Troubling Sex

Book excerpt: When legal scholars or judges approach the subject of sexuality, they are often constrained by existing theoretical frameworks. For instance, queer theorists typically focus on sexual liberty but tend not to consider issues such as sexual violence. Feminist theories focus on violence but often don’t give recognition to the joy of sexuality. To assess the possibility of devising a legal theory of sexuality that can ensure equality without assimilation, diversity without exclusion, and liberty without suffering, Elaine Craig examines the Supreme Court of Canada’s approach to sexuality in cases that range from sexual violence to discrimination based on orientation. Although the Court continues to hold an essentialist understanding of sexuality that renders certain harms invisible, its feminist-inspired approach to sexual violence recognizes the socially constructed nature of sexuality and produces legal reasoning that promotes sexual integrity as a common interest. Blending feminist theory with the inclusiveness of queer theory, Craig advances an iconoclastic approach to law and sexuality that has the power to transform both theory and practice.