Strategic litigation is an effective tool for advancing equality and social justice, but it can also have unintended consequences that perpetuate existing power imbalances within the LGBTQ+ community. By focusing on certain cases and issues, strategic litigation may privilege dominant narratives that reinforce normative ideas about gender and sexuality. This can lead to exclusion and marginalization of queer people whose experiences do not fit neatly into these preconceived categories, such as transgender individuals, nonbinary folks, and those living at the intersections of different identities.
Legal efforts to secure marriage rights for same-sex couples often center on cisgender gay men and lesbians. These campaigns are important and necessary, but they leave out other members of the LGBTQ+ community who do not identify as heterosexual and/or binary genders. Similarly, litigation challenging anti-discrimination laws or policies may prioritize the needs of white, middle-class individuals over those from marginalized groups, such as racial minorities, immigrants, and individuals with disabilities.
Strategic litigation may inadvertently promote a narrow view of what constitutes legitimate identity and expression, which can silence voices that challenge traditional understandings of sex, gender, and relationships.
The recent Dobbs v. Jackson Women's Health Organization Supreme Court decision has been criticized for reaffirming the idea that pregnancy is solely a woman's experience, ignoring the realities of transmasculine and nonbinary individuals who also become pregnant.
To address this issue, advocates must be intentional about including diverse perspectives and stories in their work. This requires actively seeking out underrepresented voices and actively promoting inclusive messaging. It also means challenging assumptions about gender and sexuality that perpetuate stereotypes and harmful ideas. By doing so, we can create more equitable and just societies where all queer people feel valued and empowered to express themselves fully.
How might strategic litigation monitoring unintentionally privilege dominant LGBTQ+ narratives over marginalized ones?
Strategic litigation monitoring involves tracking legal cases that are of interest to an organization or individual. This can involve researching case law and filings, following developments in legislation, and keeping abreast of changes in public policy. While this approach has been successful in advancing LGBTQ+ rights in the United States, it may also unintentionally privilege certain narratives over others.