Patriarchy is such a drag: The strategic possibilities of a postmodern account of gender

Harvard Law Review

Volumn 108, Issue 8, 1995, Pages 1973-2008

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EID: 9144262968     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341950     Document Type: Article

References (183)

1. See, e.g., RICHARD DAWKINS, THE SELFISH GENE 140-52 (1989); SIGMUND FREUD, Lecture XXXIII: Femininity, in 22 THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 112, 118 (James Strachey trans. & ed., 1964); STEVEN GOLDBERG, THE INEVITABILITY OF PATRIARCHY 91-92 (1973).
2. See, e.g., RICHARD DAWKINS, THE SELFISH GENE 140-52 (1989); SIGMUND FREUD, Lecture XXXIII: Femininity, in 22 THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 112, 118 (James Strachey trans. & ed., 1964); STEVEN GOLDBERG, THE INEVITABILITY OF PATRIARCHY 91-92 (1973).
3. See, e.g., RICHARD DAWKINS, THE SELFISH GENE 140-52 (1989); SIGMUND FREUD, Lecture XXXIII: Femininity, in 22 THE STANDARD EDITION OF THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD 112, 118 (James Strachey trans. & ed., 1964); STEVEN GOLDBERG, THE INEVITABILITY OF PATRIARCHY 91-92 (1973).
4. As it is used in feminist scholarship and in this Note, the term "compulsory heterosexuality" does not mean merely that heterosexual orientation is compelled, but that conformity to traditional gender roles is as well. The term itself comes from a classic article by Adrienne Rich about the exclusion of lesbians from the feminist mainstream. See Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, 5 SIGNS 631, 632-40 (1980).
5. See Judith Butler, Gender Trouble, Feminist Theory, and Psychoanalytic Discourse, in FEMINISM/POSTMODERNISM 324, 325 (Linda J. Nicholson ed., 1990); Jane Flax, Postmodernism and Gender Relations in Feminist Theory, 12 SIGNS 621, 633 (1987).
6. See Judith Butler, Gender Trouble, Feminist Theory, and Psychoanalytic Discourse, in FEMINISM/POSTMODERNISM 324, 325 (Linda J. Nicholson ed., 1990); Jane Flax, Postmodernism and Gender Relations in Feminist Theory, 12 SIGNS 621, 633 (1987).
7. To take but one example, Catharine MacKinnon contends that what connects all women is their oppression in a sexual hierarchy: female identity consists of sexual subjugation by men. See CATHARINE A. MACKINNON, FEMINISM UNMODIFIED 49 (1987).
8. Angela Harris has defined "essentialism" as "the notion that a unitary, 'essential' women's experience can be isolated and described independently of race, class, sexual orientation, and other realities of experiences." Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 585 (1990).
9. See, e.g., Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 834-35 (1990) (class); Ruth Colker, The Example of Lesbians: A Posthumous Reply to Professor Mary Joe Frug, 105 HARV. L. REV. 1084, 1095 (1992) (sexual orientation); Mari Matsuda, When the First Quail Calls, 11 WOMEN'S RTS. L. REP. 7, 7-8 (1989) (race).
10. See, e.g., Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 834-35 (1990) (class); Ruth Colker, The Example of Lesbians: A Posthumous Reply to Professor Mary Joe Frug, 105 HARV. L. REV. 1084, 1095 (1992) (sexual orientation); Mari Matsuda, When the First Quail Calls, 11 WOMEN'S RTS. L. REP. 7, 7-8 (1989) (race).
11. See, e.g., Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 834-35 (1990) (class); Ruth Colker, The Example of Lesbians: A Posthumous Reply to Professor Mary Joe Frug, 105 HARV. L. REV. 1084, 1095 (1992) (sexual orientation); Mari Matsuda, When the First Quail Calls, 11 WOMEN'S RTS. L. REP. 7, 7-8 (1989) (race).
12. For a more detailed presentation of feminism's postmodern dilemma, see JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION of IDENTITY 1-6 (1990); and Butler, cited above in note 3, at 339.
13. BUTLER, supra note 7, at ix-xi, 147-50; Judith Butler, Imitation and Gender Insubordination, in INSIDE/OUT: LESBIAN THEORIES, GAY THEORIES 13, 19 (Diana Fuss ed., 1991).
14. One could argue that institutions such as science, religion, or the media also construct gender. But the law's great coercive power makes it unique among these institutions. See, e.g., David Kairys, Introduction to THE POLITICS OF LAW 1, 7 (David Kairys ed., rev. ed. 1990); Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986) ("Legal interpretative acts signal and occasion the imposition of violence upon others . . . .").
15. One could argue that institutions such as science, religion, or the media also construct gender. But the law's great coercive power makes it unique among these institutions. See, e.g., David Kairys, Introduction to THE POLITICS OF LAW 1, 7 (David Kairys ed., rev. ed. 1990); Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601, 1601 (1986) ("Legal interpretative acts signal and occasion the imposition of violence upon others . . . .").
16. For example, in most states women may now bring tort suits against abusive husbands, and many localities have adopted policies that require police and prosecutors to treat domestic violence as they treat violence between strangers. See Developments in the Law - Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1530-41 (1993). Feminist activism has also led to recognition of sexual harassment as a form of sex discrimination under Title VII. See Martha Chamallas, Writing About Sexual Harassment: A Guide to the Literature, 4 UCLA WOMEN'S L.J. 37, 37-40 (1993).
17. For example, in most states women may now bring tort suits against abusive husbands, and many localities have adopted policies that require police and prosecutors to treat domestic violence as they treat violence between strangers. See Developments in the Law - Legal Responses to Domestic Violence, 106 HARV. L. REV. 1498, 1530-41 (1993). Feminist activism has also led to recognition of sexual harassment as a form of sex discrimination under Title VII. See Martha Chamallas, Writing About Sexual Harassment: A Guide to the Literature, 4 UCLA WOMEN'S L.J. 37, 37-40 (1993).
18. See Butler, supra note 3, at 337.
19. See supra note 2.
20. For an elaboration of how Western philosophy's substance/attribute distinction plays out in theories of gender, see BUTLER, cited above in note 7, at 16-25. For examples of the problem, see the sources cited above in note 1.
21. See SIMONE DE BEAUVOIR, THE SECOND SEX at xv-xviii (H.M. Parshley ed. & trans., 1957); Frances Olsen, The Sex of Law, in THE POLITICS OF LAW, supra note 9, at 453, 453.
22. See SIMONE DE BEAUVOIR, THE SECOND SEX at xv-xviii (H.M. Parshley ed. & trans., 1957); Frances Olsen, The Sex of Law, in THE POLITICS OF LAW, supra note 9, at 453, 453.
23. BUTLER, supra note 7, at 5 & n.6.
24. See id. at 4-6, 14-16, 31-32.
25. Butler, supra note 3, at 331.
26. Many scholars have offered theories to explain why our cultural institutions are committed to compulsory heterosexuality. One of the most compelling posits a relationship between capitalism and the organization of family relations. See John D'Emilio, Capitalism and Gay Identity, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 100, 102-05 (Ann Snitow, Christine Stansell & Sharon Thompson eds., 1983). Others argue that compulsory heterosexuality serves men. See MACKINNON, supra note 4, at 53; William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1434 (1993). Still other commentators argue that homosexuality, although termed unnatural, may serve a function for the state: it may help to maintain the privileged position of heterosexuals, for there can be no acceptable subject unless there is also an unacceptable other. See Butler, supra note 8, at 26-27; Cheshire Calhoun, Denaturalizing and Desexualizing Lesbian and Gay Identity, 79 VA. L. REV. 1859, 1870 n.32 (1993). Thus, the state may need both to construct and to punish homosexual orientation. It is not the purpose of this Note to contend that any of these theories is correct. The focus of this Note is not so much why compulsory heterosexuality is the ideology underlying the construction of gender as how this ideology gets translated into gender.
27. Many scholars have offered theories to explain why our cultural institutions are committed to compulsory heterosexuality. One of the most compelling posits a relationship between capitalism and the organization of family relations. See John D'Emilio, Capitalism and Gay Identity, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 100, 102-05 (Ann Snitow, Christine Stansell & Sharon Thompson eds., 1983). Others argue that compulsory heterosexuality serves men. See MACKINNON, supra note 4, at 53; William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1434 (1993). Still other commentators argue that homosexuality, although termed unnatural, may serve a function for the state: it may help to maintain the privileged position of heterosexuals, for there can be no acceptable subject unless there is also an unacceptable other. See Butler, supra note 8, at 26-27; Cheshire Calhoun, Denaturalizing and Desexualizing Lesbian and Gay Identity, 79 VA. L. REV. 1859, 1870 n.32 (1993). Thus, the state may need both to construct and to punish homosexual orientation. It is not the purpose of this Note to contend that any of these theories is correct. The focus of this Note is not so much why compulsory heterosexuality is the ideology underlying the construction of gender as how this ideology gets translated into gender.
28. Many scholars have offered theories to explain why our cultural institutions are committed to compulsory heterosexuality. One of the most compelling posits a relationship between capitalism and the organization of family relations. See John D'Emilio, Capitalism and Gay Identity, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 100, 102-05 (Ann Snitow, Christine Stansell & Sharon Thompson eds., 1983). Others argue that compulsory heterosexuality serves men. See MACKINNON, supra note 4, at 53; William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1434 (1993). Still other commentators argue that homosexuality, although termed unnatural, may serve a function for the state: it may help to maintain the privileged position of heterosexuals, for there can be no acceptable subject unless there is also an unacceptable other. See Butler, supra note 8, at 26-27; Cheshire Calhoun, Denaturalizing and Desexualizing Lesbian and Gay Identity, 79 VA. L. REV. 1859, 1870 n.32 (1993). Thus, the state may need both to construct and to punish homosexual orientation. It is not the purpose of this Note to contend that any of these theories is correct. The focus of this Note is not so much why compulsory heterosexuality is the ideology underlying the construction of gender as how this ideology gets translated into gender.
29. A comprehensive account would also have to analyze the sex industry, employment law, reproduction, and equal protection, to name but a few.
30. 316 U.S. 535 (1942).
31. See, e.g., Planned Parenthood v. Casey, 112 S. Ct. 2791, 2804-06 (1992) (opinion of O'Connor, Kennedy & Souter, JJ.); Webster v. Reproductive Health Servs., 492 U.S. 490, 520 (1989).
32. See, e.g., Michael H. v. Gerald D., 491 U.S. no, 121-24 (1989); Caban v. Mohammed, 441 U.S. 380, 389 (1979); Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977).
33. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383-87 (1978); Loving v. Virginia, 388 U.S. 1, 12 (1967).
34. See, e.g., Casey, 112 S. Ct. at 2807; Maher v. Roe, 432 U.S. 464, 473-74 (1977); Planned Parenthood v. Danforth, 428 U.S. 52, 60-61 (1976); Roe v. Wade, 410 U.S. 113, 153-54 (1973); Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965).
35. The source of the privacy protection has alternatively been located in a penumbra of privacy emanating from the Bill of Rights, see Griswold, 381 U.S. at 484-86; the Fourteenth Amendment, see Roe, 410 U.S. at 153-54; or the Ninth Amendment, see Griswold, 381 U.S. at 486-87 (Goldberg, J., concurring). Some argue that there is no constitutional basis at all for substantive due process. See, e.g., Ira C. Lupu, Constitutional Theory and the Search for the Workable Premise, 8 DAYTON L. REV. 579, 583 (1983).
36. See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678, 686 (1976); Danforth, 428 U.S. at 60-61. But see Casey, 112 S. Ct. at 2820 (opinion of O'Connor, Kennedy & Souter, JJ.) (holding that, although the right to an abortion is comprehended by the right to privacy, restrictions on abortion are struck down only if they constitute an undue burden).
37. 478 U.S. 186 (1986).
38. Id. at 190-91; see also Dronenburg v. Zech, 741 F.2d 1388, 1395 (D.C. Cir. 1984) (claiming that "[i]t need hardly be said" that the right-to-privacy cases, which relate to "marriage, procreation, contraception, family relationships, and child rearing and education," do not extend to a right to homosexual conduct); Doe v. Commonwealth's Attorney, 403 F. Supp. 1199, 1202 (E.D. Va 1975) (asserting that homosexuality is "obviously no part" of the right-to-privacy cases relating to "marriage, family, and home"), aff'd, 425 U.S. 901 (1976).
39. See Bowers, 478 U.S. at 204-06 (Blackmun, J., dissenting); Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definitions of Rights, 57 U. CHI. L. REV. 1057, 1099-1100 (1990).
40. See, e.g., Tribe & Dorf, supra note 29, at 1099-1100.
41. Laurence Tribe has similarly argued that naturalizing "is often employed to negate the state's role in . . . reinforcing power relations." Laurence H. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics, 103 HARV. L. REV. 1, 15 (1989).
42. Griswold v. Connecticut, 381 U.S. 479, 486 (1965). The Court had to resort to naturalizing (indeed, romanticizing) marriage because, unlike previously protected associations, marriage cannot be linked to the text of the Constitution.
43. Id. at 485-86.
44. In Loving v. Virginia, the Court again resorted to naturalizing language about marriage, although a straightforward equal protection analysis, without reference to fundamental rights, would have justified the result: "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1, 12 (1967) (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
45. 405 U.S. 438 (1972).
46. Id. at 453.
47. 431 U.S. 494 (1977).
48. See id. at 503-05 (opinion of Powell, J.).
49. Id. at 505.
50. See Nan D. Hunter, Life After Bowers, 27 HARV. C.R.-C.L. L. REV. 531, 538-39 & nn.30-31 (1992).
51. Bowers v. Hardwick, 478 U.S. 186, 195-96 (1986).
52. Strict scrutiny may contribute to the notion that this zone is a place where the state ventures only in the exceptional case. Cf. Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J., concurring) (arguing that the strict scrutiny framework casts doubt on the entire network of state regulation of marriage).
53. Cf. Martha Minow, All in the Family and in All Families: Membership, Loving, and Owing, 95 W. VA. L. REV. 275, 276 (1992) (pointing out that families are not pre-political).
54. See, e.g., Brooke Oliver, Contracting for Cohabitation: Adopting the California Statutory Marital Contract to Life Partnership Agreements Between Lesbian, Gay, or Unmarried Heterosexual Couples, 23 GOLDEN GATE U. L. REV. 899, 899 (1993) (noting that California has more than 450 statutes that govern marriage).
55. See Minow, supra note 43, at 276.
56. For a discussion of the problem that biology poses for the claim that gender is not natural, as well as an argument that biological difference is regulatory, see JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 1-23 (1993).
57. Cf. ADRIENNE RICH, OF WOMAN BORN 13 (2d ed. 1986) (distinguishing between the experience of motherhood and the institution).
58. Cf. Mary J. Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), 105 HARV. L. REV. 1045, 1046 (1992) (arguing that legal rules inscribe the female body with meaning).
59. See Sylvia Law, Homosexuality and the Social Meaning of Gender, 1988 WIS. L. REV. 187, 218.
60. Cf. Butler, supra note 8, at 20 ("[O]ppression works not merely through acts of overt prohibition, but covertly through the constitution of viable subjects and through the corollary constitution of a domain of unviable (un)subjects - abjects, we might call them . . . .").
61. Although every state had a sodomy law in 1961, today fewer than half do. See William B. Rubenstein, Introduction to LESBIANS, GAY MEN, AND THE LAW at xvi (William B. Rubenstein ed. 1993).
62. 3.
63. Most early statutes prohibited anal sex, and perhaps oral sex, but did not make distinctions between heterosexual and homosexual perpetrators, nor between married and unmarried couples. Moreover, rather than singling out sodomy, these early laws frequently lumped it together with other sexual crimes, such as fornication, adultery, and incest. The evolution of Texas's sodomy law is typical. The original 1860 law prohibited all anal sex. The second law, dating from 1943, prohibited all anal and oral sex. The current law, enacted in 1974, prohibits only homosexual sodomy but reclassifies the crime as a misdemeanor. See Baker v. Wade, 553 F. Supp. 1121, 1125-26, 1148-50 (N.D. Tex. 1982) (recounting the history of the Texas sodomy law), rev'd, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986).
64. See MODEL PENAL CODE art. 213 note at 430-39 (1980).
65. See Hunter, supra note 40, at 538 (documenting that, although early sodomy reforms took the form of outright repeal, "the dominant legislative trend [in the last twenty years] is specification").
66. See Law, supra note 40, at 218.
67. Calhoun, supra note 18, at 1870.
68. 836 F. Supp. 859 (N.D. Ga. 1993).
69. Other First Amendment claims have fared no better. For example, in Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir. 1976), cert, denied, 430 U.S. 982 (1977), the Fifth Circuit upheld a district court's determination that the student newspaper of a state university could refuse to print the advertisement of a gay counseling center without implicating the First Amendment. See id. at 1075. Although the decision rests on the purported absence of state action, the court emphasized the "special reasons" for endorsing the paper's decision to decline the advertisement: The Mississippi statute condemns any intercourse which is unnatural, detestable and abominable, including acts committed per anus or per os. This is not surprising. The very title of the statute shows it to have been directed against "Unnatural Intercourse." The editor of the Reflector had a right to take the position that the newspaper would not be involved, even peripherally, with this off-campus homosexually related activity. Id. at 1075-76. The "special reasons," in other words, reflect the desire to protect the public from exposure to homosexuals.
70. See also Childers v. Dallas Police Dep't, 513 F. Supp. 134, 141 (N.D. Tex. 1981) (allowing the discharge of a gay officer because of his activism); cf. Aumiller v. University of Del., 434 F. Supp. 1273, 1293 (D. Del. 1977) (determining that an employee could not be fired because of his statements about homosexuality because he never engaged in public conduct).
71. Various jurisdictions have weighed a parent's homosexuality differently. See, e.g., Jacobson v. Jacobson, 314 N.W.2d 78, 80-82 (N.D. 1981) (homosexuality dispositive); In re Marriage of Williams, 563 N.E.2d 1195, 1198-1200 (Ill. App. Ct. 1990) (homosexuality one factor); Bezio v. Patenaude, 410 N.E.2d 1207, 1215-16 (Mass. 1980) (homosexuality relevant if harmful). Courts are most disapproving of parents who are open about their sexual orientation. Compare M.J.P. v. J.G.P., 640 P.2d 966, 967 (Okla. 1982) (holding that a lesbian mother's confirmation of her relationship in a "Gay-la wedding" militated against granting her custody) with Peyton v. Peyton, 457 So. 2d 321, 323-24 (La. Ct. App. 1984) (exhibiting lenience toward a "discreet" lesbian). But see S.E.G. v. R.A.G., 735 S.W.2d 164, 166 (Mo. Ct. App. 1987) ("[Homosexual] conduct can never be kept private enough to be a neutral characteristic . . . .").
72. See, e.g., Appeal in Pima County Juvenile Action B-10489, 727 P.2d 830, 835 (Ariz. CL App. 1986); Bottoms v. Bottoms, 457 S.E.2d 102, 107 (Va. 1995); Roe v. Roe, 324 S.E.2d 691, 728 (Va. 1981).
73. One court noted: [G]iven its concern for perpetuating the values associated with conventional marriage and the family as the basic unit of society, the state has a substantial interest in viewing homosexuality as errant sexual behavior which threatens the social fabric, and in endeavoring to protect minors from those who advocate homosexual lifestyles. Roberts v. Roberts, 489 N.E.ad 1067, 1070 (Ohio Ct. App. 1985).
74. S. v. S., 608 S.W.2d 64, 66 (Ky. Ct. App.), cert, denied, 451 U.S. 911 (1981); see also N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo. Ct. App. 1980) ("[W]ho would place a child in a milieu where she might be inclined toward [homosexuality]?").
75. See Kenneth Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 631 (1980).
76. Conditional custody or visitation rights are made contingent on the parent's willingness to restrict her behavior, for example by not bringing her children into the presence of known homosexuals, not living with her partner, or not exposing her children to her alternative life style. See S.E.G. v. R.A.G., 735 S.W.zd 164, 183 (Mo. Ct. App. 1987).
77. See High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990).
78. 822 F.2d 97 (D.C. Cir. 1987).
79. Id. at 103.
80. See id. at 104.
81. See, e.g., Ben-Shalom v. Marsh, 881 F.2d 454, 460 (7th Cir. 1989), cert, denied, 494 U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068, 1076-77 (Fed. Cir. 1989), cert, denied, 494 U.S. 1003 (1990).
82. This analysis lends support to commentators who have argued that the crux of Bowers was not a right to privacy, but rather a right to public expression. See, e.g., Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REV. 1431, 1435 (1992).
83. See Law, supra note 49, at 215-19. Of course, these cases do not reflect the entire spectrum of the law's tolerance of discrimination on the basis of sexual orientation. For a discussion of other instances in which the illegality of sodomy has been used to justify such discrimination, see Marc A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. MIAMI L. REV. 511, 571-90 (1992).
84. The assertion that gender transgressions ought not to be punished - implicit throughout this Note - is premised on the idea that there is nothing immoral about such deviations. It is beyond the scope of this Note to resolve the debate over the morality of deviant behavior. This Note merely seeks to discredit intimations that the immorality of the deviations derives from the naturalness of the norms. Once gender has been denaturalized, all we have left are the values that we bring to the debate.
85. Esther Newton's ethnography of professional drag queens provides an introduction to the elements that make up a drag performance: "heav[y] and dramatic[ ] ma[ke]-up, jewelry (especially earrings), a long-haired wig (preferably blond . . . ), a gown (preferably low-cut and floor length), and, invariably, high-heeled shoes." ESTHER NEWTON, MOTHER CAMP 49 (2d ed. 1979).
86. Butler, supra note 3, at 338.
87. NEWTON, supra note 75, at 49. The same goes for butch lesbians: For all our boyish clothes and mannerisms (known as being "butch") we women did not pass as men or boys. . . . For our point was not to be men; our point was to be butch and get away with it. We always kept something back: a high pitched voice, a slant of the head, or a limpness of hand gestures, something that was clearly labeled female. JUDY GRAHN, ANOTHER MOTHER TONGUE 30-31 (1984).
88. Butler's analysis also makes clear why the imitation must be parodic: a more convincing portrayal risks signaling heterosexual female desire. See, e.g., THE CRYING GAME (Miramax 1992).
89. E.J. Graff, Pride and Prejudice: New York Gay Pride Demonstration, PROGRESSIVE, June 1994, at 16, 16.
90. Butler, supra note 8, at 21 (emphasis omitted).
91. Mary Anne Case makes a similar point with respect to gay and lesbian couples who pass. See Mary Anne Case, Couples and Coupling in the Public Sphere: A Comment on the Legal History of Litigating for Lesbian and Gay Rights, 79 VA. L. REV. 1643, 1644 (1993).
92. This Note uses the generic feminine when referring to the transsexual (it seems particularly appropriate in this instance to insist that "she" subsumes "he"). Until recently, transsexualism was perceived as a "disease" that almost exclusively afflicted men; experts now recognize that the incidence among women is significant. See MARJORIE GARBER, VESTED INTERESTS 101 (1992).
93. The law's treatment of transsexuals is not uniform. For example, the Americans with Disabilities Act specifically excludes from protection individuals who suffer from gender identity disorders. See 42 U.S.C. § 12211(b)(1) (Supp. V 1993). Similarly, Title VII and the antidiscrimination laws of some states fail to protect transsexuals. See, e.g., Ulane v. Eastern Airlines Inc., 742 F.2d 1081, 1084 (7th Cir. 1984), cert, denied, 471 U.S. 1017 (1985).
94. See Eskridge, supra note 18, at 1421. But cf. Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993) (using strict scrutiny to evaluate a marriage statute in a sex-based equal protection challenge).
95. The evidence of passing - primarily from divorce and custody cases - is indirect but convincing. For example, in Karin T. v. Michael T., 484 N.Y.S.2d 780 (Farn. Ct. 1985), the court ordered that Michael T., a female-to-male transsexual who married Karin T., was liable for support of two children born to the couple as a result of artificial insemination. See id. at 782; see also Christian v. Randall, 516 P.2d 132, 134-35 (Colo. Ct. App. 1973) (granting custody to a mother, a female-to-male transsexual who had remarried a woman). Three states have statutes that allow a post-operative transsexual to change the sex designation on official records. Judicial decisions in another 12 states have allowed such changes. See In re Ladrach, 513 N.E.2d 828, 830 (Ohio P. Ct. 1987). Some states do not have statutory or judgemade law on the issue but informally permit the change. See Edward S. David, Note, The Law and Iranssexualism: A Faltering Response to a Conceptual Dilemma, 7 CONN. L. REV. 288, 301 n-43, 305-11 (1975).
96. The only reported case ruling specifically on the validity of the marriage of a female-to-male transsexual involves an annulment proceeding. The marriage was held to be void because the surgery had not succeeded in giving the transsexual a penis. "Assuming, as urged, that defendant was a male entrapped in the body of a female, the record does not show that the entrapped male successfully escaped . . . ." Frances B. v. Mark B., 355 N.Y.S.sd 712, 717 (Sup. Ct. 1974). The court reasoned that, because the husband could not function as a man sexually, the marriage was void by law. See id.
97. 355 A.2d 204 (N.J. Super. Ct. App. Div.), cert, denied, 364 A.2d 1076 (N.J. 1976).
98. Id. at 208.
99. Id. at 209.
100. Id. at 205-06 (internal quotation marks omitted).
101. Id. at 206 (alteration in original).
102. But see In re Ladrach, 513 N.E.2d 828, 832 (Ohio P. Ct. 1987) (upholding the refusal of a marriage license to a post-operative male-to-female transsexual and a man). Pre-operative transsexuals, like gays and lesbians, are denied the right to marry. See, e.g., Anonymous v. Anonymous, 325 N.Y.S.2d 499, 501 (Sup. Ct. 1971) (declaring void the marriage of a man to a preoperative transsexual).
103. See M.T. v. J.T., 355 A.2d at 211.
104. Id. at 210 (quoting unpublished trial court opinion) (internal quotation marks omitted).
105. GARBER, supra note 82, at 110; see also DEBRA H. FEINBLOOM, TRANSVESTITES AND TRANSSEXUALS 160-61 (1976) ("The damn trouble with transsexuals is that half these people want to be stereotyped women in ranch houses and the other half want to be show girls . . . ." (quoting Yvonne, a male-to-female transsexual)); id. at 163-64 (arguing that transsexuals harbor fantasies of middle-class marriage because they want to pass).
106. "I would like to have a man make love to me, but I am frightened that he would find me to be male physically and this would make him unhappy. I would want him instead to be satisfied in rinding me sexually responsive as a woman." FEINBLOOM, supra note 95, at 195 (quoting Helen, a male-to-female transsexual).
107. GARBER, supra note 82, at 110.
108. One commentary argues that prohibitions against same-sex marriage should not apply to transsexuals: "Because a transsexual marriage appears heterosexual to innocent observers, its threat to the community is minimal." Jeannine S. Haag & Tami L. Sullinger, Note, Is He or Isn't She? Transsexualism: Legal Impediments to Integrating a Product of Medical Definition and Technology, 21 WASHBURN L.J. 342, 350 (1982).
109. For example, transsexual prison inmates have a constitutional right to at least minimal treatment, although not necessarily the treatment of their choice. See, e.g., White v. Farrier, 849 F.2d 322, 325 (8th Cir. 1988); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.), cert, denied, 484 U.S. 935 (1987).
110. See, e.g., Pinneke v. Preisser, 623 F.2d 546, 549 (8th Cir. 1980) (applying Iowa law); G.B. v. Lackner, 145 Cal. Rptr. 555, 559 (Ct App. 1978).
111. See, e.g., Doe I v. McConn, 489 F. Supp. 76, 80 (S.D. Tex. 1980).
112. The claim made in this Note about anatomy has also been made about other biological "facts." See, e.g., D. Marvin Jones, Darkness Made Visible: Law, Metaphor and the Racial Self, 82 GEO. L.J. 437, passim (1993); Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209, 211 (1995); Simon Watney, The Spectacle of AIDS, OCTOBER, Winter 1987, at 71, 71-86.
113. The claim made in this Note about anatomy has also been made about other biological "facts." See, e.g., D. Marvin Jones, Darkness Made Visible: Law, Metaphor and the Racial Self, 82 GEO. L.J. 437, passim (1993); Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209, 211 (1995); Simon Watney, The Spectacle of AIDS, OCTOBER, Winter 1987, at 71, 71-86.
114. The claim made in this Note about anatomy has also been made about other biological "facts." See, e.g., D. Marvin Jones, Darkness Made Visible: Law, Metaphor and the Racial Self, 82 GEO. L.J. 437, passim (1993); Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209, 211 (1995); Simon Watney, The Spectacle of AIDS, OCTOBER, Winter 1987, at 71, 71-86.
115. See Joan Williams, Is Coverture Dead? Beyond a New Theory of Alimony, 82 GEO. L.J. 2227, 2225 (1994).
116. Id. at 2245-46 (citations omitted).
117. See ARLIE HOCHSCHILD, THE SECOND SHIFT 3 (1986) (reporting that, compared to their husbands, married women who work full-time spend "an extra month of twenty-four hour days a year" on domestic chores (emphasis omitted)); Joan Williams, Selfless Women and the Republic of Choice, 66 N.Y.U. L. REV. 1559, 1599 (1991) (asserting that wives "do seventy-nine percent of the housework" and that "husbands of employed wives barely contribute enough domestic labor to make up for the additional work their presence in the household creates").
118. See ARLIE HOCHSCHILD, THE SECOND SHIFT 3 (1986) (reporting that, compared to their husbands, married women who work full-time spend "an extra month of twenty-four hour days a year" on domestic chores (emphasis omitted)); Joan Williams, Selfless Women and the Republic of Choice, 66 N.Y.U. L. REV. 1559, 1599 (1991) (asserting that wives "do seventy-nine percent of the housework" and that "husbands of employed wives barely contribute enough domestic labor to make up for the additional work their presence in the household creates").
119. See HOCHSCHILD, supra note 105, at 6-7.
120. See Williams, supra note 103, at 2239.
121. See id. at 2230.
122. Notwithstanding the Equal Pay Act of 1963, women continue to be paid less than men employed in the same jobs. See Ellen M. Bowden, Closing the Pay Gap: Redefining the Equal Pay Act's Fourth Affirmative Defense, 27 COLUM. J.L. & Soc. PROBS. 225, 233 (1994). And overall, predominantly female occupations do not pay as well as predominantly male ones. See Deborah L. Rhode, The "No-Problem" Problem: Feminist Challenges and Cultural Change, 100 YALE L.J. 1731, 1777-78 & n.235 (1991). Loopholes in the Act contribute to the first problem. See Bowden, supra, at 225. The failure of the courts to recognize comparable worth claims contributes to the second. See, e.g., AFSCME v. Washington, 770 F.2d 1401, 1404-07 (9th Cir. 1985); Lemons v. City of Denver, 620 F.2d 228, 229-30 (10th Cir.), cert, denied, 494 U.S. 888 (1980).
123. Notwithstanding the Equal Pay Act of 1963, women continue to be paid less than men employed in the same jobs. See Ellen M. Bowden, Closing the Pay Gap: Redefining the Equal Pay Act's Fourth Affirmative Defense, 27 COLUM. J.L. & Soc. PROBS. 225, 233 (1994). And overall, predominantly female occupations do not pay as well as predominantly male ones. See Deborah L. Rhode, The "No-Problem" Problem: Feminist Challenges and Cultural Change, 100 YALE L.J. 1731, 1777-78 & n.235 (1991). Loopholes in the Act contribute to the first problem. See Bowden, supra, at 225. The failure of the courts to recognize comparable worth claims contributes to the second. See, e.g., AFSCME v. Washington, 770 F.2d 1401, 1404-07 (9th Cir. 1985); Lemons v. City of Denver, 620 F.2d 228, 229-30 (10th Cir.), cert, denied, 494 U.S. 888 (1980).
124. Critiques of the effectiveness of Title VII abound. See, e.g., B. Glenn George, The Back Door: Legitimatizing Sexual Harassment Claims, 73 B.U. L. REV. 1, 2-3 (1993).
125. See Deborah L. Rhode, Gender and Professional Roles, 63 FORDHAM L. REV. 39, 61 (1994).
126. See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION passim (1985); see also Williams, supra note 103, at 2227 n.1 (collecting studies of the financial impact of divorce on women).
127. See Williams, supra note 103, at 2256.
128. See HOCHSCHILD, supra note 105, at 252.
129. See Williams, supra note 105, at 1597-98.
130. See id. at 1571-72 (discussing the conflicts between family and work that plague many professional women).
131. Cf. id. at 1616 (explaining that to call a woman's decision not to work outside the home her "choice" masks the importance of "her husband's gender privilege within the household").
132. Margaret Carlson, Does Father Know Best?, TIME, Mar. 20, 1995, at 40, 40 (quoting Gordon Clark).
133. 120 Prost v. Greene, 652 A.2d 621, 623 (D.C. 1995).
134. Id. at 624 (quoting unpublished trial court opinion) (internal quotation marks omitted).
135. See id. at 625 n.4.
136. A woman's employment outside the home is only one factor considered in a custody determination and generally is not enough by itself to cause her to be denied custody. See, e.g., Burchard v. Garay, 724 P.2d 486, 492 (Cal. 1986); Greene v. French, 641 P.2d 524, 527 (N.M. Ct. App. 1982).
137. See, e.g., In re Marriage of Riddle, 500 N.W.2d 718, 719-20 (Iowa Ct App. 1993) (affirming a grant of custody to the father because the mother had devoted a great deal of time to education and work and rejecting the mother's argument that she was being punished for adopting a traditional male role); McCreery v. McCreery, 237 S.E.2d 167, 170-71 (Va. 1977) (holding that a father should receive custody because the mother was preoccupied with the glamour of her job). A working mother is particularly vulnerable if her former husband has remarried a woman who will stay at home full time to care for the children. See, e.g., In re Marriage of Griswold, 623 S.W.2d 560, 561 (Mo. Ct. App. 1981).
138. See, e.g., MARTHA A. FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 101-03 (1995). Fineman points out that the rhetoric of divorce reform shares with poverty discourse "the articulation of the 'problem' (absent father) and . . . the creation of an ideal solution (bring him [back] into the family . . . )." Id. at 102.
139. See id. at 107.
140. See Nancy Ehrenreich, The Colonization of the Womb, 43 DUKE L.J. 492, 511-13 (1993); Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419, 1438 (1991).
141. See Nancy Ehrenreich, The Colonization of the Womb, 43 DUKE L.J. 492, 511-13 (1993); Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 HARV. L. REV. 1419, 1438 (1991).
142. See, e.g., Celia W. Dugger, Child's Portion: Displaced by the Welfare Wars, N.Y. TIMES, Feb. 26, 1995, § 4, at 1. These arguments echo entrenched stereotypes about the black "matriarch" and her responsibility for the problems of the inner city. See generally DANIEL P. MOYNIHAN, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 9-12, 30-33 (1965) (introducing the black matriarchy thesis).
143. See, e.g., Celia W. Dugger, Child's Portion: Displaced by the Welfare Wars, N.Y. TIMES, Feb. 26, 1995, § 4, at 1. These arguments echo entrenched stereotypes about the black "matriarch" and her responsibility for the problems of the inner city. See generally DANIEL P. MOYNIHAN, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 9-12, 30-33 (1965) (introducing the black matriarchy thesis).
144. "Republicans in the House say a five-year cut-off would pressure many, if not most, of women on welfare to go to work, get married or have fewer illegitimate children." Dugger, supra note 128, at 1. The pressure that welfare reform puts on poor women is increased when coupled with the denial of state funding for abortion. See The War on Welfare Mothers, TIME, July 11, 1994, at 7, 7 (letter to the editor).
145. See Nancy K. Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans, 74 CAL. L. REV. 1951, 1951, 2023-27 (1986).
146. See Dorothy E. Roberts, Motherhood and Crime, 79 IOWA L. REV. 95, 98 n.20 (1993) (collecting statutes that authorize prosecution of the mothers of infants who test positive for drugs at birth). Roberts argues that, given the notorious scarcity of treatment programs for pregnant women, the only way that an addicted woman who becomes pregnant can avoid prosecution is through abortion. Her failure to terminate is, therefore, the behavior for which she is punished. See Roberts, supra note 127, at 1445, 1462, 1472.
147. See Ehrenreich, supra note 127, at 519-22.
148. This point becomes especially clear when one recognizes that the substance abuse of pregnant white women is far less likely to bring them into contact with the criminal justice system than is that of pregnant women of color. See Roberts, supra note 127, at 1433-36.
149. See id. at 1443-44.
150. Ehrenreich, supra note 127, at 516; see also Roberts; supra note 127, at 1420 & n.2 (collecting cases of government-sponsored sterilization abuse).
151. See Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977).
152. See Minow, supra note 43, at 278-81.
153. See Eskridge, supra note 18, at 1487-88 (reporting the argument and criticizing it).
154. William M. Hohengarten, Note, Same-Sex Marriage and the Right of Privacy, 103 YALE L.J. 1495, 1499 (1994).
155. Among the many preferences afforded to marital status are tax breaks, immigration rights, social security benefits, Medicare benefits, and tort rights in the spouse. See Steven K. Homer, Against Marriage, 29 HARV. C.R.-C.L. L. REV. 505, 515 (1994).
156. BUTLER, supra note 7, at ix-xi (explaining the significance of the title of Gender Trouble).
157. 143 See MARTHA A. FINEMAN, THE ILLUSION OF EQUALITY 18-20, 28-32 (1991). Even in states that still have references to fault in the statute books; the reality differs very little from the no-fault regime. See id. at 178 & n.7.
158. See Herma H. Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1, 79-81 (1987).
159. See id. at 80-88.
160. See id. at 79-80.
161. See FINEMAN, supra note 143, at 29.
162. See id. at 175-84.
163. The extremes of equality and difference mirror the roles between which many white, middle-class women alternate in their attempt to coordinate work and family. On the one hand, they are among the best educated women and are therefore capable of almost equal participation with men in the highest-paying jobs. Statistics show that the greatest gender integration is in the professions. See Andrea H. Beller, Trends in Occupational Segregation by Sex and Race 1960-1981, in SEX SEGREGATION IN THE WORKPLACE 11, 15 (Barbara F. Reskin ed., 1984).
164. On the other hand, the economic status of their husbands affords white, middle-class women the increasingly rare luxury of choosing to leave work for full-time motherhood for extended periods. Most women, by contrast, work out of economic necessity. See WOMEN'S BUREAU, U.S. DEP'T OF LABOR, FACTS ON WOMEN WORKERS, FACT SHEET No. 86-1, at 2 (1986).
165. Cf. Marion Crain, Confronting the Structural Character of Working Women's Economic Subordination: Collective Action vs. Individual Rights Strategies, KAN. J.L. & PUB. POL'Y, Spring 1994, at 26, 27 (detailing working-class women's inability to take advantage of the Family and Medical Leave Act).
166. Women of color have always had to work outside the home. See, e.g., GERDA LERNER, THE MAJORITY FINDS ITS PAST 74 (1979). These women continue to be portrayed as embodying the direct contradiction of the feminine virtues. See, e.g., Roberts, supra note 127, at 1437-42.
167. See Jeanne L. Schroeder, Abduction from the Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L. REV. 109, 109 (1991) (noting that feminists "often find themselves choosing between either privileging or rejecting the qualities associated with the feminine stereotype, and choosing between exhorting women either to eschew or emulate the qualities associated with the masculine stereotype").
168. 557 P.2d 106 (Cal. 1976).
169. See id. at 110; Janet L. Dolgin, The Family in Transition: From Griswold to Eisenstadt and Beyond, 82 GEO. L.J. 1519, 1561 (1994).
170. See supra pp. 1994-97; cf. Frances E. Olsen, The Family and the Market: A Study of the Ideology of Market Reform, 96 HARV. L. REV. 1497, 1529-42 (1983) (arguing that some family law reforms have been based on a critique of the family that draws on market principles).
171. See, e.g., June R. Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1466-67 (1990) (restitution theory); Ira M. Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 48 (1989) (reliance theory); Jana Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1114-21 (1989) (partnership model).
172. See, e.g., June R. Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1466-67 (1990) (restitution theory); Ira M. Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 48 (1989) (reliance theory); Jana Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1114-21 (1989) (partnership model).
173. See, e.g., June R. Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1466-67 (1990) (restitution theory); Ira M. Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 48 (1989) (reliance theory); Jana Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1114-21 (1989) (partnership model).
174. It is widely argued that to return to a fault-based system either would unnecessarily deter divorce by penalizing the party who wants to end the marriage or would require courts to participate in the sort of fictional accusations and admissions of fault prevalent before the no-fault reform. See, e.g., Kay, supra note 144, at 75-77. However, there is no reason to resort to perjury if fault is not the only theory upon which to base an alimony claim. Moreover, market theories of fault do not seek to deter breach. In the parlance of economics, breach is often more efficient than performance. Rather, market-based notions of fault are aimed at compensating the breach.
175. See RESTATEMENT (SECOND) OF CONTRACTS § 344(a) (1981).
176. In addition to the measured doses of contract that already shape the debate over reform, the use of antenuptial agreements is gaining acceptance. See Twila L. Perry, Dissolution Planning in Family Law: A Critique of Current Analyses and a Look Toward the Future, 24 FAM. L.Q. 77, 82 (1990). The state could encourage this trend, for example by giving small tax credits to couples who file such agreements and by making standard forms readily available at places where marriage licenses are issued. See id. at 119.
177. See Pamela E. George, Can a Woman of the 90's Have It All? Or, Is She Once Again Faced With That Age Old Question - "What's a Girl to Do?," J. AM. ACAD. MATRIMONIAL LAW., Spring 1992, at 73, 88.
178. See supra pp. 1976-78, 1995-96.
179. See BUTLER, supra note 7, at 148-49.
180. See Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage," 79 VA. L. REV. 1535, 1540-41 (1993).
181. She cites the debate over gays in the military. Gay activists have been forced to respond to claims that gays and lesbians in the military will irrevocably change that institution with assertions that homosexuality poses little threat to the status quo. See id. at 1541-47.
182. 166 See Frontiero v. Richardson, 411 U.S. 677, 684-86 (1973).
183. See M.T. v. J.T., 355 A.2d 204, 206 (N.J. Super. Ct. App. Div.), cert. denied, 364 A.2d 1076 (N.J. 1976).