Beresford, Sarah (2012) It's Not Me it's You : Law's Performance Anxiety Over Gender Identity in Cohabitation Cases. Northern Ireland Legal Quarterly, 63 (2). pp. 187-200. ISSN 0029-3105
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Legal discourse constructs “truths”, not in relation to legal identity, but also in relation to other categories of identity. This article is concerned with a small but important part of those “truths” – that of correctly performed gender identity. It does so by exploring how some legal judgments determine the property interests of cohabiting couples in constructive trusts. However, this paper is not about constructive trusts as such. Rather, it is an interrogation of law’s language which creates and perpetuates types of behaviour seen as legally relevant. It uses a Butlerian approach to offer an alternative way of conceptualising how an applicant seeking to establish a beneficial interest has to perform behaviours of a certain type (usually financial). Bringing a post-structuralist analysis to bear on this very traditional doctrinal area of law, the paper suggests that there is scope for legal discourse to re-evaluate what performances “count” when deciding upon proprietary interests.
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