Joan O'Bryan

In the “second wave” of American feminism, patriarchy was theorized as a system of class oppression. Men were the oppressor class, women the oppressed class. Although the theory was on the face of it simple, there was great disagreement regarding the exact mechanism of patriarchy as class division. Two influential origin stories, that of Adrienne Rich and Shulamith Firestone, sought to explain the existence of women as a sex-class, and the mechanism by which oppression functioned. These origin stories shared the same starting assumption: that the sexed body played the dominant role in creating the animosity that would come to exist between men and women. However, the two variations posit different mechanisms to explain why it is that a two-sex system results in patriarchy. Crucially, these mechanisms are not just different, but opposed, and this can explain for us disagreements not only in 1970s radical feminism, but also its contemporary offshoots. This paper uses the case study of surrogacy to illuminate how contemporary xeno- and gender-critical feminisms rely on the conceptual architecture first put forward by Firestone and Rich.

In feminist jurisprudence, sex exceptionalism is increasingly out of vogue. Sex exceptionalism, or “the idea that sex and sexualities are inherently different from all other human activities and topics of study,” has come under criticism from a variety of legal perspectives, as diverse as constitutional law, employment law, and intellectual property law. Professor Aya Gruber’s recent article in the Stanford Law Review is the latest to take up the gauntlet, this time with reference to criminal law. According to Professor Gruber, sex exceptionalism can be held responsible for a host of negative aspects of our contemporary criminal justice system. She blames it for entrenching conservative sexual mores, subordinating women, and reinforcing white supremacy. In addition, she argues, the phenomenon contributes to hyper-carceralism and anti-sexwork stigma. Even when supposedly motivated by benign concerns, sex exceptionalist law is a cudgel wielded by “dominance feminists” – a form of feminism often disparaged in progressive circles. Although Gruber considers important evolutions in criminal law and points to serious injustices in our contemporary legal regime, she fails to make a convincing case that feminist scholars ought to reject sex exceptionalism in criminal law. In this response, I criticize three major elements in Gruber’s case against sex exceptionalism. The first is her genealogical argument, in which she argues that sex exceptionalism has a pernicious history which ought to discredit it. In response, I argue she falls prey to the genetic fallacy: an institution’s origins and its reasons for maintenance can and do come apart. Second, Gruber blames sex exceptionalism for two negative consequences in the American criminal justice system: hyper-carceralism and anti-sex work stigma. Neither of these hold: law can be sex-exceptionalist without contributing to these negative outcomes, and plenty of non-exceptionalist laws do contribute. Finally, and most importantly, Gruber makes a conceptual error in this piece, conflating sex exceptionalism with sex negativity, a muddling which the feminist project can ill afford.

Recently there has been a movement in feminist jurisprudence against what has been termed “sex exceptionalism.” Those campaigning for its elimination argue that sex exceptionalism, the process by which “sex is routinely distinguished from comparable human practices and subjected to singular regulation,” is pernicious not only to women in particular, but to sexual freedom in general. However, this critique is too strong. While sex exceptionalism has the potential to be harmful in some spheres, the failure to be sex exceptionalist is equally harmful in other contexts. In this paper, I argue that law which is anti-sex-exceptionalist, in my terms “sex depreciationist,” can also uphold negative cultural norms and impinge on the rights of the marginalized - two of the critiques often levied against sex exceptionalism. In select situations, differential legal treatment is a tool of sexual justice rather than oppression. I make this case by highlighting an example where the law’s failure to be sex exceptionalist is detrimental: the application of the ordinary premises of contract law to pornography contracts. Pornography performers are often subject to what is termed “permanent pornography contracts,” under which the production company is granted the “irrevocable, worldwide, perpetual right and authority” over performer’s sexual images. As a result, performers are perpetually unable to revoke consent to the dissemination of their media, leading to a loss of sexual autonomy. This is an area where the failure to treat sex as appropriately distinct from other forms of media leads to direct harm. Contract law’s refusal to recognize the special implications of sex does not challenge sex negativity; indeed, it upholds the antiquated and dangerous ideas about femininity, sexuality, and promiscuity which the sex depreciationist case purports to displace. Even more importantly, sex depreciationism in the context of pornography contracts inflicts profound suffering on real individuals. Given these consequences of present contracting practices, the anti-sex-exceptionalist case is evidently not – as proponents suggest – synonymous with sexual justice.

In pornography, standard modelling contracts often require a performer to surrender rights over their public image and sexual media in perpetuity and across mediums. Under these contracts, performers are unable to determine who accesses, for what duration, and under what conditions, their sexual media. As a result, pornography has been described by some performers as a “life sentence” - a phrase which, if true, violates some strong intuitions we share about the importance of autonomy in sexual activity. Using the framework of “affirmative consent,” I argue that these contracts violate performers' rights to sexual autonomy, and ought therefore to be considered objectionable. Overall, I argue that the legal regimes we create have a strong impact on people’s lives, and more important than legislating individual outcomes, the type of infrastructure we build around people’s decisions has the potential to radically empower - or disempower - those engaged in sex work.