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26 New Eng. L. Rev. 1453 (1991-1992)
Representing Identities: Legal Treatment of Pregnancy and Homosexuality

handle is hein.journals/newlr26 and id is 1467 raw text is: Representing Identities: Legal Treatment of Pregnancy and Homosexuality* Dan Danielsen** To bring the subject to recognize and name his desire, this is the na- ture of the efficacious action of analysis. But it is not a question of recognizing something that would have already been there-a given- ready to be captured. In naming it, the subject creates, gives rise to something new, makes something new present in the world.' It is not a question of knowing whether I speak of myself in a way that conforms to what I am, but rather of knowing whether I am the same as that of which I speak.2 I. INTRODUCTION This article explores some of the ways in which judges treat preg- nancy3 and homosexuality4 in discrimination cases.5 In examining * Copyright © 1992 by Dan Danielsen. Reprinted by permission. ** Associate, Foley, Hoag & Eliot, Boston. My sincere thanks to David Kennedy, Nathaniel Berman, Karen EngleJerry Frug, Duncan Kennedy, Beth Levi, Frank Michelman and Ileana Porras for your friendship, support and untiring willingness to read just one more draft. To Mary Joe, my eloquence is unfortunately not up to my emotions. You were essential to my fantasy of our community. You figured large in every party, every conference, every summer, every holiday dinner, every article, every strategy ... I really miss you. 1. SHOSHANA FELMAN, JACQUES LACAN AND THE ADVENTURE OF INSIGHT 131 (1987) (quoting and translating JACQUES LACAN, LE SEMINAIRE, LIVRE II: LE MOI DANS LA THEORIE DE FREUD ET DANS LA TECHNIQUE PSYCHOANALYTIQUE 267 (Paris: Seuil 1973)). 2. JACQUES LACAN, ECRITS: A SELECTION 165 (Alan Sheridan trans., 1977). 3. Throughout this paper, I will use the term pregnancy as a metaphor for the locus of social, personal and legal relations of and to women's biological sex, gender, reproductive desires, capacities or conditions. Though much of the paper is devoted to beginning to unpack the complex meanings of pregnancy as it is represented in legal opinions, I want to make clear from the outset that I am not simply referring to the physical condition of carrying a fetus or to women's biological reproductive capabilities. 4. As with pregnancy, I hope to use the terms homosexual and homosexuality as shorthand for representing a complex set of desires, self-understandings, social and legal relations, and sexualities. Unfortunately the terms are not entirely satisfactory in that they suggest a sexual system of binary oppositions-of male and female and of same sex or opposite sex object choice. If feminism and psychoanalytic theory have taught us anything it is that sex and sexuality cannot be reduced to how you have sex and with whom you have it. On the other hand, I am 1453

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