Sexuality, gender, and the law: Queer perspectives in legal philosophy

Autor(en): Elisabeth Holzleithner
Abstrakt: This chapter explores the complex relation of sexuality, gender, and the law from the perspectives of legal philosophy, legal gender studies, and queer legal theory. Its point of departure is modern law’s promise of equal freedom, which is enshrined in human rights and in the constitutions of liberal democracies— their ‘aspirational’ component. Traditionally, this aspiration stood in striking contrast to the law’s rigid regulation of gender and sexuality in accordance with conventional morality, typically based on religious doctrines and a teleology of nature enshrined in traditional conceptions of natural law. The law institutionalized the gender binary of male and female in its civil status laws and relegated sexuality to the marriage bed of opposite- sex couples. This system of ‘compulsory heterosexuality’ or ‘heteronormativity’ has constituted regimes of inequality and exclusion. Their national manifestations were (and are) mirrored on the global level.

The chapter starts out by introducing two approaches to SOGIESC and the law: the paradigm of conventional morality and that of equal freedom (autonomy); this section also includes a historically informed exposition of the issues. Having established autonomy as the central reference point, that principle is illuminated by spelling out the conditions necessary for its realization. Autonomy provides the basis for developing a concept of emancipatory law, including an outline of three paths to achieving it: legislation, popular referenda, and litigation. The chapter continues by delineating the specifics of the LGBTIQ+ equal rights approach, followed by the critiques brought forth in queer legal theory. Both approaches are analysed in terms of their strengths and weaknesses. In concluding the chapter provides suggestions for furthering autonomy in the realm of gender and sexuality as part of an encompassing conception of social justice.
Organisation(en): Institut für Rechtsphilosophie, Forschungsplattform GAIN - Gender: Ambivalent In_Visibilities, Forschungszentrum Religion and Transformation
Seiten: 35 - 89
Publikationsdatum: 06-2024
ÖFOS 2012: 505011 Menschenrechte, 505016 Rechtstheorie, 504014 Gender Studies
Link zum Portal: https://ucrisportal.univie.ac.at/de/publications/8f29546c-ceac-4fd3-b394-cc563653ba2e