Get Over Your (Legal) ‘Self’: A Brief History of Lesbians, Motherhood and the Law

Abstract

Law and legal judgments tell a story. However, this article is not about the story of the litigants. It is, rather, an exploration of how legal judgments are an act of discourse and thus are about an identity creation of the legal ‘self’. Legal discourse continues to create categories of legal relevance that are used to arrive at essentialist identities which construct the body of the subject. This article argues that this continues to be the case, notwithstanding certain aspects of law reform, recent case law, and resistance to assimilative discourse (Butler 2004). In some small way, the aim of this article is ‘to disrupt what has become settled knowledge and knowable reality’ and to do something ‘other than a simple assimilation into prevailing norms’ (Butler 2004, pp. 27). It asks law to give an account of its ‘self’.

I will do this within the context of family law, by examining some of ‘old’ case law from the early 1970s and comparing those judgments with more recent case law. I want to ask: what has changed in the intervening years?

Keywords:

• discourse
• family
• identity
• lesbian
• gender