Abstract

In feminist jurisprudence, sex exceptionalism is increasingly out of vogue. Sex exceptionalism, or “the idea that sex and sexualities are inherently different from all other human activities and topics of study,” has come under criticism from a variety of legal perspectives, as diverse as constitutional law, employment law, and intellectual property law. Professor Aya Gruber’s recent article in the Stanford Law Review is the latest to take up the gauntlet, this time with reference to criminal law. According to Professor Gruber, sex exceptionalism can be held responsible for a host of negative aspects of our contemporary criminal justice system. She blames it for entrenching conservative sexual mores, subordinating women, and reinforcing white supremacy. In addition, she argues, the phenomenon contributes to hyper-carceralism and anti-sexwork stigma. Even when supposedly motivated by benign concerns, sex exceptionalist law is a cudgel wielded by “dominance feminists” – a form of feminism often disparaged in progressive circles. Although Gruber considers important evolutions in criminal law and points to serious injustices in our contemporary legal regime, she fails to make a convincing case that feminist scholars ought to reject sex exceptionalism in criminal law. In this response, I criticize three major elements in Gruber’s case against sex exceptionalism. The first is her genealogical argument, in which she argues that sex exceptionalism has a pernicious history which ought to discredit it. In response, I argue she falls prey to the genetic fallacy: an institution’s origins and its reasons for maintenance can and do come apart. Second, Gruber blames sex exceptionalism for two negative consequences in the American criminal justice system: hyper-carceralism and anti-sex work stigma. Neither of these hold: law can be sex-exceptionalist without contributing to these negative outcomes, and plenty of non-exceptionalist laws do contribute. Finally, and most importantly, Gruber makes a conceptual error in this piece, conflating sex exceptionalism with sex negativity, a muddling which the feminist project can ill afford.