While few seriously hold up litigating as a path to happiness, lawyers, historians, and activists often associate an expanded capacity to sue with increased justice. Thus the married woman’s right to sue in her name and minorities’ prerogative to respond to discrimination and hate crimes via legal proceedings are markers of progress. However costly and uncertain litigation is, the real issue is of course the potential for oppression wherever the powerful unjustifiably limit one group’s scope for legal action relative to that enjoyed by others. Crucially, my examples don’t typically evoke the worry that increasing one potential plaintiff’s options imposes costs on another historically subordinated group. The example in Suzanne Lenon and Danielle Peers’ engaging new essay in Feminist Legal Studies does precisely that.
The authors invite us to scrutinize the content and context of a lawsuit that a short time ago would have been unthinkable. Their point of departure is the complaint for wrongful birth brought by Jennifer Cramblett, a white lesbian, against the sperm bank that mistakenly provided her with sperm from an African-American donor, leading to a child of mixed race. The novelty inheres in the space for a committed lesbian couple to present in court its ambition to have a child by assisted reproduction as ordinary and reasonable. Lenon and Peers call us to examine the set of assumptions – the legal and social inheritance of white privilege – by which having a healthy child of mixed race might occasion compensable harm. They argue convincingly that the white lesbian’s lawsuit confirms, indeed reinforces, discourses that subordinate others.
In its twenty pages, the paper deftly moves across distinct legal and social literatures. One part traces the racial politics of homonormativity, by which the path to gay and lesbian equality in the U.S. culminated in same-sex marriage and access to military service. The plaintiff’s legal team (I don’t suppose that a lawsuit transparently represents the plaintiff’s thoughts or feelings) thus constructed her as an “ideal homonormative citizen: a middle-class, (re)productive, university-educated white lesbian in a committed, monogamous, domestic partnership.” A second part traces tort law in relation to wrongful birth, including varying conceptions of disability and of feminist reproductive rights. A third part connects disability, race, and sexuality in the eugenic legacy of “wrongful birth” and reproductive technologies. Last, drawing on the work of Cheryl Harris and other theorists, Lenon and Peers situate the lawsuit vis-à-vis whiteness as inherited property and as privilege.
In a year when North America has witnessed a resurgence of explicit, public manifestations of racism and white supremacy, this paper invites readers to pay attention to their subtler forms. While the semiotics of the khaki-clad mob bearing Tiki torches on the campus in Charlottesville may appear obvious, Lenon and Peers lead the reader to consider the racialized subtext of the proposition that an all-white suburb has “better” schools than the more “racially diverse” communities where Cramblett and her partner feel they need to take their mixed-race child.
I suspect this illuminating paper would make uncomfortable reading for Jennifer Cramblett. The authors characterize the life that Cramblett had imagined for herself, her partner, and her intended white child as one of “enjoy[ing] the spoils of … inherited structural violences” of homophobia, racism, and white supremacy. But the authors conclude by confirming that their concerns reach far more broadly than one plaintiff, whose story, they insist, is not “strange” or a “one-off.” The ultimate wrong, they tell us, is “the case’s very own conditions of possibility.”