‘A Perversion Not Commonly Noted’: An Intersectional Lesbian Legal Theory

• In Event: Moving Law Otherwise

Abstract

This paper asks where, how, and in what registers lesbian sexualities appear in the 20th century US legal tradition beyond the case law related directly to sexual minorities, and it leverages this history towards a more capacious understanding of how sexuality informs intractable legacies of legal inequality and exclusion in the US. Using archival sources from Progressive-Era legal debates over prostitution, mothers’ pensions, and prison administration, I argue that lesbian sexualities appear under the law in two distinct but overlapping ways across the twentieth century. On the one hand, because cases involving non-normative female sexualities were typically refracted through the lens of Progressive-era “social hygiene” policies during the first half of the twentieth century, I argue that these cases are marked by category instability, meaning that these cases defined a broad set of legal subjects – unfit mothers, the feebleminded, the unhygienic, the criminal – characterized by slippage, overlap, vagary, and symbolic overdetermination. Precedent set forth in relation to one set of legal subjects, then, was regularly applied in cases with overlapping symbolic significance, such as in cases involving immigration, sterilization, patients’ and prisoners’ rights, prostitution and vagrancy laws, and the like. Yet if the Progressive-Era archive suggests that lesbian sexualities were refracted through these overlapping categories in the first half of the century, by the second half of the century, their appearances have largely been in non-precedential cases (usually family court cases or criminal appeals). These kinds of decisions, with all their historical entwinement with traditions such as eugenics, scientific racism, and sexology, were by the 1970s considered to have little interest to the public; this shift speaks to how the court has disavowed its own hand in constituting and adjudicating legal categories such as “fit mother” or “criminal deviant” through the lens of sexuality. By emphasizing the haunting presence of lesbian sexualities in this capacious archive, the paper engages intersectional legal theory to ask what it might look like to make the law “move otherwise,” and to imagine how sexuality might be mobilized to “take hold” of the law and “push the boundaries of how legal doctrine could be written, imagined, and enacted.”

Author

• Elena Gambino, Rutgers University, New Brunswick