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To Be Real: Sexual Identity Politics in Tort Litigation

North Carolina Law Review, Vol. 88, 2010

66 Pages Posted: 13 Jan 2010 Last revised: 5 Feb 2012

Anne Bloom

University of the Pacific - McGeorge School of Law

Date Written: January 12, 2010

Abstract

Tort litigation plays a role in constructing what we perceive to be “real” about sexual identity. It does so by assuming that sexual identity is naturally binary (male/female), even in cases which pose a challenge to the credibility of that assumption. Thus, to be “real” in tort litigation is to have a sexual identity which appears to be naturally binary, even if you are not. Individuals who challenge this conception may find it difficult to obtain compensation for their injuries or, worse, may not be permitted to sue at all. These practices have important political effects. The most important of these is that tort litigation makes binary sexual difference appear more natural than it is. Since this outcome is at odds with lived experience, this article argues that tort litigation should take a more pragmatic approach to sexual identity issues, by making space for competing conceptions of sexual identity.

Keywords: torts, gender, sexual identity, queer theory

Suggested Citation

Bloom, Anne, To Be Real: Sexual Identity Politics in Tort Litigation (January 12, 2010). North Carolina Law Review, Vol. 88, 2010. Available at SSRN: https://ssrn.com/abstract=1535492 or http://dx.doi.org/10.2139/ssrn.1535492

Anne Bloom (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States

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