The Emergence of Lesbian Theory of Law - Why and How the Lesbian Theory of Law Has Been Developed

• Author: Dominik Šoltys
• Position: University of Pavol Jozef Šafárik
• Pages: 27-47

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

THE EMERGENCE OF LESBIAN THEORY OF LAW

– WHY AND HOW THE LESBIAN THEORY OF LAW

HAS BEEN DEVELOPED / Dominik Šoltys

JUDr. Dominik Šoltys, PhD.

Pavol Jozef Šafárik University

in Košice, Faculty of Law

Gustav Radbruch Institute

of Theory of Law

Kováčska 26

040 75 Košice; Slovakia

dominik.soltys@upjs.sk

ORCID: 0000-0002-0827-4722

Abstract:

In the late eighties of the 20th century, the

methodological reflection of lesbian identity arose within the

framework of feminist jurisprudence. Although the original

intention was to include lesbian identity in a woman's identity, in

a relatively short period there was a sudden break. Lesbian

identity became a distinct identity considered to be the central

position of lesbian jurisprudence. This study presents the

peculiar features of lesbian legal theory. It tries to point out the

historical and ideological determinants that led lesbianism to

enter (legal) feminism. Lesbian separatism also took part in this

development. It turned out to be the main reason for the

separation of lesbian legal scholars from the feminist

jurisprudence. The study presents the core ideological

assumptions that constitute the theoretical nature of the lesbian

theory of law, which is based on lesbian (legal) experiences.

Submitted:

10 July 2023

Accepted:

19 January 2024

Published:

07 July 2024

Key words: Lesbianism; Lesbian Jurisprudence; Heterosexism;

Lesbian Theory of Law

Suggested citation:

Šoltys, D. (2024). The Emergence of Lesbian Theory of Law – Why

and How the Lesbian Theory of Law Has Been Developed.

Bratislava Law Review, 8(1), 27-48.

https://doi.org/10.46282/blr.2024.8.1.513

1. INTRODUCTION

We, as lawyers, have been trained to understand and use all those abstract,

objective, universal concepts that are logically connected to create one single system. An

analytical way of thinking is still the tool for examining the law to find the solutions to

legal problems. The epistemological boundaries of suc h thoughts have been e roded by

critical legal studies (see, e.g., Solum, 1997, p. 45). Since then, jurisprudence and legal

theory have faced their inside defragmentation. The radical theories of law, which formed

the outsider jurisprudence together, have brought their attention to the role of diverse

identities in law and vice versa (Š oltys, 2022). The lesbian theory of law is part of this

movement. It examines in different ways how law has treated lesbians as a non-existing

legal subject.

This study aims to clarify the causes of the emergence and ideological

assumptions of lesbian jurisprudence. This cannot be fulfilled without considering the

ideological background and ong oing discourse since the early seventies of the 20th

century. Since then, the idea of forming a specific branch of legal theory for lesbians has

arisen. For this reason, the first part of the study is devoted to the explanations of the

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Vol. 8 No 1 (2024)

early role that lesbianism played in feminism. The connection between lesbianism and

feminism resulted in the creation of lesbian feminism as a very peculiar form of feminism.

The second part of the study is already devoted to historical and ideological

sources at the end of the eighties of the 20th century, which enabled lesbianism to enter

jurisprudence in the framework of feminist jurispru dence. Following this, it focu sses on

the failed integration o f lesbian iden tity into a gynocentric position of feminist

jurisprudence. I n addition, the study also deals with the strategic departure of le sbian

theory of law from feminist jurisprudence.

The third part of this study presents the theoretical features of the lesbian legal

theory. It describes seven theoretical features. These features create a basis for the

future formation of the proper methodo logical position suitable for the lesbian theory of

law. The lesbian theory of law, in this sens e, is a jurisprudence whose main goal is to

theoretically express the lesbian identity in jurisprudence and law.

The intention of the fourth part, in turn, is to present the concept of lesbian

identity as the central position of lesbian jurispru dence. The lesbian identity creates a

space for critical and normative thoughts in lesbian jurisprudence. The lesbian identity

shows its complexity, which cannot be reduced to sexuality alone. Further, it emphasises

that lesbianism is a different vision of relationships, society, politics, culture, law, and

indeed everything that makes up the outside world. In this sense, it shows how anti-

essentialism was decisive in capturing the diversity of lesbians and the lives they lead.

Lesbian identity thus becomes a portal for jurisprudence through which a new

epistemological reality opens.

In particular, the study focu sses on the historical and ideological assumptions

that contributed to the emergence of lesbian jurisprudence as a distinctive and peculiar

theory of law. In this context, another objective of this study is to define the nature of the

lesbian theory of law as a representation of identity politics in jurisp rudence. The lesbian

legal theory represents the legal reflection of the lesbian identity and therefore constitutes

its own theoretical and methodological position. Such a position puts lesbians - their lives,

experiences, desires, needs, problems, etc. - in the centre of all inquiries into law.

2. LESBIANISM – ITS ENTRY INTO FEMINISM AND ITS DEPARTURE FROM

FEMINISM

Lesbianism can automatically, but often incorrectly, b e asso ciated with

feminism. Within feminism, lesbian feminism came to the fore during the seventies of the

20th century. Lesbian feminism, as one of many forms of feminism, did not suddenly

arise. It is the result o f intricate discussions and activities between feminism and

lesbianism. They have not taken place withou t several controversies (see Echols, 2019,

pp. 210-215).1 The initial milestone in the emergence of lesbian feminism was the

publication of the Woman-Identified Woman manifesto, written in 1970 by th e members

of the New York radical lesbian organisation Radicalesbians. However, it should also be

1 The dispute between lesbianism and heterosexual feminism within feminism itself culminated in the sixties

and seventies of the 20th century. Mainly, it was a dispute between Betty Friedan - former president of the

most important feminist organisation in the United States the National Organisation for Women also known

as "NOW" - and lesbians within feminism. Friedan worried that the top ic of homosexuality and lesbianism

might ultimately discredit the entire feminist movement. She accused the lesbian movement of collaborating

with the CIA and pejoratively referred to them as the "lavender menace." Officially, the topic of women's sexual

orientation came within the scope of the feminist organisation's goals only in 1971, i.e., after Friedan left the

post of president of NOW.