Leslie J Moran. Handbook of Lesbian and Gay Studies. Editor: Diane Richardson & Steven Seidman. 2002. Sage Publication.
Lesbian and gay scholarship has produced a wealth of material about the significance of law in the production and regulation of same sex sexuality. Its early origins are explored in Lauritsen and Thornstad’s study, The Early Homosexual Rights Movement (1864-1935) (1974). They draw attention to the particular historical, legal, (the criminal law’s total prohibition of sexual relations between men), and intellectual (predominantly the ‘psy’ sciences, psychology, psychiarty, sexology) contexts out of which this scholarship emerged. Early scholars such as Magnus Hirschfeld (1898), writing on German law and John Addington Symmonds (1928) addressing English law, analysed the interface of legal prohibition, gender, desire and emerging notions of identity and argued for decriminalisation. While contemporary lesbian and gay scholarship is no longer limited to the confines of the criminal prohibition, or the explicit project of decriminalisation, law and its relation to sexual identity and sexual practices continues to be a pervasive theme. At the same time legal scholarship on lesbian and gay issues has had a different history. A sign of this is to be found in the absence of essays on legal scholarship from collections that purport to survey the field of lesbian and gay studies. How is this state of affairs to be explained? It might point to the lack of lesbian and gay legal scholarship. It might suggest a different or slower development of lesbian and gay studies in law. It might be explained as a failure to take account of the flowering of lesbian and gay legal scholarship. In various ways this chapter will offer some insights into the factors that have worked to produce this state of affairs. Its main objective is to offer an insight into the wealth of scholarship in law that addresses lesbian and gay issues. First, it will examine the disciplinary and methodological factors that have influenced the emergence of lesbian and gay legal studies. It will then explore the rich diversity of approaches that make up this growing field of legal scholarship and offer an overview of some of the key themes and current controversies that are emerging within the broad church of lesbian and gay legal scholarship. Finally, it will reflect upon the significance and value of a lesbian and gay legal studies. But before turning attention to specifically legal studies of lesbian and gay issues I want to return to the work on law and same sex sexuality that is to be found across the spectrum of lesbian and gay scholarship. This will provide a background and context in which to consider the factors that have influenced the development of lesbian and gay legal studies and through which the distinctive contribution of legal scholarship might be considered.
Before the Law
It is impossible to document all instances of lesbian and gay work that address the law question. The following selection draws attention to the diversity and wealth of that body of work and includes some of its key texts. History scholars such as Goodich, The Unmentionable Vice: Homosexuality in the Later Mediaeval Period (1979) and Boswell, Christianity, Social Tolerance and Homosexuality (1980) have produced material that offers important insights into the history of law, in particular the regulation of same sex relations through the law of the Catholic Church (known as Canon law) in Europe in the mediaeval period. Bray’s work, Homosexuality in Renaissance England (1982), examines the historical shift from regulation of same sex relations through the law of the Church to regulation through the secular law of the State in early modern Protestant England. It is a study that has particular importance in a wider global context of colonisation. Studies by Katz (1992), Kinsman (1987) and Wotherspoon (1991) provide historical studies that examine the impact of the colonial expansion of the English legal tradition in the USA, Canada and Australia respectively. Mary McIntosh’s ground-breaking study, ‘The homosexual role’ (1968) and Norton’s Mother Clap’s Molly House (1992) document the operation and impact of law and law enforcement campaigns in early eighteenth-century urban England. Jeffrey Weeks’ Coming Out (1977) is a pioneering study of law reform debates and activism in the UK. George Chauncey’s, Gay New York (1994) provides a wealth of data on the role of law in the generation and regulation of gay space in twentieth-century urban America. Copley’s work on France (1989) focuses on sexuality and law in a continental European context. Lillian Faderman’s work is a still rare example of work that makes reference to lesbians and law (1981, 1983).
Within the social sciences, Laud Humphreys’ study, The Tearoom Trade (1970) is a ground-breaking sociological study. It explores the impact of criminal prohibitions on the behavioural practices of men who have sex with men. Within the field of political economy, Phelan (1997) and Kaplan (1997) provide examples of innovative work that examine a range of legal themes relating to justice, citizenship and community. Burke’s, Coming out of the Blue (1993), Leinen’s, Gay Cops (1993) and A Matter of Justice (Bhurke, 1997) are pioneering studies of gay and lesbian sexuality in the context of policing and more generally in the administration of law and order in Anglo-American contexts. Herek and Berrill’s (1992) work on hate crime, and Gary Comstock’s (1991) study of violence against lesbians and gay men, raise important questions about the operation of criminal law and the process of criminal justice; about the ability of law to recognise systematic violence, to protect individuals from that violence, and to punish those who perpetuate that violence. Work by Lobel (1986), Taylor and Chandler (1995) and Leventhal and Lundy (1999) has begun to explore violence within lesbian and gay domestic relationships and legal responses to it.
Finally, in the realm of literary and cultural studies, Linda Hart’s work Fatal Women (1994), examines the relationship between lesbian sexuality and violence by women, in texts ranging from popular culture to criminology and law. Sally Munt’s study of feminist interventions in the field of detective fiction, Murder by the Book? (1994) raises some important questions about lesbian sexuality, law and popular culture.
Together this work has generated much knowledge about the relationship between law and lesbian and gay sexuality. However, in many instances neither the scholars who wrote the work nor those who resort to it would think of it as legal scholarship. In turn, many legal scholars would not consider these works and the wealth of information that they contain about law, to be legal studies. In part, this state of affairs relates to the particular difficulties that identity politics has generated for the method of law and legal scholarship. Law purports to be merely concerned with the legality, or otherwise, of acts and institutions not identities. In part, it can be explained by way of the disciplinary boundaries that prescribe the objects and method of enquiry and separate one topic and mode of inquiry from another. In order to develop the emergence of the study of lesbian and gay issues within legal studies and to understand the reception of lesbian and gay work in that field, account has to be taken of the nature of the object of study of law. Attention also has to be given to the dominant methodological traditions of legal study. It is to these issues that I now want to turn.
The Object and Method of Legal Scholarship
Legal scholarship has its roots in the western legal tradition (Berman, 1983; Goodrich, 1986). The western legal tradition has two branches; the Common Law, associated with the English legal system and the Civil Law, with its roots in the legal systems of continental Europe. Legal scholarship in Common Law and Civil Law have a common heritage. The common origins of the method of legal scholarship lie in mediaeval continental universities. The first object of study in mediaeval times was not the contemporary law of the town, city, region, or State but the study of the law of an empire that had collapsed, the Roman Empire. Thus, legal scholarship began as the study of an already largely dead law; the rediscovered texts of Roman Law. This ancient written law and commentaries upon it were the object of legal scholarship.
The study of these texts drew extensively upon another well-established scholarly practice that focused attention upon the reading of texts: the monastic practices of reading and commenting upon religious texts. As with the study of religious texts, the study of law developed as a search for the truth (of law) within the text (of law). As a practice of textual analysis, the relationship between the legal scholar and the text is very specific. Legal scholars are servants of the law. Scholarship is understood as a passive practice of revelation rather than creation. Legal scholarship has developed as a set of practices dedicated to the language of law: of reading the written law and revealing its meaning; of making commentaries in the margins of the text of law; forging links between the many rules in the text to create a unity out of diversity; of explaining distinctions between various rules; outlining the meaning of concepts in the rules; expounding principles not apparent on the surface of the text but supposedly located below, behind or above the text and always already present in it. The aim of this scholarship was to celebrate the law’s internal perfection and its autonomy. This tradition of legal scholarship celebrates and preserves law as an archaic and esoteric language. It invests the legal text with special significance and polices its meanings. These specific practices of interpretation deploy a particular method of truth to produce the truth of law. The truth of law is always already in the text of law.
The truth of law can only be found by reading the text of law. The decisions of judges merely explain the ‘true’ meaning of the text, their decisions are not statements of law. The decisions of others who interpret the law, whether they be State officials, business people, or lay persons, are largely ignored as their interpretations do not formally represent the law. Attention must always focus on the primary texts of law. Finally, as the truth of law is only to be discovered in the text of law, legal scholarship is not to be concerned with the social origins, the social significance of law, its political authority, impact, morality or its relationship to the wider economic or cultural context.
What emerges when we apply the logic of this method to the study of same-sex genital relations in law? First, as a general rule, these relations only appear as objects of law and legal study in a very specific context, by way of particular texts; the written law. The primary texts of the law take various forms: Constitutions, Codes of Law, Statutes. Constitutions are the foundational legal text of a State. They set out the legal basis of the State. Usually they provide a basic description of the institutions of the State, its procedures, powers and responsibilities. The nature of citizenship, the basic civil rights, are usually to be found in the Constitution and amendments to it. Beyond the Constitution, Codes of Law are texts of law that purport to be exhaustive expostions of rules on particular aspects of law, such as human rights or the criminal law (which is understood as law concerned with relations between the State as the keeper of public order and the individual) or civil law with its focus on legal relations between persons. In contrast to Codes of Law, statutes tend to be partial, particular and incomplete statements of rules on a topic, enacted on an ad hoc basis. While it is undoubtedly true that Constitutions, Codes of Law and Statutes in many and various ways relate to lesbian and gay relations, a search of these primary sources will find almost no reference to ‘lesbian’ or ‘gay,’ ‘sexual identity,’ ‘sexual orientation’ or ‘sexual identity.’ South Africa’s new Constitution, for example, is the first Constitution that has a specific reference to sexual orientation.
However, the absence of such terms does not lead to the conclusion that same sex relations are outside the ambit of Constitutions in particular or written sources of law in general. Let us consider the case of the Constitution of the USA. The infamous decision of the US Supreme Court, Bowers v. Hardwick (1986), addressed the question of sexual orientation and the Constitution. In August 1982 police of the State of Georgia entered the bedroom of Michael Hardwick. They found him having consensual anal intercourse with another man. He was arrested and charged with the crime of sodomy under Georgian law. The Attorney General, a law officer of the State of Georgia, took the decision not to take the matter to trial. In response, Hardwick took the opportunity to challenge the legality of the Georgia sodomy statute. He claimed that the Federal Constitution of the USA gave him fundamental rights that had been violated by the prohibition of consensual sodomy in the Georgian Statute. There is no reference to lesbian or gay, sexuality, sexual preference, sexual orientation or sexual identity in the Constitution or its Amendments. Harwick’s argument drew upon the existing language of the Constitutional text to argue for rights that might protect his sexual practices (and thereby his sexual identity) from State interference. He explained his ‘rights’ by reference to ‘the due process clause,’ ‘the Fourteenth Amendment,’ ‘privacy’ and the ‘Ninth Amendment.’ Hardwick’s action failed. The Supreme Court, which has the final say on all questions relating to the meaning of the US Constitution, concluded that consensual homosexual sodomy, even in the privacy of the home, could not be understood in terms of a fundamental right protected by the Constitution. Common to both the practice of the Supreme Court and Hardwick’s claim is the practice of reading sexuality into the text in general and the specific language of the text of the law that on the surface appears to make no reference to it. All parties to the case utilised previous decisions of the Courts where the Courts had reflected on and given specific meaning to the language of the Constitutional text, to support their arguments. The example of Bowers v. Hardwick draws attention to the way in which sexual practices and issues about sexual identity might appear in law by way of archaic terms, such as ‘sodomy’ and by way of strange and esoteric ‘legal language’ that seems, on the face of it, to be remote from matters of sexuality.
This state of affairs is not unique to Constitutional codes or practices of reading those particular texts of law. Criminal codes (purporting to set out an exhaustive list of acts that threaten public order) and criminal statutes, such as sexual offences statutes, make almost no reference to ‘lesbian’ or ‘gay.’ However, archaic terms such as buggery, sodomy, soliciting, importuning, indecency, to name but a few, might make reference to, and in some instances, make exclusive reference to, same-sex sexual relations and particular sexual identities. Likewise, civil codes and statutes, for example relating to domestic and family relations rarely make a direct reference to lesbian or gay. In turn, terms such as ‘parent,’ ‘family,’ ‘child,’ ‘marriage’ rarely make reference to the heterosexual imperative that is almost inevitably ‘discovered’ in by way of the legal method of reading the text of law.
Let us turn to another example to illustrate these points. This time the example is the UK case of Fitzpatrick v. Sterling Houing Association (Fitzpatrick, 1999). This case deals with a statute relating to housing tenancies. The House of Lords (the final court of appeal in the UK) had to decide whether, in the context of the law (the Rent Act 1977) regulating domestic housing tenancies, ‘spouse’ or ‘family’ could be defined to include the same sex partner of the recently deceased. The court concluded that ‘spouse’ did not include a partner in a same-sex domestic relationship, but such a relationship might fall within the legal meaning of the word ‘family.’ Again, we see that questions of sexual identity and sexual practices are made to appear in law not so much by way of an explicit reference to sexuality but by way of words that make up the pre-existing text of law, even where those words might seem to be remote from sexuality or indifferent to it. But to stop at this point would be premature. We need to examine the impact of legal method on the appearance of same-sex genital relations in law in more detail.
The method of law demands that meaning is produced according to specific rituals, in particular, by way of the citation of earlier examples of the use of key terms in decided cases of particular courts. Citation is a practice of repetition through which the appearance of the consistency of meaning is produced across time and space. Through citation the experience of law’s authority is an experience of stability and duration; of wisdom made ancient (Goodrich, 1990).
However, while repetition might lead one to conclude that the method of legal scholarship limits, restricts and prohibits new meaning, such a conclusion would misunderstand the practice of citation and the process of repetition. Repetition is also an important technique by which change is created in law. Change effected by repetition merely draws attention to the way in which, in law, changes in meaning must be produced by reference to past decisions and past authority.
A good example of repetition to create novelty is to be found in an article on, ‘Developments in gay rights’ in The New Law Journal (Kirby, 2000). In considering the exciting developments in the House of Lords’ decision in Fitzpatrick v. Sterling Housing Association, referred to above, where the Court concluded that a long-term gay partner was a member of ‘the family’ of the deceased, the author, Kirby, examines the Court’s decision in the following way. He focuses upon ‘the authorities’ that one of the judges, Lord Slynn, used to reach his decision; Brock v. Wollans, a case decided in 1949, Hawes v. Evenden from 1953 and Watson v. Lucas of 1980. How does the citation of these older cases work to produce the pre-existing truth of the ‘new’ meaning of ‘family’ arising in the Fitzpatrick case? Let us look briefly at each case and the effect of their conjunction.
All are cited on the basis that they ‘explain’ the meaning of the term ‘family.’ Brock v. Wollans, which concerned ‘informally adopted children,’ concluded that ‘family’ might include informal as well as legally binding relationships. In Watson v. Lucas the court concluded that ‘family’ could include a long-term mistress. Hawes v. Evenden is presented as a case that accepted that an unmarried heterosexual partner in a relationship, where there were children, could be a member of the ‘family.’ And finally, Watson v. Lucas reached the same conclusion in the absence of children.
A first reaction to these cases might be that they have nothing whatsoever to do with same-sex relationships, as they appear to be exclusively concerned with ‘family’ in a heterosexual context. As such, they could be said to provide no authority in support of the conclusion reached in the case of Fitzpatrick. Following these cases, as precedent, could lead to a conclusion hostile to lesbian and gay partners as members of the ‘family.’ While such a conclusion is possible, it is not the outcome in this case. So what is the ‘true meaning’ of these cases? Kirby explains that these cases ‘illustrated how the word [family] had been applied flexibly’ (Kirby, 2000: 550). He draws attention to the way the appeal judge, Lord Slynn, searched for the underlying principle demonstrated in these cases, and found ‘flexibility.’ More specifically, the resort to these cases and the particular reading offered of them enabled Lord Slynn to present his new reading of ‘family’ as not only inclusive of same sex relations but as a meaning that was already embedded in previous decisions; as something that had already happened in the past.
This example is of interest in various ways. It draws attention to the method of law used to reach a legal conclusion. Neither judge nor legal commentator move beyond the law to explain or justify the dramatic shift in meaning evidenced in the decision of the final court of appeal. It also draws attention to the importance of repetition in legal decisions and in legal scholarship. Saying something new in law has to be done by saying the same old thing; discovering something new in the past, giving novelty the gloss of age.
These reflections on the object and the method of law provide the context in which contemporary legal scholarship on lesbian and gay issues has emerged. I now want to consider how legal scholars have responded to the rise of lesbian and gay activism and scholarship. There is a fast-growing body of legal literature that addresses lesbian and gay issues. Much of the work is to be found in the law journals of North American universities and an increasing number of monographs and scholarly articles are coming from other Common Law jurisdictions such as the UK, Australia, Canada and New Zealand. While some of this scholarship has emerged within the context of the dominant tradition of legal scholarship, there is much work that lies beyond. I now want to turn to examine the different approaches to lesbian and gay issues within legal scholarship.
The ‘Black Letter’ of Law
In contemporary legal scholarship adoption of the methods I have outlined above is known as the ‘black letter’ or positivist approach to law. This continues to be a dominant approach within legal scholarship. As a mode of scholarship addressing questions of lesbian and gay practices and identity, ‘black letter’ legal scholars have been concerned with cataloguing and describing those written and unwritten (judge-made) rules and juridical practices that make reference to and produce sexual relations between persons of the same sex in law. This scholarship tends to proceed by way of an examination of established topics of legal scholarship such as the criminal or civil code, through categories such as sexual offences, or family law, civil rights and human rights. It documents the ancient and esoteric language of the law and collects and catalogues the citations through which its meaning is produced, policed and perpetuated. Responses to the conclusion that the law produces and sustains the social exclusion of lesbians and gay men might take various forms. The evidence of social exclusion in law might be presented as a justification for law reform. This takes issues of sexuality out of the frame of legal scholarship and turns them into questions of politics, morality, or sociological enquiry. The law scholar might suggest ‘existing’ legal concepts and devise forms of legal language for new legislation. On the other hand, a scholar steeped in the positivist tradition might embark upon a search for an ‘existing’ legal rule, or an obscure interpretation of a key term, or offer a re-reading of a case that reveals an ‘underlying’ principle that might overcome the limits of the existing meanings of the text of law.
This mode of scholarship seeks to preserve the methodological and disciplinary requirements of traditional legal scholarship that support the idea of law as an autonomous practice. While this approach may respond to the political, social and moral issues raised by lesbian and gay experience, activism and scholarship, it must formally deny that these concerns are the stuff of legal practice in general or of legal scholarship in particular.
By way of this dominant tradition much pioneering work has been done to document the law and to produce guides to the law that address the legal needs of lesbians and gay men (Crane, 1982; Gooding, 1992). Much important work is to be found in the field of domestic and international human rights law (Heinze, 1995; Waaldijk and Clapham, 1993; Wintermute, 1995). This scholarship addresses the formal absence of any reference to lesbian, gay, or sexual orientation in both domestic and international human rights declarations. It particularly works to discover the always already said of principles and rules within the text that will render the inferior legal status of same-sex sexual relations as contrary to human rights (Kaplan, 1997). To date the rule and principle that has proved to be most successful in certain situations is that of privacy. Antidiscrimination rules and principles (Bamforth, 2000; Chapman and Mason, 1999; Majury, 1994; Winter-mute, 1995) and liberty and equality (Kaplan, 1997) have become more recent legal objects of consideration.
The virtues of this approach to scholarship are various. Here the existing law is both the problem and the solution for lesbians and gay men. Resort to concepts and principles that are said to be previously unarticulated or unspoken, offer a solution that appears to be already present in the law. This solution appears to avoid the trials and tribulations of reform through the political process. In particular it avoids the dangers of majority rule, a feature of the democratic process that is particularly problematic for reforms associated with a minority interest. Resort to legal principle is also presented as a better option as it is resort to the cool reason of law rather than the passion of politics. It is a resort to the certainty of tradition and continuity that is said to be the law rather than the uncertainty of novelty and change that is politics. But these advantages have a cost. They demand that we forget that the courts have long been implicated in producing, sustaining and perpetuating the social exclusion of lesbians and gay men. They also preserve and perpetuate the myth of the divide between law and sexuality, law and politics, law and society.
Law beyond the ‘Black Letter’
A second approach to lesbian and gay issues within legal scholarship is to be found within an approach to law that is more closely aligned with legal philosophy, which in the Anglo-American world is called Jurisprudence. The contemporary origins of legal philosophy’s concern with lesbian and gay sexuality is to be found in the context of debates that emerged out of proposals produced by the Wolfenden Committee (1957), a UK governmental committee, to decriminalise certain sexual relations between men over the age of 21 in private in England and Wales. These proposals for reform gave rise to a debate about the relationship between law and morality. The reform proposals were supported by H.L.A. Hart, a well-known English legal philosopher, in Law, Liberty and Morality (1963). Adopting a libertarian perspective associated with the writings of J.S. Mill, Hart argued that there ought to be a limit to the reach of the law. The law should not interfere in the private lives of individuals where the acts in question cause no harm. In contrast to this, Lord Devlin (a retired judge from the House of Lords) resorted to a utilitarian/communitarian argument in The Enforcement of Morals (1965). Lord Devlin argued that the law should reflect and enforce prevailing morality (which in this instance, he argued, was hostile to homosexuality). Law should also follow the will of the majority, which he suggested was against decriminalisation. These perspectives still inform much activism, law reform initiatives and scholarship. They have been particularly evident in the context of initiatives that focus on the importance of ‘privacy.’
More recently scholars have expanded the range of legal philosophical positions used in support of lesbian and gay initiatives to include natural law and natural rights (Mohr, 1988; Bamforth, 1997). Those who adopt a natural law and natural rights position argue that there is a set of fundamental laws or rights that are basic to any good ordered society. Natural law and natural rights are offered as that foundational morality. Their origin and authority are not the institutions of the State or the practices of democracy but in their divine origin or in the assertion that they are inherent in the very idea of good order in society. In practice, they offer an absolute yardstick by which the worth of man-made (positive) laws might be challenged. They also provide a set of underlying principles through which the existing law might be interpreted. Finally, they offer a goal that law makers ought to strive for when forming and reforming the law.
This resort to natural law and natural rights by gay scholars is somewhat surprising. It is a legal philosophy that has traditionally been used by those hostile to lesbian and gay rights. A good example of this use of natural rights is to be found in the writings of John Finnis (1983, 1993). Finnis argues that the heterosexual couple and family are the basic building blocks of any good ordered society. For Finnis natural law and natural rights are fundamental laws and rights that produce the social order as a heterosexual order. In this scheme of things lesbians and gay men are antithetical to a good and ordered society and their claim to rights within such a society must be denied.
Gay philosophers and legal scholars have challenged this hostile stance and attempted to rewrite natural law/rights for a lesbian and gay politics. Good examples of this work are to be found in Richard D. Mohr’s book Gays/Justice (1988) and in Nicholas Bamforth’s study, Sexuality, Morals and Justice (1997). Both argue for a secular metaphysics of morals (natural rights) as a moral basis for the recognition of lesbian and gay rights and the reform of law. The very humanity of lesbians and gay men and the need to recognise and respect that humanity are the basis for the inclusion of lesbians and gay rights within the scheme of those fundamental rights that are the foundation of any well ordered society.
Mohr applies this perspective to develop a critique of US constitutional law. Bamforth pursues his project at a more abstract level, through a critique of various schools of legal philosophy. He offers a legal philosophical position that might have significance in any jurisdiction, be it national or international. Both authors clearly demonstrate the viability of a natural law/natural rights position in support of recognition of lesbian and gay rights.
In general by bringing morality into the frame of legal studies this brand of legal scholarship departs from the dominant ‘black letter’ or positivist position. Law is not just a set of rules but a moral order intimately concerned with justice. Legal scholarship might legitimately resort to something (morality) outside the law in order to develop a critical analysis of the rules and the concepts deployed in law. Sources of authority might include references to philosophical texts and argument. At the same time, the turn to legal philosophy in general and morality in particular often sustains a focus upon the isolated text of law. The text of law is the source and manifestation of an underlying morality. Thus, an interest in questions of morality and justice is not necessarily inimical to many of the methodological requirements, limits and restraints of the traditional method of legal scholarship. Nor does an engagement with questions of morality necessarily lead to a willingness to think about the law in terms that might draw attention to the cultural, political and historical factors that inform and invest law and legal practice.
Legal Studies beyond Law
The two approaches to questions of lesbian and gay sexuality in law set out above now need to be set within the context of a much more diverse picture of legal scholarship, particularly found within the Common Law world. The twentieth century has seen the emergence of a wide range of schools of legal thought: American legal realism, the law in context movement, socio-legal studies, sociology of law, critical legal studies and legal studies informed by Marxism, theories of race and feminism. While it is impossible to go into any detail about these schools of legal scholarship, each, in different ways, brings the social, the cultural and the political within the parameters of legal study. They challenge the positivist conceptions of the object of legal study. They also challenge the methodological assumptions and practices of positivist legal scholarship. Each demands that legal scholarship pursues the study of law by way of questions of power, the politics of social order (and disorder), the practices of social inclusion and social exclusion. In various ways they incorporate work undertaken in the social sciences and the humanities into legal studies.
It is in this context that lesbian and gay legal scholarship has been most receptive to the social sciences and, more recently, arts and humanities, in general and material generated by way of lesbian and gay studies in particular. This material has been directly incorporated into legal studies and legal scholarship alongside more traditional legal material such as legislation and judicial decisions. Other intellectual perspectives and developments such as Marxism and post-Marxist, post-structuralism and feminism have also been of particular importance. Evidence of this is to be found in a wide selection of legal scholarship on lesbian and gay issues (Backer, 1998; Bowers, 1997; Boyd, 1999; Davies, 1999; Eaton, 1994, 1995; Halley, 1993, 1994; Herman, 1994, 1995; Loizidou, 1998; Moran, 1996, 1997, 1998; Robson, 1992, 1998; Stychin, 1995, 1998, 2000). More recently, exciting developments within postcolonial scholarship, critical race theory and Latino/latina critical scholarship have begun to influence lesbian and gay legal scholarship (Hutchinson, 1999; Jefferson, 1998; Phillips, 1997, Valdes, 1998, 1999).
While the legal work that falls within these parameters is diverse it has certain common characteristics. Methodologically it stands opposed to the positivist tradition of legal scholarship. It is also in contrast to the legal scholars who take up the moral philosophy of legal theory. While taking law as the object of study these scholars employ not only legal theory but also literary, political and social theory in their work. The critiques that emerge challenge the divide between law and politics. They seek to examine and explore the place of law within the wider social order. Law is both constituted by and constitutive of the wider social order. Another common focus of this body of work is identity. Dominated by perspectives that emphasize the social, cultural and political factors at work in identities, much of the work has focused upon law as a context in which identity is given form and meaning in societies. Lesbian and gay sexualities are not so much outside the law, and as such something the law might respond to, but something always already in the law as a social and political practice, generated through legal categories and legal practices. It is a body of work that explores the strategic significance of identity, its positive effects, its limits, and its problems in and through the law.
Key Themes: Fragments and Contexts
My focus upon the methodological distinctions that have influenced the emergence of lesbian and gay legal scholarship has produced a picture of the diversity of that scholarship. Any attempt to embark upon ‘key themes’ of such a diverse body of work raises problems. ‘Key themes’ tend to prefix and totalise scholarship. They also might suggest some rationalist project that underlies, guides and interconnects lesbian and gay legal scholarship. Lesbian legal scholar, Ruthann Robson cautions against such approaches in the opening pages of her book Sappho Goes to Law School (1998). The specific context of her reflection is the enterprise of writing a book about lesbian legal theory. She draws a parallel between such a project and our knowledge and understanding of Sappho. While Sappho is a name that refers to someone who lived in the past, Robson suggests that ‘knowledge’ of Sappho is a ‘largely fantastical’ project (1998: xiv). The fantastical quality of our ‘knowledge’ about Sappho is given graphic form in Monique Wittig and Sande Zeig’s book, Lesbian Peoples: Material for a Dictionary (1979). Their entry for Sappho is an empty page. The meanings given to the name Sappho tell us more about our hopes, desires and expectations than they do about Sappho herself. Robson explains that to write the book of lesbian legal theory is as, ‘problematic as Sappho’ (1998: xv). Robson draws a parallel between telling the full story of Sappho’s life which is ‘largely fantastical’ and the problem of reducing the complexities of lesbian identity to a singular ‘lesbian legal theory.’ Such a project is, in part, problematic as it will fail to tell the totality of lesbian diversity. Its fantastical quality demands that we procede with some caution. However, its ‘fantastical’ quality is also something to be celebrated as it draws attention to lesbian legal theory as a space through which existing worlds might be reimagined and transformed and new worlds created. Thus, rather than thinking of what follows as a summary of the absolute truth, or totality or uniformity of lesbian and gay legal studies, I would suggest we follow Robson’s suggestion that it be thought of as a series of fragments and contexts that are influencing, informing and generating the rich diversity of lesbian and gay legal studies. I offer five snapshots: the identity debates; criminalisation and its discontents; human rights the new hegemony; violence and the politics of hate; and institutional struggles.
The Identity Debates
The identity debates are a long and pervasive theme within lesbian and gay legal scholarship (and in more general writings on same-sex relations and law) that have their origins in the nineteenth century (Moran, 1996). They take the form of a question, ‘what is the nature of identity?’ Answers take a binary form. Lesbian and gay identity is nature or nurture; the manifestation of essence or effect of society; biology or culture; born or made; genes or lifestyle; unchangeable or malleable. For a long time activists, reformers and scholars have promoted the idea of homosexual practices and thereby homosexuality as nature, essence and more recently genetic. From this point of departure, it is argued that legal vilification, criminalisation, and other modes of legal exclusion are irrational. Law ought to concern itself with behaviour that is subject to the will, and thereby subject to control and the fit object for punishment when the will, subject to the control imposed by law, fails.
In contrast to this essentialist view of identity is work that takes (homo)sexuality as a social, cultural, political and historical phenomenon. Here the interface between law and homosexual identity is neither necessary nor inevitable, being a site of and an effect of political struggle. Change might be advocated to recognise the legitimacy of lesbian and gay sexuality and to reduce the negative effects of law that produce and perpetuate its inferior and marginal status.
Identity debates informed by post-structuralism have raised a particular challenge to these ways of thinking. In contrast to earlier manifestations of the identity debates that took identity as a natural or social given, the post-structural position questions the significance of identity. Particular attention has focused upon the inability of any identity category to be an exhaustive expression of the individual and the failure of categories of identity to stand for the fullness or totality of that person. Gail Mason’s work (1997) addresses these issues in the context of work on violence against lesbians. She examines the way in which the identity category ‘women,’ used in work on violence against women, assumes that all women are heterosexual. Thereby violence against women is given a heterosexual context. That heterosexual context is also a context of intimacy; most violence against women is violence by men who are known to those women who are objects of violence. In part this threatens to exclude and distort lesbian experiences of violence which, for example, is more likely to be violence performed by strangers and may not be reducible to a heterosexual context. At the same time Mason’s argument is not merely that lesbian experiences of violence are different from other types of violence against other women. She also raises the question about the inter-relationship between these identity categories; between ‘lesbian’ and ‘woman’ in the experience of violence as a lesbian. The experience of anti-lesbian violence is intimately connected with but different from violence against women. In simple terms, lesbian brings together sexuality, that might point to distinctions between women and gender that suggest connections between women who might be separated by sexuality. Phelan, a lesbian political theorist, has addressed questions of identity in the context of the interface between race, ethnicity and lesbian sexuality (Phelan, 1997). She again draws attention to the way identities fail to represent the fullness and diversity of the individual. They put in place a series of assumptions that Phelan characterises as ‘ontological separatism.’ Identities separate out the racial, the ethnic and the sexual. Thus, Phelan notes, lesbians are always assumed to be white, and women defined by racial and ethnic characteristics are assumed to be heterosexual (see also Eaton, 1995; Hutchinson, 1999). Francisco Valdes’s work has explored these issues in the context of gay male identity and latino identity (Valdes, 1998, 1999). Peter Kwan (1997) considered the inter-relationship between American Chinese identity and sexuality in his study of the police response and police reactions to the gay serial killer Jeffrey Dahmer.
This work points to some of the limits of identity politics, in particular, the failure of our existing concepts of identity not only to name individual experience but to name collective experiences. One of the effects of this is to be found in the context of antidiscrimination law that puts the assumptions of ‘ontological separatism’ into practice (Eaton, 1995); you must be black or gay, latina or lesbian. Where sexual orientation is absent from the categories named in antidiscrimination provisions, sexuality might be used to trump other forms of discrimination and deny access to a remedy. Even where all categories are reflected in the law, the either/or logic might prevail, leading to the marginalisation or denial of important aspects of the experience of social exclusion and the legal claim. Legal scholars have also drawn attention to the ways in which ‘ontological separation’ is also political separation between individuals and between communities. This has the potential to produce conflicts between groups who are socially excluded as they fight for access to limited legal resources. It feeds a logic that produces hierarchies of exclusion; of good victims and bad victims, of the deserving and undeserving minority (Hutchinson, 1999; Valdes, 1997, 1998). It infuses disputes about the validity of claims upon the law and informs disputes about lesbian and gay rights as special or exceptional (and thereby unworthy) rights claims.
The challenge is to conceptualise the ontological and political connections. The point of departure for lesbian and gay legal scholarship has been the idea of ‘intersectionality,’ a concept borrowed from feminist critical race scholarship. It emerged as a tool to explain, analyse and critique the marginalisation of black women within both critical race scholarship and feminist work (Krenshaw, 1989, 1991). It points to the either/or logic of these two critical and political perspectives. It draws attention to the way ‘ontological separatism’ feeds into essentialist notions of identity.
However, various lesbian and gay legal scholars have commented upon the limits of ‘intersectionality’ and offered critiques (Hutchinson, 1999: Kwan, 1997; Valdes, 1999). For example, Gail Mason (2001) has drawn attention to the way ‘intersectionality’ is a metaphor that has a limited capacity to adequately capture the simultaneity of the many axes of social distinction. Following Elizabeth Grosz (1994), Mason suggests that there is a gridlike formation implicit in the idea of intersection that:
conceptualises differences or race, sexuality or gender as autonomous structures external to the individual subject. The dilemma is that before one axis can intersect, cross, cut or passover another, it must already exist, elsewhere, in a state of divergence or separation from the others. Each axis must function independently from, outside of, of prior to, its intersection with other axes. (Mason, 2001: 66)
In contrast to this, Mason argues that we need metaphors that conceptualise the way in which differences are always already implicated in each other.
Other lesbian and gay scholars have offered alternative terms. Kwan has proposed ‘cosynthesis’ (1997: 1257). Valdes has attempted to develop a complex of analytical categories including ‘inter-connectivity,’ ‘multiplicity,’ ‘complexities of compoundedness,’ ‘positionality’ and ‘relationality’ (Valdes, 1997: 55). In part, these terms seek to explain and produce the ontological complexity that is the experience of the individual. The multiplicity that makes up the individual experience also has another significance. It purports to draw attention to the way individuals’ experiences are interconnected, generating thereby a common or a ‘universal experience’ (Hutchinson, 1999; Kwan, 1997). Thus, in part, these terms seek to explain and produce the social bonds that connect individuals and make alliances possible (Phelan, 1997).
This is a new and rapidly developing aspect of lesbian and gay legal scholarship. There is as yet no consensus over the most useful or insightful metaphor. Phelan’s work rings a note of caution as to the political significance of these developments. The connections, she suggests, are likely to be volatile and unstable, filled with contradictions and ambiguities, due to the diversity that is imminent in any situation. At best these connections ought to be thought of in terms of temporary alliances that may have specific and limited goals and objectives (Phelan, 1995, 1997).
Another preoccupation in legal scholarship is the criminal law. In part, this can be explained by the fact that when same-sex relations did appear in and through the law, they tended to appear most frequently by way of archaic terms such as buggery or sodomy or gross indecency, which are legal terms associated with the criminal law. It was in this context that sexual relations between persons (predominantly men) of the same sex came before the law. This focus on criminal law is one important factor that has contributed to the dominance of a concern with gay men in same-sex legal scholarship. It has given rise to a very gender-specific concern with law as a form of social prohibition and gender-specific demands for decriminalisation that is usually understood in terms of liberation and freedom (Majury, 1994: Stanko and Curry, 1997).
In part this also reflects the general absence of references to the sexuality of women in law and the particular silence relating to sexual relations between women in law. However, there is a growing body of work, much of it inspired by feminism that draws attention to the fact that women’s experience of law in general is different from that of men and in particular that lesbians’ experience of law is very different from that of gay men (Robson, 1992, 1998; Majury, 1994: Mason, 1995, 1997b; Boyd, 1999). These differences might be explained in terms of the different economic position of women, the different social status of women, the different priorities of women, and the different social experiences of women (Majury, 1994; Boyd, 1999). As histories of the sexual relations between women in law emerge it becomes clear that same-sex sexual relations between women rather than being absent from the field of law were policed in different ways by way of different legal categories in different spheres of law, for example, by way of the regulations of the family and patriarchal relations found in private law rather than by way of public law, in particular the criminal law (Crompton, 1980; Faderman, 1981, 1983; Robson, 1992). To read the law’s response to genital relations between men as the same as the regulation of genital relations between women would be a mistake. This suggests that established agendas of scholarship may perpetuate silences rather than offer a challenge to them. Different agendas and different approaches might be necessary.
In those places where decriminalisation has been achieved and where a strong feminist and lesbian and gay movement has emerged, the lesbian and gay legal agenda has become more diverse. This reflects and produces a recognition of the close relationship between sexuality and gender and the idea of sexuality as an identity and a lifestyle. Demands for law reform are no longer confined to a focus upon criminal law or the prohibition of specific (homo)sexual practices but expand into aspects of private law: domestic relations, employment, property, housing and succession, taxation, parenthood and children. In the realm of public law the wider ambit of relations between the state and the individual is being addressed: lesbian and gay exclusion from the military, access to state education (especially sex education), freedom of expression, censorship and the media, prisons, access to welfare, benefits the protection of sexual minorities in the State Constitution.
Human Rights: The New Hegemony
International law, in particular the international law of human rights, has become a site of intervention and critique of growing importance. This might be explained in various ways. In part it reflects the globalisation of liberal democratic political traditions which, with the fall of communism, have taken on global significance. Human rights is the new hegemony. In part it reflects the growth of international and supranational legal orders, such as the European Convention of Human Rights, which have provided remedies against the State. In part it reflects the impact of these developments within individual States. For example, in the UK a minor revolution is taking place by way of the Human Rights Act 1998, which came into effect in October 2000. Based upon the European Convention of Human Rights, it seeks to provide a new human rights foundation for law in domestic law. Lesbian and gay scholarship on human rights is both a reflection of and an important contribution to such developments (Heinze, 1995; Waaldijk, 1993; Wintermute, 1995).
However, this human rights revolution does not offer an instant or pervasive solution for all lesbian and gay legal ills as is sometimes suggested. For example, the UK Parliament refused to include specific reference to sexual orientation in the Human Rights Act. The US experience shows that a strong focus on fundamental civil rights in the US Constitution has provided no guarantee that lesbian and gay rights will necessarily be recognised or protected. Lesbian and gay legal scholars have questioned the popularity and usefulness of legal concepts such as ‘privacy’ (Kendall, 1992), ‘equality’ (Majury, 1994) and the use of ‘sexual orientation’ as the basis for antidiscrimination initiatives in particular and human rights more generally (Bamforth, 2000; Majury, 1994; Wintermute, 1995). All, in different ways, point to the limited success of the human rights agenda. In turn, they point to new limits on the progess of change for the benefit of lesbians and gay men. At best, human rights might open up new landscapes for activism within and in relation to the law.
Violence and the Politics of Hate
A rapidly emerging issue in lesbian and gay activism and legal scholarship is violence (Jenness and Broad, 1997; Mason and Tomsen, 1997; Mason, 2001; Moran, 2001). Out of community activism, often in response to acts of extreme violence come ‘victim surveys.’ These seek to document violence and calculate the extent of violence that is otherwise hidden from official view. In the USA the National Lesbian and Gay Taskforce has played a key role co-ordinating data from local victim surveys. In the UK, Stonewall, a national lesbian and gay lobby group produced the first national victim survey on homophobic violence (Mason and Palmer, 1996). Demands for changes in the day-to-day practice of policing and institutional change have followed. In the USA, law reforms to promote further data collection, the Hate Crime Statistics Act 1990, have been introduced. Demands for new offences and changes to the scale of punishment have been other initiatives (Jennes and Grattet, 2001).
The resort to the phrase ‘hate crime’ within this context is of special interest. ‘Hate crime’ is rapidly solidifying into a new legal term. It is used to separate ‘ordinary crime’ from crimes of hate. This separation is associated with calls for new offences and more generally with calls for more severe punishment. In the UK the police have produced a definition of ‘hate crime’: ‘Hate crime is taken to mean any crime where the perpetrator’s prejudice against any identifiable group of people is a factor in determining who is victimised’ (ACPO, 2000, Introduction, 2). As the police handbook notes, ‘this is a broad and inclusive definition’ (ibid., Introduction, 2). This inclusive approach is to be contrasted with much North American experience where there have been many stuggles over the categories of ‘hate’ that are to be accommodated in the phrase ‘hate crime.’ In particular there have been and continue to be ongoing battles to include homophobic violence under the category of ‘hate’ (Jennes and Grattet, 2001; Jacobs and Potter, 1998).
These struggles are of interest in various ways. They point to a new dimension to the relationship between law and same-sex genital relations. This relationship can no longer be thought of in terms of law as a means whereby particular sexualities might be prohibited and excluded. While the incorporation of homophobic violence within ‘hate crime’ is concerned with practices of social exclusion, by way of violence and by way of the failure of the police and criminal justice to take that violence seriously, it is also a demand by lesbian and gay men for the law to produce a new socially inclusive social order. Law has become a positive force to protect and preserve sexual identity rather than a negative force to be limited. Of particular significance is the requirement that this new legal and social order is to be produced by reference to particular identity categories, which are understood as group identities rather than individual or personal identities. This heralds a departure in law, which has traditionally formally avoided any identity category other than the abstract category of ‘persons.’
It also heralds the emergence of new contexts that will problematise and challenge lesbian and gay identity politics. While this is not the place to develop a full-blown critique of ‘hate crime’ in a lesbian and gay context, some of the problems will be briefly outlined. While the generic approach to ‘hate crime’ found in the new UK police guide might avoid the problem of separating out forms of hatred and types of identity to which the various hatreds relate, we should note that ‘domestic violence’ is excluded from the UK definition of ‘hate crime.’ This echoes the US experience in which violence against women has been excluded from the category of the ‘hate crime.’ The reasons for this exclusion are various. One justification is that laws, policies and procedures that address violence against women are already well established. Here ‘hate crime’ is an initiative that seeks to develop services otherwise denied. However, much feminist scholarship continues to challenge any assumption that violence against women is adequately dealt with. Other arguments are even more problematic. One is that such is the level of violence against women, that to call it ‘hate crime’ would be politically unacceptable as it would reveal too much ‘hate.’ Another is that ‘hate crime’ is understood as an act of violence motivated not by personal animosity but by hostility to a group identity (Jacobs and Potter, 1998, Ch. 5). Both arguments, in different ways, are profoundly problematic. They suggest that the category of ‘hate crime’ might perpetuate and generate new silences and reinscribe, rather than challenge, the personal and political divisions. The suggestion that violence performed by someone who is in an intimate relation with the victim is experienced as less traumatic than violence motivated by a more abstract hatred has the potential to be profoundly reactionary. It also has the potential to create new opportunities for blaming the victim. Finally, it assumes that it is possible to separate out violence, gender and sexuality. Mason’s work on violence against lesbians clearly problematises such arguments (1997 a, b).
A major challenge for future lesbian and gay scholarship arises when resort to law is advocated by lesbians and gay men, when law is taken as a resource to protect, preserve and institutionalise sexual identity. This relation to law is a demand to have access to the violence of law. It is a demand that is in stark contrast to much of lesbian and gay legal scholarship that has, in so many instances, documented the operation of law as violence and offered critiques of law’s violence against lesbians and gay men. Ruthan Robson’s reflections on violence as a lesbian resource in her book on lesbian legal theory, is a rare example of an attempt to address this question (cf. Scalettar, 2000).
In the chapter, ‘Incendiary categories: lesbian/violence/law’ (Robson, 1998), Robson gives an overview of recent jurisprudential and philosophical scholarship (Cover, 1986; Derrida, 1992) that has drawn attention to the relationship between law and violence. Law’s violence is manifest not only through the capacity to punish, which in certain jurisdictions may take the extreme form of taking life itself, but in the capacity to draw and enforce distinctions and to impose meanings (the violence of the word).
Robson draws attention to various problems that might arise by way of our resort to the violence of the law through hate crime legislation. She points to that particular context as a moment not only when lesbians and gays resort to law’s violence but, in the context of the US Hate Crimes Statistics Act, are simultaneously subject to it. This occurs by way of qualifications that were added to the Act in response to the inclusion of ‘sexual orientation’ as a recognised category of hatred. The reference to ‘sexual orientation’ was not to be interpreted as a positive reference to lesbian or gay sexuality. Robson also suggests that we experience law’s violence in that Act through the distinctions between various identities to be found in the Act. More generally she suggests that a desire for law’s violence will impose limits on lesbianism by way of distinctions between good lesbians and bad lesbians and through normalisation of lesbian identity. As such, she points to the contradictions that lesbians (and one might add gay men) are likely to face in demanding access to law’s violence.
Robson also wants to argue for another relation to violence. She ‘want[s] to claim violence as an attribute of lesbianism’ (1998, 16). She suggests that this violence be re-named, by way of a different metaphor, fire, that has a gender-specific resonance. This, she explains, is a violence that appears to be ultimately against the violence of law, and is a challenge to law. As such this is ‘good violence,’ that provokes an ‘emancipatory change’ in contrast with the ‘bad violence’ of law that conserves and is conservative.
While Robson raises some important questions about the relation between lesbian/violence/law, her analysis seems to hesitate when the relation to law’s violence is addressed. The renaming of violence as ‘fire’ seems in part to be an attempt to distance lesbian from violence at the same time as it seeks to make the connection. Likewise lesbian violence as a violence outside law’s violence repeats the separation in another guise. Lesbian violence as good violence is the closest we get to the proximity of lesbian and violence. It would be churlish to demand that such a pioneering piece of scholarship should provide, even if it were possible, all the answers. What it does do is draw attention to a difficult issue that urgently needs to be addressed.
Finally, a theme that has pervaded this chapter has been the disciplinary and institutional context and the struggles in and through which lesbian and gay issues might come into being within legal scholarship. In part, the picture painted is one of many different approaches to that scholarly agenda. The linear narrative format of the chapter promotes the idea that these different approaches are to be understood as successive, suggesting a movement towards an ultimate scholarship that in turn generates an ultimate truth. Implicated in this is an idea of ‘progress’ and, more specifically, an idea of progress as conflict in which each successive approach struggles against the status quo for dominance both within the institutional context of legal scholarship in general and within the specific context of lesbian and gay legal scholarship (cf. Robson, 1998). It is perhaps in this context that the debate about the inability of identity to fully represent an individual and the challenge of diversity within and between individuals has an immediate significance. Investments in different methodological positions are implicated in identity formation in and through scholarship. Rather than the emergence of an underlying logic, the realisation of an absolute truth, we perhaps need to think of this body of work as evidencing an on-going struggle with many sites, contexts, identities. Its diversity ought not to be thought of in terms of a logic of either/or. Rather than methodologies in conflict, in an either/or stuggle for dominance the challenge is to think in terms of interconnections and alliances.
There is much to celebrate in the rise of such a rich and complex body of legal work. Signs of an emerging discipline of lesbian and gay legal studies are to be found in many contexts. However, it would be wrong to conclude that this flowering of activity has been sufficient to create a recognised discipline in legal studies or that this work has found a home within institutions of legal education where scholarship takes place.
In part, this state of affairs is a reflection of the continuing domination of positivist legal studies. Here lesbian and gay matters continue to be thought of as matters more appropriate in disciplines other than law as they raise political, social and cultural issues that are remote from legal scholarship. Nor does it necessarily follow that those institutions that adopt a more catholic approach to legal scholarship are less hostile to lesbian and gay issues (Robson, 1998). Legal studies remains largely heterocentric in its view of the world and there continues to be considerable indirect and sometimes direct hostility within the institutions of legal studies to issues relating to lesbians and gay men.
The question of whether there ought to be a separate category of lesbian and gay legal scholars also raises important issues about both the possibility and strategic significance of a distinct form of scholarship or a discipline of lesbian and gay legal studies. While the activities of all legal scholars engaging with lesbian and gay matters are overtly or covertly informed by a politics of identity, the rich diversity of topics, questions and approaches challenges any attempt to reduce that body of work by reference to problematic identities. Nor can this body of legal scholarship be reduced to work that is only informed by matters of sexual identity. In turn, the issues of sexuality, identity, sex and gender raised within this body of legal scholarship have a wide significance, from discreet questions relating to specific legal problems to questions that address the very nature of law and of legal scholarship. While strategic considerations may support the move towards lesbian and gay legal studies, to counteract the pervasive heterocentric view of the world and the violence of exclusion that it is built upon, at best, such developments should be thought of as stages in a process rather than an end in themselves.
Finally, I want to return to the relationship between this body of legal studies and lesbian and gay studies. This raises an immediate problem. It seems to presuppose and reproduce existing divisions within disciplines (between law and the social sciences, between the social sciences and the arts) that in its most challenging manifestation lesbian and gay studies might problematise and refuse. Perhaps the issue has significance in another way; it draws attention to the previous marginality of legal studies within lesbian and gay studies that has to date been most successful in the context of the arts, cultural studies and the social sciences. The failure to incorporate legal studies within earlier compilations of lesbian and gay scholarship may also point to assumptions within the established social sciences and the arts about the nature of legal studies which has assumed that legal scholarship is confined within the long methodological tradition of ‘black letter’ (positivist) conceptions of legal scholarship. Ironically, the absence of law from lesbian and gay studies threatens to reproduce the dominant tradition of legal scholarship and has distanced legal scholarship from the emerging field of lesbian and gay studies, perpetuating the marginalisation of legal studies within the social sciences and arts.
While some types of legal scholarship might confirm some of these assumptions and divisions, in its diversity legal studies offers a dramatic challenge to them. Legal scholarship may offer many challenges to the way matters of law have been raised and addressed in lesbian and gay scholarship outside of legal studies. These challenges may be varied, for example, positivist legal scholars can offer insights into the technical aspects of law absent from other disciplines. A legal scholarship that incorporates work undertaken in the social sciences and the humanities into legal studies can challenge assumptions about law and legal studies found within lesbian and gay scholarship. Different insights into the nature of law and legal practice can be provided. Furthermore new insights into the application of, for example, semiotics, historiography, post-structuralism or queer scholarship are also to be found in lesbian and gay legal scholarship. In many and different ways lesbian and gay legal scholarship offers to transform the way law is thought about.