Sexuality, gender, and the law

Abstract

Abstract 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. The chapter starts out by introducing two approaches to sexuality, gender, and the law: the paradigm of conventional morality and that of equal freedom (autonomy). 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.

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