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Gay Priori: A Queer Critical Legal Studies Approach to Law Reform

[Editor’s Note: ICONnect is publishing a series of book reviews that recently ran in ICON (Volume 18, Issue 2: July 2020) on “Law and Gender in the Literature.”]

Libby Adler. Gay Priori: A Queer Critical Legal Studies Approach to Law Reform.  Duke University Press,  2018 (paperback). Pp.  288. $26.95. ISBN: 9780822371496.

Estefanía Vela Barba

International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 654–658, https://doi.org/10.1093/icon/moaa043

https://academic.oup.com/icon/article/18/2/654/5880182

Gay Priori: A Queer Critical Legal Studies Approach to Law Reform, written by Northeastern University law professor Libby Adler, is a book focused on law reforms aimed at improving the lives of LGBT people in the United States (US). It first offers a critique of current dominant legal strategies, such as those focused on securing access to marriage, extending protections of antidiscrimination law, and punishing hate crimes. It then provides an explanation as to why LGBT law reform has prioritized these issues while neglecting others—especially those that affect the most marginalized within the LGBT population—including poverty and criminalization. And, finally, it provides an alternative framework for thinking about law and law reform that, in her view, “opens up new possibilities for real change” (at 9).

The book begins with an example to illustrate Adler’s concern with the path LGBT law reform took in the US. In 2010, she recalls, the US Supreme Court ruled on a case related to student organizations within the university context.[1] Concretely: a group called the Christian Legal Society had requested Hastings College of Law, part of the California University system, to be recognized as a student group, thus acquiring access to a variety of school resources. Their petition was denied because, per their bylaws, they wanted to exclude from affiliation anyone from a different religion as well as those who engaged in “unrepentant homosexual conduct.”[2] This, the university reasoned as grounds for denying their petition, violated the university’s “all-comers policy,” based on its non-discrimination policy.[3] The Christian Legal Society sued the university, claiming their First Amendment rights were violated. Hastings College of Law joined forces with one of the biggest LGBT organizations in the US for their defense and achieved a Supreme Court ruling in its favor.

At around the same time that the Supreme Court ruling was to be handed down though—and “just outside [Hastings’] campus gates”—another controversy, Adler writes, “was brewing” (at 1). Then San Francisco mayor Gavin Newsom—who was himself a same-sex marriage defender—introduced a bill that would make it a punishable offense to sit or lie down “on a city sidewalk between 7 a.m. and 11 p.m.” The ordinance was aimed at deterring “loitering and panhandling by the city’s homeless population” (at 2). How is this related to LGBT rights? Well, Adler writes, out of the approximately 4000 youths that formed a part of the homeless population in San Francisco, forty percent of them were estimated to be LGBT. In spite of the risk the ordinance posed for them, she was “unable to find any trace of an organized LGBT presence in the fight to stop”[4] it (at 2). Concern with a case that grants formal LGBT recognition—whether or not it has a real impact on the lives of thousands of people—seems to trump a law with a much more immediate effect and harm. Why?

Throughout Gay Priori it is possible to find many other examples—old and new—of such prioritization. For instance, access to marriage for same-sex couples was justified as a way of ensuring, among others, access to health care. Another way of guaranteeing this protection, however, was to fight for universal access to health care, which does not depend on a person’s sexual orientation, nor civil status. Why was the latter not the preferred strategy (at 115)? Another example is that in 2005, in the District of Columbia, the law was reformed to include “gender identity” as a protected class in the local antidiscrimination law (at 128). At the same time, though, a reform was passed that allowed the police to designate certain areas of the city “prostitution free zones,” thereby granting them the power to arrest people suspected of prostitution that gathered in those zones (at 129). That this could, and did, disproportionately impact trans women, particularly trans women of color (at 129), was not even thought of. Why? What makes something a “trans issue”? What renders something irrelevant to the fight for “LGBT rights”? The heart of the book—and novelty, because many of the aforementioned critiques are old, as she herself recognizes—is the explanation it purports to offer for this question: why are our issues our issues? What determines what is understood and fought for as part of the core LGBT agenda? What determines who is seen—whose needs are seen—in this struggle?

There are several factors that help explain this, according to Adler, but one of them, which is the one she focuses on, is “the power of the LGBT equal rights discourse” (at 3). What she wants to interrogate is the following:

How do [equal rights] arguments and claims, and the empirical facts and narrative depictions marshaled in their support, reflect and mold what it means to be LGBT, giving LGBT identity a race, a class, a lifestyle, and a demeanor? How does that meaning engender in us desire for specific law reforms? And how do those law reforms, and the distributions they effectuate, feed back into LGBT identity (at 8)?

How do equal rights and, in other words, the legal battles and traditions in which rights themselves are embedded, shape LGBT people and the LGBT legal agenda? Drawing on both queer and critical legal studies—as the subtitle of the book suggests—Adler dedicates the first three (of the five) chapters of her book to answering these questions. Now, she defines “LGBT equal rights discourse” to mean “a host of narrative practices evident in contemporary U.S. LGBT equal rights advocacy” that include those coming from “legal advocacy, lay advocacy, and public relations, as well as academic and empirical work that supports advocacy efforts” (at 8). For this reason, in her analysis, she takes as much from constitutional cases as she does from campaigns regarding LGBT rights. What, concretely, does she explore?

For instance, in Chapter 1—“The Indeterminacy Trap”—she begins by articulating the indeterminacy critique of rights and law (at 22). Rights, she claims, are generally not enough to determine the outcome of a case, “even when combined with a process of deductive reasoning” (at 22). This means that many cases are resolved on the basis of unacknowledged (political) choices. “The indeterminacy of law is bound up with a deep, dogged, and institutionalized need to preserve a safe distance between objective, neutral correctness and subjective, political desire” (at 23). The law itself is entangled in ideas about how the law should be, what rights entail, what institutions can or cannot do. For example, when LGBT activists use the courts, they have to contend with tropes about the threat of the counter-majoritarian power overstepping its duties. How does this set the LGBT agenda up to being—like the courts—counter-majoritarian? Now, if courts can only strike down laws based on constitutional “rights,” how does this constrict the arguments used? What right do you appeal to? If the right to equality is chosen, this also means, of course, grappling with its complexity: what does it mean to be treated “as equals”? Who is being compared? What is being compared? All of these framings open some doors, but close others as well. For instance, if you fight for formal equality, how does that endanger a fight for substantive equality in the future?

Chapter 2 begins with an obvious premise: a right requires a rights-bearing subject. The question is: who is that rights bearing subject in the case of LGBT rights? Over and over, choices are made—by those engaged in LGBT rights discourse—shaping who this subject becomes. Instead of pursuing a case of bankruptcy, for instance, a tax exemption case is chosen for the marriage fight. The logic? “Do you think that people who couldn’t pay their personal debts are the best people to bring this claim?” (at 88). If the right to equality requires, amongst other elements, an aggrieved group, the incentives to have a distinct, stable group identity are there. Erasing or flattening differences within the LGBT population is almost too hard to resist. That some men who have sex with men do not understand themselves as “gay”? Too complex (at 69). That some same-sex couples reject monogamy? Too scandalous. When these are the terms of the debate, what are you left with in the end? As Adler suggests, “the fight for equality seems to demand certain types of subjects” (p. 89): domestic, bourgeois, monogamous, asexual … Like ideal (read: white, rich, gender-conforming) straight people, but gay.

Chapter 3, in my understanding, shows how LGBT rights discourse feeds—both off and into—broader political and policy notions. For instance, the fight to access marriage squares with the privatization of care within the family in a neoliberal context. Instead of countering the trend of slashing public goods and services, it strengthens it by upholding the values of “interdependence, mutual support, and responsibility” (at 115). The fight for the recognition of hate crimes is done in a context in which the carceral system is expanding. And, by asking for “hate crimes”—by being seduced with the system’s power to grant “recognition”—the system, and its actual power of destruction, becomes implicitly legitimized.

It is a mess. A mess, Adler believes, that we can nonetheless get out of, which is what she dedicates her last two chapters to.

In Chapter 4, she ties the LGBT “dilemma” over recognition and redistribution, formal and substantive equality, to a longer history that has pervaded other movements as well. She examines Nancy Fraser’s well-known critique of the prevalence that, in recent decades, recognition has had over redistribution.[5] Following Judith Butler, though, she objects to Fraser’s suggestion that LGBT struggles lack “roots in political economy” (at 160)—arguing, in essence, that she practically reduces LGBT struggles to issues of recognition and not redistribution.[6] The point of revisiting this debate between Butler and Fraser is precisely to draw attention to how sexuality has been, in a way, undertheorized as an axis of distribution, and thus help to fill that void. On this point, Adler uses legal analysis to shine light on how to move forward. If we truly want to see how distribution happens:

[our analysis] would require that we be informed about the legal conditions facing highly localized constituencies. It would require an awareness of background rules and their distributional effects on specific populations. It would require an intervention into the processes by which inequalities of resources and meaning reproduce and compound themselves (at 170).

When referring to “background rules,” Adler draws from several other scholars. To begin with, there are the contributions made by early twentieth-century lawyer and economist Robert L. Hale, who purported to show the variety of rules that affected negotiations between two parties, particularly in the labor context. Many of these rules were in the “background,” not explicitly related to a specific contract, but nonetheless affected the bargaining power of the parties. He intended to show that the “free market” was not as “free” as it was perceived to be. Adler also draws insights from Robert H. Mnookin and Lewis Kornhauser, who showed how these types of rules also affected divorces in the US, most of which were settled out of court. These rules distributed powers to “bargain in the shadow of the law.” Adler’s fifth and final chapter is dedicated to showing how this type of “background rules” analysis would play out in the LGBT context.

Most of Chapter 5 is dedicated to the specific problem of LGBT youth homelessness. For instance, she shows how if we are to understand, and thus combat, this problem, it is necessary—at the very least—to analyze rules regarding parental rights, the welfare system, contract and labor law, as well as the criminal justice system itself. Each of them plays a role in either restricting or expanding a young person’s power to negotiate the terms by which they live. Identifying these rules, these conditions, also allows them to be “interrupted or reformed, [thus] creating possibilities for redistribution and…recognition as well” (at 170). Herein lies the hopefulness of her analysis—her attempt to make a “cognitive shift” (at 9), as she calls it, to change our “reform priorities.” She argues that:

These opportunities, it will become clear, emerge on a small scale rather than in the form of wholesale emancipation. While the absence of a revolutionary vision may be dispiriting to some, the purpose is optimistic; it is to leave readers emboldened that alternatives to the current LGBT agenda are possible so that we can demand it of our leaders when they come to us seeking contributions and other forms of solidarity (at 9).

The ground Adler’s book covers, as I hope to have shown, is both vast and varied. It is critical work, but also points to alternatives. Although it focuses on the US, many of the interrogations she poses can be made with regards the broader work being done on equality. In the end, one of the central questions she poses is not only how our own pursuits have fallen short, but how they may have even caused harm, albeit unintentionally. After decades of work, the time for self-critique is not only welcome, but necessary. Beyond the questions posed, the variety of examples she provides is an asset of the book, because they themselves shine light on the particular sets of issues that could be explored.

There are, of course, questions I am left with, especially regarding the role rights play in the constriction of our imagination on the one hand, and on the unwitting legitimation of inequalities, particularly economic inequalities, on the other. This critique is not new and in recent years, given the staggering economic inequalities that have been enhanced worldwide, contending with it is inevitable.[7] It is difficult to disagree with Adler on this point. A brief look, through her lens, at the work that has been done—e.g. around the American Convention on Human Rights[8] or the European Charter of Rights on LGBT issues[9] —raises concerns. Is there a limit to what rights can do? I have no answer now, but, for the moment, I hope the response is “no.”

Footnotes

Christian Legal Soc’y Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661 (2010).

Id.

Id.

Id.

NANCY FRASER, FROM REDISTRIBUTION TO RECOGNITION? DILEMMAS OF JUSTICE IN A “POST-SOCIALIST” AGE (1995).

Id. at 76–77.

Seee.g., SAMUEL MOYN, NOT ENOUGH. HUMAN RIGHTS IN AN UNEQUAL WORLD (2018).

Seee.g., Violence against Lesbian, Gay, Bisexual, Trans and Intersex Persons in the Americas, Inter-Am. Comm’n H.R., OAS/Ser.L/V/II.rev.2 (Nov. 12, 2015); State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples (Interpretation and Scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18, and 24, in relation to Article 1, of the American Convention on Human Rights), Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017).

Factsheet—Sexual Orientation Issues, Eur. Ct. H.R. (Jan. 2020).

© The Author(s) 2020. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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Published on September 11, 2020
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