Colloquium: Gay Rights and Lefts: Rights Critique and the Distributive Analysis

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”

Aziza Ahmed^[i]

1.  Introduction

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] 

II. Background

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]

IV. Decisionism

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]

V.  Conclusion

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.

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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.

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.

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.[1]  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.

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”).

[1] Levin, Mabie & Levin Professor of Law, University of Florida Fredric G. Levin College of Law.

[1] 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.

[1] 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.

[1] 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 .

[1] 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”).

Substantive and Methodological Issues Precipitated by Gay Rights and Lefts.
Prabha Kotiswaran

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).

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.

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.

Response to Adler, 2.27.12
Rachel Rebouché

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.

Response to Gay Rights and Lefts: Rights Critiques and Distributive Analysis for Real Law Reform  by Libby Adler

Darren Rosenblum^[i]

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. 

Some Reflections on the Challenges of Distributive Analysis

Hila Shamir*

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.