Swethaa Ballakrishnen on "Law School as Straight Space"

Swethaa S. Ballakrishnen has published Law School as Straight Space in volume 91 of the Fordham Law Review. This is a symposium volume giving tribute to the life of Professor Deborah L. Rhode. Ballakrishnen draws upon the framework of Professor Bennett Capers’s framework of The Law School as White Space.

Ballakrishnen's abstract provides: 

*  *  * [A]lthough categories like race and gender have received increasing attention in diversity research, less is known about other nonnormative actors in the legal profession whose voices remain peripheral because of their minority status and/or historic representation. This means that we have little aggregate data about categories like generational capital, sexual orientation, and disability, and when we do know about them, their narratives do not highlight nonnormative subpopulations within these identities. In honoring Rhode’s commitment to making space for the marginal in legal education and clarifying the “no-problem” problems in our midst, this Essay focuses on one strain of nonnormative experience—that of genderqueer persons—to clarify the ways in which law schools, despite their intention and posturing (and sometimes, in spite of such posturing), reinforce linear hierarchies of identity and performance. Although just a small number of lawyers—less than 1 percent—identify as genderqueer, their experiences of isolation within professional spaces highlight important ways in which the legal profession reinforces and expects normativity.

 

Part I offers an overview of queer marginality in the legal profession by outlining the demographic trends of LGBTQIA+ individuals and the ways in which these data leave out nuances and intersections that might be relevant. Particularly, by using direction from Rhode’s early article, Whistling Vivaldi: Legal Education and the Politics of Progress, this Essay suggests that understanding genderqueer individuals’ experiences in legal education might be crucial to building sustainable equity and responding to new demographic shifts.

 

Part II uses ethnographic interview data to highlight the perspectives of genderqueer law students. It demonstrates the ways in which “normal” professional practices in law school reinforce the rigidity of the gender binary and call for a performance of propriety that necessarily alienates students who do not fall into strict categories of identity. The gendered nature of law school has the dual (and somewhat paradoxical) implication of making students both want to establish their gender nonnormative identities more actively and feel like those boundaries of representation are not respected. It is this denial of queer inequality—a form of “blasé discrimination”—that offers new operationalization to Rhode’s theorizing about the “no-problem” problem.

 

Part III uses these perspectives from the periphery as central tools for unpacking the structures of the law school. * * *  I offer that the heteronormative assumptions that are baked into law school form “straight” expectations that are inherent in its institutional framework and that it is, in plain sight, without ever being called out, a “straight space.” Navigation by those who do not fit these categorical frameworks of normativity is always at a cost, which leads students to actively push back against them, even if such expression comes at the behest of new costs. Using accounts from students about name calling and pedagogy in classrooms, as well as the dress, professionalization, and affect expectations seen as inherent to becoming a “good lawyer,” I suggest the ways in which these prefigurations of structural exclusion might impact a range of nonnormative subjects. I then conclude in Part IV by suggesting that paying attention to these subpopulations of students (of whom nonbinary and trans students are inexhaustive examples) is crucial for those committed to reforming legal education beyond platitudes of equality. Rhode’s interest in justice was not just about precise analysis and theory; it was committed to unveiling the structures of inequality that were not yet named. It is the spirit of that endeavor that buoys this Essay’s main contribution.