What is sex? Is it an accidental or contingent property that every person can be said to have? I am brunette and female, but the Pope is bald and male. Or, is sex more constitutive, that is, an essential part of who we are? In this respect, the claim is often made that women experience the world ditfierently than men. Or, is sex something we do?
If we consider sex as an adjective, can we or should we be able to manipulate it like a new hair style? Or does the notion of sexual malleability trivialize the significance of sex when considered as a noun? Lastly, is sex a verb that acts on us, constitutes us, harms or taints us?
The answer to all these questions must be yes.
Feminist theory reveals that a seemingly simple question about the definition of sex demands a sophisticated answer, one informed by a critical investigation of power relations, discursive practices, and epistemological standpoints. In attempting to describe both what a woman is and how we can come to know her, feminists have struggled to determine just where description stops and inscription begins. Given the complexity of these inquiries, it is hardly surprising that the many people who consider themselves feminists cannot reach consensus on these or on other complex matters such as equality and sexual liberty. We have fought viciously among ourselves over such issues as whether to favor a paradigm of equal or different treatment, the role of pornography in women's oppression, and whether Roe v. Wade was correctly decided.
Why does such vituperative disagreement exist among supposed sisters in the struggle to dismantle the vestiges of patriarchy? I believe the answer lies not in deconstructing patriarchy, an enterprise that has consumed the hearts and minds of so many feminists, but in responding to the rarely asked question about the nature and meaning of sex. The question demands serious consideration of metaphysical, epistemological, and semantic arguments with respect to whom it is we are liberating, how we may know her, and how we can speak about her truthfully. Feminist theory, particularly feminist legal theory, often finds false currency in over-attention to the power of men in women's lives while neglecting the need for ostensive theory: to whom and with what kind of digit are we pointing when we say "set her free"? Such an impoverished notion of both the subject and object of feminist discourse has, not surprisingly, left feminist theorists at loggerheads when imprecise theory meets real life: does equality demand similar or different treatment from men? are abortion rights a matter of privacy or autonomy? will sex ultimately destroy us or set us free? And so the fight is engaged.
Law | Law and Gender | Law and Philosophy | Sexuality and the Law
Katherine M. Franke,
Cunning Stunts: From Hegemony to Desire a Review of Madonna's Sex,
N.Y.U. Rev. L. & Soc. Change
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/404