Laws of Sex, Changed
Oxford Handbook of Law & Humanities (2019)
13 Pages Posted: 5 Dec 2018 Last revised: 10 Feb 2020
Date Written: October 24, 2018
The dramatic legal and social developments in the domains of sex, gender, and sexuality in the last several decades are often understood as progress. But this is not the whole story. This chapter presents these developments through a genealogy in which “bad” legal actors have turned into “good” legal actors. Three factors have facilitated this transition: (1) development of constitutional legal rights; (2) shifts in medical expertise; and (3) emergence of rhetoric of pity for allegedly suffering individuals. The chapter demonstrates this insight by examining three sites of social and legal change: one involving reproduction, one involving homosexuality, and one involving gender identity. In each of these domains, individuals or acts that were once labeled legally criminal are now considered, under the law, as dignified or morally praiseworthy. First, many types of reproductive technologies (such as sperm and egg donations) that were once strictly prohibited have been legalized and are now encouraged. Second, homosexuality, once condemned through criminal sodomy laws, is now understood by the Supreme Court, in the context of marriage, as dignified and respectable. Third, nonconforming gender identities, once criminalized in various ways, are gradually gaining anti-discrimination protections and social acceptability. Each of these social and legal transformations began in criminal prohibition and ended with an extension of liberal rights to individuals or couples. The chapter closely examines how, in these three transformations, Judeo-Christian values such as pity and dignity have seeped into current social and legal consciousness. The chapter concludes with some general thoughts on queer legal studies.
Keywords: gender, sexuality, law, constitution, culture wars, reproductive technologies, same-sex marriage
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