Sex-Positive Feminism’s Values in Search of the Law of Pleasure

In challenging traditional stereotypes of female sexualities centered on passivity, subordination, harm, and repronormativity, proponents of sex-positive feminism criticize legal feminism generally for undervaluing women’s pleasure, which they celebrate. Yet these proponents often struggle with charting a supportive and affirmative course for law and legal institutions, which have long fostered sex negativity. Part I of this article identifies sex positivity as a thread that runs through multiple feminisms and that offers a potential answer to criticisms and problems. Along the way, this part demonstrates the importance of power and power disparities in sex-positive feminism and of the role of gender. Part II turns to the place of law and legal institutions in sex-positive feminism, juxtaposing prevailing critiques of law’s sex negativity with promising opportunities for change. Part III continues on this note of optimism, consulting popular culture for possibilities to support a more fully developed sex-positive and feminist legal regime.

Tort Law and Feminism

The article imagines what tort law might look like if it more fully embraced feminist reforms. Despite decades of compelling feminist advocacy and scholarship, tort law has largely resisted attempts to orient it toward pursuing goals of social justice or equality. Nevertheless, some feminist redirection has laid the groundwork for further development. Focusing on four foundational concepts in tort law—duty, third-party liability, harm, and damages—this article uses the tools, insights, and arguments of modern feminist tort scholarship to envision the doctrinal landscape of a tort law rooted in gender justice and social equality. It explores how reconceptualizing the duty of care, expanding third-party liability, recognizing a broader range of intimate and harassment-based harms, and eliminating gender and racial bias from damage awards could transform tort from an instrument that perpetuates social inequalities into a mechanism of social justice offering recompense and remedy to all who are wrongfully injured.

A Taxing Feminism

Feminist perspectives are not new to tax law. Even though feminist tax jurisprudence has a rich history, mainstream tax academics, legislators, and the public have not been persuaded until recently to treat tax law as something more than a type of applied economics with no relation to feminist (or any other “noneconomic”) concerns. Since Grace Blumberg published “Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers” in the early 1970s, numerous other contributions to the tax literature have identified ways that feminist perspectives might influence tax debates. After exploring why feminist perspectives historically have had little purchase in the tax arena, the chapter shines a light on recent attention to the relation between gender and tax law, providing some evidence that feminist tax perspectives may finally be taking hold in, and may eventually exert some influence over, the general tax policy discourse in the United States.

Environmental Law and Feminism

This article explores the important but poorly understood relationship between environmental law and legal feminism. The modern legal movements to curb environmental degradation and gender-based discrimination are still young. For environmentalism, the focus is on constraining unbridled ecosystem destruction. For feminism, the focus is on discovering and unraveling the systems that subordinate women. Little has been done, however, to cultivate or respond to these movements’ linkages. The onset of climate change and the maturing of climate law, however, are bringing renewed attention to this underexplored relationship. The article explores how the evolution of ecofeminism, the environmental justice movement, and the climate justice movement are advancing thinking at the intersection of environmental law and feminism and the law. In particular, it suggests that as both fields increasingly seek to situate ongoing challenges within larger structures of power and inequality, they draw closer together, creating opportunities for intellectual exchange and coalition building.

Consent, Rape, and the Criminal Law

This article explores the impact of rape law reform, both within and beyond the criminal law. The story of U.S. criminal rape law reform tends to be told as one of remarkable feminist success followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates, and conviction rates for rape increased only slightly. This article resists that binary account of success and failure by offering a more nuanced assessment. It argues that, by changing rape’s definition to an inquiry focused on whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. It is naïve to think that a change in law would, on its own, end rape culture, but there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.

From Reproductive Rights to Reproductive Justice

This article illuminates potential obstacles facing the reproductive justice movement and the way those obstacles might be overcome. Since 2010, reproductive justice—an agenda that fuses access to reproductive health services and demands for social justice—has energized feminist scholars and activists and captured broader public attention. Abortion rights advocates in the past dismissed reproductive justice claims as risky and unlikely to appeal to a broad enough audience. These obstacles are not as daunting as they first appear. Reframing the abortion right as a matter of women’s equality may eliminate some of the constitutional hurdles facing a reproductive justice approach. The political obstacles may be just as surmountable. Understanding the history of the constitutional discourse concerning reproductive justice and reproductive rights may allow us to move beyond the impasse that has defined the relationship between the two for too long.

Law and Economics Against Feminism

This article analyzes feminism in legal theory in relation to the rise of “law and economics” during the late twentieth century as a methodology that generated academic credibility for anti-egalitarian ideology and policy. Law and economics fundamentally undermines feminism in law by constructing the economy as a sphere best governed by efficiency insulated from contested morality and politics. This division naturalizes a gendered baseline that generally makes feminist reforms appear costly and unfair. Finally, the article explores how this core division of law and economics constructs an idea of liberty that makes feminist efforts to remedy gender-based harms appear illegitimate and oppressive. Law and economics cuts against legal feminism not because gender justice is a non-economic goal, but because law and economics promotes a misleading economic ideology steeped in gender and tilted toward those most willing and able to disregard and discount others’ well-being.

Disputed Conceptions of Motherhood

This article examines feminist efforts to disentangle womanhood, biological motherhood, and social motherhood in order to promote equality in the law. It argues that this approach has produced important feminist influence and results in some areas of law but has led to a lack of feminist influence in areas where biological and social motherhood overlap, such as parental rights, reproductive technology, and surrogacy. Just as the law needed a theoretical boost that went beyond gender neutrality to see the gendered harm of sexual harassment at work, it needs a feminist account of pregnancy and birth that recognizes that these biological processes have social, relational dimensions.

The Anti-Rape and Battered Women’s Movements of the 1970s and 1980s

The anti-rape and battered women’s movements of the 1970s and 1980s grew out of the women’s liberation movement. Early grassroots organizing around responding to rape and domestic violence relied heavily on community-based strategies including the creation of shelters and safe houses and feminist self-defense classes. Using the new vocabulary of the women’s liberation movement, feminist advocates soon began to critique existing rape and domestic violence law. Some advocates moved away from the grassroots community-based strategies to push for greater state intervention in rape and domestic violence via the criminal legal system. But the movement was not united in embracing such strategies. Feminist organizing reflected the tensions between competing visions of the role of the state in addressing gender-based violence., With the passage of the Violence Against Women Act in 1994, feminists favoring state intervention had successfully implemented their carceral agenda—a policy choice that is being reexamined today.

Title IX

Title IX, the federal civil rights law that prohibits sex discrimination in education, is well known for transforming girls’ and women’s sports. Since its early history, Title IX has embraced a system of sex segregation in sports. However, Title IX’s “separate but equal” regime is increasingly being challenged by feminists who argue that it has not done enough to eliminate gender disparities and inequities in sport and is fundamentally incompatible with the inclusion and fair treatment of transgender and nonbinary athletes. The first two sections of this article trace the history of Title IX as it has been applied to sports. The article then canvasses the feminist arguments for and against sex segregation in sports and makes the case that a regime of strict sex separation is no longer the best strategy for assuring girls’ and women’s success in sports and dislodging pernicious stereotypes of women’s inferior athleticism.