Queering Queer Legal Studies: An Unreconstructed Ode to Eve Sedgwick (and Others) Brenda Cossman Abstract The essay explores the extant field queer legal studies and maps the multiple meanings of “queer” deployed within it. I distinguish queer from LGBT, but resist any further disciplining of the term. I propose instead an understanding of queer legal studies as a sensibility. Neither a prescription nor a pronouncement, the article is written as an ode to Eve Sedgewick, her axioms and her reparative readings. I offer the essay as a celebration of queer legal studies to date and of its hopeful potentialities into an unknown future. I. Axiom 1: Queer legal theory exists. There is a body of queer legal studies. It is not part of a fantastical yet to be realized future. It is found in the oft-cited works of Francisco Valdes,1 Carl Stychin,2 Kendall Thomas,3 and Janet Halley.4 But, there is so much more. And it exists independently of what might be called LGBT legal studies. I begin with the assertion that queer legal theory exists because many who write queer legal theory begin with a counter-assertion—that there is little or no queer legal scholarship.5 The claim is puzzling. My discomfort with the claim is perhaps based in unrequited love, as I would locate my own work for the last two decades within the tradition of queer legal studies. Professor of Law, University of Toronto. I am indebted to Joseph Fischel for his generous and razor sharp engagement with this essay. 1 Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of “Sex,” “Gender,” and “Sexual Orientation” in Euro-American Law and Society, 83 Cal. L. Rev. 1 (1995); Francisco Valdes, Afterward and Prologue: Queer Legal Theory, 83 Cal. L. Rev. 344, 347 (1995). 2 Carl Stychin, Law’s Desire: Sexuality and the Limits of Justice (1995). 3 Kendall Thomas, Corpus Juris (Hetero)Sexualis: Doctrine, Discourse and Desire in Bowers v. Hardwick, 1 GLQ 33 (1993). 4 Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (2006); Ian Halley, Queer Theory by Men, 11 Duke J. Gender, L. & Pol’y 7 (2004); Janet Halley, Paranoia, Feminism, Law, in New Directions in Law and Literature 123 (Elizabeth S. Anker & Bernadette Meyler eds., 2017) [hereinafter Paranoia]; After Sex: On Writing Since Queer Theory, 106:3 S. Atlantic Q. (Janet Halley & Andrew Parker eds., Summer 2007). 5 See Halley, Split Decisions, supra note 4; Queer Theory: Law, Culture, Empire (Robert Leckey & Kim Brookes eds., 2011); Queer J. Thomas, Constructing Queer Theory in Political Science and Public Law: Sexual Citizenship, Outspeech and Queer Narrative, 39 New Pol. Sci. 568 (2017), who each argue that there is little to no queer theory in law. I elaborate on this point in Axiom 3 below. ISSN 2291-9732 24 Critical Analysis of Law 6:1 (2019) But, beyond that, I thought, maybe it depends where you look. There is an abundance of queer legal studies outside of the American legal academy. There are British, Australian, and Indian scholars contributing to a rich queer legal studies literature.6 There is a rich interdisciplinary scholarship outside of traditional legal journals contributing to queer legal studies.7 So perhaps the claim was really one about the North American—and in Halley’s case the American—legal academy.8 My first inkling was that a search of the North American legal literature would reveal a scholarship that deploys the term queer largely in a manner synonymous with LGBT. My Westlaw search of titles using the word “queering” returned ten results, the majority of which did use the term as such a synonym or self-reflexively as an umbrella term for LGBT. So, part of the puzzle lies in a misplaced convergence between what might be better called LGBT legal studies and queer legal studies, a distinction to which I return below. My second title search using the word “queer” brought rather different returns. There were 118 articles. Admittedly, that is rather less than a title search for feminism or race would return. Another part of the puzzle then is that queer legal theory has not developed to the same extent as other critical legal projects, such as feminist legal studies or critical race studies. At the same time, it is not an insignificant number. As I began to review the articles, I found them to fall within roughly three categories of the meaning of queer: as a synonym of LGBT, as a broader term for sexual minorities/non-normative sexual identities, and as reference to “queer theory.” These three approaches do not exist entirely in equal measure, nor is each necessarily easy to categorize. But there is a not insignificant literature that is self-reflexively situated within the tradition of queer theory. Then I found a fourth category. There is the queerness that refuses the taxonomy: legal scholarship with queer sensibilities that does not expressly identify under the sign of the queer. It is scholarship that by definition would not appear in such a search, and it is a scholarship to which I will return below. 6 See, e.g., Nishant Shahani, Patently Queer: Late Effects and the Sexual Economics of India, 23 GLQ 195 (2017); Nishant Shahani, Section 377 and the “Trouble with Statism”: Legal Intervention and Queer Performativity in Contemporary India, 50 Genders 1 (2009); Chris Ashford, Bareback Sex, Queer Legal Theory, and Evolving Socio-Legal Contexts, 18 Sexualities 195 (2015); Carl Stychin, “Las Vegas Is Not Where We Are”: Queer Readings of the Civil Partnership Act, 25 Pol. Geography 899 (2006); Katherine Fobear, Queering Truth Commissions, 6 J. Human Rts. Prac. 51 (2014); Queering International Law: Possibilities, Alliances, Complicities, Risks (Dianne Otto ed., 2017). 7 See, e.g., J.M. Wilson, Queer Theory, Literary Diaspora Studies and the Law, Symposium presented to Law and Literature in Diaspora Studies, Villa Vigoni, Near Lake Como, Italy, 06-09 May 2013 (2013); Peter Odell Campbell, The Procedural Queer: Substantive Due Process, Lawrence v. Texas, and Queer Rhetorical Futures, 98 Q. J. Speech 203 (2012); Ana Christian Santos, Are We There Yet? Queer Sexual Encounters, Legal Recognition and Homonormativity, 22 J. Gender Stud. 54 (2010). 8 Halley is of course writing against what she perceives as a suffocating, saturating dominance feminism in American feminist legal scholarship, that has taken up all the room for thinking legally about sex. Her work can be seen as a kind of post-dominance feminism, if “post” is understood—as Appiah has suggested—as a space-clearing gesture. See Kwame Anthony Appiah, Is the Post- in Postmodernism the Post- in Postcolonial?, 17 Critical Inquiry 336 (1991). Her focus is the American feminist legal academy, with good reason. Cossman — Queering Queer Legal Studies 25 As Jena McGill and Amy Salyzyn have written: “Queer theory is firmly established as a significant analytical tool in the legal domain.”9 This is where I begin—I take it as axiomatic that queer legal theory exists. Of course, to claim it exists is to beg the question of what it is. I begin with what it is not. II. Axiom 2: The queer of queer theory is not synonymous with LGBT. In recent years, queer has often come to be used as a synonym or umbrella term for LGBT individuals and communities. There is queer parenting, queer marriage, queer community, queer activism—to name but a few—which are each used as a synonym for LGBT identity. As Leckey and Brookes have written, “At times, queer has been conscripted into service as a sexier, more marketable label for lesbian and gay identities.”10 LGBT, but hipper. But, in queer theory, “queer” does not mean “LGBT.” Queer theory is in fact a problematization of identity categories, seeking to deconstruct the homosexual/heterosexual opposition. Queer theory is admittedly a tough thing to pin down. Its deconstructive nature defies any simple definition or synopsis and from its inception, it has refused the definitional.11 As Lauren Berlant and Michael Warner have written, “queer theory is not the theory of anything in particular.”12 However, if we go back to its roots, to the foundational writings of Eve Sedgwick, Gayle Rubin, and Judith Butler, amongst others, it is possible and I hope useful to identify several basic themes or critical predispositions.13 Its genesis can perhaps be seen to lie with Foucault’s argument that sexuality is a discursive production rather than a natural condition.14 Queer theory has developed as an interrogation and deconstruction of the multiple discursive productions of sexuality, seeking to denaturalize the assumed connections between sex, gender, and desire. 1990 was a big year. Judith Butler published Gender Trouble, Eve Sedgewick published The Epistemology of the Closet, and Teresa de Lauretis coined the term queer theory and was then one of the first to denounce it, describing it as “a refusal of heterosexuality as the benchmark for all sexual formations.”15 9 Jena McGill & Amy Salyzyn, Queer Insights on Women in the Legal Profession, 17 Legal Ethics 231 (2014). 10 Leckey & Brookes, supra note 5, at 14. 11 David Halperin writes, “Queer . does not designate a class of already objectified pathologies or perversions . [R]ather, it describes a horizon of possibility whose precise extent and heterogeneous scope cannot in principle be limited in advance.” David Halperin, Saint Foucault: Towards a Gay Hagiography 62 (1995). 12 Lauren Berlant & Michael Warner, What Does Queer Theory Teach Us About X?, 110 PMLA 343 (1995). 13 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (2d ed. 1999); Judith Butler, Bodies That Matter: On the Discursive Limits of “Sex” (1993) [hereinafter Bodies That Matter]; Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in Pleasure and Danger: Exploring Female Sexuality (Carole S.