Abstract

Recently there has been a movement in feminist jurisprudence against what has been termed “sex exceptionalism.” Those campaigning for its elimination argue that sex exceptionalism, the process by which “sex is routinely distinguished from comparable human practices and subjected to singular regulation,” is pernicious not only to women in particular, but to sexual freedom in general. However, this critique is too strong. While sex exceptionalism has the potential to be harmful in some spheres, the failure to be sex exceptionalist is equally harmful in other contexts. In this paper, I argue that law which is anti-sex-exceptionalist, in my terms “sex depreciationist,” can also uphold negative cultural norms and impinge on the rights of the marginalized - two of the critiques often levied against sex exceptionalism. In select situations, differential legal treatment is a tool of sexual justice rather than oppression. I make this case by highlighting an example where the law’s failure to be sex exceptionalist is detrimental: the application of the ordinary premises of contract law to pornography contracts. Pornography performers are often subject to what is termed “permanent pornography contracts,” under which the production company is granted the “irrevocable, worldwide, perpetual right and authority” over performer’s sexual images. As a result, performers are perpetually unable to revoke consent to the dissemination of their media, leading to a loss of sexual autonomy. This is an area where the failure to treat sex as appropriately distinct from other forms of media leads to direct harm. Contract law’s refusal to recognize the special implications of sex does not challenge sex negativity; indeed, it upholds the antiquated and dangerous ideas about femininity, sexuality, and promiscuity which the sex depreciationist case purports to displace. Even more importantly, sex depreciationism in the context of pornography contracts inflicts profound suffering on real individuals. Given these consequences of present contracting practices, the anti-sex-exceptionalist case is evidently not – as proponents suggest – synonymous with sexual justice.