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Theoretical approaches to law, gender, and sexuality

During a recent discussion about my “Law, Gender, and Sexuality” course, a professor asked me how much I incorporated theoretical approaches to studying the topic. As the conversation progressed, I realized I have structured the course as primarily an empirical assessment of different ways the law has regulated gender and sexuality. An alternate approach would be to structure the course based on different theoretical approaches to understanding the intersection of law, gender, and sexuality.

Neither is right or wrong, and both offer distinct advantages and disadvantages, depending on my personal teaching goals and the interests of the students. And of course, it’s a false dichotomy to say a class is one or the other. I certainly did include theoretical and conceptual frameworks in my class to help explain how the state was regulating gender and sexuality, and especially to explain how law itself operated. In some senses, my class used legal regulation of gender and sexuality as an entry to understanding the relationship between law and society. A lot of the theoretical discussion from my class would be useful for understanding how law operates in other areas and how legal and social change influence each other.

Even though it was important to me for students to develop this basic conceptual framework for understanding the relationship between legal and social change, the overall message of the course was that law helps constitute our understanding of gender and sexuality. And for that message, I tried to cover a broad empirical range of topics, so that students really began to understand how law seeps into our understandings of gender and sexuality in all sorts of daily contexts.

This conversation got me thinking about how my course would look different if I reframed the key goal as understanding different theoretical approaches to analyzing law, gender, and sexuality. Right now, I spend some time at the beginning of the course on a broad historical overview, then discuss legal topics that undergrads are likely unfamiliar with, but the bulk of the course is divided up by different topics that the law regulates: military, child custody and adoption, education, marriage, hate crimes and prisons, etc.

If I were to focus on theoretical approaches instead, I think I would spend the first half of the term going through different theoretical approaches. For example, we might discuss social constructionist approaches to gender and sexuality, legal consciousness approaches to law in practice, Foucauldian approaches to the state and sexuality, feminist legal theory, and critical race theory. Each of these frameworks would highlight different elements of the relationship between law, gender, and sexuality.

I could then spend the second half of the course on a more historical approach to state regulation of gender and sexuality. While I would still touch on topics like the military and child custody, I wouldn’t single them out as specific areas of regulation. Instead, I would ask how different theoretical frameworks help us understand the broad historical development of legal regulation of gender and sexuality.

My current approach to the class gives students the tools to talk about how law matters on the ground in various contexts. We discuss the various actors involved: lawyers, judges, legislators, executive officials, social movement activists, plaintiffs and defendants, and the public. We think about the different assumptions people bring into their use of the law, and understand the legal processes involved. But there’s less historical continuity. It’s difficult to cover the specific concerns each issue brings up and also fit the issues into the broader historical context.

A more theoretical approach to the class would give students the tools to analyze and discuss broad historical shifts. It would focus on how law fits into broader structural inequalities. It would mean less discussion of the specific actors and particular contexts involved. This might mean less sense of how law matters to everyday lived experience, but a better way to discuss how law creates broad social inequalities and how those change over time.

I’ve enjoyed my class how I’ve taught it so far. The everyday experience of law is important to me, and I think the present course structure works well to get students to understand that. I may never try to teach the more theoretical version of the course. But even if I don’t try to teach the more theoretical version of the course, thinking about it will likely inform how I teach my course next time.

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