Sexuality, Queer Theory, and Feminism
After: Reading and Rereading
the Sexual Subject
Brenda Cossman*
Although some scholars no longer see a place for
feminist theory in analyses of sexuality, this article
shows that there are lessons to be learned by examining
queer theory through the lens of feminism. The author
undertakes several feminist and then queer theory
readings of the film Secretary and the divorce case,
Twyman v. Twyman. This article shows that feminism,
despite being sometimes perceived as anti-sex, can
be helpful in understanding sexuality. The author
argues that feminism may sometimes need to suspend
its focus on gender. She also shows how bringing
gender back into the analysis can shed greater light on
how law and society deal with sadomasochism and
other forms of sexual expression. While her discussion
is structured mainly along disciplinary lines, she
suggests that it may be time to worry less about
intellectual
intellectual
trespass.
territory and more about
le
Si certains spcialistes jugent que la thorie
fministe na plus sa place dans les analyses de la
sexualit, cet article tente de dmontrer quil y a des
leons tirer dun examen de la queer theory sous
langle fministe. Lauteure entreprend plusieurs
lectures, parfois fministes et parfois inspires de la
queer theory, du film Secretary et dune affaire de
divorce, Twyman v. Twyman. Larticle se propose de
dmontrer que mme sil est parfois peru comme
oppos au sexe,
fminisme peut aider
comprendre la sexualit. Lauteure soutient que le
fminisme doit parfois devoir mettre en veilleuse son
insistance sur les identits sexuelles. Elle veut
galement montrer de quelle manire linclusion des
identits sexuelles dans les analyses de discours peut
permettre une meilleure comprhension de la manire
dont le droit et la socit traitent du sadomasochisme
et dautres formes dexpression sexuelle. Si son
analyse se conforme dans lensemble aux lignes
disciplinaires usuelles, lauteure suggre nanmoins
que le temps est peut-tre venu de sinquiter moins
de territorialit intellectuelle et davantage dintrusion
intellectuelle.
* Professor of Law, University of Toronto. An earlier version of this paper appeared in (2003) 12
Colum. J. Gender & L. as part of a published dialogue with Janet Halley, Dan Danielson, and Tracy
Higgins. I am indebted to each of them for their commentary and engagement. The ideas in this paper
were first developed in an exchange with Janet Halley at Harvard Law School, November 2001. I
would like to thank her for her intellectual generosity and provocation in all of our engagements.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 847
Mode de rfrence : (2004) 49 R.D. McGill 847
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
848
Introduction: Pre/Post/Anti Feminism
The S/M Subject Through a Feminism After
A. Reading and Rereading Twyman
B. Reading and Rereading Secretary
Conclusion: Disrupting and Reinvigorating Feminism
849
856
857
868
874
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
849
Introduction: Pre/Post/Anti Feminism
In the film Secretary, Lee Holloway is a young woman who comes to embrace
her masochism through her relationship with her lawyer boss E. Edward Grey.1 Grey
likes to discipline his secretary for even the most minor of spelling errors, and Lee, it
turns out, likes to be disciplined. Lee learns to redirect her psychic trauma: once a
self-mutilator, she becomes a proud submissive who makes mistakes in order to
attract the ire of her employer, and if she is lucky, a humiliating spanking. While Grey
has difficulties accepting his own dominating proclivitieshe is plagued by self-
loathing and shameLee obsessively embraces her new, highly erotically charged
submissive self. When he tells her that they cannot continue, that they cannot perform
their bondage/domination (B/D) relationship 24/7, she persuades him otherwise,
and in a demonstration of her submissive commitment, sits for days in a chair at
Greys desk without moving her hands or feet (in a wedding dress, no less). She gets
her man, and they live happily ever after. It is an ironic, romantic comedy for the B/D
set.
For some, the film Secretary might be seen as an anti-feminist track, an attack on
the political correctness of feminisms anti-sex, a queer celebration of shame and
desire, and/or a celebration of the submission of at least one woman. Indeed, the film
traffics in the idea that the official feminist would be outraged with its premise. For
example, during Lees vigil at the desk, a parade of characters and commentary
includes several appearances by her friend Alison, who condemns Lees choices in no
uncertain terms. During one visit, she judgmentally asks Why in the world would
youwho can be anything you want to bechoose to debase yourself like this? Why
would you give up all your power? Why would you spit upon everything that women
have worked for all these decades?2 In a second visit, Alison deposits a large stack of
feminist books on the desk, saying If you want to ruin everything women have
worked for, why dont you read about the struggle first? Why dont you find
empowering ways to live your life?3
More than one film reviewer has commented, in passing, on the received wisdom
that feminists will disapprove of, if not hate, this film.4 The most common story told
1 Secretary (2002), directed by Steven Shainberg, screenplay by Erin Cressida Wilson, distributed
by Lions Gate Films.
2 Erin Cressida Wilson, Secretary: A Screenplay (New York: Soft Skull Press, 2003) at 100.
3 Ibid. at 101.
4 Feminists Will Hate This Movie, writes reviewer, Merle Bertrand (FilmThreat (7 September
2002), online: FilmThreat.com
reviewer, Ed Gonzalez writes Secretary May Fray Some Feminist Nerves (Secretary Slant
Magazine
slantmagazine.com
thinking, of course, would see Lees behavior as incompatible with feminine equality. The analysis
(September 2002), online:
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
850
by the reviewers rejects the feminist frame and sees Secretary as an unwavering
celebration of sex and desire. The film is seen to challenge conventional sexual roles,
center the erotic, and return shame to its rightful place in desire. It throws off the
shackles of political correctness and explores the complexities of sexual attraction.
Lee, as the masochistic bottom, is the protagonist; she makes the story happenfor
herself, her boss, and the film. She may be a slave, but she is no pushover. She knows
what she wants. She knows how to get it. And she is not ashamed to admit it to
friends and family. She is a post-feminist heroine.
In the popular imagination, the film represents the antithesis of feminism. As a
lighthearted frolic through the erotically charged minefield of domination and
submission, celebrating the masochism of Lee Holloway, it is everything that
feminism is not: sexual, playful, funny. The film is illustrative of the extent to which
feminism has come to be associated with sexual negativity, that is, with an anti-sex
attitude that seeks to regulate and suppress consensual sexuality. While this popular
impression of feminism obscures the diversity and complexity of contemporary
feminism, it is at the same time symptomatic of feminisms troubled relationship with
sexuality. Sado-masochism (S/M), and its cousins, bondage and domination, have
been a contested terrain for feminism.5 While radical feminism condemns its
objectification of women and its eroticization of violence, sex radical feminism has
sought to carve out a space for sexual pluralism and the pursuit of alternative
would be that Lee is objectified, used, and the repository of all Mr. Greys abusive male desires. He
further observes that
[i]n any event, if the roles were reversed, the gender politics of the relationship would
not need to be discussed. The roles could easily be reversed. You could make almost
exactly the same movie with male Lee and a Ms. Grey … or with two men … or with
two women. Only when the male is dominant and the female is submissive do people
insist on seeing the relationship as an expression of societys patriarchal power
structure. (Secretary AboutFilm.com (September 2002) online: AboutFilm.com
New York Times reviewer, Stephan Holden writes, Some may see Secretary, which opens today in
Manhattan and Los Angeles, as a slap in the face to orthodox feminist thinking, since the concept of
sexual harassment doesnt seem to occur to anybody. Holden then argues against viewing this film
through such a gendered lens: Film Review: An Office Disciplinarian Gets His Way in the End New
York Times (20 September 2002) E12, online:
5 The issue of sado-masochistic sexuality has been a highly contentious and fractious one within
feminism. For arguments against S/M, see Robin Ruth Linden et al., eds., Against Sadomasochism: A
Radical Feminist Analysis (East Paolo Alto, CA: Frog in the Well, 1982); Cheryl Hanna, Sex is Not
a Sport: Consent & Violence in Criminal Law (2001) 42 B.C.L. Rev. 239. For arguments in favour
of S/M, see SAMOIS, ed., Coming to Power: Writings and Graphics on Lesbian S/M, 3d ed. (1981),
particularly the article by Gayle Rubin, The Leather Menace: Comments on Politics and S/M; Pat
Califia & Robin Sweeney, eds., The Second Coming: A Leather Dyke Reader (Los Angeles: Alyson
Publications, 1996); Pat Califia, Feminism and Sadomasochism in Pat Califia, Public Sex: The
Culture of Radical Sex (Pittsburgh: Cleis Press, 1994) 165; Monica Pa, Beyond the Pleasure
Principle: The Criminalization of Consensual Sadomasochistic Sex (2001) 11 Tex. J. Women & L.
51; Sangeetha Chandra-Skeheren, Theorising the Limits of Sadomasochistic Homosexual Identity
in R. v. Brown (1997) 21 Melb. U.L. Rev. 584.
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
sexualities. Yet, the not-so-subtle subtleties of these conflicts are lost in the hegemonic
voice of feminismand its caricature within popular culturewhere feminism has
come to be associated with the anti-sex tendencies of the former, not the sex positive
tendencies of the latter. Nor is this simply a problem of translation from theory to
practice, from the intellectual to the popular sphere, although it is partially that.
Rather, the problem is also symptomatic of deeper tensions with feminism, and its
theorizing of the sexual.
851
Feminist theorys contribution to the analysis of sexuality has been profound,
revealing sexuality as a site for the production of gender and the operation of power.
But, feminisms analysis of sexuality has also been fraught. The sex wars of the 1980s
divided feminists into those who framed sexuality primarily as a site of danger and
oppression for women and those who saw sexuality more ambivalently, as also a site
of pleasure and liberation. Some critics, notably Gayle Rubin and Eve Sedgwick,
began to suggest that the study of sexuality needed a degree of independence from
feminism, and that sexuality and gender be conceptualized as two distinct domains of
analysis.6 Lesbian and gay studies and queer theory took up the defining challenge of
theorizing sex and sexuality in an analytic framework independent of gender. This
rupture with feminism has produced a sophisticated literature on sex and sexuality,
allowing more focused attention on a troubling hetero-normativity than the
framework of feminism, with its focus on male-female relationships, had allowed.
This rupture has also produced a somewhat stultifying divide. Gender is allocated
to feminism while sexuality is allocated to gay and lesbian studies/queer theory.7
Feminism and queer theory are, in turn, cast in an antagonistic relationship, their
differences incommensurable. For queer theory, feminism is reduced to one side of
the sex warsthose who seek to regulate the harms that sexuality presents for
6 Gayle Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality in Carole
Vance, ed., Pleasure and Danger: Exploring Female Sexuality (New York: Routledge, 1984) 267
[Rubin, Thinking Sex] arguing that an autonomous theory and politics specific to sexuality must
be developed (at 309). In her view, although feminist theory has made an important contribution to
gender-based hierarchies within the realm of sexuality, as issues become less those of gender and
more those of sexuality, feminist analysis becomes irrelevant and often misleading. Feminist thought
simply lacks angles of vision which can encompass the social organization of sexuality. The criteria
of relevance in feminist thought do not allow it to see or assess critical power relations in the area of
sexuality (ibid.).
Eve Kosofsky Sedgwick, Epistemology of the Closet (Berkeley: University of California Press,
1990) similarly argued for a theory of sexuality distinct from feminisms theory of gender: This book
will hypothesize, with Rubin, that the question of gender and the question of sexuality, inextricable
from one another though they are … are nonetheless not the same question, that in twentieth-century
Western culture gender and sexuality represent two analytic axes that may productively be imagined
as being as distinct from one another as, say, gender and class, or class and race (at 30).
7 See e.g. Henry Abelove, Michle Aina Barale & David M. Halperin, eds., The Lesbian and Gay
Studies Reader (New York: Routledge, 1993) arguing that gender is the central category of analysis
for feminism, while sex and sexuality are the central categories of analysis for gay and lesbian
studies.
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
852
women, while queer theory casts itself as a more liberatory politic that seeks to
destabilize the disciplinary regulation of sexuality. For feminism, queer theory is
reduced to a sexual libertarian and representation politics devoid of ethicality,
unconcerned with the material conditions of womens and other oppressed peoples
lives in general, and the role of sexuality in producing inequality in particular. It is a
divide that traffics in stereotypes; in the worst stereotypes of the sins of the other. It
is a divide that breeds the counter-narratives about Secretary: regressive anti-
feminism versus liberatory queer sexuality. It is a divide that obscures the important
contributions that feminism has made to the study of sex and sexuality, as well as the
schisms and conflicts within feminism on the question of sex and sexuality.8 The sex
wars that raged through the 1980s, and erupted from time to time through the 1990s,
have disappeared.9 As Judith Butler observes, feminism has become identified with
state-allied regulatory power over sexuality … [and] those feminist positions which
have insisted on strong alliances with sexual minorities and which are skeptical of the
consolidation of the regulatory power of the state have become barely legible as
feminist.10 It is a divide that obscures significant currents of both feminist and
queer thought, and that fails to interrogate the more productive potential of analyses
that lies in the interstices of gender and sexuality, feminism and queer theory.11
In a more recent intervention in the feminism/queer theory debates, Janet Halley
has provocatively argued that it is time to take a break from feminism. Halley has
demonstrated the conflicts between dominant variants of feminist critique and queer
theory in the context of sexual harassment law, with feminist victories producing
queer theory losses. She argues that it may be time to urge feminists to learn to
suspend feminism, to interrupt it, to sustain its displacement by inconsistent
hypotheses about power, hierarchy and progressive struggle.12 She defines feminism
as having three shared features: First, to be feminism, a position must make a
8 See Judith Butler, Against Proper Objects in Elizabeth Weed & Naomi Schor, Feminism Meets
Queer Theory (Bloomington: Indiana University Press, 1997) 1, arguing against this allocation of
proper objects of study to feminism and queer theory [Butler, Against Proper Objects].
9 On the sex wars within feminism, see Vance, supra note 6 [Vance, Pleasure and Danger]; Ann
Snitow, Christine Stansell & Sharon Thompson, eds., Powers of Desire: The Politics of Sexuality
(New York: Monthly Review Press, 1983); Carol Vance, More Danger, More Pleasure: A Decade
After the Barnard Sexuality Conference (1993) 38 N.Y.L. Sch. L. Rev. 289; Lisa Duggan & Nan D.
Hunter, Sex Wars: Sexual Dissent and Political Culture (New York: Routledge, 1995); Kathryn
Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory (1995) 95 Colum. L.
Rev. 304.
10 Butler, Against Proper Objects, supra note 8 at 14.
11 Ibid.
12 Janet Halley, Sexuality Harassment in Janet Halley & Wendy Brown, eds., Left Legalism/Left
Critique (Durham: Duke University Press, 2002) 80 at 102. See also Janet Halley, Taking a Break
from Feminism in Brenda Cossman et al., Gender, Sexuality, and Power: Is Feminist Theory
Enough? (2003) 12 Colum. J. Gender & L. 601 [Halley, Taking a Break]; Janet Halley, Take a
Break from Feminism? in Karen Knop, ed., Gender and Human Rights (Oxford: Oxford University
Press, 2004) 57.
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
distinction between M and F … [S]econd … a position must posit some kind of
subordination as between M and F, in which F is the disadvantaged or subordinated
element.13 Finally, a position must advocate against this subordination, or in Halleys
words, it must carr[y] a brief for F.14 This concern with the distinction and
subordination between male and female, men and women, particularly as it has
sedimented in dominant or governance feminism, operates to preclude a range of
alternative insights into the workings of sexuality that could be seen through an
alternative theoretical lens, such as queer theory.15
853
Halleys methodology has allowed her to produce counter-narratives of the
operation of power on the terrain of sexuality, narratives that were obscured from
within feminisms male/female binary. Yet, as a methodology, taking a break from
feminism runs the risk of reproducing some of the problematic effects of the
feminism/queer theory rupture. While Halley recognizes the diversity within
feminism and the deep ideological divisions within feminism on issues of sexuality,
thereby avoiding the simplistic feminism/queer theory, gender/sexuality dichotomies,
taking a break from feminism risks leaving in place rather than moving between
the polarized worlds.16 It is a risk, however, that can be mitigated, paradoxically, by
supplementing the break from feminism with feminism.
In my view, feminism after the critique of queer theory (feminism after)
particularly its focus on gender as an axis of powercontinues to have analytic
purchase. Feminism should not shy away from its expertise in analyzing the multiple
operations of gender. Gender, when understood broadly as, in Joan Scotts words, a
primary way of signifying relationships of power17a way in which material and
symbolic resources are produced and distributed in asymmetrical waysremains an
important foundational and analytical frame of feminism. Gender still matters in the
world in real and symbolic, discursive and material ways. But, it need not be an
exhaustive analytic frame. Feminism, as an analytic lens on gender as an axis of
13 Halley, Taking a Break, ibid. at 604.
14 Ibid.
15 It is important to emphasize that Halleys idea of taking a break from feminism is not a
renunciation of feminism, nor an anti-feminist position. It is simply a bracketing of feminisms
questions and its focus on the masculine/feminine distinction. Although she is extremely critical of
governance feminismthe alliance of liberal, radical, and cultural feminism that has informed a
range of regulatory approachesshe does not condemn all feminism with the same brush stroke. Her
argument is often misconstrued as an anti-feminist renunciation. A more careful reading of her work
reveals that it is not.
16 The idea of moving between polarized positions is borrowed from Biddy Martins Sexuality
without Genders and Other Queer Utopias (Femininity Played Straight: The Significance of Being
Lesbian (New York: Routledge, 1996) c. 3). Halleys focus on governance feminismradical and
culture feminismsimilarly runs the risk of obscuring the potential insights of the multiple variants
of more marginal feminisms that live more closely on the porous borders between the feminist and the
queer.
17 Joan Wallach Scott, Gender and the Politics of History (New York: Columbia University Press,
1988) at 42.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
854
power, can and should be supplemented, challenged, and confused by other
theoretical and analytic frames.18
[Vol. 49
I come to this critical inquiry as one who has in recent years partially given
feminism a break. Much of my recent scholarly work has been animated by queer
theory and other critical literatures. Feminism has not been a primary focus in my
analyses of sexuality or family-related issues.19 Yet, at the same time, I have never
entirely let go of feminism and its focus on gender. In explorations of issues of both
sexuality and family, I remain conscious of the ways in which cultural and legal
discourses are often gendered. My work does not, however, read as self-consciously
feministit is not a feminist analysis per se. I seem to be in fairly good company. My
own drift is emblematic of a broader continental drift. Feminism, as a critical project,
has lost much of the kinetic energy of its earlier incarnations. Indeed, it seems to have
entered into a kind of stasis. Some describe the current moment as one characterized
by brain drain as once self-described feminists have drifted to non-feminist pursuits.20
Others have highlighted the problems of paralysis produced by the many internal
critiques of feminism. Feminist theory has arguably come up against its own
imaginative limitsthere is no more to say; or there is no way to say it. The
representational problems are insurmountable; the critique too devastating. For others,
18 Feminist theory has, since the mid 1980s, been grappling with the need to complicate gender
analysis with attention to other crosscutting axes of power and subordination, including race, class,
and sexuality. Analyses of racism, capitalism, and heterosexuality have been brought to bear on
feminisms analysis of gender to produce a more nuanced and complex picture of intersecting
identities and oppressions. See e.g. the following leading works of critical race feminism: Patricia Hill
Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment, 2d
ed. (New York: Routledge, 2000); Angela Y. Davis, Women, Race and Class (New York: Vintage
Books, 1983); Bell Hooks, Feminist Theory: From Margin to Center, 2d ed. (Boston: South End
Press, 2000). On critical race feminism in law, see Angela Harris, Race and Essentialism in Feminist
Legal Theory (1990) 42 Stan. L. Rev. 581; Marlee Kline, Race, Racism and Feminist Legal
Theory (1989) 12 Harv. Womens L.J. 115: Kimberle Crenshaw, Mapping the Margins:
Intersectionality, Identity Politics and Violence Against Women of Color (1991) 43 Stan. L. Rev.
1241; Adrien Katherine Wing, ed., Critical Race Feminism: A Reader (New York: New York
University Press, 1996).
My critique, borrowing from Halley, is somewhat different. It is not about complicating our
understanding about how gender works. It is about leaving gender behind. It is about exploring
alternative theoretical and analytic frames that have nothing to do with gender, and about not
necessarily trying to make these alternative frames consistent with feminism.
19 On family-related issues, see e.g. Brenda Cossman, Family Feuds: Neo-Liberal and Neo-
Conservative Visions of the Reprivatization Project in Brenda Cossman & Judy Fudge, eds.,
Privatization, Law, and the Challenge to Feminism (Toronto: University of Toronto Press, 2002) 169;
Brenda Cossman & Bruce Ryder, What is Marriage-like Like?: The Irrelevance of Conjugality
(2001) 18 Can. J. of Fam. L. 269. On sexuality issues, see Brenda Cossman, Sexing Citizenship,
Privatizing Sex (2002) 6 Citizenship Stud. 483; Brenda Cossman, Lesbians, Gay Men and the
Canadian Charter of Rights and Freedoms (2002) 40 Osgoode Hall L.J. 223. While some of it relies
on feminist work, the focus is not, leading more than one reader to query whether it has anything at
all to do with feminism.
20 See Halley, Taking a Break, supra note 12.
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
a kind of ennui has descended upon the critical project; it just is not where the
intellectual action seems to be. It is not so much a rejection of feminism, nor an
embrace of the post feminist, as it is a floating away.
855
Yet, I find myself uncomfortable with the idea of abandoning the critical project
of feminism altogether. Analyzing sexuality without gender has its costs.21 As Judith
Butler has argued:
If sexuality is conceived as liberated from gender, then the sexuality that is
liberated from feminism will be one which suspends the reference to
masculine and feminine, reenforcing the refusal to mark that difference, which
is the conventional way in which the masculine has achieved the status of the
sex which
is one. Such a liberation dovetails with mainstream
conservatism and with male dominance in its many and various forms, thus to a
large extent calling into question the assumed symmetry of lesbian and
gaya symmetry grounded in the separation of lesbian from feminist, of
sex from sexual difference, a ground constituted through the enactment and
covering of a split.22
In her view, [p]olitically, the costs are too great to choose between feminism, on the
one hand, and radical sexual theory, on the other.23 Instead she suggests that we
pursue analyses that integrate feminisms critique of gender hierarchy with queer
theorys critique of sex and sexuality. Katherine Franke has similarly argued for a
retention of feminism in analyses of sex and sexuality: I do not think that we should
give up on feminism so easily. I think it is time that feminists reclaim the body as a
site of erotic pleasure and intimacy and move these issues back into the center of our
theories of sexual citizenship.24 She also argues for an exploration of the
21 Halley specifically recognizes many of the costs of giving feminism a break. She writes
[T]here are costs to Taking a Break from Feminism as well. They include: relaxing the
epistemic vigilance that is needed to resist male epistemic hegemony; risking further
splits among feminists at a higher conceptual location than most other splits, and thus
risking new fissures in the intellectual, social, political, and legal endeavor;
demobilizing and demoralizing feminists; laying oneself and ones arguments open to
cooptation by the enemies of womens well being; legitimating male dominance
generally and specifically.
She argues, however, that there are also costs to not giving feminism a break, including a brain drain
from feminism, bad faith, power masquerading as servitude, and constituting women and their harms
(ibid. at 607-608).
22 Butler, Against Proper Objects, supra note 8 at 23-24.
23 Ibid. at 18.
24 See Katherine Franke, Feminist Justice, at Home and Abroad: Women Imagining Justice
(2002) 14 Yale J. L. & Feminism 307 at 311. See also Katherine Franke, Theorizing Yes: An Essay
on Feminism, Law, and Desire (2001) 101 Colum. L. Rev. 181 [Franke, Theorizing Yes] where
she writes It cannot be right that feminists should leave to queer theorists the job of providing an
affirmative theory of sex that accepts and accounts for the complex ways in which denial, shame,
context, prohibition, objectification, and power enable or capacitate desire and pleasure. Surely, a
thick conception of gender, one that we would call feminist, should be brought to bear on this project
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
856
intersecting stakes that queer and feminist theory have in full theorizing questions of
sexuality.25 Such a rapprochement of queer theory and feminism, and of gender and
sexuality will, in my view, produce more complex and nuanced critique. Analyses of
sexuality can be enriched by a resuscitated feminism, precisely because gender often
continues to be an operative variable. It is not everything; nor is it nothing. Theorizing
sexuality needs to be able to bring gender, as an axis of power, into view.
[Vol. 49
Such a rapprochement does not mean that feminism will have the last word.
Feminism must also be attentive to the limits of its imagination. Feminism must
sometimes leave its feminism behind, to suspend its interrogation of gender, however
momentarily, to allow a critical engagement beyond its own imaginative borders. But,
feminism must also be encouraged to travel back. I believe that a reinvigoration of
feminist critique lies in both a return to, and a decentering of, feminism. In this essay,
I endeavour to make a case for a kind of beyond-and-back-again feminism. I do so by
providing multiple readings of two texts: a legal decision involving a claim for
intentional infliction of emotional distress in relation to sado-masochistic sexuality
and the film Secretary, involving dominance and submissive sexual activity. The
sexual subjects represented in the case and the film present a challenge for feminism.
Externally, the S/M sexuality represented in both the case and the film seems to
inevitably conjure up the sexual negativity that popular culture credits to feminism.
Internally, these representations of S/M sexuality provoke the contested terrain
between and among feminismsindeed, the very kind of contestation within
feminism that is obscured within the popular imagination. In this paper, I seek to bring
this contestation to the surface by providing a multiplicity of feminist readings of
Twyman and Secretary. Further, I argue that a nuanced reading of these two texts
requires a feminism decentered and enriched by the insights of queer theory. Like
others, I need queer theory to point out what is wrong with feminism. But I also need
feminism to point out what is wrong with feminism itself and with queer theory. I
need both feminism and queer theory to tell a more deeply textured story about both
the legal and cultural representations of sexuality.
The S/M Subject Through a Feminism After
It is just such a feminismdecentered and enriched by the insights of queer
theorythat remains an indispensable resource for understanding legal and cultural
representations of sexual subjects, specifically, of S/M subjects. In this section, I
critically read the Texas Supreme Court case, Twyman v. Twyman, and the film
Secretary, through the lens of multiple feminisms and queer theory. Both the case and
the film raise questions about the representation of sexual subjects engaged in S/M
sexuality. And both the case and the film animate many feminisms: dominant strands
of liberal, dominance, and cultural feminism as well as more marginal strands of sex-
(at 207). Franke argues that feminists need to return to the terrain of sexuality that they have largely
abandoned, and see what insights a gendered analysis of sexuality might produce.
25 Franke, Theorizing Yes, ibid. at 203.
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
positive, queer/postmodern, and redistributive feminisms. Alternative readingsboth
within and without feminismare needed to supplement and disrupt, analyze and
destabilize dominant feminist readings of both these representations. But, unlike
Halley, I need feminism to critique what is wrong with feminism. While I rely on the
insights of queer theory in this disruption, I nevertheless need to keep a critical eye on
the discourses of gender in analyzing the deployment of sex and sexuality.
857
A. Reading and Rereading Twyman
In Twyman v. Twyman,26 a wife sought damages for emotional injuries that she
claimed she suffered because her husband induced her to engage in sado-masochistic
bondage. According to the plurality opinion of the Texas Supreme Court, which
described the bondage as deviate sexual acts,27 the wife was particularly susceptible
to emotional harm because she had been raped at knifepoint prior to the marriage.
One of the dissenting opinions in the case describes the S/M encounter in more
consensual terms. According to Justice Hecht, it involved two or three occasions in
which the couple engaged in what they referred to as light bondagetying each
other to the bed with neckties during their sexual relations.28 The encounters ceased
when the wife told her husband that she associated the activities with the trauma of
being raped. But the husband subsequently pursued his S/M desires elsewhere and
had an affair with another woman who shared his interests. When the wife found out
about the affair, the husband said it was her fault and the only way to save their
marriage was for her to engage in S/M with him. The couple sought counselling and,
on the advice of their therapist, Shelia Twyman tried again but found the activity to be
so painful and humiliating that she could not continue.29 Justice Hecht added:
Their last encounter, which did not involve bondage activities, was so rough that she
was injured to the point of bleeding30a point that the other justices virtually ignore.
The couple separated. In her petition for divorce, the wife included a general claim for
the infliction of emotional distress against her husband. The lower court ordered the
husband to pay fifteen thousand dollars for emotional distress.31 The husband
appealed the ruling on the ground that interspousal tort immunity precluded his wifes
recovery of damages for emotional distress. The Texas Court of Appeal held that the
26 Twyman v. Twyman, 855 S.W.2d 619 (1993) (Tex. Sup. Ct.) [Twyman (Sup. Ct.)], appealing from
790 S.W.2d 819 (1990) (Tex. C.A.) [Twyman (C.A.)].
27 Twyman (Sup. Ct.), ibid. at 620. The trial judge had made a finding that bondage was a deviate
sexual act. The husband appealed this finding, claiming that there was no evidence supporting the
finding of fact. The Court of Appeal dismissed this part of his appeal on procedural groundshe had
not included his no evidence contention in his motion for new trialso it was not preserved and
could not be raised on appeal. See Twyman (C.A.), ibid. This issue was not raised on appeal to the
Texas Supreme Court.
28 Twyman (Sup. Ct.), ibid. at 636.
29 Ibid.
30 Ibid.
31 Ibid. at 620.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
858
wife could recover for negligent infliction of emotional distress.32 The husband
appealed again.
[Vol. 49
The plurality of the Texas Supreme Court, written by Justice Cornyn, deployed a
gender neutral reading of the case at hand, deftly managing to avoid any discussion of
sex, gender, or sexuality (no small feat given the nature of the claim).33 The court
refused to recognize negligent infliction of emotional distress, but did recognize
intentional infliction of emotional distress.34 In adopting the tort, the court accepted
the definition as set out in the Restatement (Second) of Torts,35 with its emphasis on
the outrageousness of the conduct.36 On the question of interspousal immunity, the
court noted that it had unanimously abrogated the doctrine in the context of
intentional torts in 1977,37 and ten years later, abrogated it completely as to any cause
of action.38 There was, therefore, no legal impediment to bringing the tort claim in a
divorce action. The court then set out some guidelines for coordinating a simultaneous
divorce and property action with a tort proceeding, particularly to avoid the possibility
of double recovery.39 However, because the trial had proceeded on the basis of
negligent rather than intentional infliction of emotional distress, the plurality
remanded the issue for retrial.
Two concurring and dissenting opinionsby Chief Justice Phillips40 and Justice
Hecht41would not have extended the tort of intentional infliction of emotional
distress to married couples. The Chief Justice emphasized that divorce always
32 Twyman (C.A.), supra note 26.
33 Justice Cornyn was joined in the plurality by Justices Gonzalez and Hightower.
34 The Texas Supreme Court in Boyles v. Kerr, 855 S.W.2d 593 (1993)decided after the Court of
Appeal ruling in Twymanhad refused to recognize a claim for the negligent infliction of emotional
distress.
35 Restatement (Second) of Torts 46 (1965).
36 The Court stated:
The Restatement elements of intentional infliction of emotional distress are: 1) the
defendant acted intentionally or recklessly, 2) the conduct was extreme and outrageous,
3) the actions of the defendant caused the plaintiff emotional distress, and 4) the
emotional distress suffered by the plaintiff was severe. According to the Restatement,
liability for outrageous conduct should be found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community (Twyman (Sup. Ct.), supra note 26, citing Restatement, ibid.).
37 Bounds v. Caudle, 560 S.W.2d 925 (1977).
38 Twyman (Sup. Ct.), ibid. at 624, citing Price v. Price, 732 S.W.2d 316 (1987).
39 Twyman (Sup. Ct.), ibid. at 624-26. For a discussion of the history of interspousal tort immunity,
see Carl Tobias, Interspousal Tort Immunity in America (1989) 23 Ga. L. Rev. 359, and The
Imminent Demise of Interspousal Tort Immunity 60 Mont. L. Rev. 101 (1999). Tobias notes that
although interspoual tort immunity had been severely weakened in most states by the late 1980s,
several states retained immunity in some form.
40 Twyman (Sup. Ct.), ibid. at 626-20.
41 Ibid. at 629-40.
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
involves some degree of emotional distress and that recognizing this tort would
require the courts to draw virtually impossible distinction between recoverable and
disallowed injuries.42 Further, it would unduly restrict the courts discretion of taking
fault into account in dividing marital property.43
859
Justice Hecht, concurring and dissenting, was similarly concerned with the
applicability of the tort to married spouses.44 He emphasized that the sexual
relationship was among the most intimate aspects of marriage and [a]ny breach of
such an intimate and essential part of marriage may be regarded as outrageous by the
aggrieved spouse and will often be the cause of great distress.45 In Hechts view,
many other sensitive aspects of marriage can cause profound disagreement and result
in the breakup of the marriage. If these disagreements and distresses become
actionable, tort claims will be commonplace in divorce cases.46 Moreover, the
inquiry would simply require too great an intrusion into the marital relationship. 47
In a dissenting opinion, Justice Spector48 would have recognized both torts
(negligent and intentional infliction of emotional distress) and allowed the plaintiff to
proceed on the theory of negligent infliction. The sexual conduct complained of by
the plaintiff is described as grossly offensive. Spector framed the conduct in this
case, and claims of emotional distress more generally, in terms of the harms that men
do to women, observing that most cases of emotional distress are brought by women
against men. She thereby connected the recognition of the tort with the struggle for
womens rights, citing authors who have critiqued the gendered nature of the tort law
and its marginalization of womens claims.49 Spector pronounced a strong indictment
42 Ibid. at 627.
43 Ibid.
44 Justice Hecht was joined by Justice Enoch.
45 Supra note 26 at 636 [emphasis in original].
46 Ibid. at 637.
47 Ibid. at 637. Hecht J. states that
[t]he inquiry which must be made to determine whether a spouses conduct is
outrageous entails too great an intrusion into the marital relationship. Although courts
are already called upon to consider fault in divorce actions, allowance of tort claims
requires a more pervasive inspection of spouses private lives than should be
permissible. In this case the parties were called to testify in detail and at length about
the most private moments of their marriage.
48 Justice Spector was joined by Justice Dogett. Although she agreed with the plurality in the
recognition of the intentional infliction of emotional distress, she would also have recognized the tort
of negligent infliction of emotional distress. She was also concerned with the delay in justice to the
plaintiff and would have restored the trial court award.
49 Spector J. writes: Like the struggle for womens rights, the movement toward recovery for
emotional distress has been long and tortuous (Twyman (Sup. Ct.), supra note 26 at 642-43).
See Peter A. Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury (1984) 36 U.
Fla. L. Rev. 333 at 336-40. In the judicial system dominated by men, emotional distress claims
have historically been marginalized:
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
860
of the pluralitys rejection of the claim for negligent infliction of emotional distress:
Today, when the widespread mistreatment of women is being documented
throughout the countryfor instance in the areas of sexual harassment and domestic
violencea majority of the court takes a step backward and abolishes one way of
righting this grievous wrong. 50
[Vol. 49
Liberal, dominance, and cultural feminists would more or less agree on their
analyses of this case, differing only in emphasis.51 The story might go something like
this: sado-masochism is part of the systemic sexual subordination of women by men,
and therefore, the S/M sexual encounter in the marriage should constitute an
actionable sexual harm. The plurality of the court was wrong in applying a gender
neutral standard that excludes women and their unique experiences of harm, thereby
reinforcing the sexual subordination of women by men. Both the Chief Justice and
Justice Hecht were wrong in immunizing the private sphere of the family from
intervention and thereby failing to recognize the harms women suffer within this
sphere and reinforcing the sexual subordination of women by men. Both failed to
interrogate the gendered impact of the refusal to recognize this tort, and the extent to
which both sexuality and the family are sites of womens subordination. By contrast,
the dissenting opinion of Justice Spector would likely be heralded as a feminist
victory, in recognizing the unique harms that women suffer at the hands of men, and
connecting the harm of emotional distress to the broader issue of violence against
women.52
The law of torts values physical security and property more highly than emotional
security and human relationships. This apparently gender-neutral hierarchy of values
has privileged men, as the traditional owners and managers of property, and has
burdened women, to whom the emotional work of maintaining human relationships has
commonly been assigned. The law has often failed to compensate women for recurring
harmsserious though they may be in the lives of womenfor which there is no
precise masculine analogue (Martha Chamallas & Linda K. Kerber, Women, Mothers,
and the Law of Fright: A History (1990) 88 Mich. L. Rev. 814 at 814).
50 Twyman (Sup. Ct.), ibid. at 643.
51 Liberal feminism would highlight the ways in which a gender neutral standard excludes women
and their experiences of harm. Radical feminism would highlight the ways in which womens
subordination in and through sexual practices are rendered invisible in laws objectivity. Cultural
feminism would highlight the exclusion of womens unique experiences of harm from the law, and
argue for the need to accommodate these experiences within the law. While the three strands of
feminism blend together into a single feminist reading, there is a difference in emphasis: exclusion,
subordination, and the need for inclusion, respectively.
For a concise overview of these different feminisms, see Nicola Lacey, Feminist Legal Theory
and the Rights of Women in Knop, supra note 12, 13. See generally, Alison M. Jaggar, Feminist
Politics & Human Nature (Totowa, N.J.: Rowman & Allanheld, 1983), and Rosemarie Tong, Feminist
Thought: A Comprehensive Introduction (Boulder, Colo.: Westview Press,1989).
52 There has, however, been surprisingly little feminist commentary on Twyman. The only reported
feminist comment I have been able to find is Mae Quinn, The Garden Path of Boyles v. Kerr and
Twyman v. Twyman: An Outrageous Response to Victims of Sexual Misconduct (1995) 4 Tex. J.
Women & L. 247, which involves a critique of how cases involving womens sexually related
861
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
This is a feminist reading. But, it is not the only feminist reading to which the
case could be subject. Socialist or materialist feminism, for example, would read
Twyman from the point of view of gender oppression, but it would deploy a very
different analytic framework, with potentially very different conclusions.53 It would
retain a focus on the family as a site for the production and operation of gender as an
axis of power. It might focus its analysis on the operation of dominant familial
ideologies and the ways in which those ideologies shape and reinforce deeply
gendered assumptions, roles, and responsibilities within the family. This reading
might highlight the ways in which the opinions of Hecht and Phillips JJ. were shaped
by the ideologies of affective privacy. A socialist feminism might consider the
distributional effects of the case in terms of the allocation of resources on family
breakdown. It might evaluate the decision in Twyman from the broader context of the
transformations in the legal regulation of the family. How does the effort to
reintroduce fault operate within the context of the fundamental restructuring of family
law from fault to failure? To what extent might the reintroduction of fault serve to
undermine the efforts to recast family breakdown as primarily a question of
restructuring financial and parenting relationships? Might the reintroduction of
faultparticularly in the context of sexual harmundermine family laws focus on
equitable redistribution by refocusing attention on moral culpability? And it what
ways might the case, like family law more generally, be operating to sustain the
privatization of economic support for individuals without market income?
Sex radical feminism would also read Twyman very differently.54 It would dispute
the normative and analytic assumption of dominance feminism that S/M sexuality is
part of the systemic sexual subordination of women by men. Indeed, sex radical
feminism rejects the very premises of dominance feminism that sexuality constitutes
the primary site of womens subordination, insisting that sex and sexuality are a far
more ambivalent site, producing multiplicities of pleasures and dangers.55 Similarly, it
would not frame S/M sex as inherently harmful to women, but as a potentially
pleasurable and subversive sexual practice. A sex radical feminist reading would
emotional harms are being dismissed. Quinn does not analyze the sexual activity in Twyman, but
simply proceeds on the assumption that it constitutes an emotional harm.
53 On socialist feminism, see generally Michle Barrett, Womens Oppression Today: The
Marxist/Feminist Encounter (London: Verso, 1988); Zillah Eisenstein, Capitalist Patriarchy and the
Case for Socialist Feminism (New York: Monthly Review Press, 1979). On socialist feminism in law,
see Shelley A.M. Gavigan, Paradise Lost, Paradox Revisited: The Implications of Familial Ideology
for Feminist, Lesbian and Gay Engagement to Law (1993) 31 Osgoode Hall L.J. 589; Susan Boyd,
Some Postmodern Challenge to Feminist Analyses of Law, Family and State: Ideology and
Discourse in Child Custody Law (1991) 10 Can. J. Fam. L. 79; Susan Boyd, (Re)placing the State:
Family, Law and Oppression (1994) 9 C.J.L.S. 39. On materialist feminism, see Rosemary Hennessy
& Chrys Ingraham, eds., Materialist Feminism: A Reader in Class, Difference and Womens Lives
(New York: Routledge, 1997); Rosemary Hennessy, Materialist Feminism and the Politics of
Discourse (New York: Routledge, 1992); Donna Landry & Gerald Maclean, Materialist Feminisms
(Cambridge: Blackwell, 1993).
54 On sex radical feminism, see supra note 5.
55 See Vance, Pleasure and Danger, supra note 6.
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
862
question the liberatory potential of recognizing S/M as a potentially actionable sexual
harm, arguing instead that increased surveillance and regulation would reiterate a
conservative sexual morality that has been highly problematic for women. Such a
feminist reading would dispute the gendered assumptions of the dominant feminist
narrative that women need to be protected from aggressive, male sexuality, arguing
that such a protectionist approach simply reconstitutes women as weak, hapless,
powerless victims. Sex radical feminism would insist on womens sexual agency and
their ability to negotiate the treacherous terrain of sexuality, consensually seeking
pleasure and avoiding danger. But, this feminist reading would not celebrate Twyman
as a feminist victory, since the opinions each demonstrate a strong distaste towards
alternative sexual practices, thereby reiterating the same underlying conservative
sexual morality. Sex radical feminism would reveal the ambivalent discourses of sex
and sexuality underlying the decision.
A queer theory/postmodern feminism, informed by the work of Judith Butler,
would provide yet another reading of Twyman.56 It would consider how the claims of
harm and the deployment of legal discourses reiterate the very foundational categories
of man/women, male/female that feminism needs to disrupt. Feminist claims of harm
to women help to produce the very bodies, subjectivities, and identities that
experience this harm.57 Such a reading of Twyman would be concerned with the extent
to which a legal recognition of emotional distress for a sexual harm associated with a
consensual practice would discursively produce women who do suffer these harms,
that is, it would reiterate woman as a victim of mens sexual subordination, as a
subject who lacks sexual agency and who experiences psychic trauma from sexual
engagements. This feminist reading would be concerned that this recognition of
womens sexual injury by men would operate to further instantiate a heterosexual
matrix that produces and polices sexed and gendered bodies. Such a reading would be
centrally concerned with the discursive closures produced by these reiterations of
gender.
Both sex radical feminism and queer theory feminism would have something to
say about the fact scenario that gave rise to the claim for emotional distress. The
facts of the sexual encounter are murky, told to us only through the courts narrative
of deviate sexual practices. In a footnote, the plurality tells us that Sheila Twyman
testified that William Twyman attempted to emotionally coerce [her] in bondage on
an ongoing basis … 58 A slightly different account is provided in Hecht J.s opinion,
56 On queer theory feminism, see Judith Butler, Gender Trouble: Feminism and the Subversion of
Identity (New York: Routledge, 1989); Judith Butler, Bodies That Matter: On the Discursive Limits of
Sex (New York: Routledge, 1993); Judith Butler, Undoing Gender (Boca Raton, Fla.: Routledge,
2004).
57 See Halley, Taking a Break, supra note 12; Wendy Brown, States of Injury: Power and
Freedom in Late Modernity (Princeton: Princeton University Press, 1995).
58 Twyman (Sup. Ct.), supra note 26 at 621, n. 1.
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
describing the sexual encounters as two or three occasions of light bondage.59
Justice Hecht is again the only one to point out that the couples last sexual encounter
did not involve bondage, but was so rough that she was injured to the point of
bleeding.60 Hecht J. also tells us a little more about Williams behavior attempting to
coerce Sheila into the sex by continually asserting that their marriage could be saved
only by [Sheila] participating with him in his practices of bondage.61 Only the
Court of Appeal decision offers greater detail about the nature of Williams course of
conduct:
863
Throughout this time, William repeatedly indicated to Sheila that there was
something wrong with her for not engaging in the activities; told her that when
he was out of town he visited stores selling bondage paraphernalia and that
women in their mink coats and men in their three piece business suits
purchased these items; told her that he visited sex parlors and that there had
been other women besides his current girlfriend; described his sexual activity
with his girlfriend and made derogatory comparisons of Sheilas sexual abilities
with those of his girlfriend; and told Sheila that they would have a marriage if
she could do bondagethat he could not see a future for them if she did not.62
We know little else of the sexual dynamic and erotic desires of this couple, aside from
the fact that Williams S/M desires did not wane, but ultimately, lead him to pursue his
fantasies outside the marriage.
While the dominant feminist narrative, with its radical feminist influence, has no
difficulty condemning the sexual encounter as abusive and oppressive, sex radical and
queer theory feminism would have counter narratives to tell. Sex radical feminism, in
keeping with its insistence on sex and sexuality as ambivalent, producing the
possibilities of pleasure and danger, would focus attention on the question of consent.
While the absence of consent could justify legal intervention, if the sexual encounters
appeared to be consensualif Sheila Twyman agreed to participate in the bondage
then the fact that she did not enjoy the sex encounter would not be sufficient to make
it actionable. Sex radical feminism would emphasize that although consensual S/M
may not be to everyones erotic taste, it should be recognized as a legitimate sexual
choice.
Sex radical feminism might also attempt to go behind the courts official
description of the facts as deviate sexual practices and explore the other parts of the
factual story that are obscured in this single-minded focus on the bondage. What of
the last sexual encounter that did not involve bondage but did result in physical
injury? Only Justices Hecht and Spector even noticed this encounter. Rather, the focus
of the rest of the court is on the deviate sexual practicesthat is, the bondage. A
59 Ibid. at 636. See text accompanying note 28. For more information regarding the facts of the
case, see text accompanying notes 27-30.
60 Ibid.
61 Ibid. at 621, n. 1.
62 Tywman (C.A.), supra note 26 at 820.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
864
sexual encounter that actually caused bodily harm is ignored in the face of a sexual
encounter involving bondage that caused psychic harm. Sex radical feminism might
not necessarily agree that the former should be any more actionable than the latter
(since both appeared to involve consent). It would, however, highlight the fact that the
court is more concerned with the deviate sexual practice/psychic injury than it is with
intercourse causing bodily harm.
[Vol. 49
Sex radical feminism might also try to highlight the fact that the court paid little
attention to the facts surrounding the S/M encounters. With the exception of Justice
Hecht, the court was single-mindedly focused on the bondage, rather than on
Williams course of conduct in which he tried to convince Sheila to engage in
bondage. William said some nasty things to his wife; he tried to make her feel bad
bad enough to try the sex again. Again, sex radical feminism might not think that this
course of conduct should necessarily be actionable. But, it might illustrate how some
facts are obscured and others highlighted in a way that demonstrates the courts
distaste for alternative sexual practices.63
Queer theory feminism would similarly be interested in the multiplicities and
ambivalences of sexuality, though its focus would not be on liberal conceptions of
consent. Queer theory feminism would be interested in the potential for gender to be
performed subversively. It would turn its critical eye to the ways in which S/M
practices may disrupt dominant iterations and performativities of gender, seeking in
turn to undermine the gender/sex/heterosexuality triad. Alongside sex radical
feminism, it might explore the ways in which much S/M practice and imagery inverts
the male subject/female object narrative of radical feminism. Women in S/M often
perform sexually powerfulboth self-possessed and other controllingroles; they
are the dominatrices, men are their slaves. But, while this might be enough to affirm
the liberatory potential for sex radical feminism, queer theory feminism would remain
skeptical about such a simple reversal that remains firmly anchored within a
heterosexual matrix. It would also be skeptical about such stable and coherent subject
positions; either subject or object, self-directed or other controlled, seeking out
instead the ambiguities of desire and the instability of identity.
63 The story of emotional coercion tells a rather more complicated picture of the couples dynamic
and of Sheilas injury. This picture would seem quite relevant in the question of the intentional and/or
negligent infliction of emotional distress. Indeed, while sex radical feminists might remain wary of
making any consensual sex actionable, attention to these facts may actually complicate the notion of
consent informing this sex radical position. At a minimum, attention to this course of conduct rather
than simply to the incidents of bondage, could render the analysis of Sheilas actual injury and
whether it should be actionable more nuanced and complex. It could make the discussion between
and among feminists of different stripes more interesting as well. Liberal, radical, and cultural
feminists could themselves be more interested in the overall course of conduct and the
problematization of consent, instead of simply focusingas the court didon the deviate sexual
practice.
865
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
Further, the S/M encounter in Twyman was not one in which the gender roles
were reversed, at least not clearly so. Sheila agreed to participate, at the
encouragement of her husband and ultimately, did not find the experience to be
redemptive. While we know little about her sexual psychic life, she is not the S/M
chic dominatrix of popular culture. This is no simple, celebratory reversal of gendered
narratives. Nor is it one in which we even get to delve into the mysteries of female
masochism, la Jessica Benjamin.64 Unlike Secretary, where Lee Holloway finds
pleasure and redemption in her own masochism, Sheila Twyman finds no
transcendence in her brief encounter with bondage. She is neither dominatrix nor
slave, neither top nor bottom. Her experience is a complicated oneconsensual, but
disturbing for reasons that we cannot fully access. The ambiguities dissolve, though,
in the face of the story that Sheila subsequently tells; a story of being forced into
S/M against her will; a story of adding injury to her psychic trauma of sexual
violence; a story of a husbands deviant and uncontrollable sexual practices ultimately
destroying their marriage. She is no longer a sexual agent, but a sexual victim; the
S/M encounter no longer a complicated mix of erotic desire and abjection, but a
coercive humiliation, made worse by her husbands subsequent infidelity. A queer
theory feminism might seek to reveal these instabilities and ambiguities in the
constitution of subjectivity and in the subjects effort to repudiate them through a
victim narrative.
Together, sex radical, socialist, and queer theory feminist readings would dispute
and disrupt the dominant feminist reading of Twyman. But each of these readings
retains a focus on gender as an axis of power, as a primary way of signifying
relationships of power. Each of these readings suggests that the material and
discursive implications of the case must include an analysis of gender and its complex
intersections with the discourses of sex and sexuality.
While these alternative feminist readings produce important insights into the
operation of sexuality and its legal regulation in Twyman, queer theory can further
disrupt and supplement these insights with its own readings of the case, readings that
would not highlight questions of gender. 65 Queer theory has many different thematics
and strands of critique.66 It takes as its point of departure a critique of the essentialist
notions of identity that informed gay and lesbian studies. Queer theory is critical of
64 Jessica Benjamin, The Bonds of Love: Psychoanalysis, Feminism, and the Problem of
Domination (New York: Panthenon, 1988).
65 Halley, supra note 12, provides two different readings of Twyman from a self-described queer
theory position. One reading is drawn from Nietzsches slave morality in the Genealogy of Morals
(Friedrich Wilhelm Nietzsche, Genealogy of Morals (Edinburgh: T.N. Foulis, 1910)) and the second
from Foucaults Theory of Sexuality, Volume I (Michel Foucault, The History of Sexuality, Vol. 1: An
Introduction, trans. by Robert Hurley (New York: Panthenon, 1978)).
66 For a general discussion of queer theory, see Nikki Sullivan, A Critical Introduction to Queer
Theory (Edinburgh: Edinburgh University Press, 2003); Annamarie Jagose, Queer Theory: An
Introduction (New York: New York University Press, 1996); William B. Turner, A Geneology of
Queer Theory (Philadelphia: Temple University Press, 2000).
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
866
the ways in which gay and lesbian studies both presumed and reified gay and lesbian
identity. It rejects this essential notion of identity for failing to critically evaluate the
ways in which identity is politically and historically constituted, and for reinforcing
the very dichotomy between homosexual and heterosexual that produces the
identity and the subordinate position of those on the homosexual side of the
dichotomy. Queer theory then seeks to shifts the analysis from identity politics to the
representational and psychoanalytic processes that constitute sexual identities. In its
anti-identitarian impulse, it insists on the instabilities of these identities. It is
particularly interested in the representational processes of hetero-normativity, the
ways in which the homosexual/heterosexual dichotomy is produced, and the
discursive practices that produce marginal sexual subjects. Revealing its strong debt
to Foucault, queer theory might consider the disciplinary implications of the
surveillance of sexuality for subjects whose bodies are marked by other sexualities:
S/M subjects, queer subjects, transgendered subjects, sex worker subjects, and others
whose bodies are erotically charged. It would seek to reveal the ways in which these
subjects are produced as deviant through a range of discursive and institutional
practices. It is interested in the processes of normalization and in the possibilities of
disruption and subversion. Notwithstanding its deconstructive mode, its normativity is
avowedly pro-sexual. Queer theory seeks to liberate desire, sex, and sexuality from its
regulatory regime of the hetero-normative, to celebrate shame and abjection, and to
affirm the multiplicity of erotic desires, practices, and identifications.
Queer theory could read Twyman as a performance of heterosexualitywith both
Sheila and the court policing the boundaries of stable heterosexual sexuality. The S/M
encounter in Twyman produced a disruption in hetero-normativity. It was a moment of
sexual excess and the performance of deviant desire that fell outside the bounds of
normal marital desire. It was a disruption that both Sheila and the court subsequently
sought to discipline by marking William as deviant fetishist. Sheila disavows her
participation in the sexual practice by telling a story of being forced into it; a story
of nonconsensuality that helps reconstitute Sheila as victim rather than deviant. She
seeks to distance herself from sexual perversity by deploying the mechanism of legal
regulation. Her resort to law is an attempt to recuperate her own sexual identity as
normalized by placing blame, in the form of legal retribution, on her husband.
The court in Twyman can similarly be seen as policing the boundaries of hetero-
normativity. The S/M encounter was marked by virtually all of the judgesincluding
those who would not abrogate the interspousal immunityas deviant, as an
aberration of normal heterosexual desire. Each cast Sheila as the victim of her
husbands fetishistic desires. Those justices who would allow the claim for intentional
infliction, negligent infliction of emotional distress, or both, affirmed Sheilas status
as victim and her desire for legal retribution, and in turn sexual recuperation. And in
so doing, those judges reiterate the normal bounds of sexuality within the marital
relationship. On the other hand, those judges who would not abrogate the interspousal
immunity and thereby not allow the claim for emotional distress, could also be read as
engaging in a normalization project. These judges were concerned with undue
intervention in the private sphere. Their discourse operated to reiterate marriage as
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
naturally located within this sphere, as a sacred space for the exploration of love and
intimacy. Heterosexual marriage
intimate
configurations.
is normalized as against other
867
These queer readings focus on the hetero-normativity of marriage but, unlike a
feminist reading of hetero-normativity, they have nothing to do specifically with
gender as an axis of power.67 Rather, these readings are more interested in sex and
sexuality as an (if not the) axis of power, the role of marriage in producing the hetero-
normative matrix, and the hetero/homo binary. The story of Sheila is not, here, a story
about gender oppression. Nor is the story about the courts normalization of marriage.
These queer theory readings of Twyman can provide a part of the story that feminism
with its focus on gender simply cannot tell. It may actually be helpful to consider the
ways in which the case can be read as a critique of hetero-normativity that really has
nothing to do with gender. This non-feminist reading could be incorporated. But, in
keeping with the idea of travelling beyond feminism and back again, it is a reading
that could also be further interrogated. In what ways might the non-feminist reading
be reread through a gendered lens? Might there be a way in which the queer readings
could be supplemented and enhanced through attention to gender as an axis of power?
For example, are there particular ways in which Sheilas deployment of law as a mode
of self-recuperation was gendered? We might argue that her deployment was only
successful because of her gendered subject position. While the hetero-normativity of
marriage was normalized (the queer theory reading), it is not clear that the same result
would have been so easily achieved if the roles were reversedif Sheila was the
sexual aggressor and William the sexual victim. It might well be that Sheila could
only win (however partially) because of the gendered discourses and subjects of
law. The law recognizes women as victims; as sexual subjects women are seen as the
victims of male sexual violence. In this case, Sheila was able to present herself as just
such a victim, suffering a sexual injury at the hands of a male sexual subject.
Arguably, then, the very imagery that she was able to invoke was dependent on a
deeply gendered text of law.
This is but one example of ways in which a queer reading that feminism cannot
see can be usefully supplemented by a feminism reading that queer theory does not or
cannot see. Queer theory brings to the table the idea of Sheila as a normalizing agent,
seeking retribution from her husband; an idea that might be difficult, if not
impossible, to achieve through a lens that focuses primarily on gender. But, by the
same token, this non-gendered reading of queer theory may be unable to get at the
67 Feminist theory is certainly capable of producing a critique of hetero-normativity. See e.g. the
works cited to Judith Butler, supra note 56; Rosemary Hennessy, Profit and Pleasure: Sexual
Identities in Late Capitalism (New York: Routledge, 2000) for two critiques of hetero-normativity
from two very different feminist theoretical perspectives. But, what distinquishes non-feminist queer
theory from feminist queer theory is the extent to which the critique of hetero-normativity disavows
gender as a relevant axis of power. Feminisms critique of hetero-normativity within the spheres of
family and sexuality is intricately (if intersectionally) connected to gender. Queer theorys is not.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
868
ways in which gender makes a difference in the very story that it seeks to tell. A
feminist rereading, then, supplements rather than disavows a non-feminist reading.
Both feminist and non-feminist come together in a theoretically awkward yet
productive analysis.
[Vol. 49
B. Reading and Rereading Secretary
These multiple feminist and queer readings could similarly provide a number of
different readings of the film Secretary that would be considerably more complex and
nuanced than the anti-feminism versus celebratory sexuality told in the dominant
readings. No doubt, radical and cultural feminists would tell a story about the film and
its protagonist consistent with their critique of sado-masochism. It might go something
like this: Lee is an emotionally abused young woman (she comes from a dysfunctional
family, with an alcoholic father), who first learns to abuse herself through self-
mutilation, and then learns to redirect her abuse outward, by having someone else do it
for her. It is a story of abuse, self and other. And it is a story of the conventional exercise
of heterosexual power and desire; a rescue fantasy in which the young woman is saved
only to be abused again by her saviour (to say nothing of the sexual objectification of
women for audience consumption). It is a film that celebrates the eroticizing of
dominance and the submission of women, made all the worse by its tongue-in-cheek
irony and its fantastical settings. This feminist narrative might also comment on the plot
twist, in which Lee and Gray settle down into wedded, domestic bliss. The storybook
ending is simply the story of the sexual subordination of all womensexual dominance
and submission within heterosexual marriage.
Again, although this is a feminist reading, it is not the only possible feminist reading
of the film. Sex radical feminism would dispute the idea of S/M (or B/D) sex as
inherently harmful to women, insisting instead that it is at least potentially a pleasurable
and subversive sexual practice. It would not condemn Lees masochism as a
manifestation of abuse and domination, but rather, would attempt to create space for the
articulation of female desire in all its complexity. Sex radical feminism, recognizing sex
and sexuality as ambivalent, would focus on the consensuality of the sex between Lee
and Grey. It would be concerned if Grey was sexually harassing Lee, if the encounters
were not marked by the signs of mutuality in the performance of discipline. Sex radical
feminism would condemn the encounters if it found evidence of non-consensuality. But,
the story of Secretary appears to be one of mutual desire, of Lee actively seeking out
Greys discipline and abuse. Sex radical feminism would focus on and celebrate Lees
sexual agencyher choice to pursue her desire.
It is a reading that would appear to have considerable resonance with the authorial
intention of the writer. In the opening words of her introduction to the screenplay, Erin
Cressida Wilson explicitly frames her text in feminist terms: Does being submissive
between the sheets make you less of a feminist? In order to have equal rights, must you
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
be dominant in the sack?68 Wilson recounts her personal narrative, a narrative of
becoming feminist, and of becoming submissive, and of the received wisdom that the
twain shall not meet. She describes the process of writing the screenplay for Secretary as
one in which she decided that she
869
could not in all honestly write a screenplay about a woman who overcomes
her masochism. I didnt want to create yet another drama about a woman
recovering from her problems or perversions. Then I though: What if this were
a coming-out film for a submissive? What if she were to stop fighting itand
insteadshe embraced it, defined it and then became empowered?69
Wilson concludes her introduction with the following unflinching words: We are not
beginning to see the sexiest, strongest, and most empowering part of being
submissive: that it can be an expression of strength of character to bow down and
surrender to love and passion. This is my idea of feminism.70 Wilsons intention in
writing Secretary was to tell an explicitly feminist story about the power of the
submissive; a feminist story consistent with sex radical feminisms emphasis on the
multiplicities of womens sexual desires and pleasures.
Queer theory feminism would tell a different story of Secretary. It would
interrogate the gender performances in the film, and explore the extent to which the
B/D practices and the narrative more generally disrupts or reiterates dominant
performativities of gender and heterosexuality. It would consider the ambivalent role
of female masochism in the performance of gender. In performing the role of the
submissive secretary, is Lee simply reproducing the dominant iterations of
heterosexuality, or does her over-the-top caricature operate more subversively? What
about the fantastical nature of the many of the settings? To what extent do the scenes
and cinematic technique that appear to blur fantasy and reality contribute to this
subversion? From the richly textured colours and the surreal nature of the office to the
scenes of Lee crawling on all fours with an envelope in her mouth, or awkwardly and
elegantly performing office work with her arms bound to a pole behind her neck, the
viewer is often left wondering whether the scene is real or exists only in the
imagination and fantasy of the characters. Does Lees performance, against a
backdrop of the surreal settings, bring the artificiality of gender roles and heterosexual
desire into sharper relief? Queer theory feminism would also consider the ways in
which some of the more subversive elements were contained within the normalizing
discourses of the film. Lees masochism, and the couples desires were reigned in
through the tropes of heterosexual domestication: romantic love, marriage, and
suburban domesticity. While Lees performance may disrupt dominant instantiations
of gender in her sexual agency and parodic pursuit of her desire, she is, at the end of
the day, domesticated through the discourses of marriage and familialism,
discourses that in turn sustain dominant gender norms. She may have unusual desires,
68 Wilson, supra note 2 at iii (Introduction).
69 Ibid. at vi.
70 Ibid. at vii.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
870
but these desires are now legitimated and contained within a hetero-normative world.
The disruptive gender performance is thus contained to the private world of
heterosexual desire, which in turn reproduces the very categories of man/woman that
feminism needs to destabilize.
[Vol. 49
A queer theory reading of Secretary would share with queer theory feminism a
concern for subversion and normalization; with the ways in which sexual excess and
desire are domesticated within marital and suburban spaces. But, the male/female
distinction of such interest to feminism would be abandoned in favour of an
exploration of the ways in which the film operates to disrupt or normalize the
heterosexual/homosexual dichotomy. Queer theory is particularly indebted to the
work of Michel Foucault. One reading of Secretary might borrow from his theories of
sexuality and normalization as effects of power. For example, there is a kind of
paradoxical reversal of Foucaults psychiatrization of perversity at work in the film
that nonetheless works toward normalization. Foucaults idea was of the medical
production of knowledge through which the fetishist was constituted and against
which others were constituted as normal by avoiding the desires marked as deviant.71
But, in Secretary, the S/M, B/D subjectlong marked as the deviantis
reconstituted as normal, or at least, as no less normal than other subjects around it.
Lees deviancefor which she was psychiatrically treatedwas one of self-
mutilation. But, under Greys tutelage, her masochism finds an appropriate outlet in
dominance and submission. The self-mutilating subject is fetishized and marked as
deviant. But, the masochist subject is reconstituted. Lee and Grey fall in love, get
married, and move to the suburbs, where Lee is transformed into the stay-at-home
housewife. From the outside, their lives merge into the undifferentiated mass of
idealized, suburbanized spaces. As one film critic observed: Whats so appealing
about Secretary is, how, well, normal these people are.72
This queer theory reading would consider the domestication of their sexual desire.
In a pivotal scenethe sex scene in which the couple consummates their
relationshipGrey and Lee have sex in what can only be described as a tender,
romantic, and missionary manner. Sexual excess is, at this moment, contained within
romantic love. While the film subsequently shows the couple pursuing their more
edgy obsessionsGrey having sex with Lee while she is tied to a treetheir
deviance has now been reframed within loving, hetero-normative parameters: it is
monogamous, romantic, heterosexual, marital, and noncommercial. The sex is edgy
but not too edgy.
A second, and rather different, trajectory of queer theory involves the affirmation
of abjection and shame, found, for example, in the work of Leo Bersani and Michael
71 Foucault, supra note 65.
72 Manohla Dargis, In Buoyant Secretary, Romance for Consenting Adults Los Angeles Times (20
September 2002).
871
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
Warner.73 In Bersanis work, sex involves an annihilation of the self, an undoing of
controlled selfhood. He writes of the sexual … jouissance of exploded limits,74 in
the ways that sexual pleasure [which] occurs whenever a certain threshold of
intensity is reached, when the organization of the self is momentarily disturbed by
sensations or affective processes somehow beyond those connected with psychic
organization.75 A reading of Secretary along these lines might, on the one hand,
applaud the films embrace of shame as a powerful element of sexual desire. It might
consider the ways in which the erotic obsession and performance pushed at the outer
borders of self and other, and the ways in which their sexual encounters hinted at this
jouissance of exploded limits and the annihilation of the self. Lee and Greys
sexual encounters were characterized by an out-of-controlness, a desire that
extended beyond the boundaries of the rational self. In a powerful scene, Grey
reaches sexual ecstasy as he spanks Lee at his desk, there is a sense that he has simply
lost control over the excess of his desire. This reading of the film includes an
exploration of the psychic sexual subjects of the film; not only on Lees masochism
(of such interest to feminists), but also on Greys tortured self. Grey seeks through
much of the film to control his desires, through an alternative physicality of running
and sit-ups. He knows that he must control his deviant desires, but he proves unable
to do so in the face of Lees seductions.
There is a slightly different element of the annihilation of the self in Lees
transformation from self-mutilator to slave. Self-mutilators are sometimes said to be
marking the borders between self and other, between inside and out by violating them;
they are marking and asserting the border of the self through pain; it is an assertion of
self-control. It may be an acting out of feelings of shame or a way of stopping a
dissociative episode. While we have little access to the inner workings of Lees
psychic world that leads her to cut (any and all of the above are feasible
explanations), we witness her transformation as she learns to have her psychic desires
met through her sexual encounters with Grey. She can embrace shame as a desirable
state. She can experience the boundary between self and other through its violation.
She can experience her self, its annihilation, and its reconstitution through pain and
humiliation.
Each of these queer theory readings adds a layer of complexity and insight to the
film. None is specifically feminist nor deploys the lens of gender as an axis of power.
Indeed, some of them may be precluded by a focus on gender as a site of the
asymmetrical distribution of power. For example, a reading of Secretary that is
primarily concerned with a gendered readingeither (a) in radical feminisms
73 Leo Bersani, Is the Rectum a Grave? in Douglas Crimp, ed., AIDS: Cultural Analysis, Cultural
Activism (Cambridge, Mass.: MIT Press, 1988) 197; see also Leo Bersani, Homos (Cambridge,
Mass.: Harvard University Press, 1995); Michael Warner, The Trouble with Normal: Sex, Politics and
the Ethics of Queer Life (New York: Free Press, 1999).
74 Bersani, Is the Rectum a Grave?, ibid. at 217.
75 Ibid.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
872
language, how the film reinforces the sexual subordination of women or (b) in queer
feminisms language, how the subjects are positioned as gendered and how the
performances reiterate dominant instantiations of gendermay simply be unable to
imagine a reading in which gender is irrelevant. It would be unable to imagine a
reading in which Lees self-mutilation was not a product of gender or in which her
masochism was not analyzed through the lens of gendered power.
[Vol. 49
This is Janet Halleys point. Taking a break from feminism may be extremely
productive by bringing into view things that would otherwise be invisible. She is
right. But, coming full circle, I also believe that the insights from beyond feminism
can be brought back to feminism, that feminism can be enriched by insights from
beyond its own imaginative borders. A feminist reading of Secretary can be a better
reading if it is prepared to acknowledge its own disciplinary limits and its
interpretative partiality. A feminist reading is simply not the only reading, nor should
it have to establish its exclusivity in order to validate its legitimacy. In the sphere of
sexuality, queer theory is an important supplement to feminisms focus on gender.
At the same time, these queer readings of Secretary as normalization or sexual
abjection can be supplementedindeed, in some respects only make sense when
supplementedby a gendered analysis. Part of what makes the story in Secretary
work as normalization is the containment of Lee within domesticated suburbanry,
an idea that owes much to feminisms analysis of the discourses of feminized
domesticity. And part of what makes the story in Secretary work as an affirmation of
sexual abjection are the highly eroticized and gendered roles of S/M, B/D sexuality.
The accoutrements of S/M, B/D sexuality, and the roles it assigns in its erotic
performances, only make sense in, and through, highly gendered (but sometimes
flipping) identities. In other words, Lees high heels are not just happenstance. They
are part of a gendered performance from which S/M sexuality draws. The queer
readings of Secretary, then, only work in conjunction with feminisms insights into
the workings of gender. While gender may have been bracketed in the initial readings,
it has not been sidelined entirely. Gendered assumptions operate to produce the very
meaning that queer theory seeks to reveal.
It is also worth returning for a moment to the words of Erin Cressida Wilson. For
Wilson, Secretary is a feminist text. It was an attempt to challenge the orthodox
feminism and its dismissal of womens multivalent desires;76 an attempt to challenge
the extent to which feminism had become divorced from an exploration of these
76 For example, Wilson writes of her experience at college in the 1980s when being a lesbian
feminist was all the rage. I didnt want to be on top. I didnt hate men. I wasnt a lesbian. I loved
naughty and dominant boys. And at the same time, I was no pushover. I was highly motivated in
school, and I loved to give it up in bed. What did this make me? Was this behavior antithetical to my
behavior as a studious young woman? I found it a shame that feminism seemed to be dictating what I
was allowed to desire (supra note 2 at iii).
873
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
desires, particularly if they deviated from the feminist norm.77 It was an affirmation of
sexual submission as feminist. Moreover, Wilson notes that in her early years as
playwright, she discovered a theatrical scene that was highly conservative and
compartmentalized: It seemed that it was OK to write about the female experience,
but only if the message was feminist. In fact, many of the highly sexed dramas were
reserved for homosexuals.78 According to Wilson, [t]here was some misconception
that if you were a woman, your work was poetic and soft. Either that, or it was about
how so-and-so did you wrong. It seemed that if you were a real woman, you only
liked your sex gentle and loving.79 Wilson set out to challenge these orthodoxies,
including the divisions emerging within the theatrical scene in which feminists
explored the oppression of women, and gay men explored sex. Without seeking to
privilege the authorial intentions as the true reading of the text, it does seem to be
worth acknowledging that Secretary was a challenge to the very dichotomy between
feminism and queer theory, gender and sexuality; a challenge that came from within
the discourses of feminism. A queer theory reading alone might miss or dismiss the
significance of this challenge coming from within feminism. Yet, its feminist frame is
part of the cultural milieu from which the text emerged, and which has produced
meaning for the text. Paradoxically, it is the very cultural milieu that produces the text
as anti- or post-feminist in the popular imagination. The feminism that Secretary
challenges is so pervasive that the film is then read by many as anti/post feminist. A
queer theory reading might simply contribute to this anti/post feminist reading, rather
than be able to simultaneously point out its paradoxical nature. Once again, it is
possible to see how gendered assumptions produce the very meanings the film
explores and challenges. And once again, it is possible to see how our analyses of
cultural texts might be significantly enhanced by attention to gender and sexuality,
feminism and queer theory.
This is my point. We need to develop analyses of the complex and nuanced
interstices of gender and sexuality, of feminism and queer theory. Judith Butler has
argued that it may be that the long run has arrived, that it may be time for
feminism to offer a critique of gender hierarchy that might be incorporated into a
radical theory of sex, and for radical sexual theory to challenge and enrich
feminism.80 Indeed, as Butler has suggested, it may be time to worry less about
77 Wilson describes her evolution toward accepting the power and pleasure of submission: To be a
strong woman, I would not succumb to this notion that I had to be aggressive, angry, blaming, and
politically correct. It seemed to me that there were necessary aspects of being a woman that feminism
rejected. It was in the writing of Secretary that I began to define what I had been writing and living
for fifteen years (ibid. at iv).
78 Ibid. at iii.
79 Ibid.
80 Butler, Against Proper Objects, supra note 8 at 18. Butler is paraphrasing Gayle Rubins
observation in Thinking Sex that [i]n the long run, feminisms critique of gender hierarchy must be
incorporated into a radical theory of sex, and the critique of sexual oppression should enrich
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
874
disciplining the boundaries between feminist and queer theory and their appropriate
object of study (gender and sexuality respectively), and to encourage the kinds of
conversations that resist the urge to stake territorial claims through the reduction or
caricature of the positions from which they are differentiated.81 She encourages,
instead, a kind of intellectual trespass which values the expansive possibilities of
such confrontations over the retreat into intellectual territory.82
[Vol. 49
My analysis of both Twyman and Secretary, while providing a range of alternative
feminist and queer readings, has largely proceeded along disciplinary boundaries that
Butler suggests that we abandon, or at least, not reify. I have structured my discussion
along the lines of providing distinctively feminist and distinctively non feminist
readings. Feminist readings focus on gender. Non-feminist readings do not. Pushing
the analysis further along the lines recommended by Butler, it may then be time to
worry less about intellectual territory, and more about intellectual trespass.
Conclusion: Disrupting and Reinvigorating Feminism
Feminism after the critique of feminism has its work cut out for it. In the area of
sexuality, it must struggle to displace the dominance of dominance feminism in the
popular imagination, and to carve out for itself a role in the analysis of sex and
sexuality beyond the siren call of negativity and danger. As the analysis of Tywman
and Secretary has attempted to illustrate, feminism can produce a multiplicity of
readings and insights into the representation of sex, sexuality, and sexual subjects in
general, and S/M subjects in particular; readings that do move beyond sexual
negativity, without collapsing into the sexual libertine. In these post-feminist times,
when the language of feminism is suspect, feminism must find ways to tap back into
cultural power lines; it must find a way to speak that is not reminiscent of 1970s, or
80s, or even 90s feminist sloganseven when some of those slogans hold true, they
simply no longer have cultural resonance. Feminism, in the popular imagination, has
become a caricature of itself. And the intellectual drift from feminist critique has done
little to reverse the tides.
Feminism needs a makeover. It needs to be disrupted, reinvigorated, and
repackaged. While it has been the critique of feminism that has contributed to its
current stasis, it may be that feminism needs more critique, when critique is
understood as unrelenting interrogation of what lies beneath. Wendy Brown and Janet
Halley have argued for the politically invigorating potential of critique:
Critique offers possibilities of analyzing existing discourses of power to
understand how subjects are fabricated or positioned by them, what powers
they secure (and disguise or veil), what assumptions they naturalize, what
feminism. But, it was part of an argument that in the short run, [a]n autonomous theory and politics
specific to sexuality must be developed (supra note 6 at 309).
81 Butler, Against Proper Objects, supra note 8 at 24-25.
82 Ibid. at 25.
2004] B. COSSMAN READING AND REREADING THE SEXUAL SUBJECT
875
privileges they fix, what norms they mobilize, and what or whom these norms
exclude. Critique is thus a practice that allows us to scrutinize the form, content
and possible reworking of our apparent political choices; we no longer have to
take them as givens.83
The critique of feminism may reinvigorat[e] politics by describing problems and
constraints anew, by attending to what is hidden, disavowed, or implicit, and by
discerning or inventing new possibilities within it.84 Queer theory may be helpful in
this critique, providing a way for feminism to look beyond and back at itself. In the
realm of sexuality and beyond, the feminism of feminism after must be prepared to
rethink the limits of its own categories and imagination, and deploy alternative
analytical frames to move beyond these limitations and back again.
Queer theory should not, however, be held up as feminisms white knight, a
saviour in sex positive clothing. Queer theory also needs critique; it needs to be
subject to the same analysis of what is hidden, disavowed, and implicit. Queer theory,
for example, tends to normatively value subversion over normalization; the sexual
over the familial; the individual pursuit of the erotic over relational care and
responsibility. One need not fall back upon cultural feminism to dispute this rejection
of the value of the relational. From socialist feminists and postmodern feminists
debating questions of carework, to political theorists and philosophers influenced by
the work of Levinas, there is a significant and sophisticated literature from which to
draw in order to value the relational. Feminists and non-feminists alike have found
value in the intimate sphere of relational life as a sphere with the potential to affirm
selfhood, challenge hetero-normativity, and produce self-meaning. While queer theory
has performed an invaluable task in attempting to affirm the value of the sexual, the
erotic, the abject, it is not at all clear that it needs to be produced at the expense of the
relational. Taking a step back from queer theory and affirming the potential value of
the intimate/relational/familial sphere is also a moment to bring feminism and its
focus on gender as an axis of power back into view. Any attempt to value the
relational or familial sphere must be attentive to the extent to which this is a
profoundly gendered sphere of life; a gendered sphere that has constituted women as
very particular kinds of legal subjects and restricted the agency of these subjects. It is
a moment to consider the gaps and lacunae created by queer theorys lack of attention
to the ways in which the legal and cultural regulation of sexuality more generally is
gendered. It is a moment to insist that gender still matters.
Of course, taking a step back from queer theory must not be a return to an earlier
feminism in which only gender matters. The critique of intersectionality has ensured
that feminism must remain attentive to the multiple axes of power and identity.
Feminism after the critique of feminism is a feminism forever changed. But, even
beyond the intersectionality critique, feminism after is a feminism changed. It is a
feminism that needs to be attentive to its own imaginative failings. It is a feminism
83 Wendy Brown & Janet Halley, Introduction in Halley & Brown, eds., supra note 12, 1 at 26-27.
84 Ibid. at 33.
[Vol. 49
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
876
excited by the electrifying energy of postmodernism, critical race theory, post-
colonialism, and queer theory, among others; a feminism disrupted by challenges to
its very foundational concepts. Feminism after the critique of feminism must be able
to tap into these high voltage power lines. It must not be afraid to return to gender, nor
to rethink its meaning, its deployment, and its porous borders. In the realm of
sexuality and beyond, the feminism of feminism after must be prepared to rethink the
limits of its own categories and imagination, and deploy alternative analytical
framessuch as queer theoryto move beyond these limitations and back again.
