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Tort litigation plays a role in constructing what we perceive to be “real” about sexual identity. It does so by assuming that sexual identity is naturally binary (male/female), even in cases which pose a challenge to the credibility of that assumption. Thus, to be “real” in tort litigation is to have a sexual identity which appears to be naturally binary, even if you are not. Individuals who challenge this conception may find it difficult to obtain compensation for their injuries or, worse, may not be permitted to sue at all. These practices have important political effects. The most important of these is that tort litigation makes binary sexual difference appear more natural than it is. Since this outcome is at odds with lived experience, this article argues that tort litigation should take a more pragmatic approach to sexual identity issues, by making space for competing conceptions of sexual identity.

To Be Real: Sexual Identity Politics in Tort Litigation