Keeping Prefigurative Law in Play: Utopianism, Failure, and the Problem of Legal Sex

Abstract Prefigurative law reform develops and experiments with ideas about radical legal change. But these ideas are vulnerable to being challenged, including for having failed and for being unreal. This article responds to such charges, drawing on utopian studies for a different account of failure and the not real. Its focus is a speculative legal proposal to “decertify” sex and gender so that they would no longer be assigned, obligatory aspects of legal personhood. The article explores the utopian dimensions of decertification alongside accusations that it is fictive, undesirable, and nonviable. Reading these charges through utopianism reduces their sting since failure and the not real become inevitable, even positive, qualities. At the same time, dichotomies of real/fictive, existent/non-existent, and achievable/unachievable do injustice to prefigurative legal proposals. This article therefore proposes an alternative frame that embraces failure and the not real while reaching beyond their limits: staying “in play.” This combines simulation, disorientation, and falling short with the ambition, hopefulness, and pleasures of utopian praxis. Sutured to a utopian impulse, in play emphasizes the importance of persistence for prefigurative proposals while recognizing that their form may fluctuate and change over time.