Lesbian Legal Theory

From “LESBIAN LEGAL THEORY” entry, by Professor Joan Howarth, in THE ENCYLOPEDIA OF LESBIAN HISTORIES AND CULTURES, edited by Bonnie Zimmerman:

As developed by Robson, lesbian legal theory is a theory of law that has as its purpose lesbian survival. It constitutes a way to examine the law from both individual and community lesbian perspectives and is committed to being “relentlessly lesbian,” putting lesbians, rather than law, at the center. For example in Lesbian (Out)Law, Robson argues that the law’s traditional categories and themes sacrifice and damage lesbians. She reveals the centuries of legal punishment of lesbians, hidden behind the myth of lesbian impunity.

According to Robson’s vision, lesbian legal theory respects a variety of lesbian traditions and does not emphasize some elements of lesbian identity over others. It understands the inevitability of the law’s influence but is not knowingly complicit in the creation of the law’s dominance. It makes lesbians visible in the law and challenges what Robson calls the domestication of lesbians by the law, or the diminishment of lesbians though interaction with laws. For example, Robson argues that reform of marriage laws to include lesbian relationships would further domesticate lesbians, reforming lesbians as much as the law. Robson has examined legal history, lesbians as criminal defendants, the use of contract law by lesbian couples, intralesbian intimate violence, and family law, among other areas.

Although Robson began as an almost solitary pioneer in the field of lesbian legal theory, she has been joined by a number of lawyers and legal academics developing and applying lesbian legal theory to immigration law, family law, contract law, lesbian marriage, criminal law, nondiscrimination law, legal history, and other subjects. Those working to develop lesbian legal theory assert that elimination of sexism will not necessarily eliminate heterosexism and, thus, that feminist jurisprudence does not adequately address the situation of lesbians. Lesbian legal theory is needed, for example, because feminist jurisprudence’s preoccupation with women compared to men suggests a heterosexual bias and because lesbian lives are not explained solely by either sex or gender.

Lesbian legal theory also implicitly critiques legal theories, sometimes called “queer laws,” that combine claims or rights related to lesbians with those related to gay men. In putting lesbian experiences first, lesbian legal theory suggests that sex and gender differences distinguish the lives and experiences of lesbians from those of gay men in meaningful ways. Lesbian legal theory, thus, differs from the dominant theory of lesbian law reform which focuses on sexual-orientation discrimination, combining the interests of lesbian and gay men in human rights law, constitutional litigation, contract law, employment discrimination, housing, domestic-partnership litigation and other legal controversies.

Law

• Lesbian Legal Theory
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Literature

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Ruthann Robson