One of the most significant questions of recent years is who gets (rather than who should get) a seat at the table, meaning who is allowed to partake in formal decision-making processes on law and policies, specifically when those pertain to minority groups. A recent example of these discussions was the appointment of Justice Ketanji Brown Jackson, the first Black woman to serve on the Supreme Court. Although supporters of this nomination emphasized why “representation matters,” others opposed President Biden’s January 2020 statement that he would nominate a Black woman to the bench to replace Justice Stephen Breyer.
Anna Offit’s recent article, Benevolent Exclusion, discusses the question of representation in decision-making in a context in which lay participation is most often used in the legal realm, that is, trial by jury. The article shines a light on income- and wealth-based juror exclusion describing how “the process by which ordinary people are empaneled as jurors is one that is stacked, at every turn, against the poor.” (P. 625.) With an eye toward intersectionality, Offit points out how despite the elimination of property ownership as a condition to serve on the jury in the 1960s, a policy put in place as a tool to exclude Black people and women, along with legislative efforts such as the Jury Selection and Service Act of 1968, juries today still have a representation problem. Blanket exemptions for caregivers, for example, can result in gender imbalanced venires. And economic biases have been shown to constitute the greatest remaining impediment to Black peoples’ participation on juries. (P. 624.)
Exclusion of indigent people from juries, even if done with the best of intentions, so as to not threaten their livelihoods, has consequences for theories of citizenship and democracy. It threatens the creation of representative juries, which in turn violates a person’s constitutional right to serve as a juror, undermines public trust in the legal system, and jeopardizes the accuracy of verdicts.
In a true law and society fashion, Offit’s work compares the law on the books to the law in action. Although more than 75 years ago the Supreme Court in Thiel v. Southern Pacific Co. (P. 649) officially addressed the systemic excusal of low-income daily wage earners from serving on juries, the solution the Court endorsed meant giving nearly unfettered discretion to judges to excuse such individuals based on their personal circumstances through “cause challenges.” Offit’s article shows this broad discretion afforded to judges has allowed the problem to persist.
Through impressive field work that includes extensive interviews with former jurors and lawyers, along with participatory observations, Offit does excellent work exposing the courtroom dynamics in which judges take in either one of two modes: benevolence or vigilance. On the one hand, judges excuse low-income jurors as an act of benevolence – in order not to cause undue burden to individuals who are poorly compensated for their jury service. On the other hand, judges do not want to lose too many jurors from the venire, so they tend to be suspicious of potential jurors expressing caregiving obligations or financial burdens. Many times, judges pass on the hot potato of assessing the jurors’ hardship arguments to the lawyers. One of the structural issues the article discusses is the lack of formal guidance for such an assessment, leaving judges, lawyers, and jurors frustrated with the current situation.
Another structural issue Offit discusses is the complete lack of or very low compensation provided to jurors. The majority of states do not require employers to compensate jurors for their service, and even those that do so grant them around $50 a day. Jurors serving on federal courts also receive $50 per day of service (or $60 per day if serving more than ten days). As Offit points out, such low compensation “illustrates the different economic incentives that can motivate otherwise eligible jurors and introduce class disparities to juries.” The article thus suggests reforms that would increase jurors’ wages to account for inflation and the increased cost of living. It even suggests a way to fund such reform through filing fees for civil cases.
Benevolent Exclusion is an extremely important piece of scholarship that extends far beyond the study of juries. It exposes that dangers of paternalism and the need to strike the right balance when dealing with ensuring a just system while guarding the needs of vulnerable populations. It is part of a larger trend in equity scholarship arguing for systemic reforms that would help make room at the table to those who have been historically absent.
As teachers and scholars, we think a lot about how the world really works, what can be done to make it more equitable, and how to articulate coherent analyses that will be put to good use by others. For those of us who’ve been at it a while, it’s wonderful to hear from young scholars excited by something we wrote long ago—but it can be disheartening as well. After that initial relief that the piece hasn’t been swallowed by a black hole, the worry sets in. Why does decades-old work appear as fresh insight? Are we still circling the same old rock? Shouldn’t this intellectual project have evolved much further by now?
Then, along comes a gem like Raymond Magsaysay’s Asian Americans and Pacific Islanders and the Prison Industrial Complex. This somewhat prosaic title masks a beautifully written and artfully constructed exposé of the conceptual disappearance of Asian Americans and Pacific Islanders (“AAPIs”) in the criminal “justice” system. It is not, however, a “we, too, are oppressed” story. Rather, the brilliance of Magsaysay’s article lies in his use of critical race theory, Asian American jurisprudence, and the work of anti-colonial and indigenist scholars as well as prison abolitionists to highlight how the narratives of criminalized AAPI youth can undermine anti-Black racism and help us envision a future unconstrained by mass incarceration.
First, the lacunae. Did you know that AAPI youth are disproportionately criminalized? That in the late 20th century their arrest rate was about triple the rate of their population growth? Or that these rates continued to rise, even as arrests of Black, Indigenous, and White youths decreased? That in Oakland in 2006, the glaring disparity in arrest rates for White youth (13 per 1,000) and Black youth (116 per 1,000) was topped by Samoan youth, who were arrested at a rate of 130 per 1,000? (P. 454.) I certainly didn’t. There is so much more that could be said about what we don’t know.
The interesting question, though, is why we rarely hear about the criminalization of AAPI youth, apart from occasional news flashes about Southeast Asian gang activity. Magsaysay lays much of the blame on the “model minority” myth whose narrative, he notes, diverges dramatically from both contemporary realities and the racialization of Asian Americans and Pacific Islanders throughout U.S. history. This is an important move because, while there are numerous Asian American critiques of the “model minority” construct, they rarely focus on criminal law.
Even more impressive is how Magsaysay uses this lens to develop an intersectional analysis in which “static dichotomous understandings of oppression—e.g., that AAPIs are diligent and Black people lazy” are reframed “as dynamic, dialogic processes.” (P. 474.) These relationships, in turn, provide the foundation for an interest convergence analysis that facilitates coalition building based upon aligned interests rather abstract principles. Rather than repeating what have become rather formulaic exhortations to cross-racial solidarity, Magsaysay illustrates very concretely how disappearing the criminalization of AAPI youth both ensures their ongoing subordination and reinforces the anti-Black tropes that facilitate the criminalization of African American youth.
There’s a richness to Magsaysay’s analysis of these dynamics that this simple summary simply cannot convey. So, here I turn to another innovative and energizing aspect of Magsaysay’s article: his illustration of the life-changing power of narrative, and his advocacy of Ethnic Studies and related programs as essential not just to understanding the realities of life in subordinated communities, but to bringing about liberatory change. When we recognize erasures such as the conceptual disappearance of criminalized AAPI youth, we often focus on top-down solutions. What legislative fixes are available? How could police be better trained? Where can we find more funding for their communities? Magsaysay, however, takes a very different approach.
The article begins with Eddy Zheng; his 18-year incarceration for a youthful crime, and how he spent 11 months in “the hole” at San Quentin for, among other things, co-authoring a prison reform proposal that included expanding Ethnic Studies programs. Narrative, the stories that situate our lives within our histories, cultures, and shared realities, was Eddy Zheng’s lifeline, and Magsaysay argues that it is similarly important to AAPI youth who are bullied, harassed, profiled, and criminalized. It is a critical dimension of the transition he envisions to a society in which we no longer live in a carceral state; a key to addressing the “academic disengagement, truancy, and mental health issues” that undergird the school-to-prison pipeline; a path to “cultivate critical consciousness” and “decolonize the minds” of those whose realities are erased from the dominant narrative. (P. 517.)
Magsaysay recognizes that this is just one piece of the puzzle. But in explaining the importance of making these stories accessible, he is articulating a very concrete way in which we can work “from the bottom,” as critical scholars have urged, toward what Magsaysay terms “a radical reimagination of schooling, education, and epistemology itself,” one that “dignifies and humanizes history and the lived experiences of marginalized communities.” (P. 518.) It’s a joy to see the work of several decades of critical scholarship being put to such good use, and to know younger scholars are taking it to the next level.
Two final points. First, this article was written and accepted for publication while Magsaysay was still a law student. As such, it’s an inspiration for us as teachers, and for our students. And second, a shout-out for the footnotes. Magsaysay is reviving a lost art, using the notes to weave his arguments into the larger fabric of scholarship in the field, making connections across disciplines, clarifying complex issues and adding nuance to simple statements. The piece is worth reading, and sharing with current students, for the notes alone.
On June 17, 2017, a small group of queer Black trans protesters and allies blocked my hometown’s pride parade. The plan was to “silently block the [Stonewall Columbus Pride] parade for seven minutes to hold space for Black and brown queer and trans people.” The seven minutes corresponded to the seven bullets police officer Jeronimo Yanez fired at Philando Castile at close range, killing him, an act Yanez was charged for, but acquitted of the day before Columbus Pride. Nothing like those seven bullet minutes passed before Columbus police swiftly and forcefully stopped the protest, arresting “four Black queer and trans folks” on various charges. Those arrested became famous as the “Black Pride 4.”
Five years later, the Black Pride 4’s protest—along with pride-timed and other protests elsewhere, and marches, conversations, and community work in their wake—has precipitated a reckoning in Columbus’s and other LGBTQ communities across the nation. LGBTQ individuals and leaders—not themselves queer, Black, or trans—and many LGBTQ organizations are finally grappling with the violent realities and material privations queer Black trans people regularly suffer, along with whether and how to center queer Black trans people and their liberation as key to LGBTQ politics.
Despite the path the Black Pride 4’s 2017 Columbus Pride protest has forged inside LGBTQ communities, it has not generated widespread academic engagement—yet. Zane McNeill and Kyra Smith’s Whose Pride Is This Anyway? The Quare Performance of the #Black Pride4 promises to help change that.
McNeill and Smith build on earlier work, including McNeill’s with Blu Buchanan, to theorize the Black Pride 4’s protest in novel terms. Seeking to discern what may “be gained by reconceptualizing political actions and social movements as dialogic art practices,” McNeill and Smith venture the Black Pride 4’s protest need not be understood as a conventional political intervention on conventional political terrain. (P. 210.) They feature the protest instead as “socially engaged art,” “carefully constructed performance, each element imbued with meaning.” (P. 204.) Framed this way, this “Black-centric performance of protest,” which showed Columbus Pride’s slide from original moments of creative and rebellious invention into a predictable ritual for defined and closed audiences in partnership with state-based order-keeping and police violence, was still politically drenched. (P. 204.) What McNeill and Smith’s aesthetic-political accounting risks by abandoning standard materialist arguments focused on the violences, harms, and traumas associated with the protest, are reconfigured, if not overcome, by fresh understandings of the protest’s dynamics and how art-politics may yield meaningful material social transformations, including transformations flowing from a key moment of liberatory practice others have widely missed.
Following Jose Muñoz, McNeill and Smith figure the Black Pride 4’s artistic intervention at 2017’s Columbus pride as “disidentificatory performance.” (P. 204.) Meaning: The protest was a “performative act” “present in and reacting against existing spaces”—here Pride and its organization—a performative act that opened onto social dialogue that has been “‘an integral part of the work’” ever since. (Pp. 204, 211.) Responsive to queer Black trans exclusion from Columbus Pride and its planning, and other centers of local and larger LGBTQ politics long dominated by cis and white leadership and values, the Black Pride 4’s performance art has generated vital social discussions in various LGBTQ quarters on the lived conditions and futures of queer Black trans life and politics.
The different ways McNeill and Smith describe the protest’s performativity will lead many readers to regard it as protest theater, a term they never use. Even cast this way, McNeill and Smith intend no disparagement. Emphasizing the protest’s performative dimensions enables McNeill and Smith to expose and engage the artwork’s relations to larger social conditions—including conditions of Black, including queer Black trans, precarity and necropolitics that urgently demand change.
McNeill and Smith’s depiction of the Black Pride 4’s protest as artistic performance refutes those understandings of the protest that imagine it was over nearly as quickly as it began. Expanding the protest’s timeline beyond protesters seizing the street and then being violently arrested, McNeill and Smith show the protest’s dynamics were moving both before the protest formally began and long after initial audiences—folks in the parade, parade-watchers, and Columbus police (along with, presumably, others working the parade)—dispersed.
McNeill and Smith say the protest and its audiences “spool[ed] out” across time, space, and membership. (P. 210.) Before long, the protest included responses by “media, the criminal justice system, and the ripple-effect political actions and artistic responses that [the protest] inspired.” (P. 204.) McNeill and Smith’s work demonstrates the performance continues to spool.
Describing this spooling another way, McNeill and Smith indicate the Black Pride 4’s protest performance functioned partly by dismantling the fourth wall separating protesters from early audiences. If the Black Pride 4 were the protest’s key actors, they were also its co-authors, writing knowledgeably about realities and traumas of living as queer, Black, and trans inside, at the margins, and outside hostile, overlapping cisheteronormative and cishomonormative social orders. Their protest script did not allow white, cis, LGB, and straight audiences passively to watch a show. Audience members were “pulled…into” the performance, becoming actors on a stage that expanded as the Black Pride 4 rewrote the parade’s script into one that centered queer Black trans lives and violences that Black people inside and outside LGBTQ communities suffer. (P. 214.) Rescripted, the parade temporarily ceased marginalizing or erasing them.
As the protest’s initial shocks wore off, audience members, regaining their composures and usual ways of being, transformed into at least partially willing actors, if not always fully self-conscious ones, inside the unfolding play. This scripting process—which may surface memories of civil rights protests in the South that scripted and conscripted police like Bull Conner and others into protest performances—was one that Columbus police ostensibly took charge of, responding to events by forcefully blocking, encircling, and violently holding and arresting the Black Pride 4.
This turn of events left many supposing Columbus police acted entirely autonomously when shutting the protest down. McNeill and Smith suggest this is mistaken, given how the arrests prolonged the performance, shifting its stage while opening new scenes and acts. The conventional assessment of police achievement also errs, according to McNeill and Smith, given how it confuses police actions with a wall-to-wall takeover of the protest scene—a takeover regularly imagined as blotting out protesters’ subjectivity.
In some ways, that happened. The force—the reported brutality—of police actions were not the Black Pride 4’s chosen scripts. But this does not mean police sole-authored the arrests, which were “expected” as the “antagonistic response” to the creative civil disobedience. (P. 213.) The police’s response was notably conditioned by the Black Pride 4. Without forgetting that the arrests disserved and harmed the Black Pride 4 in body, minds, and other terms, McNeill and Smith trace how the arrests furthered the Black Pride 4’s artistic-political project. The police themselves, after all, showcased lived conditions of queer Black trans life, including police domination, in bright daylight. The idea is that the Black Pride 4 retained a measure of agency throughout the performance, even when under arrest. It was regrettable—some insist, avoidable—that some actors that day, including protesters and police officers, were injured in the making of this art.
While the Black Pride 4 shaped events and politically-choreographed police, it was not by using physical force like that exercised by police. It was, rather, through artistic leveraging of rote social scripts that structure “the invisible system of violence created and supported by both straight and gay white society.” (P. 208.) Ultimately, the Black Pride 4’s protest performance brought this system into relief, managing without creating it whole cloth. It was also this system that complexly reduced police into performers whose anti-queer-Black-and-trans scripts appeared neither unfamiliar to, nor uncomfortable for, them.
No less predictable than police actions were the social subroutines that some pride-watchers played out.
© 2017, Jeffrey A. Benedict, reprinted with permission.
This iconic photo, snapshotting what happened at Pride, encapsulates larger social realities queer Black trans people live day-to-day—realities the Black Pride 4 were protesting. Beyond the white-over-black color drama amidst police subjugation of a queer Black trans person, standing in here for other queer Black trans people also arrested on that and other days, the photo portrays the blithe indifference and active support of cis white people inside LGBTQ communities for state practices that bespeak ongoing authority involving “‘control, ownership, and manipulation of Black bodies.’” (P. 207.)
On one interpretation, the photo centers Wriply Bennet—queer Black trans protester-actor and co-author of the Black Pride 4’s protest—being arrested and handled by three Columbus police. If this muscular exercise, removing Bennet, meant to restore the parade’s “order,” that order—an “LGBT utopian imagining of Stonewall Columbus”—didn’t make space center-stage for queer Black and trans people like Bennet. (Pp. 217, 212.)
The parade’s proper subjects, and what its utopian imagining involved, are photographically represented by those on the street’s far side. Stated provisionally, all those people, except perhaps one, appear white. Some are paying attention to what police are doing to Bennet. One is photographing or videographing the action as others look on or away. Visually prominent, two women who could themselves be cis lesbians, if not straight allies standing in, are tracking Bennet’s arrest. Their bodily energy registers delight over Bennet’s removal. The woman on the left, looking cis and white, is mid-handclap. She and the woman to her right, also pallid—whose age, gender identity, and relation to the first are wonderfully unclear—stand mouths agape, evoking noise-making in Bennet’s direction. If shouting, or “cackling,” it’s at, not with—or for—Bennet.
The photo’s us-them configurations—and who’s on which side—are unmistakable, as is how outflanked Bennet is, the lone queer Black trans body in the frame, a “threat” despite showing no signs of resistance. (But that’s only because of state might, right?)
All these features of the scene convey the familiar story of the basic political alignments of “mainstream” LGBTQ politics, which McNeill and Smith dub “lesbian and gay assimilationist politics.” (P. 205.) McNeill and Smith say these politics entail—as the photo represents—the forced, controlled “erasure of BTQPOC queers.” (Id.) At scale, this erasure translates into material conditions of queer Black trans social, political, and legal expendability—up to and including death.
Deeper into the Black Pride 4’s performance, McNeill and Smith open a possible explanation why this protest has, for many, been an enduring object of interest. Their assessment practically bespeaks the “aura” of this performance artwork, which others have widely missed. This aura may yet cause the art to travel as a pivot in LGBTQ politics.
Unlike those who have condemned the Black Pride 4’s protest for starkly repudiating Pride and local LGBTQ communities and institutions, McNeill and Smith insist the protest entailed no simple condemnation of the parade, nor, by implication, local communities or institutions. McNeill and Smith see and describe the protest as homage expressing a radical hope.
Partly, this hope involved a reformist impulse, saying: This pride parade and the utopian community it imagines and builds “does not yet include me, but one day or in some way it could.” (P. 214.) More radically, the protest performance—like similar pride protests elsewhere—manifested that hoped-for future in the then-present tense.
Toward that radicalism, McNeill and Smith propose that right there, on that street, during 2017 Columbus Pride, the Black Pride 4—if only for an instant—subverted an ultimately “state-controlled space.” (P. 214.) As McNeill and Smith observe, the Black Pride 4 accomplished their subversion of the parade by transforming “the white gay pride parade into an experiment of afro-futurism and Black trans liberation.” (Id.)
This expression is allusive, but highly significant. Initially, it figures the protest theater as an “act of culture jamming, the act of disrupting the normative … to reveal methods of domination.” (P. 208.) On a deeper level, however, figuring the Black Pride 4’s protest theater as an experiment of afro-futurity and Black trans liberation simultaneously means to claim the Black Pride 4 “transformed…Stonewall Pride…into a contested ‘quared’ space of resistance,” “quared” being a way of talking about “the unique intersection of Blackness and queerness” that arose within a performance at “the intersections of the aesthetic and the political.” (P. 208, 211.)
Momentarily subverting the “power hierarchies” and “jamm[ing]” their conventional arrangements, including “the association of (white) LGBT rights with US nationalism, white supremacy in gay spaces, and white gay complicity in Black trans death,” the Black Pride 4’s protest theater brought afro-futurity and Black trans liberation to social life inside its performative space. (P. 208.) What audiences witnessed—before police intervened—was an agentic moment of queer Black trans liberation. Giving radical hope life like this, the moment exclaimed queer Black trans people’s right to exist, to be, to protest, to be free, to ask for silence honoring their dead, and to take center-stage as equals to others in LGBTQ-identified space and the forms of consciousness that pervaded it. Rethink in these terms what the arrests—and pride-goers’ indifference and cheering—thwarted.
If ordinary forms of white cisheteronormative and cishomonormative life aligned against queer Black trans people were fleetingly suspended at the 2017 Pride parade—if the Black Pride 4 did co-create a moment manifesting afro-futurity and queer Black trans liberation that defined a slice of social life—the moment…was it real, performance, both?, does it matter how we describe it?, can it be reduced to description?…came and went so quickly that many then and since did not catch it. Returning to that moment, McNeill and Smith hold space for it in present tense, ensuring nobody else need miss it again.
McNeill and Smith teach: In the Black Pride 4’s great, socially engaged, and still-reverberating political performance artwork—work built from the pains, harms, traumas, experiences, and witnesses of wanton malformations of social life that could and should be free—the Black Pride 4, somehow, improbably, may have produced and lived an actual moment of queer Black trans liberation in 2017. Perhaps, then, if only (borrowing from Catharine MacKinnon) in “truly rare and contrapuntal glimpses,” queer Black trans liberation is not what many believe: an impossible dream that cannot ever be socially realized. As a practice of claiming and inhabiting the social world, queer Black trans liberation has existed, and may thus be returned to, recreated, amplified, and sustained. It might even be scaled in ways that arc toward the kinds of individual and collective life queer Black trans politics are regularly mobilizing for. Within those politics, queer Black trans freedom is in the heart and on the mind, as is freedom from all oppressions, including for all LGBTQ people—and others.
Realizing these larger hopes may be aided by LGBTQ communities generally recognizing what the Black Pride 4’s “Black-centric” “socially engaged art” lit up as it “disrupted the expectation of white gay bodies in celebration by forcing attention to the invisible system of violence created and supported by both straight and gay white society.” (Pp. 206, 208.) LGBTQ communities’ realignments—standing as, with, and for queer Black trans people—may be as simple and complex as ever-increasing numbers of LGBTQ people confronting how heteronormative and homonormative ways of being have lined up over and against queer Black trans life—alignments that, as “man’s creation,” in Ralph Ellison’s words, in that instant at 2017 Columbus Pride, may be suspended and collectively overcome.
Contrasted with pro-LGBTQ political impulses that center law reform and constitutional courts as linchpins for LGBTQ liberation, the Black Pride 4’s creative political world-making at Columbus’s 2017 Pride demonstrated, once again, that great protest art forges a mirror of reflection. Observing, what some LGBTQ people may see is how their identities and social positions depend on queer Black trans subordination and erasure. If with effort, staring in the mirror, those old forms of living may change. They may become newer forms of being, outlooks, affiliations, aspirations, and politics inside social worlds that many, striving for queer Black trans liberation, are working to build. As projects of self-fashioning, the practices—never easy, recognizing the pains attendant on realizing pro-LGBTQ social worlds many have been dreaming about aren’t so singularly glorious as widely supposed—may be understood queerly, as a dimension of Michel Foucault’s project of self-fashioning as a work of art. Beyond Foucault, this project engages histories of the figure of the Dandy, also a facet of Black diasporic identity, as Monica Miller’s work has shown.
The Black Pride 4’s political art protest delivered more than a mirror for self-reflective introspection. This performance art was—and is—an occasion for apprehending and experiencing the beauty of generally distant, but not unknown or never-lived dreams of queer Black trans liberation, part of a wide LGBTQ freedom, amidst the ugly, even grotesque, social truths of queer Black trans precarity and death that persist and must be faced. And faced—being on the level—as realities that many inside LGBTQ communities have also supported and helped co-create.
The Black Pride 4 never got the seven silent minutes for reflection on the conditions of queer Black trans life they asked for at the 2017 Columbus Pride parade. McNeill and Smith’s work, however, leaves room for the possibility that, with time, the Black Pride 4 may get something else they deserve, something even grander and more enduring: the serious and widespread consideration of what an afro-futurist social landscape that itself centers queer Black trans liberation might look like and be like as a liberationist landscape that builds out from the radical hope the Black Pride 4’s performance theater staged at Columbus, Ohio’s 2017 Stonewall Pride parade.
This hope is still traveling and taking root. Like maybe right here—and maybe starting right now—with you.
Cite as: Marc Spindelman, LGBTQIA+ Pride, 2022: The Story of the Columbus, Ohio #BlackPride4, Five Years On
(June 20, 2022) (reviewing Zane McNeill & Kyra Smith, Whose Pride Is This Anyway? The Quare Performance of #Black Pride4
, in The Palgrave Handbook of Queer and Trans Feminisms in Contemporary Performance
203 (T. Rosenberg, et al., eds., 2021)), https://equality.jotwell.com/lgbtqia-pride-2022-the-story-of-the-columbus-ohio-blackpride4-five-years-on/
If pressed to answer the question “Why are humans equal?” or “What grounds our equality in liberal legal orders?”, the answers might run from the circular (“our common humanity”), to the sacred and unprovable (“human dignity”), to the universally posited but untrue (“our capacity to reason”). Despite the dissatisfying nature of these conventional responses, many of us do persist in believing in human equality and also approve of its exalted conceptual stature in our legal systems. Yet, if we take a closer look at equality’s Lockean foundations in the common law, as Jishnu Guha-Majumdar would have us do in his novel article, Lyons, and Tygers, and Wolves: Oh My!: Human Equality and the “Dominion Covenant” in Locke’s Two Treatises, we might have to question the presumed benign nature of the idea of human equality. Guha-Majumdar asks us to consider that our equality jurisprudence, derived as it still is from Locke’s liberal humanism, is premised on something highly unequal, and indeed violent and tyrannical: the domination of nonhuman animals.
The title of Guha-Mujamdar’s article evokes a scene in the 1939 Hollywood film classic, The Wizard of Oz where Dorothy, the Scarecrow, and the Tin Man link arms and chant a verse (“Lions, and tigers, and bears! Oh My!”) to express their fear of who they may encounter as they make their way through a dark forest on their way to Oz. Of course, the lion they do end up meeting is soon exposed as lacking the courage seen by humans to be characteristic of male lions to do anyone harm; this is then one of the character “flaws” that propel the foursome onward to ask the Wizard for help (with Toto, of course, alongside them). The verse though reminds us of the threat posed by “predator” animals. It is this threat that Guha-Majumdar claims gives rise to “a dominion covenant” between all humans, God, and nonhumans that is central to Lockean liberalism.
Guha-Majumdar uncovers these “deep ties between human dominion over animals and Locke’s notion of human equality” (P. 638) through a fascinating animal-centered reading of Locke’s Two Treaties and other texts. He describes the dominion covenant as an understanding “hover(ing) between reciprocal agreement and cosmological presumption” (P. 639) wherein humans are justified in subordinating animals because some of them can kill us or the non-threatening animals we domesticate.
In this arrangement, Guha-Majumdar instructs that dangerous (to human) animals “represent the state of war…and must be eliminated as the enemy of mankind par excellence, whereas cattle, the quintessential sign of property and civilization, form the covenant’s basis.” (P. 638.) Both the cows and other livestock representing property and the wild animals posing a threat to human persons and their property must be continually dominated, to ensure that proper human civilization can proceed. And the fact that we have tamed animals through captivity is evidence of our superiority over them. It is this domination of animals, Guha-Majumdar argues, that grounds Lockean human equality and nothing else. A primary contribution of the article, then, is to “reverse the ordinary picture of Locke’s humanism; it is not that human equality legitimizes instrumentalizing nonhumans but that instrumentalizing nonhumans enables the idea of Lockean human equality.” (P. 638, emphasis in original.)
Guha-Majumdar demonstrates his innovative thesis regarding the dominion covenant by drawing primarily from Locke’s writings on religion and closely reading multiple texts. It is a nuanced account, deftly tracing the complex paradoxes that emerge regarding Locke’s humanist commitments and explaining how the dominion covenant helps makes sense of seemingly contradictory statements. As a prime paradox example, Locke himself questioned whether humans qualified as a coherent unit of moral analysis (given similarities across species in terms of, most significantly, reason and self-preservation, as well as the civic virtue lessons animals can impart to children)—or really any species for that matter. Locke also allowed for the fact that subjectivity and consciousness were available to nonhumans as a matter of divine will. At the same time as he questioned human superiority and the human as a category of analysis, however, Locke promoted equality for humans as a group to the exclusion of animals.
The domination of animals as the divinely ordained rationale for human equality (and not, say, any shared capacity such as reason or language), Guha-Majumdar further notes, coheres with the animal-centered crux of Locke’s theory of property, where it is animals and not nonhumans in general that Locke identifies as emblematic of human property. Drawing on the work of Dinesh Wadiwel, Guha-Majumdar notes the importance of “appropriation” to Locke’s conceptualization of property, and the essential ingredient in this dynamic being resistance from the object humans are seeking to appropriate, i.e. animals and not other less motile nonhumans. (Pp. 646-647.) He also, following Wadiwel, notes the tight association between cows/cattle and Lockean property justifications. (P. 649.)
The argument spotlights the centrality of animals in Locke’s writing and the article necessarily involves several steps to cohere. Guha-Majumdar’s meticulous structuring and elegant yet concise expression help the reader to absorb the multi-layered analysis. The tight organization and writing also foster an appreciation of how the argument extends previous scholarship about the flaws and potential of Locke’s theory of human equality that have not paid as close attention to the significance of animals in Lockean theory. Guha-Majumdar’s attention to Locke’s treatment of cattle, deer, and predatory animals specifically help us see the troubling implications of the inequality at the root of Locke’s human equality for liberal legal orders.
And this is not only because claims to human equality subjugate nonhumans. It is also because, as Guha-Majumdar argues in the second half of the article, any humans who violate the cosmic “pact” that is the dominion covenant, by aligning too much with animals, can then be cast out of “humanity” as appropriate punishment. As Guha-Majumdar writes, “because the dominion covenant is something both cosmologically presumed and something to be achieved and enforced, human superiority requires continual enactment.” (P. 648, emphasis in original.) It is here that Guha-Majumdar directs our attention to the second major hierarchical, socially-stratifying implication of Lockean commitment to human equality: its perpetuation of Lockean racism. That is, “Lockean racism is not the failure but the product of Lockean human equality.” (P. 639.)
He gives two main examples to illuminate this connection. First, is the colonization and land dispossession of Indigenous peoples and subsequent entrenchment of private property. Here, Guha-Majumdar argues that the problem is not simply what previous critics have noted—that Locke’s labour theory valued land-based cultivation as a way of life superior to nomadic existence. Rather, it was that Locke privileged “sedentary agriculture with tamed livestock” (P. 652, emphasis in original) as the superior, “properly human” form of civilization over hunting deer and other wild animals and thus the reason to dispossess those humans who did not dominate animals, particularly cows, in this way.
Guha-Majumdar’s second example to show how generative an animal-subordinating foundation to human equality can be for perpetuating interhuman racism highlights Locke’s writings on punishment. Guha-Majumdar traces how animality operates to rationalize the brutal punishment, including human slavery, that Locke’s politics permit despite his commitment to human equality. The analysis again offers the reader a more complex account of the Lockean liberal order. Guha-Majumdar notes that previous critics of Locke’s endorsement of harsh punishment have pointed out that criminals are analogized to animals in order to justify severe punishment. Yet, he argues that such analogy-oriented dehumanization critiques occlude how it is the “Lockean bestiary” (P. 654) that really animates the punishing of humans.
Instead, Guha-Majumdar argues, it is the wild animals that are seen as “predatory” and cast as “noxious brutes” due to the real or imagined threat they pose to humans (by either attacking humans or farmed animals) that exist as an always already criminal in the Lockean worldview. When humans transgress civil society laws, then, they signal their allegiance “with these predatory animals and the broader sense of criminal animality they represent.” (P. 654.) Guha-Majumdar proceeds to demonstrate this part of the argument through exploring what Locke had to say about “lyons, tygers, and wolves”, again taking account of certain contradictions and reconciling them convincingly.
I would suggest that this secondary and the primary argument regarding the domination Lockean human equality encodes merits reflection from all those who assume that constitutional rights to equality in liberal legal orders are forward-looking and social justice-advancing, or that equality as legal norm is the antithesis to—rather than a perpetrator of—domination, oppression, and subordination. Guha-Majumdar’s cogent analysis invites us to consider that even critical theorists who have impugned equality jurisprudence for being too narrow or otherwise liberal have not gone far enough.
We may need to dig deeper, look beyond the human, and confront the possibility that legal campaigns for human equality hoping to address large-scale social inequities in human society today are inherently paradoxical and, perhaps most unsettling, instantiating intense inequality with every legal “win.” As Guha-Majumdar himself intimates (Pp. 638, 658), the unfathomable levels of human violence against animals and accelerating levels of inequality amongst humans behoove us all to be more discerning with contemporary equality discourse however different from its original Lockean formulation.
I have found teaching and researching through the pandemic difficult. That is a radical understatement. The pressure to normalize—to work normally, in particular—through what has been happening has come from many sides. So has support, care, compassion and understanding. As a scholar of equality, it seemed obvious both that the pandemic would have differential effects which would exacerbate existing inequalities, and that this would be a useful place for me to concentrate. But concentrating was the problem, and as time wore on it became clear that it might not serve as a solution.
The article that I’m recommending, The University Cannot Love You: Gendered Labour, Burnout and the Covid-19 Pivot to Digital, is one that centres the world of the university and the people that work in that space, asking about what was happening in these spaces. It centres not the idea of equality but the idea of care. It is not legal scholarship. But I think that it offers two things that some legal scholars of equality might deeply value right now. The first is a way to think about the situation we are in. The second is a way that we might reframe or rethink some of the perennial problems of equality law, the public/private divide, the work/life divide, the ways that we divide and differentially burden people.
The University Cannot Love You: Gendered Labour, Burnout and the Covid-19 Pivot to Digital by Brenna Clarke Grey, is a part of Feminist Critical Digital Pedagogy: An Open Book (the publication method and values of this book are also worth checking out). Grey is a tenured professor who works as coordinator of education technologies at a university in Western Canada.
In this short piece, Grey “examines gendered participation in the academic labour force, care work, and the pressures on women academics at work and at home”. Noting “increasing chatter about academic burnout”, she works to explore the ways care was described and experienced inside the university, and how that has played out against the rest of our lives in which care has also been under extreme stress.
Grey is particularly interested in “Resisting Neoliberal Manifestations of ‘Care’ in the University space”, noting the endless virtual yoga sessions being offered. Understandings of care—and offerings of care—are deeply politicized in this piece, which draws on BIPOC scholars and artists including Dionne Brand, Christina Sharpe, Roxana Ng and Billy-Ray Belcourt to make these arguments. Grey notes that taking the position that we should refuse to provide care where we are unsupported or unrecognized in its provision usually visits the consequences of that lack of care on people with fewer resources. They will be asked either to go without care—or to provide that care, with even less support.
“I am tired” writes Grey, at one point. “We are not, of course, the brains in jars that the university imagines or wishes us to be”, she reminds. And, speaking straight to your secret heart maybe, she says, “It feels, for me, like a rejection of myself and my choices to imagine caring for my son is exclusively burdensome, but our institutional structures tell this story about our experiences for us.”
It’s a short piece. But reading these things in print offered me more than critical insights into the way that my work was being structured, and how I was reacting to new and old pressures. Grey said things I could barely acknowledge, and so her article was like a small gift. A colleague sent it to me and I sent to others, a way of acknowledging things that we were struggling to see or say, but that were affecting ourselves, our lives and our work in complicated ways when we had such limited time and space to share the experience.
It bothers me, my inability to get through this moment without thinking incessantly about myself, how that parallels neoliberal notions of self-care as individual responsibility. The University Cannot Love You helped me out of that conundrum. Still, I know reflection does not always provide insight, let alone relief, from trouble. What I hope this article could do, for legal scholars, is help them (1) feel less alone, (2) think about the care that sustains them, where it comes from, and how to acknowledge it, (3) think about the system within which we work and the way that it structures our work and relations, (4) (re-)engage with work which critically assesses the notion of care and finally, perhaps most importantly, (5) take our thinking about these things beyond the academy as we consider our research agendas in the post-COVID or Long COVID era.
Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships
, __ Colum. J. Gender & L.
__ (forthcoming, 2022), available at SSRN
The classic story of marriage equality figures same-sex couples’ various maneuvers to enter the legal institution of marriage through the courts, claiming the right to be treated the same as opposite-sex couples and repudiating the counter-claim that same-sex couples ought to be treated differently. Its narratives are dominated by the first part of Aristotle’s equality axiom “likes alike,” yet haunted by the second part of the axiom: “unlikes unlike.” Its counter-stories embrace diverse demands for nonmarriage equality, arguing for alternative forms and mechanisms of relationship recognition based on the objection to the supremacy of marriage and the Aristotelian axiom.
A UK couple, Steinfeld and Jeidan, and an Austrian couple, Ratzenböck and Seydl, went to courts seeking legal recognition of their relationships in forms other than marriage. They are opposite-sex couples seeking to register for same-sex civil partnerships. Their court challenges reverse the equation in the classic marriage equality model. Here are opposite-sex couples demanding to be treated like same-sex couples, not the other way around. Their stories became part of the emerging case law in Europe that is the subject of Nausica Palazzo’s article Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships.
Marriage Apostates stands out in the scholarship of nonmarriage equality for its choice of subject and its pragmatic proposal for incremental change. Shedding light on this under-noticed development across Europe, Palazzo gives it meaning that eases the assimilation concerns about the Aristotelian axiom, provides a systematic analysis of mobilization strategy, and demonstrates how litigations seemingly upholding the “likes alike” equation bear the potential of being a driving force to challenge the very same equation.
Palazzo’s article engages with nonmarriage equality on empirical and normative levels, focusing on the fate and role of nonmarital statuses. Her core claim is simple and clear: nonmarital statuses ought not to become ashes along with the birth of same-sex marriage; instead, nonmarital statuses can and should assume the role of promoting a more pluralist model of relationship recognition and offering protection for “apostates” of the archetypical marital family. Rather than pursuing “transitional equality” to address vulnerabilities that may arise in the process of transitioning from a nonmarital status to marriage, Palazzo’s goal can be understood as advocacy for another kind of transitional equality: a framework for identifying the possibilities and necessities of retaining or creating nonmarital statuses during and after the transition to a world with same-sex marriage. This, in other words, is a request to resist the transition to a marriage-only world. Her particular emphasis in this article is nevertheless not same-sex couples’ refusal to transit their nonmarital status to marriage but opposite-sex couples’ demand to access nonmarital statuses.
Defined in this article as “all recognition models whereby two persons take affirmative steps to register their relationship and gain a bundle of legal benefits, rights, and obligations” (P. 3), nonmarital statuses can be distinguished into the “strong” and “weak” models in accordance with their proximity with marriage. The “strong” model resembles marriage except its label, exemplified by US civil unions, UK civil partnership, and registered partnership in the Netherlands. The “weak” model equips partners with some, but not all, of the rights and duties of the marriage package, exemplified by the pacte civil de solidarité (Pacs) in France and cohabitation légale in Belgium. Conventional wisdom has it that nonmarital statuses under both strong and weak models were historically designed and enacted to offer a temporary, transitional, and second-class protection for same-sex couples as compromises in lieu of “full” marriage equality, i.e., equality as the same treatment of opposite-sex and same-sex couples concerning marriage.
Understood as a manifestation of what Palazzo calls “the incrementalist paradigm or theory of small change” (P. 13), nonmarital statuses are often deemed useless, redundant, or even odious after the legalization of same-sex marriage. Their destiny, as what has happened in some US state laws, Ireland, Germany and Nordic countries, is to be phased out. (Pp. 15-16.) Echoing scholars who dissent from this conventional wisdom through alternative historical accounts of nonmarital statuses (initially pursued to embrace family pluralism) and normative arguments against marital supremacy, Palazzo questions the erasure of nonmarital statuses and further argues for their expansion in a world with same-sex marriage. Her adventure begins with an empirical account, followed by a normative account, and ends with a philosophical and legal analysis of three approaches to expand same-sex partnerships.
Palazzo’s empirical account directs our attention to the growing interest of modern families in nonmarital statuses, evidenced by the increase of Pacs created by opposite-sex couples in France, cohabitation légale declared by opposite-sex couples in Belgium, and opposite-sex registered partnerships in the Netherlands after the legalization of same-sex marriage in these countries. Her elaboration of this phenomenon concentrates on the attractiveness of nonmarital statuses for couples qualitatively different from the archetypical marital couple. As evidence from France has suggested, pacsés couples tend to be more liberal in terms of sexual practices, more egalitarian about gender norms, and more inclined to seek material benefits (e.g., keeping their finances separate, entering in to a less “traditional” financial arrangements) than symbolic recognition. (Pp. 20-22.) Couples who hold genuine objections to marriage (what Anne Barlow and Janet Smithson have dubbed the Ideologue couples) might prefer a strong model of nonmarital statuses over marriage when the major difference between the two is their symbolic labels. (P. 56.) This empirical account corresponds to Palazzo’s normative proposition that “nonmarital statuses are more attuned to the values of modern couples.” (P. 22.) Palazzo claims that in modern societies with egalitarian, secularizing, and individualism-driven trends, marriage does not pass muster: as an institution, it has roots in patriarchy and is not fully secularized; as a legal framework, it lacks flexibility; as an ideology, it is too “committing.”
The empirical facts and normative claims lay the ground for Palazzo’s core argument: nonmarital statuses deserve a fruitful future rather than a death knell. Again, she limits her deliberation to the availability of same-sex partnerships to opposite-sex couples. If this has not seemed to be a primary concern for American opposite-sex couples, it has begun to attract attention in Europe, where heterosexual couples have brought legal challenges in international and domestic courts. Palazzo identifies three main approaches: (1) a status recognition approach, which addresses the harms to opposite-sex couples as a group; (2) a utilitarian approach, which asserts the utilitarian values of the flexibility provided by nonmarital statuses; and (3) a legal-pluralistic approach, which claims the choice of nonmarital status itself is a value per se (“more is good”).
The status recognition approach concerns status recognition and the cultural harms of denying heterosexuals recognition through nonmarital statuses. The utilitarian approach emphasizes opposite-sex couples’ right to access nonmarital statuses due to their legally-relevant “need” for a more flexible legal regime other than marriage, whereas the legal-pluralistic approach celebrates legal pluralism and demands that “choices” or options in the menu of family regimes be made available to both same-sex and opposite-sex couples. Each approach has its upsides and downsides, which Palazzo carefully examines one by one, discussing their applicability in different institutional contexts. She acknowledges each approach’s advantages and limits, and comes to the conclusion that “there is no one-size-fits-all approach because nonmarital statuses differ in terms of their content, personal scope, or historical context in which they were enacted.” (P. 53.)
Steinfeld and Keidan v. Secretary of State for Education demonstrates the pros and cons of the status recognition and legal pluralistic approaches. The UK Supreme Court’s ruling adopts the legal-pluralistic approach and finds it discriminatory to grant same-sex couples two choices (marriage and civil partnership) while leaving opposite-sex couples with only one choice (marriage). Opposite-sex couples’ lack of choice is plain and simple discrimination in the form of different treatment, which proves the upsides of the legal-pluralistic approach. This view is, however, a partial reading of the case. Palazzo tracks down the original complaint and lower court decisions and finds signposts of the status recognition approach. The parties expressed their opposition to marriage and argued for the right to establish a family under a regime that would reflect and recognize the equal nature of their relationship.
The High Court and Court of Appeal accepted the discrimination argument and recognized that exclusion per se is the problem. The status-recognition approach has a clear advantage of stressing status-based harms, which nevertheless invite the question of whether discrimination law should be symmetrical (protecting a universal class of persons belonging to a specific category) or asymmetrical (protecting only the subordinate groups). In a world of heterosexual normativity, a heterosexual couple’s status-recognition claim may survive under the symmetrical discrimination theory but would be hard to sell under an asymmetrical one.
Ratzenböck and Seydl v. Austria, the 2017 European Court of Human Rights (ECtHR) case that was brought about by an Austrian heterosexual couple who sought to register for a civil partnership (the so-called Eingetragene Partnerschaf) in Austria when same-sex marriage was not legal, illustrates the utilitarian and the legal-pluralistic approaches. The couple expressed their opposition to marriage and demanded access to civil partnership, which, at the time when the case was before domestic courts, offered a more modern and “lighter” form of legal recognition (the weak model) that more aligned with their material interests. However, by the time the case reached the ECtHR, the legislature had significantly narrowed the gap between marriage and civil partnership, despite the remaining differences that made the civil partnership regime slightly more flexible compared to marriage. This change of law weakened the couple’s argument for a different and suitable option. In response to the applicants’ claim of discrimination based on sexual orientation, the Court conducted a comparative assessment, concluding that heterosexual couples were not in a comparable or relevantly similar situation to same-sex couples because the institutions of marriage and civil partnership were complementary in Austria law: opposite-sex couples could access marriage whereas same-sex couples were ineligible to marry and hence needed the recognition of civil partnership. Both the utilitarian approach and the legal-pluralistic approach failed in Ratzenböck. The Court identified no comparable similarity between heterosexual and same-sex couples, finding no “need” for the couple to access civil partnerships for legal recognition because they could access marriage. The Court’s claim that any formalized partnership will satisfy the European Convention on Human Rights (ECHR) also rendered the legal-pluralist approach unworkable under the ECHR framework.
Despite suggesting that there is no one-size-fits-all approach to expanding nonmarital statuses through litigation, Palazzo strives to produce guidelines for litigation strategies that can be applied in different settings. The work contains a particularly useful table classifying approaches to claiming equal partnerships. (P. 55.) She argues that the suitability of an approach in a particular context can be assessed according to the content of the nonmarital regime (whether it has distinct content or “mimics” marriage) and the approach’s elasticity/inelasticity to difference between marriage and the nonmarital status. Under a “weak” model of nonmarital statuses, all approaches can potentially apply. Under a “strong” model, the utilitarian approach can hardly work due to the similarity between marriage and nonmarital statutes, but the status-based and the legal-pluralistic approaches can be pressed by stressing a couple’s objection to marriage or arguing against the lack of “choice.”
Palazzo goes beyond litigation strategies to argue for the role of litigation as a vehicle for legal reform (exemplified by the widening of nonmarital legal status to all couples in UK and Austria in the aftermath of heterosexual couples’ litigation), stressing the need for creating nonmarital statuses that are meaningfully different from marriage to attract a large number of people, who might be driven by ideology, utilitarian ideals, or material interests. In a nutshell, heterosexual “marriage apostates” have a role in a post same-sex marriage world: bringing court challenges to disrupt the entrenchment of marital supremacy.
By identifying opposite-sex couples’ potential as an important vector for change through strategic litigation to expand nonmarital statuses, Palazzo sheds light on the path toward nonmarital equality after marriage equality. She demonstrates how a “likes alike” argument can facilitate the parties’ success in Steinfeld, and an “unlikes unlike” argument can lead to the parties’ defeat in Ratzenböck. Her work also suggests how opposite-sex couples’ demand for equal access to nonmarital statuses can be framed in ways other than embracing the “likes alike” equation and can express objections to the equation of marriage to equal citizenship (to be equal is to have the same right to marry) even when it appears to echo the sameness equation.
Indeed, an argument for same treatment may produce asymmetrical consequences: same-sex couples’ demand for the same right as heterosexual couples to marry risks conforming to heterosexual marital normativity despite its potential to transform marriage, whereas heterosexual couples’ request for the same right as same-sex couples to register for civil partnerships bears the potential of weakening marital supremacy and equalizing nonmarital statuses. For future thoughts, the status recognition approach may gain strength from the hierarchy-centered substantive equality theory if it can identify the role of marriage in the dynamics of hierarchy, and, in turn, claim the harms that the legal institution of marriage imposes on nonmarital people as a group despite marriage’s expansion to same-sex couples. So constructed, it would become an equality-based approach with a norm-challenging “risky argument” that can call attention to deeper problems underlining the legal institution of marriage and advocate a radical future for nonmarital equality.
Cite as: Chao-Ju Chen, Nonmarital Equality in a New Light
(January 13, 2022) (reviewing Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships
, __ Colum. J. Gender & L.
__ (forthcoming, 2022), available at SSRN), https://equality.jotwell.com/nonmarital-equality-in-a-new-light/
- Marissa Jackson Sow, Protect and Serve, __ Cal. L. Rev. __ (forthcoming, 2022), available at SSRN.
- Marissa Jackson Sow, Whiteness as Contract, 78 Wash. Lee L. Rev. __ (forthcoming, 2021), available at SSRN.
In the waning days of Trump’s presidency, the far Right put Critical Race Theory in its crosshairs. In a flurry of executive orders and guidance documents, Trump tried to paint CRT as the cause of racial unrest in our nation. This move, which has since set off campaigns in state legislatures to outright ban CRT in public schools, is unsurprising. Trump and large swaths of his followers are white supremacists full-stop. As such, they see CRT as a threat to their racist agenda.
CRT does not cause “racial unrest,” sow racial hatred, and it is not now and has never been routinely taught in K–12 schools. Those seeking to literally outlaw CRT are not in any honest sense concerned with our youths’ minds or souls. Instead, they fear CRT’s capacity to shed light on how racial division has been and continues to be used to maintain white power. CRT is dangerous because the movement in the academe and in the streets seeks to transform the relationship between race, racism, and power. If the stakes weren’t so high right now, we might chuckle at how ridiculously Trumpian the far Right’s strategy is here. What more Trump move could there be than to claim CRT, which helps us dissect and discuss racism in sophisticated ways, is a bigger threat to our nation than racism itself.
Thankfully, in these troubling times, scholars like Marissa Jackson Sow, continue to build out and expand CRT discourse in new and innovative ways. My focus here is on two of Sow’s recent articles, Whiteness as Contract and Protect and Serve.
Sow positions both articles as part of a growing body of scholarship termed critical contract theory. Much as Cheryl Harris did in the early nineties with property law, Sow invites us to employ contract law as a lens and metaphor to discursively identify the emergence and sticking power of racial stratification in American politics and society, past and present.
The premise of Sow’s overarching project is most clearly articulated in Whiteness as Contract. There, Sow explains that antidiscrimination and human rights law frameworks too often obfuscate how and why structural and physical violence against “those raced as Black . . . endure[s] at the express direction of the state.” (P. 1.) Sow’s core insight here is that when racial groups’ relationships to the state are conceptualized in contractual terms, it is apparent that Blacks and other historically marginalized minorities are incapable of being parties to the social contract that sustains our nation, while, conversely, whites have secured contractual terms with the state that lock-out minorities from entering into the social contract, let alone benefit from its protections.
Protect and Serve takes critical contract theory to the next level, applying it to policing in the United States. Invoking the contract framework once again, Sow urges that the (aspirational) mandate that police “protect and serve” is, at best, illusory for Blacks and other historically marginalized minorities. Police are not, to Sow’s eye, charged with protecting all of us, but instead have historically—and continue to this day—to be charged with protecting the racial contract forged between whites and the state. As Sow explains,
Black people can do absolutely nothing to avoid being killed by police in the United States, because the United States is not in contract with them and because, in many cases, they are actually the objects of contract. Black people in the United States are excluded from the nation’s body politic intentionally and strategically, to more efficiently exploit their labor, extract their resources, and to remove them from physical spaces that local, state, and federal governments reserve for those citizens with whom it is contracting. Police, as vehicles of the state, are the enforcers of that exclusion. (Pp. 6-7.)
As was the case with Harris before her in property law, the elegance of Sow’s work in critical contract theory is a testament to CRT’s power to illuminate how and why racism continues to reverberate in our nation today.
Ezra Young, Trumpism and Critical Contract Theory
, JOTWELL (Dec. 7, 2021) (reviewing Marissa Jackson Sow, Protect and Serve
, __ Cal. L. Rev.
__ (forthcoming, 2022), available at SSRN
.; Marissa Jackson Sow, Whiteness as Contract
, 78 Wash. Lee L. Rev.
__ (forthcoming, 2021), available at SSRN
This edited collection came to press as many of us around the world “went home”. Spring (Canadian spring, at least) 2020 had become unfamiliarly quiet. There was so little traffic on the streets that I could hear the ice-maker in our fridge on the main floor producing ice even though my bedroom (on the second floor) door was closed.
Despite the quiet, those work-from-home days were chaotic and exhausting. My days were filled with one zoom meeting after another. As the Dean of a Faculty, I found myself making endless and ostensibly urgent and important decisions, only to change those decisions the next day. I imagined someone watching me “at work”. They would have watched a middle-aged woman, hunched over a small Ikea desk in the corner of her bedroom sitting quietly, but staring intensely, at a laptop screen for hours, periodically yelling loudly at the screen. My days were both filled with others and yet isolating and alienating.
Revolutionary Feminisms arrived in my regular mail slot at home in those (now obviously) early days. It shot through the mail slot in a moment when I badly needed something beyond the seeming urgency of the daily. Although it was almost impossible to shift gears in the dramatic way the book demands, it asked me (and us) to consider “the belief that freedom requires revolutionary transformation in the organisation of the economy, social relations, political structures, and psychic and symbolic worlds, and that this must take place across multiple scales—from intimate relations between individuals to those among individuals, communities and the state.” (P. 1.) That orientation was profoundly unfamiliar in those early days of the pandemic, and I think in spite of some sense of “opening up” in at least some regions around the world, it remains so.
There are so many things I want to tell you about this edited collection that reveal its subtle magic. Things that if not stated explicitly, can slide by you as a reader. I’ve noted the first, which was the timing of its publication. That was unintentional, but fortunate. How badly we needed work with long-term vision in this era of short-term urgency.
Second, the chapters in the work offer interviews with fascinating thinkers and scholars: Avtar Brah, Gail Lewis, Vron Ware, Himani Bannerji, Gary Kinsman, Leanne Betasamosake Simpson, Silvia Federici, Ruth Wilson Gilmore, Avery Gordon, and Angela Y. Davis. In reading the book, we are offered access to a series of related conversations—personal and intimate, political and reflective. The conversational format interrupts the inevitable self-involvement of this past year (Am I safe? Is my family safe?), and it invites us into something tentative and exploratory, rooted in experience and expertise. Conversations are such regular features of daily life, and yet the kinds of conversations reflected in this collection might remind you (as they reminded me) that the last 18 months has left us more desperate than we might yet know for conversations that ask us to think beyond ourselves and to engage with the potential for revolution that this era might offer.
Third, the edited collection offers a web of connections. I love when I’m reading something and the authors are linking people, places, and ideas that to me seem disparate and disconnected. Here the editors bring scholars, activists, social, political and economic movements, and critical theories and methods, into dialogue with each other. When authors do an artful job of creating webs of connections you don’t notice it’s happening—something that could easily be the case here. The editors have enough of a shared vision of the potential for revolutionary feminisms that they create a context for the interviews that feels like it makes perfect sense. But, of course, if someone asked me to connect Ella Baker (a figure in the US civil rights movement) with solidarity with Palestine, I would have more-than-paused. Or if they had asked me to link the defeat of fascism in Italy in the 1970s and 2020 framings of the unaddressed threat of climate change the kind of quiet that descended on my house (when I could hear the ice being made) would have been the result.
The interview portion of the work is divided into three broad themes: diaspora/migration/empire, colonialism/capitalism/resistance, and abolition feminism. Three or four interviews comprise each division. The interview-style makes the work both highly accessible and (perhaps contradicting that) unexpectedly dense. When you read each interview, you are diving into the pool of the knowledges of the interview and interviewee. At times, I was swimming in an ocean without reference points. But the conversation continues and if you can tolerate that sometimes those orienting reference points are gone (because at least speaking for myself, I entered these conversations without the same depth as the editors and interviewee), then you are in for a delight.
This is a book that went to press as many of us “went home”. It is perfectly crafted for this moment as we contemplate our re-emergence. And the contribution it makes—bold in its framing and focus—will shift how we understand feminisms and call on us to contemplate what our freedom entails.
Increasingly, courts in the United States and Canada are called to rule on parental disputes about the gender identity and expression of children. Often in the background of a custody dispute, courts are faced with the task of deciding what parental arrangement is better to support the gender identity/expression journey of a young child. In the classic case, one parent encourages the gender exploration of the child and the other objects, often also accusing the supportive parent of putting ideas about gender nonconformity into the child’s head. This new terrain raises serious questions about gender, equity, and the best interests of the child. And, of course, both in the U.S. and Canada, cases are often accompanied by wide media coverage and politics that try to drag this situation into the culture wars.
To the rescue arrive two excellent and original articles, one from Canada, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts, and the second from the U.S, Exploring Identity. They are not the same, but they tackle similar questions. Each is valuable, and together they provide rich and largely missing context that can guide courts, litigants, and policymakers when they navigate these relatively new and complex cases. They provide clear analyses of relevant terminology, science, doctrine, and caselaw, and each makes specific policy recommendations.
Both articles deal with questions of parenting disputes (typically custody) regarding children’s gender identity and expression. Houston’s article, dealing with Canadian cases, covers children of all ages and treats the group as “transgender and gender-nonconforming.” George’s article covers U.S. law and focuses exclusively on preadolescent children, whom she calls “gender expansive” children—a term referring to trans, nonbinary, and “children exploring non-traditional gender identities.” The reason both articles insist on using complex terminology rather than simply “trans kids” is to avoid labeling preadolescent children in ways that narrow their options of identification and expression. The authors acknowledge that some children will eventually transition, some will identify as abinary, some will identify as cisgender LGBQ individuals, or none of these. Indeed, professional medical literature has long recognized that preadolescence children with gender-atypical behavior do not necessarily end up transitioning. A highly-criticized group of studies named this phenomenon “desistance” (because children “desist” with the atypical gender behavior later in life). These studies claim that “over 80% of transgender children will come to identify as cisgender once they reach adolescence or early adulthood.” Recent scholarship provides robust critique of “desistance” theory. Literature criticizes this (oft-used) terminology of “desistance,” noting that it is rooted in the field of criminology and that the use of the term reflects on the gender-binary premise of the studies. Further, as George and Houston elucidate, the studies that support the “desistance” theory used highly questionable methodology. At the same time, they both acknowledge that the gender expression and identity of preadolescent children are not static and that future gender identity is difficult to predict.
The fluidity of gender expression and identity in preadolescent children leads both authors to make a similar claim: when courts try to determine “Is that child really trans?,” they are asking the wrong question. Instead, both articles advocate that courts enable preadolescent children to explore their gender identity. In particular, Houston argues that courts should give significant weight to the views that children in these cases express. Allowing individuals to define and develop their own identity is a central tenet of gender-affirming care model (the goal of gender-affirmative treatment is to relieve distress and anxiety regrading gender identification and expression). Hence, George contends that parental support for exploration of gender identity is in the child’s best interest, and Houston asserts that judges need to presume that supporting a child’s identification and expression of gender is in the child’s best interest.
Both articles lay out clearly, helpfully, and critically the research about the formation of gender identity among children, and use it to clarify the legal terrain. The two articles also document how courts often rely on medical experts’ perspectives in adjudicating these cases. George puts reliance on scientific data in context by presenting historical patterns in which courts have eventually reframed their responses based on developments in the science, such as in the case of research on LGBTQ+ parenthood. Houston, while noting that experts can be helpful, argues that their testimony should be taken with caution, as the area is fraught with politics. Both also analyze a large number of cases, elucidating the main outcomes of these cases, their (sometimes flawed) reasoning, and their general trends.
Each article also makes varied contributions. Houston delves into the decision to transition, including medical interventions. George examines how courts have dealt with questions of identity in related areas: children’s sexual orientation, race, and religion. This latter analysis puts what seems like a novel and difficult dilemma for courts in perspective, provides some unexpected doctrinal insights, and shows the consistency in courts’ approaches that seek to enable children to explore their identity. Finally, one of George’s main recommendations is to enact statutes that confirm that gender exploration is in the best interest of the child. It is interesting to note that Ontario, according to Houston, has amended its legislation pertaining to child protection to clarify that the best interests of the child includes consideration of “gender identity and gender expression.”
Overall, both articles provide a great service to the legal community in their rigorous analyses of these types of cases, which have become common in the U.S. and Canada. Both articles should be commended, especially for the critical and respectful way in which they deal with an area that is politicized and that, as well, touches upon people’s most personal issues. Their doctrinal and prescriptive insights will be helpful to many, and the clear way in which medical knowledge is presented is particularly useful. Both could easily fit syllabuses on law and sexuality, and family law. The historical context—and George’s references about how other social movements have engaged with similar contexts—make the terrain richer. Even people who are not working in the fields will likely find these to be good sources to learn about this critical topic.
Editor’s note: for another review of Exploring Identity, please see Aníbal Rosario-Lebrón, On Pointe: The Right of Children to Explore their Gender Identity, JOTWELL (September 13, 2021)
Erez Aloni, Judging Gender
, JOTWELL (September 13, 2021) (reviewing Marie-Amélie George, Exploring Identity
, Marie-Amélie George, Exploring Identity, 54 Fam. L. Q. __ (forthcoming, 2021), available at SSRN.
(2021)); Claire Houston, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts
, Claire Houston, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts, 33:1 Can. J. Fam. L. 103 (2020).
The murder of George Floyd forced a national conversation and the re-invigoration of our unfinished national racial reconciliation project. In the summer of 2020, as COVID-19 infections spread due to governmental failures, George Floyd was held down, choked, and murdered in Minneapolis, Minnesota by an agent of the state. This murder occurred in front of witnesses like Darnella Frazier, who bravely videotaped it and shared it with the world. Reacting to these events, universities undertook initiatives to address shortcomings in racial equity and to meet demands of students, faculty members, alumni, and community stakeholders. At law schools responsive to these calls, this involved many acts, including embracing the adoption of anti-racism solidarity statements, creating academic centers focused on blackness like the study of race and law, establishing the endowment of scholarships and job opportunities for minority students, and hiring more scholars of color.
Against this backdrop comes a breathtaking, but brief, essay by Professor Carliss Chatman and Professor Najarian Peters. This essay, a skillful example of protest literature, performs the difficult task of truth-telling about legal education as it relates to hiring minority faculty members. It indicts the left-legal liberalism of the legal academy, demonstrating how those who espouse the goal of diversifying the legal profession often fail to make change in terms of their hiring practices. Through storytelling, a classic method and weapon in skillful hands like theirs, the authors paint a picture that is familiar to many individuals who are the “diversity people” on their respective hiring committees. Navigating a landscape of legal professionals who consider themselves liberal and claim not to be racist, the authors reveal how shifting standards, implicit bias, and constant contradictions shape the hiring process at most law schools leading to one ultimate result: law schools fail to hire faculty members of color, particularly Black, Latino, and Indigenous individuals, even when they are highly qualified for these roles.
Although the number of minority faculty has increased, Professor Chatman and Professor Peters argue that not enough has changed. Law school faculties remain heavily vested in the status quo and the faculty remains overwhelmingly white and male – particularly in the most highly compensated prestigious full-time tenure track roles. This issue is not unique to law schools. The upper echelon of the legal profession – those who make law, interpret it, benefit most lucratively from it, and teach it – remains majority white and majority male. And while the profession has gotten more inclusive, and has diversified some along lines of race and gender, the overwhelming whiteness and maleness of the profession and legal academia has remained sticky. Professor Chatman and Professor Peters attempt to unstick this stickiness with honesty about the process. The essay excavates the dysfunctional way in which faculty hiring committees and law school communities are moved to inaction and paralysis in terms of diversifying the faculty ranks. The authors also urge institutions to protect their students and warn the students not to invest too heavily in the institutional work of anti-racism.
Professor Chatman and Professor Peters are not the first to highlight the failure of the legal academy to diversify its faculty and move beyond tokenism. Powerful progressive voices like Richard Chused and Critical Race Theorists like Richard Delgado were highlighting the failure to diversify and democratize even in the 1980’s. In 1988, Professor Chused found that, “minority professors in general, and black professors in particular, tend to be tokens if they are present at all; that very few majority-run schools have significant numbers of minority teachers; and that minority teachers leave their schools at higher rates than their white colleagues.” Critical race theory scholars have addressed the failure of law schools to diversify with activism as well. One of the most famous examples of this resulted in the protest resignation of Professor Derrick Bell at Harvard Law School when the institution failed to hire a Black woman.
Professor Chatman and Professor Peters contribute to this literature in a refreshing way by highlighting the performative nature of law school hiring practices and the theater enacted by the conversations. The repetition of this theater, maddening to those on the ground and committed to change, is captured perfectly in their work. One feels as if she is sitting in the room, around the table, being told–once again– that qualified minority candidates are simply “not interested” in employment at the institution. Earnestly, everyone sighs. Everyone nods. Everyone wistfully declares that they wish the pool were more diverse. Everyone promises to do better and try harder – next time. There are often no negative consequences for individuals in the institution who stood in the way. And when some small institutional act of acquiescence has occurred, if there is some success, then those who midwifed the change are not given credit. They are also told they should be happy. Are you happy now? Perhaps we can get back to some real hiring, some normal hiring, they say. It is not clear what real hiring or normal hiring would be. I suspect, and I think the authors would agree, that such hiring would not be focused on antiracism or on the inclusion of diverse candidates. So no, we are not happy yet.
The righteous tone in Professor Chatman and Professor Peter’s essay engages readers throughout the piece. In a world where legal scholarship can be stodgy, boring, and mealy-mouthed, the authors boldly stake claims and take chances. The aesthetic of the essay is the praxis of Black Radicalism and Black feminist theory. The initial invocation of the voices of the ancestors that came before, like Ida B. Wells, is followed by the authors’ deployment of the narrative that undergirds the interventions of critical race theory. Professor Chatman and Professor Peters tell a story that has been told in private whispers, rehearsed in the conversations of the past that are present and have become prescient in this moment. Throughout, they offer a revelatory contribution that seems to operate on what Robin D. Kelley calls “blues time.” For Kelley, “[b]lues time eschews any reassurance that the path to liberation is preordained. Blues time is flexible and improvisatory . . . simultaneously in the moment, the past, the future, and the timeless space of the imagination.”
Constructively, performativity and theater, even in their most conservative forms, entail ethical possibilities of becoming and recognition that may lead toward emancipation and contribute to change. This performativity and theater entail the creation of maybes and possibilities that may remain unrealized even for those doing the performing. The maybes and possibilities of performativity have been demonstrated by the body of literature in queer theory pioneered by scholars like Judith Butler and the lived experiences of Black queer people who created ballroom culture. The possibility that performative acts, which may seem empty or even contradictory, lead to increased recognition has long been understood to shift the intelligibility of what could be by challenging the intelligibility of what is. This means that what might start as performance has the potential, even slightly, to re-imagine the realm of the real and push against the boundaries of what is toward a liberatory possibility of what may become.
Perhaps though, this is just the hopeful dream of an ex-musical theater kid and queer theory stan who found worlds of possibilities in drag balls in the latter moments of the twentieth century. As Angela Harris has noted, although counterhegemonic performance can create the possibilities to see the operation of power and ideology, “’[p]erformance’ is a tricky word in a society that reveres ‘choice.’” And as Professor Chatman and Professor Peters illustrate–bluntly–the road to liberation and change through performance and theater, however, is treacherous and uncertain. Further, it is marked by the potential for capture and failure.
This essay by Professor Chatman and Professor Peters is a much-needed uncompromising and unflinching look at the status quo in legal education. It also beckons others, with the privilege and power to do so, to join the struggle. Professor Chatman and Professor Peters speak in a voice that the legal academy should heed.