Queer Intersectionality and the Failure of Recent Lesbian and Gay "Victories"

(Excerpt) Amidst the juridical heterosexism of our legal system, the few successful lesbian and gay cases stand out as brilliant, hopeful harbingers of the future. With good cause, lesbian and gay people have hailed state cases that indicate Bowers v. Hardwick has not contaminated all American courts. Although termed "victories" for the lesbian and gay community, several recent New York cases exclude many queer legal needs. Four cases, Braschi v. Stahl Assoc., In the Matter of the Adoption of Evan, M.A.B. v. R.B. and Thomas S. v. Robin Y., embody the law's progress on lesbian and gay issues. This essay will question the value of these decisions as victories for our community. Queer identity fundamentally intersects with other marginal identities of individuals and communities and serves as the central theoretical basis for my critique of these cases. Creating queer communities with widely varying legal needs specific to various classes, races, gender and sexual identifications. Given the breadth of marginal identities, an analysis of these cases will demonstrate the value of these cases to certain queers over others. While recognizing the progressive aspects of these cases, the narrowness of these lesbian and gay "victories" puts their status into question. The intersectionality of class, race, sexual practice and gender preference and an implicit interrogation of the value of law in social change inform this critique. The marginalizing and essentializing tendencies of litigation reveal it to be a flawed technique for change for queer communities. Reliance on litigation for the direction of the movement is dangerous because these essentializing and marginalizing aspects of litigation have the potential to further divide and weaken queer political strength. Litigation should follow strategy, not define it. Part I of this essay will introduce the queer theories underlying my critique and will outline the discrete positioning of lesbian and gay identity and community which labels these cases "victories." The intersectionality of queer identity is the key blind spot in the litigation model. The queer continuum, a re-conceptualization of Adrienne Rich's lesbian continuum, delineates the spectrum of queer identity. Part II will explore the facts, issues and holdings of these four cases. My examination of these cases will reveal how they grant some rights to "but-for" queers, who, "but-for" their being lesbian or gay, would be "perfect citizens." I will discuss how the rules and applications of these cases either exclude some queer communities or address issues irrelevant to other communities. The communities whose interest I specifically address are poor queers, queers of color, sexual subversives, and gender subversive queers. These limitations should figure prominently in the consideration of litigation's role in queer activism. In Part III, I conclude by outlining the implications of this critique for the relationship between queer communities and litigation.