Last October 17th in Italy, the Court of Appeals of Rome issued a sentence declaring that the rape of a sex worker is less punishable than the rape of a woman that does not choose to be a prostitute. The day after, October 18th, the Juvenile Court of Rome decided to suspend the trial of eight Italian boys who raped a young girl of 14. These two sentences, although not final at the time of this writing, constitute yet another step backwards in the recognition and strengthening of constitutional and legal rights of women in Italy.

Let’s examine the first case. On November 2008, an Italian man of 31 years old kidnapped, robbed and raped a Romanian prostitute. On March 2009, the man was charged with kidnapping, sexual violence and robbery, and was condemned to seven years imprisonment. Nevertheless the most recent sentence by the Court of Appeals of Rome on October 18th reduced his jail time from seven to three years and four months.

The main idea behind this decision was that sex workers by choosing to “work on the street,renounce their physical and moral integrity.” The physical, moral and legal offences to a prostitute cannot be considered equal to that of woman who is “not a prostitute” and, therefore, the crime in question should be judged in light of these attenuating circumstances.

It is clear from this perspective adopted by the Court that women must conform to the attitudes/behaviours that are morally accepted by society. Failing to do so, they run the risk of being punished (by being raped).  This means that men can feel empowered to violate women’s autonomy and not respect the rights of sex-workers because sex workers have neither social nor legal legitimacy.  This sentence, thus, implies different punishments for two kinds of rape. There are rapes of “series A” which have to be strongly punished, and then there are those of “series B” which require less punishment because the victim’s moral transgression or behavior encourages sexual violence.

The “series B” category could also be applied to the case of the young girl raped by eight boys in August 2007, in Castro Montalto – a small town close to Viterbo (Rome).  The eight boys, all juveniles at the time, met a 15 year old girl at a party, led her out into the woods, and gang raped her.  A few days later, the girl reported the crime and the boys were identified.  To great public outcry, the mayor of Montalto di Castro provided 20,000 euro to cover legal costs for six of the eight boys -indeed one of the boys seemed to be his nephew.   As mentioned at the beginning of this article, last October 18th the Juvenile Court of Rome settled to suspend the trial, deciding to “put the boys under observation” for 24 months. The young men (two of which are now 18 years old) will have to follow a program of support and control and at the end of this period must demonstrate sincere penitence and apologize to the victim and her family for their deed.  If they pass this test, the court will strike the crime from their record.

Rape of the Sabine Women[/caption]Not only have feminist groups raised their voices in protest, but the public at large has also expressed its indignation over this sentence, whose passing so clearly demonstrates how little traction feminist politics are getting in Italy.  In fact the decision of the Court of Rome shows, for the umpteenth time, an institutional failure to adequately address the issue of violence against women.  While the young men will be absolved and assisted in their reintroduction into society, their victim has been abandoned.  No institution has thought about the social rehabilitation of the girl, who is so traumatized that she has dropped out of school.

Public furor has also been directed at many of the people of Montalto di Castro, who have shown solidarity with the rapists.  One local said “these guys are good boys, they don’t need to rape rather it was this girl that the same day, before of the party, had sex with another boy….”  Someone else commented “if I were 17 years old, I would line up to get with her….the girl is not serious. It is her fault.”  Even the mayor of the city weighed in, implying that native-born Italians are genetically incapable of rape, although for the immigrant population it is another story altogether. “Rape exists only when committed by Romanians” he said, and then added “the only animals in our region are the Romanian immigrants. They’ve got rape in their blood.”  When the Romanian community expressed its displeasure at his comments, he denied ever saying them. The victim’s mother, recognizing that this case is not without its racial and cultural overtones, commented that “my daughter is not getting justice because the boys are Italians.”

The disconcerting comments by the locals of Castro Montalto, along with the decisions by the Court of Appeal of Rome and the Juvenile Court of Rome, demonstrate that after many years of feminist and women’s struggles, Italian public opinion and its institutions still seem to adhere to the idea that women bring sexual violence upon themselves through their behavior.  In other words, when a woman decides to act in a manner not sanctioned by dominant values, her free expression implies a de facto sexual availability, which can be “conquered”, if need be, by means of violence.

In this interpretive light, an act of violence against a woman is, paradoxically, not a consequence of her oppression, but her freedom.  In fact, the freedom of women (and the resulting anxiety that women no longer carry on traditional cultural and national values) compels men to exercise their power and control through violence.  In short, violence against women increases proportionally to the amount of freedom and power that women acquire.

Violence against women is thus a manifestation of men’s fear about women’s freedom and mobility. This fear, as Italian scholar Tamar Pitch stresses, is “closely linked to fear about the future and the ‘other,’ which leads to the search for – or even the fabrication of- pseudo-homogeneous, pseudo-traditional cultural identities.” As a result, such sentiments lead to the criminalization of migrants, who are potential menaces to national “values.”

From this perspective, the two aforementioned cases illustrate perfectly how in Italy legal and political strategies often use the issue of rape in order to underline the boundaries between “we” and the “others”, “citizens” and “migrants”, “good women” and “bad women.”  According to the reigning criteria in the Italian legal and political discourse, sexual violence most frequently occurs either when a woman chooses to act  “inappropriately,” thus imperiling herself (considering specifically sex-workers), or when migrants rape white women (thus leading to strengthened security measures against immigration).

Once again, in Italy the body of women is used by the political and legal discourse to reinforce and reshape racist and/or moral ideologies and stereotypes.  And once again what is ignored is the structural inequality of power that creates the condition for the social control over women and also undermines women’s security.  And what is lost in the argument, once again, is the real suffering of women.

Lessons Learned, Future Directions

Wednesday, November 4th 4:30 pm  Room 107, Greene Hall

▸ Suzanne Goldberg, Director of the Center for Gender & Sexuality Law;

▸ Nate Persily, Charles Keller Beekman Professor of Law and Professor of Political Science;

▸ James Tierney, Director of the National State Attorneys General Program at Columbia Law School and former Maine Attorney General; and

▸ Jeffrey Lax, Professor of Political Science

The panel will stream live on the web here

The thinking goes like this: there ought to be some cost to supporting these homophobic (or at least same-sex marriage -ophobic) propositions/referenda through your signature or financial contributions.   Shame on you.  And we’ll bring shame on you by publicizing your name on the internet and elsewhere.  (See, for instance knowthyneighbors.org.)  You may then risk boycotts or picketing and angry gay people showing up on your front lawn throwing rotten lavender fruits at your home.  As the Wall Street Journal reported last winter about the fall-out after the donors to the Yes on Proposition 8 campaign were revealed:

A Palo Alto dentist lost patients as a result of his $1,000 donation. A restaurant manager in Los Angeles gave a $100 personal donation, triggering a demonstration and boycott against her restaurant. The pressure was so intense that Marjorie Christoffersen, who had managed the place for 26 years, resigned.

After all, what’s wrong with making the people who support these retrograde propositions face some kind of public accountability for the role they play in the denials of lesbian and gay people’s civil rights?

Well, first off all, isn’t there something rather, um I don’t know, ironic about gay people seeking to use shame as a political tool to combat their enemies by dragging them out of the closet?  I know, we heard this argument in the 1980s and 1990s when “Outing” was in fashion, and the likes of Michael Signorile sought to “out”  gay public figures who took positions hostile to the lgbt communities’ interests.

But maybe there’s something a bit different than the same form of “outing” going on now.  The current political and legal strategy to force disclosure of supporters/contributors to anti- marriage equality measures smells a lot like the strategies that were used by racists, anti-communists, anti-unionists, and others in the 1950s and 1960s when they demanded that organizations such as the NAACP, the ACLU, the National Lawyers Guild, unions, SDS chapters, the Social Workers Party among others divulge their membership lists.  There was a spate of Supreme Court cases in this period that found pretty consistently that these disclosure laws violated the First Amendment associational rights of the members of these organizations.  This was particularly the case when, as the Court held,

There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and presures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members’ names.

This language came from Bates v. City of Little Rock, the 1960 case that challenged the Arkansas law forcing the NAACP to disclose the identity of their membership.  But it could just as well describe the current aims and effects of efforts to gain disclosure of anti-gay marriage supporters.

Perhaps more important, it was quite common for public and private actors to seek disclosure of the membership lists of various lesbian and gay rights organizations not so long ago.  After all, until recently, the membership of the organizations was made up of felons – admitted sodomites.  Perhaps we’ve forgotten what a risk we all felt we were taking when we joined the Daughters of Bilitis or the Mattachine Society, or what courage it took to subscribe to their magazines – The Ladder and the Mattachine Review.

Today, in New York, San Francisco we take it as common-place, if not irritating, when we are stopped on the street by the young person with an HRC clip-board paid by the hour to get new members, and thus membership in lgbt organizations seems like such a trivial matter.  But joining these organizations is not a trivial matter everywhere in the U.S. and not that long ago it wasn’t in the homo-metropoles either.  (Notably, the lesbian and gay lawyers organization in San Francisco still has a closet name: BALIF- Bay Area Lawyers for Individual Freedom, and not too long ago New York’s lgbt lawyers group was called BAHR-GNY – the Bar Association for Human Rights of Greater New York.)

A rather shocked colleague commented to me after I gave a paper the other day:  “Katherine, you really are a radical,” and it’s true, but I don’t countenance strategies committed to “by any means necessary.”   Just as I didn’t support liberal groups’ plans in 1990 to queer-bait David Souter on account of his being unmarried when he was nominated to the Supreme Court, I find myself recoiling at today’s turn to shaming as political tactic.

There are important issues at stake in the disclosure of the names of those who support these propositions we abhor.   Associational rights have been highlighted in the Supreme Court’s discussion of this strategy in other settings, but there are important concerns of chilling political participation, privacy, and the anti-deliberative impulses of mob-based retribution as well.  Then there’s the goose and gander issue – just because the climate in some places right now might make disclosure of these names “useful” to the marriage equality movement, that doesn’t mean that we aren’t establishing a precedent for a strategy that will likely come to bite us in the butt in the future – or bite the butts right now of allied movements whose vulnerabilities we ought to be keeping in mind (try giving a donation to a benevolent organization in Iran or Palestine these days, as I have: you know your donation cannot be made anonymously).

Sure, I delight in these moments riddled with schadenfreude as much as the next person, but as my mother used to say, that doesn’t make it right.

Last Friday’s edition of ABC’s 20/20 featured the authors of the bestseller Freakonomics, Steven D. Levitt and Stephen J. Dubner, who were promoting the sequel to their best seller SuperFreakonomics.  During the hour long broadcast, some time was spent on the authors’ controversial views of the women’s liberation movement.  Essentially, Levitt and Dubner argue that the principal beneficiaries of the liberation movement were not female teachers or financiers, but high end prostitutes.   To that end, both men say that those who seek to “save” women from prostitution should ask and determine why women are responding to the market and becoming [high end] prostitutes in the first place.  Additionally, the authors argue that the invention of hormonal birth control gave women more control over their future occupations; therefore, instead of having to choose an occupation like a teacher which would allow for flexibility to enter and leave the work force, they could choose to become doctors, lawyers, bankers, etc.  Because of this, Levitt and Dubner claim that the talent level of school teachers has fallen, thus leading to the seeming overall failure of the country’s public school system.

Let’s take on the prostitution issue first.  Of course to some anti-prostitution advocates, there is no need to question why women choose prostitution, as it is invariably a result of the sexist and patriarchal society we live in.  Yet, I can’t help but think that Dubner and Levitt are right in that this is question that must be asked in order to make any needed changes.  In order to solve anything, one must get to the root of why the “problem” is occurring in the first place.  The women who have supposedly benefitted aren’t the stereotypical prostitute one thinks of that sets up shop on a dingy poorly lit street corner.  These are often [well] educated, well versed women who had fairly stable upbringings.  In fact, the woman profiled on 20/20 actually had a husband, children, and stable job, all of which she left to become a [high end] prostitute, due to her claims of boredom.  So  why would someone like that and the other well educated and well traveled women not want to put their brains to use in an arguably more productive way toward society and choose to sell their bodies instead?

Maybe these women are just more frank and upfront about how some relationships involving sex works.  Arguably, what these women are doing is no different than women (or men for that matter) who date people solely for money and other material benefits.  Even in popular culture, there are some marriages that have taken place where money seems to be the only answer why a particular couple was together.   And, marrying for financial gain is a historical facet of the institution of marriage.  In those cases, however, the monetary transactions take place in a socially acceptable form of a relationship.   In any event, the fact that the woman profiled on the show made $5000 a week for 10 hours of work speaks volumes, though it may speak different things for different listeners.   But, just maybe it says that she’s smarter than many other women out there.

Dubner and Levitt’s next hypothesis argues that hormonal birth control led to truly talented women leaving the teaching profession thus leading to a decline in gifted teachers in this nation’s public school system.  First and foremost, correlation does not imply causation.  To be sure, the seven and a half minute segment didn’t really delve into the authors’ method s of reasoning and argumentation.  Thus, I’d be interested to see how they made that leap.  For the sake of argument, let’s say that they are right—that control over reproduction gave women more occupational choices and power.   How does it go from that to implicitly putting the blame on women for the failing public school system?  That’s a pretty big leap, I’d say.  Why not look at the affects of the pay these teachers receive, the environment in which some of them would have to teach had they not chosen other fields, or the affect of various federal government regulations that have left many educators frustrated?  Moreover, why not take into account the fact that men can be just as effective as teachers and that they aren’t courted as heavily into that profession. Like I said, without knowing their methodology, it’s kind of hard to argue against them.  But, from what was shown on 20/20, their reasoning is tenuous at best.

Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?

The Research 2000/Daily Kos poll just released the following poll results:

As you may know, there will be one question on the ballot this November in Maine addressing the issue of same-sex unions. In part, it will read “Do you want to reject the new law that lets same-sex couples marry?” A “YES” vote takes away the right of same-sex couples to marry. A “NO” vote keeps the right of same-sex couples to marry. If the election were held today, would you vote YES or NO on this question?

And on the broader question of marriage rights more generally, this is what they found:

Regardless of how you might vote, do you favor or oppose allowing gay and lesbian couples to marry legally?

Latest results: http://www.dailykos.com/statepoll/2009/10/28/ME/412

As seems true everywhere else, men and women favor or oppose extending marriage rights to same-sex couples is opposite proportions.  Of course, there’s much to be said about why women, overall, are more supportive of this issue.  Possible explanations are:

- since the institution of marriage is typically a less-good deal for women than for men, women are less invested in maintaining its traditional form;

- men suspect, consciously or unconsciously (and I might add rightly or wrongly), that the hetero-patriarchal dividend they get from marriage might lose value if same-sex couples are allowed to wed;

- women are just more enlightened human beings than are men.

We’ll all watch the returns on Tuesday night.   Since game 6 of the World Series will be played that night, maybe the fellas in Maine will be too distracted to get out and vote.

Whatever way it comes out, we are having a forum the day after the election, Wednesday, November 4th,  at 4:30 pm with a panel of experts to discuss Marriage Equality in Maine: Lessons Learned, Future Directions - Room 107, Greene Hall.  Panelists will be: Suzanne Goldberg, Director of the Center for Gender & Sexuality Law; Nate Persily, Charles Keller Beekman Professor of Law and Professor of Political Science; James Tierney, Director of the National State Attorneys General Program at Columbia Law School and former Maine Attorney General; and Jeffrey Lax, Professor of Political Science and co-author of Gay Rights in the States: Public Opinion and Policy Responsiveness – a well-regarded study published this summer in the American Political Science Review.  The event will be webcast.  More information on that to follow.

What relationship does this scandal bear to other recent sexual misconduct by guys in the public eye?  As we all know by now, David Letterman has had to perform public acts of contrition on his TV show after it became known that he had had multiple affairs with female members of his staff, yet the scandal seems to have been good for the show’s ratings and Letterman is nowhere close to being fired (doesn’t hurt that he is his own boss) or canceled by NBC.  Then there’s Elliot Spitzer, who, unlike Letterman but like Phillips, lost his job on account of his sexual misdeeds.  (I’ve blogged previously about the Spitzer mess – and actually see it as representing a kind of problem different from what’s at stake in the workplace affair cases, such as those of Letterman and Phillips).

Is sex with a subordinate always justification for termination?  Did ESPN get it right and CBS/”World-Wide Pants” (Letterman’s production company) get it wrong?  Does it always violate laws prohibiting sex discrimination in the workplace?  Should it?

The National Organization for Women has taken a strong position on this issue, issuing a press statement shortly after the Letterman-imbroglio broke condeming him and CBS for having created a “toxic work environment” for women.  Sleeping with his female staff created “an awkward, confusing and demoralizing situation” for female workers.  (Surely this could have been put somewhat better: Is awkwardness or confusion what the law of sexual harassment was designed to prevent?)

So here’s the thing: Are right-minded people supposed to conclude that women can never, never, consent to sex in the workplace – particularly with someone of greater seniority?  Is there anything else that you’d want to know about these cases in order to fully judge their illegality?  Is awkwardness or confusion enough?  What about implicit or explicit threats, promises of rewards, retribution, or prices to be paid once the affair ends?  Or should we hold the view – should the law hold the view – that the mere fact of the sex is enough to declare that sex discrimination is what happened?

Many feminists maintain that consent is not a meaningful concept in a workplace setting where sex takes place between a male superior and a female subordinate.  For them, the sex is from the start suspect and discriminatory.

Yet what is the cost to women’s sexuality of such an approach?  This is the challenge as we think through workplace sexual harassment doctrine for the 21st Century: How to acknowledge, on the one hand, that many, many women suffer explicit and implicit forms of humiliating and degrading harassment of a sexual nature in the places where they work, while at the same time crafting an approach to this issue that does not overdetermine women as always, already sexual victims – allowing some room for our sexualities to be more than an injury waiting to happen.

From the very start of the Letterman affair, when we knew nothing about the nature of the relationships he’d had with the women on his staff, many just assumed that the women he slept with were victims, felt discriminated against, exploited, and/or used.  But what if they didn’t?  What if they 1) were the ones who initiated the affair, 2) were embarrassed to have had it, 3) were bummed that their relationship with Letterman had ended, 4) were relieved that it was over, 5) had positive feelings about the affair, or 6) were indifferent about the whole thing?  Would this information change how we judged the situation?   Should it?  Or should we have a rule that starts from the premise that the likelihood of exploitation and discrimination is so high in workplace romances between male superiors and female subordinates that we ought to have a “prophylactic” rule (sorry) that prohibits and punishes them all, no matter what.

I incline in the direction of wanting a more subtle approach to the problem than that urged by NOW in it’s statement on the Letterman affair.  I’ve written about this in academic journals, and was recently interviewed by a Brazilian TV show that wanted to explain to their audience what the big deal was about Letterman’s affair.  You can watch some of it here:

And then there is just my quick and dirty explanation of sexual harassment law in the U.S. (with an added bonus-feature of my thoughts on the Roman Polanski arrest):

Escambia County Court (Florida) Judge Patricia Kinsey (yes, Kinsey) seems to have released a judgment last week in a case in which Albert Freed sued the Hanes underwear company for damages when “his dream trip to Hawaii was ruined as a result of a manufacturing defect in the new underpants his wife had bought him for the trip.   It seems that Freed, an admittedly heavy-set fellow, could not fit his entire manly estate into the undies, and the briefs “gaped open and acted like a sandbelt on his privates,” causing him actionable discomfort.

Above the Law broke the story this morning, and I’m half inclined to think that the entire thing is a hoax, but it’s pretty funny.  Freed won the trip to Hawaii, the story goes, after winning a competition to sell diet products.  This part seems to be true, if you watch the video of him pitching diet chocolate cookies on Myspace, where he is pitching diet chocolate cookies to “the ladies” as part of the competition.

The poor guy popped out of his briefs, suffered terrible discomfort as a result, seems to suffer from what David Sedaris calls “Dick-Do” disease (his gut sticks out farther than his dick do) and thus couldn’t see his own injured member.

The whole thing is a total ouch – and you have to read the entire opinion written in the seeming absence of irony by Judge Kinsey, including a wonderful footnote (#4) in which she describes the evidence at trial describing how he puts his underpants on in such a way that implicates is own “misuse” of the undies.

I’ll forgo my usual attempts to offer pithy insights about the connections between the case and, let’s see: gender and underwires/girdles/corsets, or just how masculinity makes you stupid.  You ought to just read the “opinion” for yourself and have a great chuckle about the fact that this case actually went to trial:

Last weekend, as LGBT-rights activists gathered in D.C. for the National Equality March, news broke of a vicious gay bashing in New York City. Jack Price, a 49 year old Queens resident, was attacked while leaving a neighborhood deli-grocery. Price was pummeled until his jaw shattered, both his lungs collapsed, and every rib in his body was broken.  (He was admitted to the hospital last Friday in guarded condition. However, this weekend he emerged from a coma and doctors are hopeful that he will survive his injuries.)

Price’s five minute beating is captured in lurid detail by a surveillance video that quickly made its way around the web. Last Wednesday, after reading a few articles about the case during lunchhour, I suddenly found myself watching a clip of the horrific attack unfold. The first 30 seconds of tape show Price careening from one street corner to another, frantically trying to evade his attackers. Eventually, he hits the asphalt in a hail of blows— images so startling that I was moved to grief in my law school cafeteria— suddenly choking back warm tears.

In the next minute of footage, Price is seen lying in the road in the fetal position as punches and kicks continue to rain down. At one point, Price’s assailants are shown brazenly standing over his body as cars pass by— a scene which left me puzzling about Foucault’s theory of the panopticon and the indifference of strangers — wondering why all of “the eyes on the street” failed to keep both Jack Price & Kitty Genovese safe.

In the final minute of footage, Price is shown vainly trying to stand after his attackers retreat. Seeing him collapse over and over—eventually crawling the ten blocks home— triggered an unspeakable wave of anguish as well as a crisis of moral philosophy. After several years of carefully crafting a set of objections to hate crimes laws, suddenly, I found myself questioning if they might be of value – even when deployed in a flawed criminal justice system.

Surveying the writings of critical legal scholars reveals a profound ambivalence for our modern system of crime and punishment. Bafflement with the criminal justice system still holds with respect to “protective” legislation like hate crimes laws, where law plays the role of guardian and protector. As critical race theory explains, it is hard to seek protection in the laws when you hail from a community where overpolicing and police brutality are the fabric of daily life. Kimberlé Crenshaw orients readers to these issues in Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. As she explains, immigrants and racial minorities who are survivors of domestic violence oftentimes (credibly) fear that availing state assistance will attract undesirable forms of state surveillance to their communities— jeopardizing   immigration statuses, for example,  fueling the fever-pace of arrests and incarceration— perpetuating marginalization and subordination in their home communities.

Hate crimes legislation is a unique flash point for these tensions: by using sentence enhancements as its means of condemning violence that targets racial and sexual minorities, hate crime laws strengthen the U.S. system of corrections despite its myriad flaws— e.g. disparate policing, prosecution and sentencing, the privatization and monetization of prisons, and the political disenfranchisement and social ostracization of those persons with time served.

Because of its failure to reckon with the flaws of the criminal justice system, hate crimes legislation often attracts vociferous criticism from those it is designed to protect. In recent years, I have been one such critic: well-briefed on the sociology of criminal justice, so to speak, I left my first-year Criminal Law course with serious doubts that rehabilitation, deterrence and retributivism justified our imprecise system of crime and punishment.

Yet, watching those three, anguished minutes of video brought about a reckoning of a more personal sort— and suddenly I found myself taking solace in the notion that hate crimes law are an expressive, normative force. This fourth justification for criminal law— what I would call a Lockean theory of the law— is one that law school textbooks largely neglect. Under this so-called Lockean view of criminal law, law can be viewed as an expression of community values— forming the basis of a social contract to which we all belong — not due to coercion, but by being members of a democratic polity.

If one accepts that law can serve as an expression of community values, being named in the law, in the case of hate crimes legislation, serves an objective quite apart from administering a system of penalties and punishments. Rather, when the law takes cognizance of people like Jack Price, Lateisha Green & Angela Zapata, it communicates, as the video surveillance footage manages all too well, that a breach of the social contract occurs when violence is breathlessly directed toward racial and sexual minorities, based solely on the fact that they are different.

But the implications of health care reform for the lgbt community extend well-beyond HIV – because the employer sponsored health insurance regime we live with is, essentially and unavoidably, hetero-patriarchal – it assumes the nuclear family as the typical unit needing and deserving insurance coverage. By insuring not only the employee but his spouse and minor dependents as well, our employment-centered health insurance paradigm imagines a male employee/head of household with a wife (who is not employed and therefore does not have her own insurance) and kids, all of whom were covered incident to the male adult’s employment. The family wage brought with it family benefits.

Rendered invisible, or at best marginal, in these policy choices around health insurance are those of us who cannot or will not get health insurance on account of a relationship to a husband or father who brings home both the bacon and a health insurance card.  But gaying the story doesn’t quite fix the problem.  Marriage equality advocates’ demands that same-sex couples be allowed to marry so that we too can get on the insurance policies of our well-employed partners somehow fails to get at the underlying problem of what is at bottom a health care delivery system that presupposes the nuclear family.

A queer approach to the issue would question the norm of a health care delivery system that privileges those people who are willing and/or able to organize their lives into a traditional household, with a head who is working a good job that includes health care coverage for all the rest in the family.  Just as it is wrong to make better health care available to those who can afford it, so too, the queer argument goes, it is wrong to make health care coverage turn on one’s ability to line up your life like the Brady family.  Good health care should have nothing to do with wealth or conformance with hetero-patriarchy.