Transgressive Caregiving

Abstract

Can family caregiving be a form of political resistance or expression? This Article demonstrates that it can, especially when done by people ordinarily denied the privilege of family privacy by the state. Feminist and queer legal theorists for the most part have overlooked this aspect of caregiving, regarding unpaid family labor as a source of gender-based oppression or as an undervalued public commodity benefiting children. This Article remedies this gap in the feminist and queer legal theory literature, revealing the way that family caregiving can be a liberating practice for caregivers. The Article demonstrates this through a detailed historical analysis of the law regulating the sexuality, reproduction, and parenting of African Americans, gay people, and straight men, revealing how these groups transformed family care work into practices of political resistance by reclaiming it for themselves in the face of oppression. The story of transgressive care presented in this Article is particularly relevant to the present debate in our country over same-sex marriage. It provides a justification for the legal recognition of non-traditional intimate relationships while avoiding the potentially assimilatory effects of formal equality arguments. It may also serve to inform present discourses over the provision of welfare. Because political expression is a fundamental value protected by our constitution, recognizing the political significance of transgressive caregiving adds a new justification for supporting the care work of people receiving welfare, while also providing a conceptual basis for limiting unwanted state intervention into their families.

Keywords: Family law, discrimination law, feminist legal theory, queer theory, critical race theory, same-sex marriage, welfare, child custody, adoption, intimacy, sexuality, critical legal studies, civil rights, domestic relations, same sex marriage, welfare, sex discrimination, women's rights,