Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society

@article{citeulike:1046389, abstract = {This Project is about the way in which social and legal actors frustrate existing prohibitions against sex and gender discrimination by manipulating, whether through ignorance or calculation, the conflation of sex, gender, and sexual orientation. What Professor Valdes calls the \"conflation\" is the historic and contemporary confusion and distortion of sex, gender, and sexual orientation as social and legal constructs. As this Project makes clear, this conflation's long history and pervasive presence in our thinking and institutions combine to make it self-perpetuating and often invisible, but never absent. This confused and confusing history and status quo is what enables dominant forces to use the conflation-and more specifically the symbiotic roles of gender and sexual orientation within it-as a key means of achieving unprincipled and unwarranted results in sex and gender discrimination cases. To help discipline the uses of these three constructs in legal venues, this Project documents and unpacks how sex, gender, and sexual orientation are conceived and applied in tight relation to each other both intellectually and normatively. In this way, Professor Valdes invites and urges scholars, judges, and policymakers alike to assess critically both the conflation itself and its detrimental effects on law and society. Professor Valdes also highlights how the conflation both reflects and projects androsexist and heterosexist values-a phenomenon he calls heteropatriarchy-to emphasize the mutual interrelationship of these twin biases in the Euro-American sex/gender system. This Project's assessment of the conflation inexorably leads to the conclusion that the law cannot, and therefore will not, fulfill the nation's formal commitment to ending sex and gender discrimination while the conflation retains its force in legal culture. The Introduction and Foreword are intended not only to introduce the piece but also to summarize it. They also provide a roadmap of the piece so that readers may locate areas of particular interest. Chapter One provides a critical history of the conflation in Euro-American culture since the late nineteenth century, detailing its codification by the medical profession and its acceptance both by the sexual majority and by sexual minorities. Building on that history, Chapter Two traces the conflation's presence in and effect on the law of this nation. Focusing primarily on Title VII cases, Professor Valdes documents how courts have simultaneously embraced and denied aspects of the conflation, and in the process have rendered laws against sex and gender discrimination unjustifiably underinclusive. To provide a comparative perspective on the conflation, Chapter Three examines how Native American cultures conceptualized sex, gender, and sexual orientation in a relatively non-conflationary manner. The Native American example reveals that the conflation is socially constructed rather than natural, and provides a model for post-conflationary reform. Chapter Four gathers the lessons to be drawn from the first three chapters, while Chapter Five builds on these lessons in presenting principles to guide the reform of existing sex and gender anti-discrimination doctrine. Finally, the Afterword \& Prologue closes the Project with a call for the initiation of Queer legal theory as a scholarly movement, and with some reflection on the role of that movement within critical legal thought and in legal culture generally. As with all good scholarship, our hope is that this piece will cause readers to examine the way(s) they think-in this case about sex, gender, and sexual orientation. Even for readers who disagree with Professor Valdes' suggestions for doctrinal reform, this Project presents overwhelming evidence of the conflation's widespread influence and negative impact on our society and legal system. Moreover, the Project presents a frame-work through which legal and social conceptions of sex, gender, and sexual orientation can be accurately and beneficially reexamined, free of conflationary influences. The clarity enabled by the deconstruction of the conflation presented here is essential in our nation's attempt to confront the pressing issues surrounding the roles and rights of women and sexual minorities. A final note: the publication of this Project in a law review is almost as unusual as the scope and depth of the Project itself. We believe the significance this piece has to the law and to society in general warrants its publication in a forum not generally reserved for works of this length. This law review's two-year association with Professor Valdes and this Project is a testament to the potential of the faculty/student relationships borne of necessity from student-edited journals. We made the decision to publish the Project when parts of it were not yet finished drafts, in itself an unusual decision. As Professor Valdes wrote and rewrote, we had the privilege of sharing in an academic creation on a much more conceptual and personal level than is the norm. While this Project taxed the Review to its limits, it also was tremendously rewarding. We hope it has the impact it merits, both in its current form and as a book based on this work, which will be published by New York University Press in 1996-97.}, author = {Valdes, Francisco }, citeulike-article-id = {1046389}, journal = {California Law Review}, keywords = {gender, law, queer, sex}, number = {1}, pages = {1--377}, posted-at = {2007-01-17 17:17:43}, priority = {2}, title = {Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of \"Sex,\" \"Gender,\" and \"Sexual Orientation\" in Euro-American Law and Society}, url = {http://www.jstor.org/stable/3480882}, volume = {83}, year = {1995} }

TY - JOUR ID - citeulike:1046389 L3 - citeulike-article-id:1046389 TI - Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in Euro-American Law and Society JF - California Law Review VL - 83 IS - 1 SP - 1 EP - 377 N2 - This Project is about the way in which social and legal actors frustrate existing prohibitions against sex and gender discrimination by manipulating, whether through ignorance or calculation, the conflation of sex, gender, and sexual orientation. What Professor Valdes calls the "conflation" is the historic and contemporary confusion and distortion of sex, gender, and sexual orientation as social and legal constructs. As this Project makes clear, this conflation's long history and pervasive presence in our thinking and institutions combine to make it self-perpetuating and often invisible, but never absent. This confused and confusing history and status quo is what enables dominant forces to use the conflation-and more specifically the symbiotic roles of gender and sexual orientation within it-as a key means of achieving unprincipled and unwarranted results in sex and gender discrimination cases. To help discipline the uses of these three constructs in legal venues, this Project documents and unpacks how sex, gender, and sexual orientation are conceived and applied in tight relation to each other both intellectually and normatively. In this way, Professor Valdes invites and urges scholars, judges, and policymakers alike to assess critically both the conflation itself and its detrimental effects on law and society. Professor Valdes also highlights how the conflation both reflects and projects androsexist and heterosexist values-a phenomenon he calls heteropatriarchy-to emphasize the mutual interrelationship of these twin biases in the Euro-American sex/gender system. This Project's assessment of the conflation inexorably leads to the conclusion that the law cannot, and therefore will not, fulfill the nation's formal commitment to ending sex and gender discrimination while the conflation retains its force in legal culture. The Introduction and Foreword are intended not only to introduce the piece but also to summarize it. They also provide a roadmap of the piece so that readers may locate areas of particular interest. Chapter One provides a critical history of the conflation in Euro-American culture since the late nineteenth century, detailing its codification by the medical profession and its acceptance both by the sexual majority and by sexual minorities. Building on that history, Chapter Two traces the conflation's presence in and effect on the law of this nation. Focusing primarily on Title VII cases, Professor Valdes documents how courts have simultaneously embraced and denied aspects of the conflation, and in the process have rendered laws against sex and gender discrimination unjustifiably underinclusive. To provide a comparative perspective on the conflation, Chapter Three examines how Native American cultures conceptualized sex, gender, and sexual orientation in a relatively non-conflationary manner. The Native American example reveals that the conflation is socially constructed rather than natural, and provides a model for post-conflationary reform. Chapter Four gathers the lessons to be drawn from the first three chapters, while Chapter Five builds on these lessons in presenting principles to guide the reform of existing sex and gender anti-discrimination doctrine. Finally, the Afterword & Prologue closes the Project with a call for the initiation of Queer legal theory as a scholarly movement, and with some reflection on the role of that movement within critical legal thought and in legal culture generally. As with all good scholarship, our hope is that this piece will cause readers to examine the way(s) they think-in this case about sex, gender, and sexual orientation. Even for readers who disagree with Professor Valdes' suggestions for doctrinal reform, this Project presents overwhelming evidence of the conflation's widespread influence and negative impact on our society and legal system. Moreover, the Project presents a frame-work through which legal and social conceptions of sex, gender, and sexual orientation can be accurately and beneficially reexamined, free of conflationary influences. The clarity enabled by the deconstruction of the conflation presented here is essential in our nation's attempt to confront the pressing issues surrounding the roles and rights of women and sexual minorities. A final note: the publication of this Project in a law review is almost as unusual as the scope and depth of the Project itself. We believe the significance this piece has to the law and to society in general warrants its publication in a forum not generally reserved for works of this length. This law review's two-year association with Professor Valdes and this Project is a testament to the potential of the faculty/student relationships borne of necessity from student-edited journals. We made the decision to publish the Project when parts of it were not yet finished drafts, in itself an unusual decision. As Professor Valdes wrote and rewrote, we had the privilege of sharing in an academic creation on a much more conceptual and personal level than is the norm. While this Project taxed the Review to its limits, it also was tremendously rewarding. We hope it has the impact it merits, both in its current form and as a book based on this work, which will be published by New York University Press in 1996-97. KW - gender KW - law KW - queer KW - sex AU - Valdes, Francisco PY - 1995/// UR - http://www.jstor.org/stable/3480882 ER -