What’s law got to do with it?
The papers in the Edited Collection, Gender, Sexuality and Social Justice: What’s law got to do with it?, recently published by IDS, offer challenging and original insights into the relationship between law gender and sexuality. A number of contributions to the Collection are arranged around the question: How useful is the law for attaining sexual and gender justice? The answer, unsurprisingly, might be summarised as ‘it’s complicated’. What follows is a synthesis of some of the key arguments and ongoing conversations from the Collection, in which contributors examined the role of law in sexual and gender justice.
While it is difficult to hold a conversation about sexual and gender justice without mentioning the law or legal processes, law is not, and cannot be regarded as some kind of panacea, or magic bullet through which justice can be easily attained. As Inaki Regueiro de Giacomi notes in the Collection:
… law gives us resources to translate social claims into structures, into an order that already has a defined structure. Law functions at the same time as a tool to maintain the status quo of a community – which is what it is often used for – but there are also some exceptional and wonderful cases where law proves to be the opposite, a tool for social change.
Law, we might suggest, is a double edged sword – a tool of both liberation and control. It has been used to challenge entrenched power or to open up new spaces for belonging. But at the same time, law – and particularly litigation – alone, is unlikely to be enough. Instead, legal strategies sit alongside wider campaigning work, political lobbying and context specific activism. Law may sometimes be part of the answer, but it is never the whole of the solution.
Translation and counter-narrative
The limits of law are evident in the first line of Regueiro de Giacomi’s quote above: the suggestion that law is about ‘translation of social claims’ into an already defined structure. More succinctly, it can be argued that law makes certain bodies, actions and ways of being in the world visible, invisible, possible or impossible through an act of translation. In particular, forms of hypervisibility or invisibility, of particular groups, or particular forms of subjectivity, belonging or inclusion, may operate through forms of legal action. Thus, in Malaysia, the criminal prohibitions of cross dressing can render transgender women ‘hyper visible’ in public spaces – liable to attack or arrest while going about their daily lives. Conversely, in South Africa, current policy on HIV/AIDS renders women who have sex with women invisible, complicating their ability to access treatment.
What this quite clearly highlights is the non-neutrality of law of law and of rights. More specifically, we might suggest that the temporal and spatial context of particular forms of legal action or campaigning tend to be erased or occluded. As a result, law becomes fixed and totalising, ossifying particular narratives, identities or forms of action as the only possible way to respond to injustices. A powerful contribution of the papers in the Edited Collection is their capacity to speak to the power of counter-narrative as a form of action or resistance. Thus, the question becomes one of how we might engage with and operationalise new ways of thinking and speaking about sex, gender, sexuality, and how these ‘ways of thinking’ can be used to challenge entrenched systems of power – legal or otherwise.
Law, power and the material
A theme that emerges from the examples above is the relationship (visible or otherwise) between the operation of law and power – particularly state power – with respect to sexual and gender justice in different contexts. Analysis from the Collection indicates the way in which gender and sexuality have been operationalised to reinforce particular political structures or policies. Two striking examples from the Edited Collection include a discussion of the way in which Sharia is used in some states to assert and reinforce patriachally-organised structures of political power. Developing this theme, another contribution analyses the problematic consequences of the co-option of feminist campaigning into state strategies of criminalisation in Ecuador.
Moreover, the contributions to the Collection repeatedly emphasise the importance of the material, day to day, context in which these relations of law, state power and gender and sexual justice are embodied and enacted. As such the effects of harmful laws and state practices are not merely symbolic: such laws put individuals at risk of poverty, violence at the hands of both state and private actors and exclusion from basic services including education, housing and healthcare. Law’s role in this creation of what was described by one contributor as an ‘unenabling’ environment is often under-acknowledged; and even when legal protections of counter-normative practices exist on paper, they do not always translate into the lived experiences of vulnerable or marginalised individuals.
Thus, the material context of the law matters; the lived context of criminalisation and discriminatory practice matters. The poverty and violence that sexual and gender minorities and women are subject to matters. And the risk of a purely legal focus is that this context is lost or depoliticised. So, in responding to the question of law’s usefulness, the contributions to the Edited Collection highlight the fact that we cannot universalise a strategy of law or of legal activism. Instead, we can (and should) pay careful attention to the legal, political and material factors that flow through any set of circumstances. In doing so, we may find the space to explore counter-narratives, examine the operation of power and listen carefully to ongoing conversations about the best use of law for achieving sexual and gender justice.
Listen to our IDS seminar: Gender, Sexuality and Social Justice: What’s Law Got to Do with It?
Dr Kay Lalor is a Leverhulme Early Career Fellow and Lecturer in Human Rights Law at Manchester Metropolitan University.