December 7, 2009
In To Be Real: Sexual Identity Politics in Tort Litigation, Professor Anne Bloom integrates several strands of contemporary scholarship: law and society studies of tort law, gender-based tort law studies, narrative theory, and queer theory.
In this piece, she explores how the doctrine of tort law has responded to the sexual identity of litigants and to causes of action that involve issues of sexual identity. Her thesis is that U.S. courts treat sexual identity as if it were naturally binary, even as the cases in front of them reveal the opposite. Her many examples include medical malpractice claims, wrongful death claims in which challenges are raised regarding the status of a surviving spouse, and claims involving products that amplify or change sexual identity. Professor Bloom argues that judicial insistence on binary and immutable categories of sexual identity in cases where such categories clearly do not apply is a reflection of the power of culture to shape popular perceptions of what is "real" and to determine how the law responds when such issues come before the court. She advocates that tort litigation take a more pragmatic approach to sexual identity issues, by making space for competing conceptions of sexual identity. This article will appear in the North Carolina Law Review.