Family, Law and Sexuality: Feminist Engagements

Date01 September 1999
Published date01 September 1999
AuthorSusan B. Boyd
Subject MatterArticles
University of British Columbia, Canada
The author explores feminist frameworks within which questions of family, law and
sexuality can best be explored, drawing on recent efforts to (re)establish materialist
feminist theory. She suggests that in order to make the important link between ques-
tions of gender, sexuality, difference, desire, identity and subjectivity on the one hand,
and problems of production and exploitation on the other, a materialist feminist theory
must incorporate the strengths of Marxist feminism with those of postmodernist
feminism. As a way of exploring the politics of current struggles for legal recognition
of lesbian and gay relationships as ‘spousal’, she engages with the debate between
Nancy Fraser and Judith Butler on the ‘recognition/redistribution’ dichotomy. She
argues that neither theorist takes seriously enough the role of the family in the pri-
vatisation of the costs of social reproduction within capitalism. She concludes that the
important lesbian/gay struggles for legal recognition of ‘spousal’ relationships, such as
in the Mv Hlesbian spousal support case in Canada, should not be seen as sufficient
to achieve social equality. Such legal struggles must be accompanied by trenchant cri-
tiques of the limits of such recognition in redistributing wealth and well-being.
One of the questions I ask in this book is why the dominant feminist theory in
the postmodern moment – ludic feminism – has largely abandoned the prob-
lems of labor and exploitation and ignored their relation to gender, sexuality,
difference, desire, and subjectivity. (Ebert, 1996: ix)
I am irritated now by certainties and also by the belief in progress. (Smart, 1995:
THE 1998 Keele Conference on Law, Gender and Sexuality gave me a
welcome opportunity to explore some questions that had been vexing
me over the past few years; these questions relate to feminist frame-
works within which to explore questions of family, law and sexuality. My key
concern has been the way in which many contemporary feminist theorists
have failed to link questions of gender, sexuality, difference, desire, identity
SOCIAL &LEGAL STUDIES 0964 6639 (199909) 8:3 Copyright © 1999
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 8(3), 369–390; 009286
05 Boyd (jl/d) 22/7/99 11:13 am Page 369
and subjectivity, on the one hand, with problems of production and exploi-
tation on the other. In this article, I argue that in order to make this link, a
materialist feminist theory must incorporate the strengths of Marxist femin-
ism and the strengths of postmodernist feminism.
My personal journey towards this argument involves the fact that it was
socialist feminist analysis of law, ideology and legal struggle that first gener-
ated my intellectual excitement about what feminism might offer to legal
studies (e.g. Gavigan, 1988; Smart, 1984). A great deal of my early work, on
child custody law especially, related to a critique of the nuclear family form,
the institution of marriage, the sexual division of labour, and their relation-
ship to women’s oppression within capitalism (e.g. Boyd, 1989). As I moved
on to look at lesbian family law claims, it seemed to me that lesbian oppres-
sion was explicated at least in part by this critique, since the nuclear family
form was quintessentially heterosexual (see Boyd, 1994). It also made a lot of
sense to me that a feminist who had developed a critique of the nuclear family
norm in law would have some interest in, and an understanding of, lesbian
oppression, regardless of her own sexual identity. I have found that I resist
the notion that lesbian oppression is completely distinct analytically from
women’s oppression generally, or that one needs to be a lesbian to understand
the dynamics of lesbian oppression; rather, both forms of oppression are con-
nected to other forms of oppression related to the material and ideological
supports for the heterosexual nuclear family. There is therefore a need to
develop a lesbian feminist analysis that traces the connections between het-
eronormativity,1gendered power relations between men and women (includ-
ing the sexual division of labour) and capitalist social relations. From this
position, I am disturbed by analyses that focus on the discourses of gender
or sexuality without examining how such discourses relate to wider trends of
globalisation, privatisation and economic privation, and the role of ‘family’
in these trends. In short, I hold the view that it is crucial to bring the politi-
cal economy of sexuality and gender more firmly into our analyses of law’s
contradictory role in emancipatory politics. However, it is admittedly very
often difficult to do so, especially when engaging in progressive struggle
through litigation, as I shall later explore in a discussion of the Canadian
lesbian spousal support case Mv H.
I acknowledge the important ways in which poststructuralist work has
enhanced recognition of the complex nature of the constitution of the subject,
the lack of certainty in this postmodern world and the need to take nothing
for granted, and the problems with universalising and essentialising dis-
courses about women. But I often feel that something is missing in analyses
of social movements or of legal identities. I want to argue that there is still
some way – perhaps especially in these times of ‘regress and of the undoing
of things once thought of as immutable’ (Smart, 1995: 126) – to think about
emancipatory politics and law’s place in it, without falling right back into the
problematic assumptions of orthodox Marxism or orthodox feminism. I
share Nancy Fraser’s desire to challenge ‘the current “postsocialist” de-
coupling of cultural politics from social politics’ (although she has recently
05 Boyd (jl/d) 22/7/99 11:13 am Page 370

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