Kati Wilkes, '27

Summer 2024

PDF available with citations and footnotes here

In the intricate web of law and social activism lies a conundrum at the heart of feminist legal discourse: the paradoxical dance between leveraging identity categories for legal recognition and challenging their essentialist confines. Navigating the complex theories of Judith Butler and Kimberlé Crenshaw, the notion of strategic essentialism within an intersectional feminist framework emerges as both a tool for progress and a double-edged sword. As Judith Butler contends in Gender Trouble, the law is interested in and actively regulates bodies by defining them within essentialist categories: by giving women the right to vote, the law inherently must define what a woman is. According to Butler, gender is not an inherent or fixed characteristic but rather a performative act, continually enacted and reinforced through repeated behaviors and social norms. Identity categories, such as gender, may then be leveraged to seek legal recourse or protest discrimination through a process of strategic essentialism, during which these subjective categories are temporarily accepted as truth in order to work within the confines of the legal process. In order to take advantage of these subjective identity categories, though, one must be clearly defined as belonging and specifically protected under the law: this largely isn’t true for Black women, as their intersectional identities are not explicitly defined as protected. This raises the important question of whether methods of strategic essentialism nonetheless should be employed—despite their residual power to further entrench norms—when groups such as Black women do not have the same type of access to take advantage of these methods. The answer is “Yes”: despite strategic essentialism’s exclusionary drawbacks, it is one of the few clear methods through which genuine legal and social change can be enacted. Instead of doing away with strategic essentialism, the answer should be to reform our legal system to better equip Black women, for example, to engage in it by more clearly defining them under the law and putting a conceited effort toward “bottom-up” activism. 

Judith Butler writes that the law is inherently interested in, and inextricably tied to, regulating bodies: the law creates categories in the interest of either, but often both, policing and protecting them. These laws concretely define and create the very subjects which they then seek to regulate. For example, anti-discrimination laws against women define women as a discrete group, and even the most well-intentioned of laws still work to tell women who and how they are and what types of protections they should be interested in, further reinforcing the cultural matrix of gender domination: “But the subjects regulated by such structures are, by virtue of being subjected to them, formed, defined, and reproduced in accordance with the requirements of those structures.” This type of identity creation and regulation can be leveraged through the use of strategic essentialism, by temporarily accepting the status as a defined subject under the law in order to create legal and social change, with the intention of later shunning these rigid identity limitations. Clear examples of this are widespread in the mainstream modern feminist movement: women may cling to essentialist ideas that label them as natural caretakers interested in maintaining families in order to push for improved treatment of working mothers, for example. This does not come without its costs, though. While a group of working mothers may achieve marginally better treatment, buying into these essentialist notions that define all women as a certain way only works to reinforce them. Butler writes, “this problem is not ameliorated through an appeal to the category of women for merely ‘strategic’ purposes, for strategies always have meanings that exceed the purposes for which they are intended.” Also, this type of strategic essentialism is only effective as far as fairly privileged white women go; intersectional identities often remain unaddressed. This raises the question: when it comes to intersectionally regulated individuals, such as Black women, does this type of leveraging work, and if not, why not? 

Crenshaw’s analysis of the place of Black women within the U.S. legal system, a group which falls between the cracks of two already highly scrutinized identity categories, goes to show that their lack of explicit definition in the law makes the project of leveraging strategic essentialism for legal recourse and change increasingly difficult. Despite its many drawbacks, this does not necessarily mean that this type of approach should be disregarded as an option; it simply needs to be gone about differently. Black women are “sometimes excluded from feminist theory and antiracist policy discourse because both are predicated on a discrete set of experiences that often does not accurately reflect the interaction of race and gender.” This blend of experiences and exclusion from complete alliance with either group place Black women into limbo. They do not cleanly fit into either of these categories, both as a result of historically racist social science, like the Moynihan report, and their lack of specific legal recognition as a unique protected class, which gives them little ground to stand on in terms of essentialist conceptions which are both situationally beneficial and legally entrenched. The Moynihan report pathologized Black women and asserted that they didn’t fit into the widely accepted notion of who women were and how they were meant to act and fit into the larger tapestry of society: 

“Statements such as ‘men and women are taught to see men as independent, capable, powerful; men and women are taught to see women as dependent, limited in abilities, and passive,’ are common within this literature. But this ‘observation’ overlooks the anomalies created by crosscurrents of racism and sexism. Black men and women live in a society that creates sex-based norms and expectations which racism simultaneously operates to deny; Black men are not viewed as powerful, nor are Black women seen as passive.”

Instead, Black women were deemed to be the reason for the destruction of the Black male household leader and the creation of the Black matriarch, which failed to live up to the white female standard of motherhood; the essentialist notions about Black women that were propagated labeled them as manipulative, greedy, over-sexed, and harmful to men, all of which were not easily accepted and applauded for the purposes of strategic essentialism.

Within the law itself, cases like DeGraffenreid v. General Motors show how Black women are not afforded “super-remedies” that acknowledge their intersectional identity and allow them to advocate for themselves as a group, either leveraging essentialism or not. These women were the last to be hired by General Motors due to their identity and therefore first to be fired when seniority based layoffs took place. However, the court dismissed their case, finding that, since the plaintiffs were unable to cite any previous decisions that stated that Black women were a uniquely special class—a group protected from discrimination based on gender identity, nationhood, or veteran status, for example—“they should not be allowed to combine statutory remedies to create a new ‘super-remedy’ which would give them relief beyond what the drafters of the relevant statutes intended. Thus, this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both. This exclusion from the legal framework closes the door on the possibility of using the already further complicated strategy of gender essentialism to seek fairer treatment. Further, the harms of the essentialist beliefs propagated by the racist Moynihan report about the ‘true nature’ of Black women are still influencing the status of these women outside the legal system, even without the presence of legal action to further normify these ideas. It seems to be a no-win scenario.

So, should strategic essentialism that buys into homogenizing categorization as presented by the law in order to create marginal legal and social change, despite simultaneously working to reinforce norms and give further legitimacy to the hierarchy in which these identity groups are placed, be used? Despite its many drawbacks, particularly for Black women, as they are not even yet afforded their own unique category in the eyes of the law that they might leverage, no progress would be made at all without these methods. Even though the only groups to currently benefit from these tactics are those that fit into cleanly defined legal identity categories, carry situationally positive essentialist constraints, and are the closest to breaking into a place of equality, that does not mean that they should abandon the minimal progress that has been made by using strategic essentialism. Instead, the focus should turn to better defining intersectional identities as protected classes under the law, so that they might use the same tactics, breaking down the racist essentialist notions that are a legacy of the Moynihan report, and implementing a “bottom-up” approach to this realm of activism. By working to empower the most marginalized identity groups—those who are forced into a limbo between racial and gender identity, for example—they are able to bring the entire standard for legal treatment up with them, benefiting not only themselves but also those above them in the hierarchy of marginalized groups: “If their efforts instead began with addressing the needs and problems of those who are most disadvantaged and with restructuring and remaking the world where necessary, then others who are singularly disadvantaged would also benefit.” When Black women challenge discrimination and see positive change in the form of increased legal protection, they have effectively furthered the cause of both women and other Black people simultaneously in a way that either group separately would not have been able to do as efficiently. In order to achieve that wider-spread benefit, it is, unfortunately, necessary to cling to discrete identity groups for the purpose of gaining increased legal and social legitimacy. Yes, defining women, for example, as specific types of beings with certain ‘inherent’ characteristics, desires, and features further entrenches essentialist norms of gender which form a hierarchy of patriarchal domination, but without momentarily accepting that group identity, there would be no alternate, realistic legal pathway to achieving better standards of living for the individuals which are now defined as women. 

In the intricate interplay between law, activism, and feminist discourse, a complex dilemma unfolds: the nuanced balance between harnessing identity categories for legal progress and challenging their essentialist boundaries. Within the frameworks delineated by Judith Butler and Kimberlé Crenshaw, the concept of strategic essentialism emerges as both a catalyst for progress and a source of contention. Butler's insights illuminate how the law intricately regulates bodies by confining them within essentialist categories, offering a pathway for advocacy through strategic essentialism. Yet, this strategy often sidelines marginalized groups, particularly Black women, whose intersectional identities lack explicit legal recognition, casting doubt on its efficacy in their pursuit of justice. Crenshaw's analysis further underscores the plight of Black women within legal structures, revealing their exclusion from feminist and antiracist dialogues due to the failure of these frameworks to accurately encompass their experiences. Historical pathologization simultaneously perpetuates harmful—and largely unsalvageable—essentialist stereotypes, impeding Black women's ability to leverage strategic essentialism effectively regardless. Thus, the question arises: should strategic essentialism be embraced despite its inherent limitations, particularly for Black women? The answer lies in recognizing the imperative of reforming legal systems to better accommodate intersectional identities. By establishing marginalized groups as protected classes and adopting a “bottom-up” approach to activism, avenues for genuine empowerment and systemic change can be forged. Indeed, while strategic essentialism may inadvertently reinforce hierarchies and perpetuate essentialist norms, it also serves as a pragmatic means for effecting tangible change within existing legal frameworks. It certainly is not perfect, but it is the best we can do for now.