Big Lies, Drag Shows, and Legal Fictions

Abstract

Today, the United States faces a relentless offensive of lies and falsehoods, as we grapple with the fallout from election denialism and conservative forces work tirelessly to advance anti-LGBTQ laws that directly challenge the validity of LGBTQ identities. Although it may be appealing to dismiss these shocking lies and falsehoods as legal fictions, they are nothing of the sort. They are not legal fictions in the traditional sense because they are not offered as patently false statements. More importantly, such characterization disregards the uniquely constitutive power of the law. This article builds on my earlier observations regarding a similar misuse of the term “legal fiction” in the context of chattel slavery and the doctrine of discovery. By revisiting the controversy in a contemporary frame, it offers an opportunity to study, in real-time, the attempted construction of legal regimes that rest on errors, lies, and the relentless demonization of the Other. It concludes that just as there was nothing fictive about repressive legal systems that spanned centuries and brutalized millions, there is nothing fictive about our current democratic crisis. To the contrary, it is imperative that we remain clear-eyed about the nature and power of the falsehoods that undergird both the Big Lie and the new anti-LGBTQ laws in order to develop effective strategies to refute them. We dismiss them as legal fictions at our peril.