This paper argues, first, that the legal construction of transsexualism is a matter of interest, not only to members of the trans community, but to all students of gender, including feminists. The paper then proceeds to explain and analyse, using feminist perspectives, key aspects of the Gender Recognition Act 2004 in the light of the recent caselaw concerning the rights of trans persons. The 2004 Act, it is argued, is a conservative move, which attempts to deny the threat transsexualism poses (...) to the binary system of gender, by instigating a system to formally ‘recognise’ only men and or women. However, the way in which the Act constructs the public/private divide and the mind/body relation carries potential for legal recognition of subject positions which may in a variety of ways be ‘beyond’ the binary system that is currently orthodox. The paper can as such be read as a case study in the legal (re)construction of gender, the gender/sex relation, and the widespread tendency to construct gender conservatively. (shrink)

This note examines the decision of the Court of Appeal in Tabernacle v Secretary of State for Defence (2009). The court held that byelaws prohibiting camping on Ministry of Defence land adjacent to the Atomic Weapons Establishment at Aldermaston, Berkshire violated the human rights of women peace protestors under Articles 10 and 11 European Convention on Human Rights. The note argues that this decision calls into question arguments recently made, that the association of women with peace should be abandoned. It (...) also reveals the potential of law to facilitate the performative and transformative production of subject positions, as ‘woman’, which do not depend on or connect with debilitating patriarchal constructions of women as weak or vulnerable. (shrink)

In the cases of Goodwin v. U.K.and I. v. U.K. the European Court of Human Rights held the U.K. Government to be in breach of Articles 8 and 12 of the European Convention for denying certain rights and entitlements, particularly the right to marry, to post-operative transsexuals. This article argues that although on some level these are welcome decisions, they are also conservative and recuperative in that they seek to shore up traditional binarist ideas of gender and sexuality. The article (...) concludes, however, that the Court's conservatism is problematic in a number of ways; and that it may be most profitable to read these cases as an invitation to imagine further and more profound challenges to the old order. (shrink)

This paper interrogates Michel Foucault’s claim, that the spread of psychiatric power originated in concerns around the educatability of idiot children in the latter decades of the nineteenth century, before being applied to adult “defectives”. It is argued that Foucault, although partially correct, fails adequately to consider the extent to which the base concept, of “instinct”, was linked in particular ways to female idiot sexuality. The paper challenges Foucault’s view through an analysis of a series of nineteenth century cases involving (...) the rape of female idiots, arguing that their sexuality was understood in terms of a relation to instinct which manifested in terms of an opposition between dangerousness and vulnerability. It then traces that opposition into the Mental Deficiency Act 1913 where, it is argued, it functioned in a collapsed form—now, the vulnerable were dangerous and the dangerous were vulnerable—and in which form it underpinned a psychiatrised regime for the control of mentally defective women through the control of their sexuality. (shrink)

This note analyses the decision of the House of Lords in Fitzpatrick, which held that gay partners could fall within the legal definition of ‘family’ for some purposes. The note argues that despite the real (if overstated) benefits that this case bestows on gay partners in the form of legal rights, under analysis, the decision self-deconstructs to reveal that it is grounded on the principle of discrimination on the basis of sexuality. However, it is also suggested that the encounter between (...) discursive legal reasoning (underpinned by normative heterosexuality), and aversion of the family which is ‘other’ to this discourse, is one which leaves its mark on law, as the potential undermining or deconstruction of law’s normative assumptions. The note further argues that although this decision is properly seen as a moment in the struggle for gay rights, it also serves as a reminder that the fortunes of critical theories and political movements that seek to challenge the legal paradigm of the white, heterosexual male are inextricably linked. Fitzpatrick, whatever else it is, is also an object lesson in the debt that current campaigns for gay legal rights owe to feminist critiques of, and campaigns that have successfully challenged, the role of this norm in legal discourse. (shrink)