Theorizing and Litigating the Rights of Sexual Minorities
Columbia Journal of Gender & Law, 2009
38 Pages Posted: 25 Feb 2009
Date Written: February 24, 2009
One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights of sexual minorities. The article addresses the ways that portrayals of love and relationships have led to some LGBT litigation successes. It explores the tensions in building rights arguments on a foundation of heteronormativity. The suggestion I make here is to broaden the storytelling. Even if an equal protection challenge depends on substantial similarity to a benefitted group, and even if lawyers want to architect the best possible case, there may be ways to weave in compelling stories of more members of the community than simply the "white picket fence" plaintiffs.
The article then explores the role of science in litigating LGBT rights. Sexual minorities have had an awkward relationship with science because of the medicalization of homosexuality and the continued conception of transsexualism as pathology. What I urge here is a particular approach to the idea of scientific proof. LGBT rights litigators should push for courts to adopt a deeper and more thorough approach to scientific inquiry that insists on evaluating cumulative, comprehensive, and converging evidence. The arguments that have been most workable for the LGBT civil rights movement have been those premised on sameness, but those arguments do not work where courts perceive differences. Litigators should move beyond the heteronormative ideal by emphasizing the common features of personhood: those qualities of dignity and respect for the common humanity of all people. This emphasis would be on a different kind of sameness - shared humanity - and more robust versions of both love and science can help with these litigation efforts.
Keywords: Lesbian, Gay, Bisexual, Transgendered, LGBT, Sexual minorities, Litigation, Tactics, Scientific proof, Scientific inquiry, Sameness, Equal protection, Pathology, Homosexuality
JEL Classification: J15, J16, K10, K30, K40, K41
Suggested Citation: Suggested Citation