] Since Roe, U.S. state and federal laws now ban certain procedures, mandate additional licensing and facility requirements for providers, and restrict funding through public programs or insurance plans for most women.[iv] By contrast, women in Germany may terminate pregnancies (at the expense of the state, depending upon income) after submitting to counseling, the requirements of which vary in tone and length.[v]
Resulting decisions thus often employ an overly formalist understanding of foreign abortion jurisprudence that ignores realities on the ground. In the same way that Adler argues formal equality can be a tempting and totalizing objective of LGBT-GNC movements, expanding the legal grounds for abortion has been a consistent and consuming focus of reproductive rights lawyers. Advocates drive the current use of comparative law, as illustrated by the briefs they file and the public education materials they disseminate. What appears missing is a decisionist analysis that seeks to understand the limits of what expanding the legal grounds for abortion can accomplish and whether women can actually exercise newly acquired rights. The consequences, as Adler demonstrates in other contexts, are not just academic or theoretical. Victories in court may concentrate advocacy energy on defending rights rather than developing existing avenues for delivering termination services, like “menstrual regulation,” that do not sit easily with a rights discourse.[vi]
For me, the difficult task ahead is to understand how this kind of critique can translate into new directions for reform. Distributional analysis may be a threshold and crucial part of a decisionist process. But, as Adler notes, criticism for the purposes of deconstruction only, unaccompanied by alternative agendas and proposals, does not frequently encourage change. How might decisionism respond to concerns about women’s reproductive autonomy (to which rights traditionally speak)? What are the costs with which we can live? Shifting attention from legalizing particular grounds for abortion might mean some women who would have exercised new rights will not. The challenge for reformers is to consider how their strategies will compensate for potential losses.
I have not yet embarked on the difficult task of describing different paths in the transnational abortion context. Interestingly, Adler does not necessarily model what that process should look like. She does not develop concrete policy options for a reform project related to homeless LGBT-GNC youth. This may be because weighing costs and seeing even “intermediate or partial solutions” supposes another set of questions that Adler does not answer. What costs will be too heavy or too destructive to bear? Who or what groups will make those value judgments? How will decisionmakers measure or express experience and marginalization? In what circumstances should reformers embrace rights? Decisionism as a neutral cost benefit exercise, in theory, could justify a rights approach. It is possible that reproductive rights advocates would engage in the “careful deliberation” called for by Adler, yet believe they lose more than they gain by reconsidering litigation of rights to abortion.
Perhaps, like this response, Adler’s essay is not the place to wrestle with the question, “What’s next?” Instead, her method demonstrates how the uncertainty attendant to trial and error might encourage legal interventions that are timely, responsible, and meaningful. Adler inspires confidence that critical, progressive scholarship can speak to the needs of marginalized persons and communities.
[i] Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, 46 Harv. C.R.–C.L. L. Rev. Amicus __ (2011), available at http://harvardcrcl.org/wp-content/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf.
[ii] See, e.g., Sentencia C-355 de 2006 Corte Constitucional, May 10, 2006, at www.constitucional.gov.co/corte/; Christian Lawyers Assoc. v. Minister of Health  4 All SA 31, 42 (S. Afr.).
[iii] I am not suggesting that the rate of abortion is higher in Germany, but that a woman has, in many places, more opportunities than in the United States to obtain an abortion. Studies suggest that the rate of abortion in Germany and in Western Europe generally is lower because of greater contraceptive use. See Susan Cohen, New Date on Abortion Incidence, Safety Illuminate Key Aspects of Worldwide Abortion Debate, 10 Guttmacher Pol’y Rev. 2, 2 (2007), available at http://www.guttmacher.org/pubs/gpr/10/4/gpr100402.html.
[iv] See generally Ctr. for Reprod. Rts., Overview of Types of Abortion Restrictions in the States, available at http://reproductiverights.org/en/document/overview-of-types-of-abortion-restrictions-in-the-states.
[v] See, e.g., Mary Anne Case, Perfectionism and Fundamentalism in the Application of German Abortion Laws, in Constituting Equality: Gender Equality and Comparative Constitutional Law 98-99 (Susan H. Williams ed., 2009).
[vi] See, e.g., Cyra Akila Choudhury, Exporting Subjects: Globalizing Family Law Progress Through International Human Rights, 32 Mich. J. Int’l L. 259, 294 (2010) (describing menstrual regulation in Bangladesh as an early term abortion before a woman tests for pregnancy but after she realizes she missed a menstrual cycle.).
Professor of Law at Pace University
Response to Gay Rights and Lefts: Rights Critiques and Distributive Analysis for Real Law Reform by Libby Adler
Professor Adler’s project is ambitious and admirable – to formulate a rights critique and have that critique serve as a basis for a renewed understanding of decisionism.
My response will recover an earlier rights critique and extend it. With some immodesty, I want to reference a piece that Law and Sexuality: A Review of Lesbian and Gay Legal Issues published in 1994, Queer Intersectionality and the Failure of Lesbian and Gay “Victories.”[ii] That article pulled together three theories: Kimberle Crenshaw’s intersectionality, Adrienne Rich’s lesbian continuum and queer theory. The queer theory arose not only from academic inquiries but also from early 1990’s involvement in ACT-UP and Queer Nation. I argued that queer identity is intersectional, not just across the typical differences of race, class and gender, but also spanning those who are cross-gendered and sexual subversives as well (more on them later). “Lesbian and gay” itself followed a liberal rights frame, one resisted by “queers” on a continuum of queerness, ranging from intense identification to occasional acts of subversion. I articulated “queer legal needs” and questioned to what extent several cases, notably Braschi v. Stahl Associates, were actually the widely lauded “victories” that advocates praised. These cases I criticized had opened paths for lesbian and gay couple recognition, but they mandated hetero structures, notably self-presenting as a couple and “exclusivity.” This monogamy requirement presented a set of “rights” that eluded queer legal needs and as such should not be considered queer “victories.”
I want to relate a bit more of the genealogy of queerness that I hope might add to Professor Adler’s inquiry on rights. “Queer” was born at a time when we queers were surrounded by ugly, cruel, and humiliating deaths; deaths that bore the fruit of ACT-UP’s brilliant anger. Within ACT-UP, we raged at heterosexual society for mass murder by complacency. In 1990, Anonymous Queers published “Queers Read This” as a pamphlet handed out at the New York gay pride parade. It yielded “Queer Nation” and other queer activism. Queer theorists, notably Douglas Crimp and Michael Warner, joined ACT-UP with us at that time; the movement began to bleed into the theory. This queer critique had at its core a suspicion of “lesbian and gay” rights. I vividly recall the 1989 event where Heritage of Pride (HOP), the organizer of the Gay Pride Parade, had arranged for then Mayor Edward I. Koch to dedicate the block of Christopher Street where the Stonewall Inn was (and is) located as “Stonewall Place.” It was a huge victory for the mainstream lesbian and gay rights establishment on the twentieth anniversary of Stonewall, yet we in ACT-UP were furious that HOP had invited this closeted mayor who had ignored demands for healthcare funding to deal with the AIDS crisis. We decided to do a “die-in”, a malapropism meaning that we put headstones behind our supine bodies, to disrupt the ribbon cutting.. Although the New York Police Department likely preempted by asphalting that block the night before, we completely ruined HOP’s celebration.
Queer resistance such as this serves a critical theoretical and practical purpose. It is not the only resistance, and it can be productive to both oppose (as above) and work in tandem with a more established politics. Drawing on Foucault, in Queer Intersectionality I criticized ways in which some rights work could be co-opted: “Indeed, these cases and their inherent limitations can be viewed as a co-opting of radical demands to prevent a broader subversion of the current heterosexist order. The court thus functions in Braschi not to create a first step to further rights, but to inoculate the system against the threat queer politics poses.”[iii] I went on to argue,
[T]he transformation of the legal landscape of queer lives will occur through a multiplicity of resistances and activisms. Queer legal activists must at once be aware of their role both inside and outside the law: to reform and subvert juridical heterosexism. Aware of the Law’s ability to further co-opt and divide our communities, we must remind ourselves that our goal lies not in the maintenance of the law, but in queer liberation.
Rethinking rights from a sexual subversive perspective, as I attempted to do in part in Queer Intersectionality, can go much further. Many queers pursue radical forms of sexuality in what Foucault called “laboratories of sexual experimentation”: public sex in parks and backrooms, anonymous sex, group sex, promiscuity, and sado-masochism. Laboratories indeed – multiple partners seems to have become the norm for many non-queers as sexting becomes the Scrabble of current youth. Queer politics can and should ride this shift in sexual expression. Expanding rights in this context may have been furthered by Lawrence, as I have argued; liberty frames may protect sexuality, but queers must push for the recognition of subversive sexualities.[iv] Taking decisionism seriously requires a distributive impact analysis to assess whether rights might benefit sexual subversives. Would it require presenting sexual subversion to look like Modern Family? The limit-pushing is taking place now: a current court challenge explores whether Lawrence protects sex workers from heightened prosecution for certain less-accepted sexual acts. This litigation, decades after Gayle Rubin’s “Thinking Sex,” reminds us that sexual liberty has not fully taken root.
Professor Adler says, “I urge reform-minded thinkers to generate numerous and dispersed possibilities, each the product of specific and local consideration for its concrete distributive impact, readiness to bear the costs that may come, and the acceptance of the difficult reality that we cannot know in advance how everything will turn out.” This distributive focus leads the decisionist conversation. But before we even decide which reform, though, we must ascertain whether to reform; a substantive distributional assessment requires neither reform nor a Leninist anti-reformism.
In this sense, sexual subversives’ needs pose the strongest queer theoretical challenge because the path dependent move for lesbian and gay rights often involves heteronormative parallel-drawing, as I described in Queer Intersectionality. Professor Adler’s promising beginning of a fuller inquiry into a critique of rights should prove quite fruitful. I laud her insistence on this critical component of social justice, and hope our queer theories can get us even somewhat closer to such realities.
[i] Visiting Professor, Seattle University School of Law; Professor, Pace Law School
[ii] Darren Rosenblum, Queer Intersectionality and the Failure of Lesbian and Gay “Victories,”4 Law & Sexuality 83 (1994). I wrote that Article with guidance from Ruthann Robson and Kendall Thomas.
[iii] Here I reference Roland Barthes’ use of the term inoculation, which is when a society accepts a minor change to forestall more substantial transformations.
[iv] Darren Rosenblum, Queer Intersectionality Revisited: Expanding Legal Victories, in Queer Mobilizations: LGBT Activists Confront the Law (Anna Maria Marshall and Mary Bernstein, eds.) (NYU Press 2009).
Assistant professor, Tel-Aviv University, Buchman Faculty of Law
Some Reflections on the Challenges of Distributive Analysis
Libby Adler in Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform provides a careful and clear account of the value of distributive analysis to (critical) legal thought, and a persuasive response to the claim that refusing to take a reconstructive path is nihilist. Her thesis rests on a distinction between reconstruction and decisionsim. Adler understands decisionism, as it is used by critical legal scholars, to be:
Making difficult choices about which law reform initiatives to undertake (1) based on broadly informed distributional hypotheses and cost-benefit calculations and then acting on the best information one can get with the best judgment one can muster, (2) always prepared to bear the costs of one’s choices. (3) Each law reform achievement, should it materialize, rather than being a step along a path in the direction of a lodestar such as formal equality, will—one hopes—effectuate a positive distributive impact for marginalized persons while imposing bearable costs. (4) As a theoretic matter, the achievement is likely to be generalizable only to a limited extent, if at all. In other words, it will not necessarily further any overarching theoretic objective.[i]
Is this normative/methodological agenda defensible? Is it sustainable? In what follows I answer these questions by examining the elements of this definition in the context of a research project in which I am currently involved.
I am currently studying the legal regulation of prostitution/sex work. In my work, I compare two feminist positions about the legal treatment of sex work: the Swedish prohibitionist regime that criminalizes all those who profit from sex work (including clients) except the sex workers, and the Dutch legalization regime that legalizes and regulated the sex industry. I then turn to the Israeli hybrid regime that seems to be a combination of both classic feminist approaches: on the one hand, a prohibitionist position is expressed in the penal code, but on the other hand, there is deeply rooted institutional tolerance to sex work that verges on legalization. I employ the methodology of distributive analysis in order to understand the distributive outcomes of each regime as they pertain to various groups of stakeholders within and outside of the sex industry. With this research in mind, let me turn back to Adler’s decisionism. I discuss each of the (above numbered) elements in her definition in turn:
(1) Highly conflicting data exists about the realities of sex work.[ii] Some see sex work as violence against women, and as an extreme manifestation of male domination. Others regard sex work as a job like many others, in which working conditions depend on workers’ bargaining power. Each side supports their argument with data that affirms their view. [iii] In order to pursue Adler’s “broadly informed distributional hypotheses and cost-benefit calculations and then act on the best information one can get[,]” I had to choose the information on which I would base my analysis. This choice in and of itself is value laden. I chose to use what appeared to be the most reliable data from both sets of conflicting information. My own beliefs and experience working with sex workers lead me to be suspicious of much of the information that depicts sex work as inherently and always violent.[iv] Yet, in order to intervene in the debate in the most productive and effective way, I had to take both sides seriously, suspend my partial disbelief, and engage with the best information provided by both sides of the debate.
Taking both sides seriously may seem relativist or nihilist, but I would argue that a better term is pluralist. Having a broadly informed cost-benefit calculation on contested policy matters requires deep pluralism: taking seriously contradictory positions about the “truth” of social phenomena and incorporating them as part of the cost-benefit analysis. Only then can one reach the moment of decision.
(2) Decisionism involves “being prepared to bear the costs of your choices.” It is here that it gets messy. If I take seriously the abolitionist position on sex work and yet end up favoring the legalization of sex work after conducting a distributive analysis, I need to face the fact that legalization may increase the harm to some sex workers, and may exclude others from protection. There will be costs. A distributive analysis will highlight where the costs lie and might be avoided or mitigated. For example, even if sex work is legalized, taking into account the violence and limited choices that some sex workers will still face can lead to the creation of programs to help those sex workers who want to find another source of income. Such a program can be developed along with programs that provide sex workers with tools and information regarding their rights as workers and service providers. These two kinds of programs usually do not coexist: the former is common under prohibitionist regimes and the latter under legalization regimes. Pursuing both policies may seem inconsistent because they are too easily perceived to reflect mutually-exclusive moral and political paradigms (sex work is either good or bad! How can it be both?). I suspect that such messy ideological inconsistency is what is most unappealing to many about Adler’s kind of distributive analysis. As she puts, it is not a “theoretical push toward a shining telos on a hill.”[v] Yet the goal of this methodology is not steadfast theoretical consistency but rather better distributive outcomes to certain designated groups, to which I turn next.
(3) Adler identifies the following aim for the analysis: “effectuate a positive distributive impact for marginalized persons while imposing bearable costs.” Identifying the group of marginalized persons whose distributive interests a policy should promote poses a challenge. In relation to sex work, various marginalized groups with conflicting interests may be identified. A feminist policymaker may want to design a policy that will bring about positive distributive outcomes to all women, or to all sex workers. But a close distributive analysis reveals that not all women or sex workers have the same interests or will be benefited by any single policy. For example, it turns out that both legalization and prohibition tend to lead to intensified police attention to streetwalkers, to “the elimination of prostitution from city streets coupled with the state-facilitated (or de-facto tolerated) flourishing of the indoor and online sectors of the sex trade . . . [and] the elimination of the visible manifestations of poverty and deviance (both racial and national) from urban spaces.” [vi] Under this scenario, sex workers of different national or racial backgrounds—as well as sex workers who occupy different sectors of the sex industry—have opposing interests. If we want to affect the situation of all sex workers, we might need to come up with different policies altogether. Conducting a distributive analysis exposes these conflicting interests at the risk of splitting group solidarity. Its value lies in exposing the interests of different stakeholders in a manner that allows a better picture of what is at stake for different groups and individuals. It can therefore improve the chances of achieving the desired distributive shift. This finer analysis of the interests of diverse members of a single “group” can also provide the basis for unlikely coalitions in the process of policymaking.
(4) Finally, an important challenge and limitation to distributive analysis is the realization that it is highly contextual and hardly generalizable. In my own research, the attempt to compare the situation in Sweden, the Netherlands, and Israel requires great attention to detail and awareness of the limits of comparison. The distributive outcomes depend, among other things, on the general culture, police and prosecution cultures, the economic environment, the labor market, the structure of the sex industry, private law rules, the welfare state, and social and gender norms in each country. The policy preferences reached by cost-benefit analysis in one context will tell us little about another. Some aspects may be generalizable but surely not all. What some may decry as moral inconsistency is to me the core of the legal realist insight: considering distributive outcomes, the operation of legal rules, their contextual entrenchment, and complex, often unintended, consequences requires attention to “the law in action.” Otherwise the most well-intended, normatively-consistent positions may end up causing more harm than good to the group that the policy aims to protect.
As Adler shows, and as my very brief comments further emphasize, conducting a distributive analysis is not a neat, clean process with clear outcomes. It does not promise the satisfaction of a normative analysis that ends with one “best practice” solution. It requires deep pluralism and serious engagement with diverging positions, facing the costs of different policy choices, making difficult choices between groups of marginalized individuals, and realizing the limited reach of one’s analysis. This methodology is a tool toward a better understanding of the interaction of policy with people’s lives. It is also a framework for theorizing and realizing the aspirations of a legal left.
* Assistant professor, Tel-Aviv University, Buchman Faculty of Law.[i]Libby Adler, Gay Rights and Lefts: Rights Critique and Distributive Analysis for Real Law Reform, 46 Harv. C.r.- C.l. L. Rev. Amicus 1, 2 (2011) (numbers and emphasis added) available at http://harvardcrcl.org/wp-content/uploads/2011/02/Libby_Adler_Gay_Rights_And_Lefts.pdf.
[iii] For a review of the basic feminist positions regarding sex work see Aziza Ahmed, Feminism, Power and Sex Work in the Context of HIV/AIDS: Consequences for Women’s Health 34 Harv. J. L. & Gen. 225, 228-231 (2011).
[iv] For some of the reasons why see Ronald Weitzer, The Mythology of Prostitution: Advocacy Research and Public Policy, 7 Sex Res. Soc. Pol. 15 (2010).
[v] Adler, supra note 1, at 12.
[vi] Elizabeth Bernstein, Temporarily Yours: Intimacy, Authenticity, and the Commerce of Sex 164 (2007).
Equal Justice Works Fellow at Sylvia Rivera Law Project
At the Sylvia Rivera Law Project (SRLP) we share Professor Adler’s concern about the ideology of “formal legal equality” and seek to challenge administrative barriers that have distributive consequences for our communities. Our mission is to guarantee that all people are free to self-determine their genders, regardless of income or race, and without facing violence, harassment or discrimination; we see legal reform as part of a larger movement for social change and one that must be connected to community-based organizing and leadership. A significant portion of SRLP’s resources is dedicated to 1) increasing access to gender affirming medical care and 2) decreasing barriers to gender affirming government identification documents. These two legal projects – both of which are crucial – impair each other in very real ways.
Every day, we argue that gender-affirming health care is “necessary” to make our bodies coherent when seeking coverage from medical insurance providers, and at the same time, contend that internal self-identification as “male” or “female” without medical intervention is “sufficient” to make our gender identities “real” when seeking changed gender marker designations from local, state and federal agencies. As a result of these competing narratives, a new distributive cost has emerged: sex-specified care such as hysterectomies, prostate exams, gynecological exams and testicular exams are frequently denied to Transgender and Gender Non-Conforming (TGNC) individuals. Some of the problems that Adler observes in the context of anti-discrimination and equal rights also turn up in the context of administrative advocacy. Our arguments are imposing numerous costs in the register of identity-production, which in turn have concrete distributive consequences for our communities, especially in the domain of health.
Under New York State Medicaid regulations, coverage for gender-affirming care is explicitly excluded.[i] The exclusion prevents Medicaid recipients from accessing mental health care, hormone therapy, and surgeries related to gender transition. Our efforts to challenge the New York Medicaid exclusion have relied on and reinforced strongly binary understandings of sexed bodies. To make out a judicial challenge to this exclusion, plaintiffs must establish a “diagnosis” of Gender Identity Disorder[ii] for which surgical intervention is medically necessary. The legally cognizable “medical necessity” narrative requires both pathologizing medicalization and binary sexing of trans bodies. The legal narrative responsive to the paradigm set-up by the exclusion is: “I am a woman inside, therefore I need this surgery, to become a woman on the outside.” The “necessity” standard pushes us toward a narrative about sexed embodiment. “To be” a woman, one must attain womanly embodiment with all its attending physicality and meaning. Our recitation of this narrative produces womanhood: it is not simply descriptive of what a complainant feels but also productive of what a woman is – a person with breasts and without testicles and penis.
While Medicaid precludes coverage for transition-related care, the Human Resources Administration (HRA) in New York City (the same agency that governs Medicaid) requires proof of “gender surgery” to re-classify an individual from his/her birth assigned sex to another sex. To facilitate an individual’s access to gender-affirming identification, at SRLP we frequently advocate with HRA to shift the standard for a gender marker change from a surgical standard to a self-identification standard. Our narratives in this project emphasize the “authenticity” of internal self-identification. The narrative here becomes: “my internal sense of my gender as X is real regardless of whether I have had surgery.” When we seek insurance access for re-assignment coverage, the body becomes the ultimate betrayer of our true genders and without medical intervention to “fix” the body we cannot be sexed. Here, we say, we are genuinely sexed without that medical intervention. The true-ness comes internally and our bodies as they look and feel are left out of the discourse. Instead of challenging the idea that a body with a penis is a male body, we ignore the body and simply say, “I am female, my body is irrelevant.”
Through our efforts to expand access to gender affirming care while at the same time seeking to eliminate surgical requirements for gender marker changes in agency gate-keeping, we have created gaps in care for our communities. In our first advocacy narrative, a woman is someone with specific body parts – breasts, a vagina – and without other body parts – a penis and testicles. In our second narrative, a woman is someone who identifies as a woman. These narratives must be deployed in different contexts to obtain important tangible benefits for people. But unfortunately, the collision between them has created new health costs. Different forms of health care are sex-limited under state Medicaid schemes. In New York, the coding of a recipient’s sex as male will preclude Medicaid coverage for procedures associated with femaleness under the regulatory scheme, such as hysterectomies, gynecological exams, obstetric exams, and mammograms. Successful advocacy to eliminate surgical requirements for a changed gender marker with HRA creates the following new problem: a person with a uterus and breasts is able to receive a gender-affirming Medicaid card with an “M” designation, but loses access to Medicaid coverage for mammograms and gynecological care. Similar problems arise for people who have been successful in obtaining a designation of “F” on their Medicaid cards but also require prostate and testicular care. The result is that other needed care is excluded from coverage and our communities again experience poor health outcomes. By conforming our advocacy projects to the paradigms of exclusion, our narratives have not centralized the idea that a person might seek an F gender designation, require estrogen and regular prostate exams.
We are in the process of entrenching in law and in social discourse, a fixed and binary idea of sex. In so doing, we fail to challenge regulatory schemes that prevent a person identified with an “M” from having a uterus, or at least from getting medical care that a uterus might require. The law never will recognize the many ways we inhabit our bodies and our projects should not expect such validation from the law. At the same time, as advocates, we must anticipate the distributive costs of our work. It is my hope that by identifying this cost of our administrative advocacy we might imagine more creative strategies for engaging with our bodies in future projects.
[i] N.Y. Comp. Codes R. & Regs. tit. 18, § 505.2 (l)(West 2010)(“[p]ayment is not available for care, services, drugs, or supplies rendered for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs, or supplies intended to promote such treatment.”)
[ii] Gender Identity Disorder is condition defined by the American Psychiatric Association in the Diagnostic & Statistical Manual: “A condition characterized by a strong and persistent cross gender identification and discomfort about one’s assigned sex, unrelated to either a perceived cultural advantage of being the other sex or a concurrent physical intersex condition, which results in clinically significant distress or impairment in social, occupation or important areas of functioning.” DSM-IV-TR, §§ 302.06 – 302.85.