Perry v Schwarzenegger: An Opportunity to 'Do' Law Differently

AuthorJasreet Badyal
PositionThird year law student at the University of Victoria
Pages3-20
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ARTICLE
PERRY V SCHWARZENEGGER: AN
OPPORTUNITY TO “DO” LAW DIFFERENTLY
Jasreet Badyal*
CITED: (2014) 19 Appeal 3–20
TABLE OF CONTENTS
INTRODUCTION.................................................. 4
I. SETTING THE STAGE ........................................... 6
A. e Classroom Experience ........................................ 6
B. Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. TRADITIONAL LEGAL PEDAGOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
III. LAW, EMBODIMENT, AND THEATRE ............................ 10
A. Embodiment and Law .......................................... 10
B. What Does eatre Give Us? ..................................... 12
IV. EMPATHY, OUTSIDER SPACE, RELATIONAL POLITICS,
AND MAPPING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Importance of Emotion and Empathy .............................. 14
B. Outsider Space and Relational Politics .............................. 15
C. Mapping .................................................... 16
V. SOME REFLECTIONS AND DOUBTS............................. 17
LOOKING FORWARD ............................................. 18
* Jasreet Badyal is a third year law s tudent at the University of Vic toria. She wrote this paper for
the course “Sexual Ori entation and the Law.” She would like to thank Professor s Gillian Calder
and Sharon Cowan for creating saf e spaces and having the courage to do theatre in law s chool.
She would also like to thank her classmate s who made themselves vulnerabl e and showed
strength in confronting di cult processes of learning about an d combating structures of power.
Finally, she is immensely grateful to Xi aoshan Zheng and Sarah Jones for the ir faith in this paper,
patience, and commitment throughout the editing process.
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INTRODUCTION
For the master’s tools will ne ver dismantle the master’s house. ey may a llow
us temporarily to beat hi m at his own game, but they will never enable us
to bring about genuine change.
Audre Lorde1
HULK SUPPORT QUEER AND FEMINI ST CHALLENGE S TO
MAR RIAGE AS INSTIT UTION.HULKALSO CHA MPION SAME-
SEX MAR RIAGE. HULKVAST, CONTAIN MULTIT UDES.
Femin ist Hulk2
Written in response to the Supreme Court of the United States’ hea rings on same-sex
marriage equality,3 Feminist Hulk ’s t weet succinctly and with nuance c aptures the critical
debates and discus sions that progressives have about t he subject.4 In less than 140
characters, t his tweet illustrates how lang uage can be used dierently. It can be viewed a s
an example of applying L orde’s assertion that true cha nge requires moving be yond
dominant approaches. With these ide as in mind, my aim in t his paper is to uncover and
apply alternative approaches to learn ing law. I use Perry v Schwarzenegger (“e C ase”)5 as
an entry point for exploring what i s gained (and what may be lost) by “doing” law di erently
and by understandi ng law to go beyond simply legislation and jurisprudence. e fol lowing
are questions that gu ide my inquiry: what ha ppens when we put our bodies, minds, a nd
souls into learning l aw? Can this dierent way of learning pave t he way for change?
As a law student in the cour se Sexual Orientat ion and the Law, I had the opportunit y
to actively engage in v arious forms of embodied ped agogy.6 e course was co -taught
1 Audre Lorde, Sister Outsider (Trumansburg: The Crossing Pr ess, 1984) at 112 [emphasis in
original].
2 Feminist Hulk, (26 March 2013), online: Twitter
status/316565626359533569>. As of 9 February 2014, this tweet had been ret weeted (shared)
4,642 times and marked as a favourite 1,8 08 times. Feminist Hulk is a Twitter account that
employs the voice and sty le of a comic book character (Hulk) to ar ticulate feminist perspec tives.
The account writes in all capit al letters to signify Hulk ’s voice. For instance, in response to the
media controversy surroun ding the response to the Steubenville rapis ts, Feminist Hulk wrote:
“NO RAPIST IS TRAGIC HER O. HULK SMASH BULLSHIT MEDIA FOR THEIR COMPLICIT Y IN SEXISM
AND RAPE CULTURE!” Feminist Hulk, (19 March 2013), online: Twitter <https://twitter.com/
feminis thulk /status/ 314134202717192192>.
3 “Hollingsworth v Perry: Full Transcript of Oral Arguments on G ay Marriage Released (Audio)”
The Hungton Post (26 March 2013), online: Hungton Post
com/2013/03/26/hollingsworth-v-perry_n _2952605.html>.
4 For examples in the Canadian academic contex t, see generally Susan Boyd & Clair e Young,
“Losing the Feminist Voice? Debates on Leg al Recognition of Same-Sex Par tnerships in Canada”
(2006) 14 Fem L S 213; Suzanne J. Lenon, “Marrying Citizens! Ra ced Subjects? Rethinking the
Terrain of Equal Marriage Discourse ” (2005) 17 CJWL 405.
5 Perry v Schwarzenegger, 704 F Su pp (2d) 921 (ND Cal 2010). This is the lower court decisi on of the
case that Feminist Hulk is refer encing; see Feminist Hulk, supra note 2.
6 In using the term “embodied”, I am referring to the concept of usin g, engaging, and being
aware of our bodies. Embo diment reects a feminist me thodology, which recognizes the
complex lived experi ences of oppression as inseparable f rom bodies. It requires moving
beyond traditional appr oaches, which are oriented around te xt (either written or verbal) and ,
thus, disembodied. Se e Gillian Calder & Sharon Cowan, “Re -Imaging Equality: Meanin g and
Movement” (2008) 29 A Fem LJ 109 at 117; Elizabeth Adjin-Tettey et al, “Postcards from the
Edge (of Empire)” (2008) 17 Soc & Leg Stud 5 [Postcards from the Edge]. Given th is denition of
“embodied”, when I use the term “embodie d pedagogy,” I am referring to a teaching app roach
that requires students to em ploy and be conscious of their bodies . In contrast, I use the term
traditional legal pe dagogy to refer to a teaching approach th at is text-oriented. In law schoo ls,
the traditional approac h involves case law methodology, which is the pro cess of learning the law
by reading seminal cases, generally exclusively from the appellate level.
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by Professors Gillian C alder and Sharon Cowan at t he Faculty of Law, University of
Victoria .7 A central component of the embodied peda gogy in the cou rse was Dustin
Lance Black ’s play, “8” (“e Play”).8 e Play drew heavily on the transcripts of e
Case, while weav ing in the narrat ives of the gay and lesbian pla intis. ese pla intis
were challenging Proposition 8, wh ich had removed Californ ia’s recognition of same-
sex marriag e through a popular re ferendum.9 As a class, we sta ged a reading of e
Play, which was open to the public.10 We did this in the larges t lecture room of the law
building and ga rnered an audience of over a hundred people, including individual s who
were not directly connected w ith the law school.
While same-s ex marriage e quality is the pri mary issue in e C ase and e Play, my
focus is more on how we learn law. As such, my exploration nece ssarily implicate s
questions about the purpose of lega l education.11 I am struck by how often law students
and the legal profession see sub stantive content as the raison d’être of lega l education, as
if mastery of a releva nt section of legislation or a ratio of a case is all it ta kes to be a good
legal advocate. I see emb odied pedagog y as pushback ag ainst such an under standing
of legal education. An emb odied pedagogic al approach makes le arning the law a more
fully human e xperience and brings to l ight questions regardi ng equality, justice, and
lawyering th at are often neglected or cannot be seen throu gh traditional legal pedag ogy.
In particul ar, embodied pedagog y opens up the imagin ary12 of what is possible and
forces us to think b eyond our current limitations. I w ill present a case for how engaging
in embodied legal pe dagogy ca n help us learn import ant skills for law yering, such as
empathy and critical awa reness of our positions in structures of power.
7 For an example of their collaborative work , see e.g. Calder & Cowan, supra note 6.
8 Dustin Lance Black, “8” (Burbank: Hungr y Jackal Productions, 2012) [Playscript].
9 The Play is based on the trial level decision. Th e case was ultimately appealed to the Sup reme
Court of the United States with a d ecision rendered June 26, 2013. The 5-4 judgment
was decided on the narrow gro unds of standing instead of the bigg er question of equal
protection and the de nition of marriage. See generall y Bill Mears, “Supreme Court dism isses
California’s Proposition 8 Appeal” CNN (27 June 2013), online: CNN Politics
com/2013/06/26/politics/scotus-prop-8/>. Regardless, th e majority decision dismissed th e
appeal, which ultimately me ans California is once again a state that pe rmits same-sex marriag e.
10 We advertised our stag ed reading on the campus radio stati on and in the City of Victoria’s
mainstream newspaper. See Amy Smar t, “UVic Law School Spons ors Reading of Same-sex
Marriage Play” Times Colonist (12 March 2013), online: Times Colonist
com/entertainment/uvic-law-school-sponsors-reading-of-same-sex-marriage-play-1.9 0054>. We
also produced a video invite t hat we used to create awareness of The Play. BoxxerRe bellion, “8
Video Invite” (2013), online: Youtube ?v=v rFosslsM&feature=y
outu.be>.
11 I see this p aper as contributing a student per spective to existing literature o n legal
pedagogy, specically c ritical work that uses perspec tives from feminism, queer theo ry, and
intersectionalit y. See e.g. Kim Brooks & Debra Parkes , “Queering Legal Education: A Proje ct of
Theoretical Discover y” (2004) 27 Harv Women’s LJ 89; Natasha Ba kht et al, “Counting Outsiders:
A Critical Explorati on of Outsider Course Enrollment in Ca nadian Legal Education” (2007) 45:4
Osgoode Hall LJ 66 8; Maneesha Deckha, “Teaching Posthu manist Ethics in Law School: The
Race, Culture, and Gender Dime nsions of Student Resistance” (2009 -2010) 16 Animal L 287;
Gillian Calder, “Guantánamo: Using a Play- Reading to Teach Law” (2010) 142 Can Theatre Rev 44
[Guantánamo].
12 By imaginary, I am refe rring to the creative space of what is possible . Hegemonic ideas generally
form the boundaries of on e’s imaginary. In this way, it becomes impossible to even conce ive
of something dierent. T he most eective way that existin g power structures perpe tuate
themselves is through constr aining the imaginary. As such, openin g up the imaginary is integral
to produce change. This under standing is informed by Rebe cca Johnson’s lectures on judicial
dissent and the imaginar y. See generally Rebecca Johnson & Rut h Buchanan, “Getting the
Insider’s Story Out: What Pop ular Film can tell us about Legal Metho d’s Dirty Secrets” (2001)
20 Windsor YB Access Just 87; Suzi Adams, Jeremy C A Smi th & Ingerid S Straume, “Political
Imaginaries in Question” (2012) 13:1 Critical Horizons 5.
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My overarching purpose i n critically exploring th is dierent pedagogica l approach is both
to articulate my t houghts for others but also to have space to reect on my experience s for
myself. With this in mi nd, I will rst outline the context and met hodology of this paper
in Part I. I will t hen summariz e how a traditional lega l pedagogica l approach would
have addressed e Ca se in Part II. en, I will e xplore the signica nce of embodiment
and the role of theatre in relation to law in Pa rt III. After this, I wil l consider the role of
emotions and empathy, the creation of outsider spaces, relationa l politics, and mapping
in Part IV. Once I have explored what can be ga ined through this peda gogy, I will reect
on doubt and the purpose of my paper in Part V. To conclude, I will note the shifts th at
may be important for futu re embodied legal pedagogical approac hes.
I. SETTING THE STAGE
A. The Classroom Experience
Alongside e Play, in Sexual Orientation a nd the Law we engaged i n collaborative
discussions, util ized our bodies through var ious activities, and employed artistic tools to
create representations. e collabor ative discussions reec ted some traditional sem inar
styles in that we a ll read mostly the sa me articles a nd engaged critica lly with them.
However, we shifted that trad itional approach by creating a conge nial and respec tful
environment that focused on lea rning from each other. R ather than spea king with the
intention of converting others to our own perspe ctive, our starting point wa s that we each
brought dierent and valuable per spectives. Moreover, we used our bodies, i ndividually
and collectively, to produce sculptures a nd representations of moments of oppression
and counter-oppression. We also used art as p art of our seminars and discus sion. Lastly,
we ended the course by mapping moments of queer lega l history that eac h of us had
chosen.13
Many of my classmates employed non-traditiona l methods to produce their nal project s,
such as scrapbooks a nd portraits. I am for tunate to have part icipated in some of these
methods and they a re an integral pa rt of the experiences t hat I am ana lyzing in thi s
paper. In particula r, I a m inspired by Siddharth Ak ali’s “(I)dentity Burlesque,” in which
I acted the role of an “identity g atekeeper.” In his piece, he beautiful ly and physically
deconstructed t he power and constraints of identit y.14 In light of the importance of
collaboration in thi s class, I will often use “we” a nd related terminology in my discussion
below. I do this acknowledging t hat the ideas that I express are reect ive of my personal
experience and may not neces sarily reect the experiences of my classm ates.15
Signicantly, our clas s was composed of mostly (perhaps enti rely) outsider students
who reected a range of interse ctional axes of oppression: gender; s exual orientation;
race; nationalit y; langua ge; single parenthood st atus; class; a nd likely many others t hat
I cannot say for certa in.16 It should also be noted that we al l have varyi ng degrees of
privilege, especia lly as law students, wh ich interact in complex and nuanc ed ways with
our intersecting oppressions. My pa rticular self-identication is import ant to understand
13 See Appendix A f or a picture of our map.
14 Siddharth Akali, “(I)de ntity Burlesque” (Perform ance delivered at the Faculty of Law, Universit y
of Victoria, 27 Februar y 2013) [unpublished].
15 Further research to en gage in the perspectives of the r est of the class may present importa nt
perspectives that ar e missing from this paper.
16 I have chosen to only list the ones th at I am certain of to avoid essentialist assumpti ons about my
classmates.
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my engagement with the projects.17 I am female-identifying, fema le-bodied, able-bodied,
Indo-Canad ian, brown, agnostic Sik h, and queer.18 While these are not my only sa lient
identity markers, they a re the ones that I am most reg ularly reect ing on and were the
ones I felt activated in my learn ing.
In addition to this cours e, I took courses during law s chool on feminist lega l theories,
Indigenous law, Inuit law and lm, and ad ministrative law. Al l except the last were
outsider courses, and the la st was taught u sing outsider pedagog y.19 ese courses have
presented me with dierent methodologies a nd perspectives, i ncluding canvassi ng
the broader contexts informi ng the law, unpacking power relations u nderlying law’s
purported neutral ity, e xploring alternative legal regimes, u sing law-and-lm approaches,
and learning col laboratively.20 An example of applying these alternative met hodologies is
my video blog that engaged per sonal narratives wit h questions of law, identity, oppression,
and feminism.21 e overarch ing lesson for me is that law is more than stat utes and cases;
rather, it includes all of our daily i nteractions and societa l norms.22
B. Methodology
How do we assess what happens when we put our bod ies into learning t he law? I have
lately become obsessed wit h questions of methodology. e ‘how’ and ‘why’ fascinate me
more than the ‘what.’ In some ways, this pa per is borne out of the desire to experiment
17 This recogniti on of my subjectivity is resista nce against treating myself as a neutral “colour less
legal analyst.” Brook s & Parkes, supra note 11 at 108, citing Kimberle Williams Crensh aw,
“Foreword: Toward a Race-Consci ous Pedagogy in Legal Education” (1994) 4 S Cal Rev L &
Women’s Stud 33.
18 I have slowly come to identif y as queer. I hold the position that a person’s geni tals are not a
relevant characteris tic for determining whether I would l ove them or not. However, I am not
sure if this requires “coming out,” espe cially because I do not appreciate th e current constraints
of sexual orientation . I also do not accept gender dichotomies. A s a result, I am settling on
the term “queer” because i ts ambiguity is comforting an d it does the job of questioning
heteronormativit y. This paper was the rst time that I wrote out “ I am queer” and found it
a liberating experie nce. One of my rst and only experie nces of explicitly explaining this
philosophy towards my own sexua lity led to a complete breakdown in a fr iendship, which has
made me apprehensive abo ut openly articulating myself. On th e other hand, I have over time
found that most people c lose to me understand this identi cation and are very thoughtf ul.
19 My understandin g of “outsider” is informed by the foll owing denition that Bakht et al empl oy,
which draws on Mari Matsuda’s work : “We use the term outsider to descri be those who are
members of groups that have histo rically lacked power in societ y or have traditionally been
outside the realms of fashio ning, teaching, and adjudicating the law.” Bakht , supra note 11 at
672. See also Mari J Matsuda, “Pu blic Response to Racist Speech: Consi dering the Victim’s Story”
(1989) 87 Mich L Rev 2320 at 2323. I use the term “Othered” with similar unde rstandings. The
outsider methodol ogy employed in administrative law invol ved critically analyzing the imp act
of legal doctrines o n vulnerable groups and one of our assig nments was a collaborative paper.
20 I am gr ateful for the bravery of the follow ing professors who have exposed m e to alternative
pedagogies: Gillian Ca lder; Freya Kodar; Judith Sayers; Mane esha Deckha; Sharon Cowan; and
Rebecca Johnson. Th ey have taken on the risks and backlash th at comes with challenging norms
of legal education. I am s truck by the time, energy, and constant reec tion that each puts into
their work. Many of them have pro duced work that illustrates alternative ap proaches to teaching
and understanding law. See e.g . Postcards from the Edge, supra note 6; De ckha, supra note 11;
Elizabeth Adjin-Tettey et al, “Using Film in t he Classroom: The Call and the Respons es” (2009)
21 CJWL 197 [Using Film]; Guantánamo, supra note 11; Judith Sayers, “First Nations in Br itish
Columbia,” online: First Nations in British Columbia .
21 Jasreet Badyal, “Tumbl(r)ing at the Edge o f Empire,” online: Tumblr
com>. An integral inspiration behind this proje ct (and the title of the blog) was the work of
feminist law professors at th e University of Victoria, s ee Postcards from the Edge, supra note 6 .
22 Julie L assonde’s work in particular has op ened my mind to what can be considered law. She
presents how dierent dail y interactions are representative of t he law and that all of our
activities and ways of be ing represent legal interactio ns. See Julie Lassonde, Performing Law
(LLM Thesis, Universit y of Victoria Faculty of Law, 2006), online: UV ic Faculty of Law
uvic.ca/lassonde>.
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with a particu lar methodologica l approach. Along these li nes, Brooks and Parkes
discuss how a femin ist approach of reecting on method s can lead to a better overa ll
understanding of wh at is being done and why: “inking about method i s empowering.
When I require myself to e xplain what I do, I am lik ely to discover how to improve
what I earlier may have ta ken for granted. In the proce ss, I am likely to bec ome more
committed to what it is that I have i mproved.”23
For this paper, I have decided to experiment with a r ange of critical theoretical tools. To
this end, I have chosen aca demic articles t hat relate to the following asp ects from legal
perspectives:24 nar rative;25 emoti ons; empathy ;26 aect;27 embodiment;28 mapping; 29
space;30 performance;31 theatre;32 outsider a nd queer pedagogy ; and epistemology.33 I
chose mostly recent art icles that deal w ith these questions, a s they are likely to d raw on
and summari ze earlier scholarship. Furthermore, I chos e a wider selection so that I would
have many dierent ways of an alyzing t he embodied pedagog y of Sexual Orientat ion
and the Law instea d of focusing narrowly (but more in-dept h) on fewer aspects. ere
are obvious trade-o s between these options.
I envision these artic les as theoretical tools that I have g athered to build my own toolbox.
My objective is to try these re latively new (for me) tools to lay the groundwork for deeper
scholarship in the f uture. As they a re brand-new and I have never used tools l ike them
before, I nd myself picking t hem gingerly, tentatively trying to gure out the ways t hat
they work and the purpose s for which they can b e used. erefore, I do not write this
paper with a sense of reachi ng conclusive and overarchin g assertions. Ins tead, I see it as
a process of reecting a nd sharing one way of underst anding alternati ve pedagogies.34
In so doing, I will u se the theoretical to ols to analyz e how embodied pedagog y permits
space for a more fully huma n approach to learning a nd sheds light on questions that are
otherwi se left out.
23 Broo ks & Parkes, supra note 11 at 90, fn 6, citing Katherin e T Bartlett, “Feminist Le gal Methods”
(1990 ) 103 Harv L Rev 829 at 831.
24 For the purposes of clarify ing the perspectives that I am dr awing, I have chosen to footnote the
articles alongside wor ds that capture key aspects the ar ticle. However, it should be noted that
many of these articles cut acr oss these dierent topics.
25 Richa rd Delgado, “Storytelling f or Oppositionists and Othe rs: A Plea for Narrative” (1989) 87:8
Mich L Rev 2411.
26 Susan A Bandes & Jeremy A Blumenthal, “ Emotion and the Law” (2012) 8 Annu Rev Law Soc Sci 161.
27 Rebecca Johnson, “Livin g Deadwood: Imagination, Aec t, and the Persistence of the Past”
(2009) 42:4 Suolk U L Rev 809 [Living Dea dwood].
28 Gill ian Calder & Sharon Cowan supra note 6; Ruth Fle tcher, Marie Fox & Julie McCandless, “Legal
Embodiment: Analysing th e Body of Healthcare Law” (200 8) 16 Med L Rev 321; Patrick Hannifan,
“Voicing Embodiment, Re lating Dierence: Towards a Relational Legal Subje ctivity” (2008) 29
Austl Feminist L J 77; Margrit Shildrick , “Transgressing the Law with Foucault and D errida: Some
Reections on Anoma lous Embodiment” (2005) 47:3 Crit Quarterl y 30.
29 Be la Chatterjee, “Text and Terrain: Mapping Se xuality and Law” (2006) 17:3 Law and Crit 297.
30 Lolit a Buckner Innis, “‘Other Space s’ in Legal Pedagogy” (2012) 28 Harv J Racial & Ethnic Just 67.
31 Lassonde, supra note 22.
32 A G Boss, “(Un)Related Purposes: Theatre an d Law” (2010) 142 Can Theatre Rev 30; Gillian Cald er,
“Embodied Law: The atre of the Oppressed in the Law Schoo l Classroom” (2009) Masks: Online
Journal of Law and Theatre 1 [ Theatre of the Oppressed]; G uantánamo, supra n ote 11.
33 Using Film, supra note 20; Bakht et al, su pra note 11; Brooks & Parkes, supra note 11.
34 In tak ing this approach, I am inspired by feminis t process-oriented approach es: Postcards from
the Edge, supra note 6; Calde r & Cowan, supra note 6 at 111-112.
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roughout my analysis , I will employ narrative methodology.35 is approach is inspired
by critical race t heory.36 I have embedded my narrative within t he text, as it forms the
subject matter of my analysi s. My narrative captu res moments that I have experienced
while attending law sc hool. Each moment reects some of the complex negotiations
of privilege, power, and margina lization, which re sult from being an Othered l aw
student. I deliberately chose moments that ree ct my everyday experienc es, so each
should be understood as a common a nd frequent situation in my life. e purpose of
this is to illust rate and centrali ze stories that are ot herwise unhe ard or silenced in the
legal environment. Moreover, it demonstrates how everyday situ ations can often be sites
where systems of power are produced a nd reproduced, as opposed to sensationa lized or
heightened situations of overt oppression.37 In so doing, I a lso want to present a fulsome
picture of the process of study ing law and how embodied pedagogy ts wit hin it.
II. TR ADITIONAL LEGAL PEDAGOGY
With the above methodological approach i n mind, I will su mmarize a nd apply a
traditional lega l pedagogical approach to t he study of e Case.38 Brooks and Parkes note
that despite years of ta lk of reform, North America n law students have been educate d
roughly the same way for over a hundre d years.39 is approach is foc used simply on
gleaning the rele vant facts, issues, and rea soning from any case. Leg al thinking conti nues
to be stuck in this f ramework of case law met hodology. I even encountered a recent
article that su ggested under “Rad ical Solutions” using ca se law to engage questions of
ethics and inject sou l into learning.40
I will outline a tra ditional pedagogical approach to provide back ground and context for
understanding how t he embodied approach is dierent. A t raditional approach would
likely leave us only with t he understanding t hat Proposition 8 was unconstitutiona l,
under any standa rd of review, on the grounds that “it denies [the] plaintis a f undamental
right without a legitimate (much less compell ing) reason.”41 We may have explored the
question of due process and the Fourte enth Amendment. In so doing, we may have
inquired into the historica l trajectory of the juri sprudence in this are a. We could have
gone in-depth into questions of evidence a nd witness credibility, as much of Justice
Walker’s decision discussed these issues.42 An interesting aspect of Sexu al Orientation
and the Law was rea ding the decision af ter performing in e Play. Done in this order,
the judgement echoed many of the memorable lines f rom e Play, which seemed to
35 Delgado, supra note 25.
36 In par ticular the following pieces have insp ired my understanding of the purp ose of narrative
methodology and how to a pply it: Delgado, supra note 25; Lassonde, supra note 22; Postcards
from the Edge, supra note 6; Patr icia J Williams, “The Death of the Prof ane” in The Alchemy of Race
and Rights (Cambridge: Harvard Univer sity Press, 1991) at 44-51; Patricia Williams, “On Being the
Object of Proper ty” in The Alchemy of Race and Rights (Cambridge: Harvest University Pr ess, 1991)
at 216-230; Patricia A Monture, “Ka-Nin- Geh-Heh-G ah-E-Sa-Nonh-Yah-Gah” (1986) 2 CJWL 159;
Rebecca Johnson, “L aw and the Leaky Woman: the Saloon, th e Liquor License, and Narratives
of Containment” (2005) 19:2 J of Media & Cultur al Stud 181; Ruthann Robson, “Begi nning from
(My) Experience: The Parad oxes of Narrative” in Sappho Goes to Law Schoo l (New York: Columbia
University Press, 1997) at 87-103.
37 Lassonde, supra note 22 at “Spider 1, What is Per forming Law?: Performing the Law”. Her analysis
draws on Judith Butler’s concept o f performativity. See gen erally Judith Butler, “Gender as
Performance: An Inter view with Judith Butler” (1994) 67 Radical Philosophy 32; Judith Bu tler,
Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990).
38 Perry v Schwarzenegger, supra note 5.
39 Brooks & Parkes, supra n ot e 11
40 Steve Sheppard , “Teach Justice” (2008) 43 Harv CR-CL L Rev 599 at 603.
41 Perry v Schwarzenegger, supra note 5 at 994.
42 Ibid at 935-946.
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attempt to provide depth and recognition to the voice s in e Case, particularly the g ay
and lesbian plaintis.43 I elaborate more on th is below when I inquire into the usefulness
of theatre in understa nding law.
III. LAW, EMBODIMENT, AND THEATRE
In comparison to traditiona l pedagogical approaches, by usi ng our bodies, we learn more
about the law and ourselves t han we may have otherwise, especia lly as outsider students.
To this end, I will rst explore the import ance of embodiment for learn ing law. I will
then reect on the signi cance of theatre in t his context. In some ways, t hese sections
are artic ial divisions as much u nder this section relates to Part IV of this pa per as well.
ey are usefu l, however, to frame my analysis.
A. Embodiment and Law
During our rst-year moots, a ll of us eagerly put on our “lawyer clothes.” In some sense,
it was one of our rst exercises in pe rforming the identity of “ lawyers.” I, too, put on
my suit and fondly remembered how my cousins and au nts had helped me pick it out.
As I walked t he halls of the law bui lding, I saw my white male c olleagues and t hought
to myself “wow, they truly look like law yers.” I felt a sinking feel ing as it dawned on me
that when I looked in the mirror, I saw myself a s a “receptionist” or “secretary.” I did not
see a lawyer.
is realiz ation very aptly captu res that regard less of how cerebral we conceive of our
profession, we are embodied as law yers. In this sen se, an embodied enga gement with
learning the law i s necessary a s it makes us awa re of ourselves, as lega l professionals,
and the ways that we produce law i n our daily interact ions. Furthermore, embodied
understanding s of law can help create more just and equitable legal regimes.
Calder discus ses the dierence be tween teachin g rock climbing and teac hing law. She
notes that while both involve “mak ing complex and often da ngerous ideas acce ssible
to students,”44 teaching the former involves embodiment whereas the latt er does not.
Furthermore, she points out that “[m]uch of law involves embodied concepts, yet we
rarely ask our students to put t heir bodies into the learn ing of law.”45 u s, she explores
the need for teaching law i n an embodied manner. What precisely do we get by lear ning
with our bodies? My contention is that u sing our bodies ma kes us aware of our powers,
oppressions, and the ways that we cre ate law through our interactions.
In the rst few week s of law school, I was regul arly introducing myself to ever yone in
my immediate vicinit y. As I went to sit down in the lounge, I saw an older white male
sitting near me. I reached out my ha nd and told him my name. He responded: “oh, I’m
not anyone important. I’m not a law student, just a groundskeeper.” I was surprise d.
How could a couple of weeks in law school leave people feeli ng so insignicant near me?
ese moments illustrate aptly how much of our power a nd oppression is expressed in
embodied ways. Furt hermore, they demonstrate how our bodies a re integral to being
lawyers. In some ways, I have e xperienced privilege t hat legal education create s, which
alters the way that I interac t with others and the ways that my body i s perceived. However,
as a raciali zed woman, I sense that m ine is not a body that produces lega l knowledge or
43 For instance, Justice Walker shared Zarril lo & Katami’s story about going to th e bank and
facing the diculty of co nveying that they were a couple and Perry des cribing Stier as “maybe
the sparkliest pers on I ever met.” Perry v Schwarzenegger, supra note 5 at 933, 939. T hese lines
mirrored The Play, see Playscript, su pra note 8 at 7.
44 Theatre of the O ppressed, supra note 32 at 2.
45 Ibid at 3.
APPEAL VOLUME 19
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has that sort of power. I was esp ecially struck at the deference that t his older white male
gave me simply because of my being a law st udent. While my race and ge nder mark
me as an outsider in lega l contexts, my able-bodied self ma kes me an insider and, thus,
easier for me to negotiate the space of t he law school both physically and metaphorically.
I was able to be in the law school lounge, w hile students with mobilit y concerns may
have a more dicult time simply entering t hat space. I have heard expre ssed by some
that it is challeng ing to navigate with a whee lchair, especially a s able-bodied students
often unintentionally leave t ables and chairs astray th at create various obstacles. Another
complicating aspec t is my sexual orientation. I a m often assumed to be heterose xual
and, as such, do not face the im mediate or direct stat us of outsider due to that identity.
Nevertheless, th is means it is a consta nt negotiation as to when to voice my status a s
queer and how to respond to heteronormative assumptions. Emb odied pedagog y can
be a tool to more fully understa nd these complex interactions of power a nd oppression
because it requires us to re cognize ourselves and our positionalit y.
Embodied pedagog y may also be a way of combatting oppression, especia lly internalized
forms of oppression. Delgado argue s that outsiders use stories a s forms of surviva l from
and resistance to subord ination.46 He also discuss es how counter-stories aid members
of the dominant group to become aware of thei r power and interrogate perceived
neu tr a li ty. 47 Similarly, perhaps we ca n use our bodies to lear n law, to help us counter
the sensation that our bod ies are not worthy of legal education. As Boal ha s stated, “the
whole body thinks.”48 In this sense, we need to use our b odies to think t hat we have
power. We can use these techniques to a lso become aware of privilege.
In addition to the ways our bodie s are important in bec oming aware of privilege a nd
oppression, we can learn how we create law t hrough our body. Lassonde art iculates the
idea that daily ac tions involving our bodies are a form of law.49 For instance, she uses t he
example of coming out as queer in a hock ey change room. is space is de ned by certain
norms or invisible societal ru les, which var y depending on a person’s positionality. As a
queer femme,50 the expectations of her ba sed on appearance do not al ign with her self-
identication. Her femme identity lends hersel f to be read as heterosexu al when she is
not. Moreover, she discusses how dicult it is to un learn these da ily norms as she nds
herself repeating ritu als that make her feel uncomforta ble, reecting their d aily coercive
power. In this way, they function as l aws by regulating behaviour.
e ways that our bodies c reate law are importa nt to learning it and are integ ral to
opening up our imagi nary. is opening up ca n be conceptuali zed as “a politics of
experimentation and ima gining other wise.”51 To this end, Calder and Cowan dis cuss
how focusing primari ly on cerebral understa ndings of equalit y fail to captu re the
complexity of the embodied ex perience of inequality.52 ey discus s how feminists have
challenged t he dichotomy between mind and body, and the ways t his dichotomy has
46 Delgado, supra note 25 at 2436.
47 Ibid at 2 417-2418.
48 Living Dea dwood, supra note 27 at 816, citing Augusto Boal & Adrian Jack son, Games for Actors
and Non-Actors, 2d ed (London: Routledge, 1992) at 62.
49 Lassonde, supra note 22 at 22 at “Spider 1, What is Per forming Law?: Performing the Law”.
50 Qu eer femme refers to an expression o f identity that appears normat ively feminine, but is
not heterosexual. The refore, people who identif y as queer femme are frequently ass umed
to be heterosexual due to ste reotyping and heteronorm ativity. For discussions on gender
performance and se xual orientation, see Heidi M Lev itt & Sharon G Horne, “Expl orations of
Lesbian Queer Gender s: Butch, Femme, Androgynous or ‘O ther’” (2002) 6:2 J of Lesbian Stud 25;
Lisa Walker, “The Future of Femme: Notes on Fem ininity, Aging and Gender Theor y” (2012) 15:7
Sexualities 795.
51 Living Deadwood, su pra note 27 at 815.
52 Calder & Cowan, supra note 6 at 115.
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APPEAL VOLUME 19
been employed to marginal ize Othered indiv iduals, especia lly women.53 However, they
note that participation in ac ademic conventions may reproduce those dichotomies . As
a result, embodiment is seen to be a way of d isrupting the dichotomy. ey also arg ue
that using our bod ies helps us understand inequality a s a dynamic and changing proce ss
instead of a static concept.54
Furthermore, the law explicit ly and implicitly regulate s bodies. us, awarene ss of
bodies is necess ary to fully learn law. Fletcher, Fox, and McCandless h ave presented how
an embodied perspec tive towards healthc are law would better uncover t he way that law
regulates and (de)values bod ies.55 ey suggest that we s hould employ approaches that
consistently recogniz e people as embodied and to not shy away from addressing dic ult
embodied experiences, s uch as pain and se x.56 In particular, the fac t that laws regu late
bodies sugges ts that we should learn to eng age with our own bod ies. In these ways, we
may be more aware of the bodily implic ations of our work as legal professionals and able
to relate to the lived experience s of our clients.
To counter some of my own internalized oppressions, I deliberately took an “a rmative
action” approach and chose courses t aught by professors who I thin k are female-
identifying (it also helpe d that the subjects th at I was interested in were taug ht by t hese
professors). ese professors have oered me role models of legal professiona ls. Also, by
using my body to learn, I am g radually embracin g my racialized fem ale self as havi ng
power and value. Recently, I was prepari ng for an interview a nd put on my “lawyer
clothes.” As I stood in front of the mirror, I thought to myself “you look li ke a lawyer.
One who actively reects on her power and priv ilege and aims to be empathetic. B asically,
you look like a lawyer who wa nt s to do law dierently.
B. What Does Theatre Give Us?
Considering the importa nce of embodiment to the law and learning t he law, the question
of theatre’s value in this context rema ins. Arg uably, embodiment could be practiced in
other ways and, indeed, I have eng aged in these alternative ways as well, suc h as a video
blog.57 However, theatre can oer a dierent way of th inking about justice. I will ex plore
one element of this by extending W hite’s ana lysis of justice as translation to theat re.58
Calder discus ses how using a play-reading provokes fut ure legal advocate s to rethink
what constitutes law, and how narrat ives inuence our understa nding of law.59  rough
embodied engagement in t heatre, we are exposed to more complex na rratives and
nuances. In thi s way, we are better able to eectively apply “a postmodern lens t hat
prefers specic and loca l analyse s to grand theories of how oppression occur s.”60 us,
theatre oers a new way of underst anding power relations per meating throughout our
legal system.
With this theoretic al lens in mind, did t his happen when we staged e Play? In m any
ways e Play perhaps fell short of a tr uly embodied experience. We performed it
53 Calder & Cowan, supra note 6 at 117.
54 Ibid at 128.
55 Fletcher, Fox & McCandless, supra note 28 at 321.
56 Ibid at 322, citing Alan Hyde, Bodies of Law (Princeto n: Princeton University Press, 1997) at 6.
57 Badyal, supra no te 21.
58 Jame s Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: The
University of Chicago Pre ss, 1990).
59 Guantánamo, supra note 11 at 48.
60 Brook s & Parkes, supra note 11 at 115, citing Banu Ramachandran, “ Re-Reading Dierence:
Feminist Critiques of the Law S chool Classroom and the Problem With S peaking from
Experience” (1998) 98:7 Colum L Rev 1757 at 1786.
APPEAL VOLUME 19
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through a stag ed reading in the la rgest lecture room of t he law building. e set-up of
the room involved Justice Walker in the center a nd the other characters s eated on both
sides. Individuals ro se when it was a scene involving their c haracters. erefore, we did
not engage in much movement or use of our bodies. e Play itsel f is very text heav y.
However, our bodies were present and we had to use them to project our voice s and
animate our lines w ith integrity. Nevertheless, i n comparison to our other embodied
exercises of forming scu lptures and Ak ali’s performance ,61 e Play seemed to lack a
deeper engagement with our bo dies. In some sense, we could fa ll back to our comfort
zone of text, particu larly text set in a legal context.
Furthermore, e Play focused e xclusively on the experiences of privi leged white queer
people. We are asked by e Play to sympathiz e with the plight of the plai ntis on
such normative grounds as t he fact that they pay t heir taxes. On the ot her hand, our
embodiment as char acters in e Play presented an interesting challeng e. In most of the
cases, we acted pa rts that did not a lign with our racia lized and gendere d bodies. is
presents the question of how our audience may have perceive d these dierence s. Our
circumstanc es could be contrasted to a n all-star Holly wood cast, which performed “8”
and showcased it online.62 In t heir performance, t he actors’ visible presentation aligned
with the people that they were pl aying whereas ours d id not. Perhaps the whiteness
presented in the narrati ve became more apparent becaus e of our visibly Othered bodies.
In a dierent context, Ca lder and Cowan discuss how their metaphorica l representation
of inequality did not lead ma ny people to reect on questions of race a nd ethnicity,
which may have been a product of their wh ite bodies.63 us, perhaps our embod iment
was present in e Play and made apparent who it privi leged.
To a certain extent, “8” represents a piece of t heatre that was not as t ransgressive a s
it could have been. e Play is designed to appea l broadly and aim s to fundraise for
advancing same-se x marriage equ ality. In some sense, this play mi rrors the “strategic
litiga nt.”64 I wonder what would have happened if we had done a dierent piece of
theatre that represented more women and bod ies of colour. us, while the potential for
learning th rough theatre is clea r, perhaps this piece did not give us t he opportunity to
more fully explore this p otential.
An interesting a ngle to view theatre t hat represents jurisprudence is t hrough the idea
of translation. W hite presents the idea of treating jus tice as tran slation; he posits that
the job of a lawyer is to tra nslate the story of their cl ient into the language of t he law.65
In e Play, we did the reverse, translat ing the langu age of the law into a story. As law
students, we kept questioning t he representation as it seemed “too one-sided,” and some
members of our audience had a simil ar critique during discussions af ter the performance.
e desire seemed to be for a play that bet ter represented more convincing argu ments
from both sides. is may have ree cted the fact that we were doin g this piece in a law
school. However, having read e Case a s the original tex t before translation,66 I am
61 Akali, supra note 14.
62 Am erican Foundation for Equal Rights ,“‘8’: A Play about the Fight for Marriage Equalit y” (2012),
online: YouTub e ? v=qlUG8F9uVgM>.
63 Calder & Cowan, supra no te 6 at 127.
64 In using the term “st rategic litigant,” I am referring to how jud ges may be more responsive to
certain individuals over o thers. Specically, they will respon d better to people who are clos er
to the norm, which is white, male, ab le-bodied, and so for th. Crenshaw exposed this concept
in her initial work on interse ctionality in the context of a ntidiscrimination doctrines a nd how
Black women are excluded du e to their intersecting exper iences of race and gender. Kimberle
Crenshaw, “Demarginalizing the Inte rsection of Race and Sex: A Bl ack Feminist Critique of
Antidiscrimination Doc trine, Feminist Theory and A nti Racist Politics” (1989) U Chi Legal F 139.
65 White, supra note 58 at 260 -261.
66 Perry v Schwarzenegger, supra note 5.
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struck by how the discou rse in e Case was i n many ways simila r to the one presented
in the court scenes of e Play. In our clas s, we had not read the case prior to performing
e Play. Perhaps if we had, that may have altered how we perceived e Play as bein g
too “one-sided.” It also would have provided an interesting backd rop for analyzin g the
process of translat ion and how it applies to law.
In short, embodiment is integra l to learning to be a law yer. It makes us aware of ou r
bodies, privilege s, and oppressions. Furthermore, we create l aw through our bodie s and
the law regulates b odies. In this way, our work as law yers require us to be intim ately
aware of bodies. One avenue throug h which to learn about embodi ment is theatre.
rough plays and act ing, we can view the law with di erent len ses.
IV. EMPATHY, OUTSIDER SPACE, RELATIONAL POLITICS,
AND MAPPING
Along with these a spects of embodiment and theatre, we ga ined other insights that made
this experience more huma n and we learned more than we would h ave through traditional
legal pedag ogy. In particula r, the importance of emotion and empathy ca me to light,
as they are tools for combat ting oppression and for better law yering. Furthermore, we
created outsider space and pract iced relational politic s, which in partic ular made our
experiences in the cl assroom more human. La stly, we engaged in mapping, which o ers
another way of expandin g our imaginary of what ca n be done with and through the law.
A. Importance of Emotion and Empathy
While working on t his paper, I made some ippant remark on Facebook about how I
kept wondering what “white male privile ge” would think about outsider ped agogy and
perspectives. e pa rtner of a friend, an older white male, took it upon himself to tell me
that he found the term “white male priv ilege” oensive and equated it wit h the n-word
and a derogatory term for women. I was deeply sh aken and upset. I am s truck by how
we do not think throug h oppression. I did not pause, think i n the abstract about what
happened, and conclude that “yes, t his is a circumstance of being oppressed.” I felt it.
It is through emotions that we ex perience oppression, so should emotions not also be
integral to overcoming oppression? Johnson c aptures this idea i n the legal context:
“Justice is not simply ‘an idea.’ It is something felt deeply.”67 Similarly, Bandes and
Blumenthal discu ss how legal doctri ne is deeply implicated in implicit and explicit
ways with emotions. However, they note that the law prefer s to conceive of a baseline
that is neutral a nd emotionless.68 In this way, the law fal ls short of grappling with t he
complexity of emotions.
e role of empathy in particul ar has been debated, especial ly in the context of judging.69
Empathy has some competing de nitions and, thus, it is impor tant to gure out what
it is before debating its role. Bandes a nd Blumenthal posit one perspective: “ if empathy
consists of understa nding the thoughts a nd feelings of another, then it is, arg uably, an
essential capa city for judges.”70 I would go further and say th is understanding of empathy
should be an essentia l capacity for all leg al actors, par ticularly law yers. Strangely, the
67 Living Deadwood, supra note 27 at 817.
68 Bandes & Blumenthal, supra n ote 26 at 165, citing Susan Bandes, “Empathy, Narrative, and Victi m
Impact Statements” (1996) 63:2 Univ Chic Law Rev 361 at 370.
69 Bandes & Blumenthal, su pra note 26 at 170.
70 Ibid.
APPEAL VOLUME 19
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question remains open as to w hether empathy is an importa nt skill for law yers.71 In our
work, we have great power in relation to individua l clients but also in de ning broader
societal norms, espe cially as future legislators and leader s in our communities. For us to
do our work with sucient understa nding of those who will potentially feel s its impacts,
we need to be able to relate to them and see more tha n just our own perspectives. As suc h,
empathy should be integral to leg al education.
Empathy can be enga ged and learned through embod ied pedagogy, especially theat re. In
the dierent context of narr ative, Delgado describes how “one acquires the ability to see
the world through others’ eyes .”72 Similarly, Brooks and Parkes discu ss how storytelli ng
produces empathy, especially providin g an avenue to relate to the margina lization th at
the law produces.73 Applying thes e understanding s in narrative to the atre, we can see
that theatre gives u s even more space to take on idea s that may not align w ith our
own. To present a character with integrity, we are required to “see t he world through
others’ eyes,” perhaps even more so in acting t han in narr ative. Along these li nes,
Calder discus ses how a play-reading on Guantán amo helped students develop “a more
empathetic understand ing of both the privilege s and the chal lenges of being a Charter
society.”74 Moreover, in using our bodies to play the parts of cha racters in e Play, we
become more intimately aware of the sen sations and emotions that a di erent character
must be feeling. For myself, as I played E lliot, I found myself underst anding that he
was a good kid, but he could not underst and why his mothers would make the decision
to disrupt their lives by putti ng themselves in the c enter of media and legal scr utiny
through the lega l case aga inst Proposition 8. While t his realiz ation may not help me
directly underst and what the relevant leg al arguments a re, it does help me understand
what is at stake and m akes me aware of the sign icance th at legal work would have
in this context. In t his sense, empathy is a leg al skill a nd embodied learnin g through
theatre is a usef ul way of practicing it.
B. Outsider Sp ace and Relational Politics
Along with learn ing empathy as a lega l skill, we also le arned to create empathy in our
classroom and, in so doing , disrupted the usua l law school environment. Drawing
on lived experiences of queer students a nd faculty, Brooks and Parkes d iscuss how
marginal ized members of law schools are le ft with a sense of isolation, a lienation, and
subjectic ation.75 In contrast to thi s, the space in Sexu al Orientation and the Law wa s
very much an outsider space bec ause of who we were and what we were doing. is
fostered a sense of community a nd coalition.
One particula r activity that aptly illust rates this is how we signed play programs for each
other in a “yearbook” f ashion. e messages that I received from my cl assmates have left
me feeling cared for a nd sensing that we tru ly shared somethi ng. In particul ar, I think
pushing ourselves out of our com fort zone by staging a reading i n front of a large audience
was a viscera l experience that brought us all together. We recognized t he ways in which
we all need to grow and lea rn. is reects t he idea of how critical course s can be seen
as an “oasis withi n or respite from the traditional law sc hool classroom.”76 Furthermore,
I found myself carr ying this ener gy to my other classe s and in my daily liv ing. is is
not to say that our space was per fect. We h ad moments where the conversations that we
71 Sarah E Wilson, Julie Prescott & G ordon Becket, “Empathy Levels in First- and T hird-Year Students
in Health and Non-He alth Disciplines” (2012) 76:2 Am J Pharm Ed 1 at 2.
72 Delgado, supra note 25 at 2439.
73 Bro oks & Parkes, supra note 11 at 112.
74 Guantánamo, supra note 11 at 45.
75 Brooks & Parkes, supra no te 11 at 10 6-107.
76 Innis, supra note 30 at 83.
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APPEAL VOLUME 19
were having and the complicate d questions of oppression that we were addressi ng led to
challenges a nd discomfort. Nevertheless, the spac e was unique and created a remarkable
opportunity to lear n.
We had in-depth conversations to collaboratively m ake decisions about the way we were
going to conduct elements of our course. In pa rticular, we cas t ourselves for roles in
e Play. is was a dicult process a s we had conicting ideas of the roles that would
best suit others and ourse lves. Moreover, we became anxious ab out this process and t he
impact that it would have on our sta ged reading. Partially thi s reected how the process
disrupted the usua l top-down decision-making that cha racterizes classroom spaces. Ou r
anxiety a lso may have been a response to the bigger pictu re of law that we are accustomed
to seeing. We are taught and we see law conducted i n a hierarchal model, where judge s
and politicians const ruct law. In creating thi s outsider space, we were forced to thin k
dierently about how law can be cre ated.
Moreover, by staging the reading i n the largest lect ure room in the law buildin g, we
disrupted the ritua ls of that space and t he building itself. i s disruption is part icularly
important when we consider the way t hat rituals build a nd reinforce power relations.
Pertti Alasuuta ri captures t his precisely as follows: “In va rious ways ritual s contribute
to legitimizing a nd routinizing socia l hierarchies a nd power relations. It must also be
remembered that practica lly no power relations are ‘put to use’ without the support of
rit u al s.” 77 Hence, disruption of spac e is integral to creating change.
C. Mapping
e last activit y we did together was mapping queer leg al history.78 Over the term, we
began each cla ss with someone presenting a moment that they considered important to
queer legal histor y. Most of these were from the Canadian c ontext, but some were from
other jurisdictions such a s India, New Zea land, and Norway. We chos e explicitly queer
moments, such as Stonewall,79 but also le ss obvious moments, such as the creation of
national he althca re.80 ese decisions show the ways t hat we learned to thin k beyond a
narrow understand ing of what constitutes law a nd what counts as “queer experience.”81
Furthermore, in our mapping we resi sted the urge to follow narrow te chniques
of mapping, such as a timel ine. Instead, we chose to see how a ll these moments are
connected in a myriad of ways . Moreover, we understood them as being interlink ed and
77 Boss, supra note 32 at 31, citing Pertti Alasu utari, Social Theory & Human Reality (London: Sage,
2004) at 103.
78 S ee Appendix A for a picture of ou r end result.
79 T he Stonewall riots took place at the Stonewa ll Inn in New York City in June 1969. They were
spontaneous demons trations by queer people and mark a si gnicant point in the queer rights
movement. For an intersec tional and contextual discussion o n the Stonewall riots, see Elvia R
Arriola, “Faeries, Marim achas, Queens and Lezzies: Th e Construction of Homosexu ality Before
the 1969 Stonewall Riots” (1995-1996) 5 Colum J Gender & L 33.
80 The creati on of a national healthcare system is a q ueer experience in the sense that i t has a
signicant impact on th e lives of queer individuals. The id ea of viewing this as a moment of
queer legal histor y acknowledges that even universa l programs are relevant to queer peo ple.
As queer people are of ten nancially disadvantage d because of their Othered st atus, a publicly
funded universal sy stem may provide access to healthcare that woul d otherwise not be
available. Moreover, queer peo ple have dierent experiences with r egards to access and needs,
both in comparison to other que er people and heterosexual p eople. For instance, trans peop le
still face many barriers in acces sing healthcare. See Lane R Mandis , “Human Rights, Transsexed
Bodies, and Health Care in C anada: What Counts as Legal Protectio n?” (2011) 26:3 CJLS 509 ;
Marianne LeBreton, “ The Erasure of Sex and Gender Mino rities in the Healthcare System” (2013) 2
Bioéthique 17; Andrea Daley, “Lesbian and Gay Health Issues: OUTside of Canada’s Healt h Policy”
(2006) 26:4 Critical Social Polic y 794.
81 This reects concept s of queer legal pedagogy that B rooks & Parkes have articulated. Se e Brooks
& Parkes, supra note 11 at 120.
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ourselves as being i mplicated in these events in c omplicated ways. An ex ample that best
captures thi s process of locating t he self within the big ger context is that one student
included his own picture a s part of his representation of a moment. He incorporated
a photocopy of his healthcare c ard, which had his pict ure on it but also illustrate d the
moment of the creation of a national healthca re system.
Chatterjee’s discussion on mapping, se xuality, and the law is helpfu l to theoretical ly
conceptualiz e what we did through this project.82 She ar gues that the law is charac terized
by mapping. e law functions to render cer tain bodies and practices (in)visible.83 Bot h
maps and the law are not neutra l.84 She demonstrates how mapping requires an awarenes s
of the distortions and t he inherent constraints of never being able to accurately repre sent
re al it y. 85 She argues that t he law similarly should “recogni se where the distortions,
scales and projections l ie, and accept that tr ue reection is impossible.”86 Moreover, she
discusses how queer identities provide a lternative mappings and destabili ze the privileged
state of heteronormativity.87 In this way, mapping may open up new possibilitie s for the
law. 88 She goes on to say rather eloquently that “[a]fter all, sex ual orientation speak s
fundamental ly of the direction of desire, and its position with in society: th is is the very
language of c artography.”89 Beyond the value of reconceptualisi ng the law in a broader
sense, mapping also rel ates to lawyer-client relationships. C hatterjee references Emi ly
Grabham to discus s how the way lawyers map t heir client’s experiences into something
legally intelli gible can leave clients feeli ng “disauthenticated .”90 Our mapping activity
reects these t heoretical concerns. Fu rthermore, by placing our map in a m ain hallway
of the law school, we disrupted the broader spac e.91
To summarize, empathy is an impor tant legal skill and we have lear ned ways to exercise
it through our embodied eng agement with theatre. I n Sexual Orientation a nd the Law,
we created a unique outsider space that m ade learning the law a more human experienc e.
Furthermore, we engage d in a mapping of queer legal histor y that opened up new ways
of thinkin g about the law and the way that it regulates bodies.
V. SOME REFLECTIONS AND DOUBTS
With all of the above valua ble experiences and ana lysis in mind, I wi ll explore some
doubts and reservations ab out this embodied peda gogical approach. In pa rticular, I am
concerned about doubt, the dicu lty of explaini ng what we did and why, and reecting
on those concerns as the y relate to this paper.
82 Chatterjee, supra n ote 29.
83 Ibid at 310.
84 Ibid at 298-299.
85 Ibid at 312.
86 Ibid.
87 Ibid at 311-312.
88 Ibid at 302.
89 Ibid a t 319.
90 Ibid at 300, citing Emily Grabham, “ Taxonomies of Inequality: Lawye rs, Maps and the Challenge
of Hybridity” (200 6) 15:1 S ocial and Legal Stud 5 at 7.
91 This parallels the disruptio n created by holding the staged read ings in a law lecture hall. See
Part IV-B, above. In many ways the co urse was characterized with va rious forms of unsettling the
norms of the law school. Anoth er activity that we engaged i n was to place signs that challenged
the need for genderin g over the bathroom door symbols . For instance, one of the signs placed
over the gendered symb ols was “this is a room full of toilets.” For an in -depth discussion on
bathrooms, sexualit y, and transgender lived experien ces, see Sheila L Cavanagh, Queering
Bathrooms: Gender, Sexuality, and the Hygienic Imagination (Toronto: University of Toronto Press,
2010).
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APPEAL VOLUME 19
I was having coe e with two white male f riends and classmate s on campus. As I broke
a piece of my chocolate bar, I excitedly told them about the latest I nuit lm that I
had watched and how the preparat ion for e Play was going. One of them gave me a
bemused look and said that “your l aw classes are, we ll, something else…” I sensed his
scepticism and intuitively ju mped to an enthusiastic defense of what we were doing: “It’s
amazing. I’ve learned more t han I ever have before in such a short time. And we employ
a number of skills th at will denitely be helpful for being a law yer. In some sense, lawyers
are actors. I’m practicing my advocac y skills!” As I walked home a fterwards, I wondered
to myself if I was ma king a mista ke. What if I am not learning the “right” kind of law?
What if I never become a law yer? I paused. A nd it struck me, “wait, a second, I have a
summer law job. I’ll be ne. A nd, perhaps, not becoming a lawyer wouldn’t be too great
of a loss, if being a lawyer me ans giving up on what I believe.”
A remarkable aspec t of engaging in non-traditional or radica l pedagogy is the reexivit y
and self-doubt that these proc esses produce. is st ands in stark contra st to traditional
legal pedag ogies. We a re constantly questioning whether what we are doing i s achieving
our goals, whether it is wort hwhile, and how to frame it in way s that will be perc eived
by the broader legal communit y as legitimate.92 is self-doubt par allels the lived
experiences of marg inalized p eople in relation to the dominant societ y. In this way,
our self-doubt is compounded by both our peda gogical choices a nd our experiences a s
Othered individua ls. Calder and Cowa n discuss th is sense of discomfort , as they were
concerned their embodied contr ibution was seen to be just a moment of entertainment
or lightness, not to be taken s eriously.93
An integral c omponent of this doubt is the diculty in expla ining what we are doing and
why we are doing it. To this end, my purpose in writing t his paper has been to a nswer
for myself and to have somethin g to say when people ask “but, why?” At rst I was afra id
of writing this paper. I quest ioned whether it reected the ac ademic rigor of a paper that
was more doctrina lly focused and us ed extensive case law. However, I felt I had to push
myself and write thi s, especially to u se narrative methodolog y.94 Furthermore, I needed
to write to sort out my thoughts on the value of embod ied pedagogy. Most of the time I
feel dehumaniz ed when I write papers. I nd myself feeling lik e I am chopping o bits of
myself with the hopes of sound ing somewhat articulate and veil ing the whole thing with
a cover of objectivity or neutralit y, to essentially produce a privilege d white male voice.
In writing this p aper, I felt whole and I felt present as myself. is experienc e parallels
the value of embodied peda gogy discussed above.
LOOKING FORWARD
In some sense, this project of embod ied pedagogy f aces the real c onstraint of being
conducted in a context where legal e ducation continues to be taught in the s ame way in
which it has always be en taught. Brooks and Parke s confront this in their at tempts to
create a queer legal peda gogy. ey choose to sidestep the question of broader reform of
legal education, so as to be gin the project of a shift.95 What we did in Sexua l Orientation
92 Lassonde reects on he r experience of doing a graduate thes is that combined law and theatre.
She writes that “[t]he most dicult par t of my work this year has been to explain what I w as
doing. Despite this dicult y and although many people exp ressed their resistance to my thesis,
these same people di d not ignore it. They seem insistent on tr ying to understand it.” Lass onde,
supra note 22 at “Spider 3, Con clusion: Justication and Resista nce”.
93 Calder & Cowan, supra n ote 6 at 126.
94 Delgado, supra note 25.
95 Bro oks & Parkes, supra note 11 at 117.
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and the Law pushed the bou ndaries of how we learn law. However, as discuss ed above,
e Play felt very normative. It did not question the purpos e of marriage. W hile we had
those conversations in our cla ssroom, I wonder if our staged read ing would have been
more powerful if we could have que stioned the focus on marri age itself.96 Moreover, the
question remains as to whe ther legal education a nd law even has the potentia l to create
change, or if it is too inherent ly constrained to reproducing t he existing system.
As we cannot completely overhaul leg al education overnight (althoug h it would be
amazing i f we could), it is valuable to continue taki ng these steps, which ma ke learning
law a more fully human e xperience and draw attention to quest ions regarding equ ality
and justice that a re missed in traditional legal ped agogy. I wish that we had more of the
theoretical tools to e xpress to our colleag ues and the broader communit y what we were
doing. Although, as I ree ct on this paper and t he semester, it strikes me that perhaps
we had been learnin g how to articulate what we were lea rning all a long and this paper
is a nal man ifestation of that for me. To a certain ex tent, I just want some privileged
elite white male academic s to name drop, so that we ca n easily end questions about our
credibility and legiti macy. However, reaching a point where that is not required would
be the aim of true equa lity. Moreover, I am aware that legal educ ation has increased my
credibility and legiti macy. As Calder captures it, “[l]earning law is a priv ilege. e more
conscious and active law st udents are with that privilege and its potentia l, the more open
the possibilities are for t he active use of law as a tr ansformative tool of social change.”97
I was inspired by the lega l scholarship cited in this paper that cha llenged the boundaries
of normative ways of knowing a nd learning.98 We have to take risks, critic ally reect on
what is gained, a nd learn what can be done d ierently for the future. I have employed
this process in my paper to re ect on embodied pedag ogy and to reect on the paper
itself. While some asp ects of embodiment simply can not be translated onto paper, my
aim has been to a rticulate what we d id and try to expla in what happened as a resu lt of
doing law dierently. I wanted to attempt to put into words my experiences.
Ultimately our enga gement with embodied pedagogy in Se xual Orientation and the Law
did many thing s for us. We learned law in a more fully huma n way and opened up
our imagina ries to the dierent underst andings of what equa lity can enta il. In using
our bodies to learn, we bec ame more aware of our privilege s and oppressions. It has
empowered me to unlearn and c ombat my own internalized oppression. Fur thermore,
the use of theatre as a n embodied exercise expanded what we t hink is possible through the
law and what counts as law. It also wa s a useful tool to explore the way in which judicial
decisions are construc ted in contrast to play writing. We practiced the import ant legal
skill of empathy. In so doing, we created a un ique outsider space in our class, w hich was
integral to the proces s. While I have expressed doubts about learni ng the law dierently,
the whole process of engagi ng in embodied pedagogy in Sex ual Orientation and the Law
has been invaluable to my lega l education and has left me feeling more whole.
96 Calder an d Cowan’s work can be seen in contrast as an examp le of using embodiment to
question the purpose of m arriage itself. See Calder & Cowan, su pra note 6.
97 Theatre of the Oppressed, sup ra note 32 at 26.
98 In par ticular, I value the following work: Lass onde, supra note 22; Postcards from the Ed ge, supra
note 6; Calder & Cowan, supra no te 6. Lassonde explicitly ques tions what is conceptualized as
rigor in the following: “In o ther words, organizing text di erently does not necessarily result i n a
reduced amount of text . Neither does it result in less rigoro us analysis.” Lassonde, supra note 22
at “Spider 1, Question of Form: The sis Format”.
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APPEAL VOLUME 19
APPENDIX A
Mapping our Queer Legal History
A collaborative media project cre ated by the students in Sexual Orientation and the L aw
(Spring 2013). Photograph courtesy of Jasreet B adyal.

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