Gender and the Law

Judith Bourne, Caroline Derry

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351985178
• Edition: 1
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

Gender and the Law provides an ideal introduction to gender and feminist theory for students. Beginning with an overview of traditional notions of gender, the book establishes the key feminist and queer legal theories. It provides a basic structure and overview upon which students can build their understanding of some of the complex and controversial topics and debates around gender.

Structured thematically, the book explores many fascinating and controversial legal issues, including issues of transgender rights; equal pay and equality in the workplace; societal changes and challenges within the regulation of personal relationships; the law surrounding consent and sexual offences; the role of gender norms in the criminal courts; legal regulation of prostitution and pornography; and the ways in which the law has responded to societal changes surrounding reproduction.

With 'thinking points' and 'further reading' suggestions within each chapter, the authors encourage an engagement with critique and theory in order to understand this dynamic and challenging field.

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Chapter 1

Introduction

Chapter contents

1.1 Introduction

1.2 Sex and gender

1.3 Theory

1.4 Law

1.5 Conclusion

1.6 Notes for non-lawyers

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1.1 Introduction

This book provides an introduction to and overview of the study of gender and the law. It is not a comprehensive guide: in this vast and fast-developing field, that would be impossible. Rather, it is a starting point, introducing key legal and critical concepts and offering suggestions for further thought (‘thinking points’) and further reading.

We will begin in this chapter by considering what we mean by gender, and how it differs from sex. In Chapter 2, we consider how key theories view these concepts in relation to the law. We will then go on in Chapter 3 to consider the gendered history of the law. In a system which gave men and women very different legal rights, and excluded women from lawmaking and legal practice until less than a century ago, that history remains crucial to understanding how the current law has developed.

The following chapters cover a range of topics. If you are studying a module on gender and law, it is unlikely that you will cover all of these topics; you may also study some which are not included here. However, they have been chosen because they are either of particular significance in themselves, or are important illustrations of key themes running through the book. As those themes are pervasive, we have provided cross-referencing to other chapters where useful.

Above all, we hope that this textbook will stimulate your interest in the topic. It does not claim to offer a definitive account or ‘right’ answers: there is no consensus among academics or practitioners as to what those would be. Instead, it aims to raise important questions and debates, and to highlight the range of views on what the answers might be. We begin by exploring how even the terms ‘woman’ and ‘man’ are more complicated than they first appear, and why they matter.

THINKING POINT 1

How would you define ‘woman’?

How would you define ‘man’?

1.2 Sex and gender

If you’ve studied other legal subjects, they’ve probably talked about the law as if it applies in exactly the same way to women and men. It seems like common sense that women obey the same laws as men, which are applied by the courts in the same way as to men. However, you may have picked up some hints that things aren’t so simple. In criminal law, you might have noticed that many cases of voluntary manslaughter relate to women who killed their abusers. In tort and land law, you probably came across cases discussing how to value women’s unpaid work in the home. Employment law has had to grapple with the issue of pregnancy. But all of these might have seemed like small parts of a bigger, gender-neutral legal system where men and women are treated the same.

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Indeed, the law tends to talk about ‘men’ and ‘women’ as if they are clear and unproblematic terms. It assumes that everyone can be labelled ‘man’ or ‘woman’, that everyone knows their meaning, and that if we know someone’s sex, we also know a lot of other things about them. For example, men are assumed to be responsible, rational and economically active while women are assumed to be nurturing, dependent and maternal. Those ideas bring a lot of other assumptions, of course: for example, that men and women should be heterosexual, living in a nuclear family, and following a middle-class lifestyle. These ideas are being challenged and changed, but we will see that it is a slow and difficult process.

These challenges are important because many people’s experiences are very different. Legal (and societal) norms of sex are criticised as representing an ideology rather than reality. First, not all men are traditionally ‘masculine’, nor are all women traditionally ‘feminine’. Indeed, definitions of masculinity and femininity vary enormously over time, between cultures and according to other factors such as age and class. An eighteenth-century, upper-class Englishman might have expressed his masculinity by fighting a duel to defend his honour from an insult; a twenty-first-century working-class man is unlikely to issue a challenge to meet at dawn for a swordfight! A middle-class woman in the nineteenth century may have seen teaching as the only career available to her; today, a working-class woman may be training as a solicitor or engineer.

Thus a distinction has been drawn between sex – the biological status of being male or female – and gender. While sex refers to the physical form of our bodies, gender describes the social and cultural roles attached to those physical facts. For example, women wearing high-heeled shoes is a social norm rather than a biological urge; in the seventeenth century, they were more likely to be seen on the feet of aristocratic men. Gender thus describes characteristics which are not biologically inevitable but which are enforced by society and can therefore change. However, such changes are not necessarily easy: these norms are powerful and there is often strong resistance to those who defy them even in small ways. There is no biological reason why a man cannot wear a long, lacy skirt – and it might be much more comfortable than trousers in hot weather – but he is likely to face negative reactions from many other people if he does so.

Second, the idea of sex as a simple biological fact has also faced criticism. How do we measure sex? The traditional way in which sex is designated is by a look at a baby’s genitalia immediately after birth, followed by the declaration ‘It’s a girl!’ or ‘It’s a boy!’ However, the biology of sex is more complicated than that. For example,

• Phenotypic sex is determined by the body, especially the form of the external genitalia (genital sex).

• Gonadal sex is determined by whether the body contains testes or ovaries.

• Chromosomal or genetic sex is determined by the sex chromosomes. Each human cell typically contains 23 pairs of chromosomes, made of DNA. One pair determines sex (XX for a woman, XY for a man). However, some people have different combinations of chromosomes (XXY, for example).

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• Hormones and hormone receptors are also crucial to the development of sexual characteristics, which begins when the foetus is about seven weeks.

• While ‘common-sense’ understandings of biological sex may include the ability to impregnate (for a man) or to become pregnant (for a woman), these cannot be the criteria. Sex is assigned before that ability is known; people who are infertile (involuntarily or by choice), too young or old to procreate, or who never engage in activity which might result in pregnancy are still designated male or female.

For most people their chromosomes, gonads and external genitalia will all indicate the same sex, but for some people that is not true. Intersex people have sexual or reproductive anatomy or genetic sex which does not fit the typical definitions of male or female; there are a variety of intersex conditions, some of which do not become apparent until later in life. Transgender people’s gender identity differs from their sex designated at birth. If sex is not a straightforward binary (where everyone is one of two options, either x or y), is it better understood as a spectrum (where people fall at various points along a broad range of possibilities)? Is it another cultural construct, like gender?

Even if the importance given to sex, and its division into a male/female binary, is a social construct, does that make sex itself less important? Arguably, in today’s society, it remains highly significant because of the relationship between the oppression of women and their sexed bodies. For example, society and the law attempt to justify much gender inequality through female biology: pregnancy, childbirth and the effects of hormonal cycles. Women’s fertility is a political battleground through issues such as access to legal abortion. Conversely, attempts are made to justify men’s higher social status through biological characteristics such as greater physical strength, or the fact that their physical role in reproduction does not tend to directly affect their attendance at work. Thus, there may still be value in recognising the distinction between sex and gender even if the line between them is much less distinct than it first appears.

1.3 Theory

We can summarise the previous section as demonstrating that the concepts of ‘woman’ and ‘man’ are much more complex than common-sense understandings may suggest. How, then, can we make sense of them? Both feminist and gender theories try to help us do this. We will look at them in more detail in the following chapter, but here are some key things they say about sex and gender.

1.3.1 Feminist theories

Early feminists accepted ordinary understandings of ‘male’ and ‘female’, but challenged the gender norms attached to those understandings. They did not specifically make a division into ‘sex’ and ‘gender’ – that came in the later twentieth century – but they did dispute the idea that the differences between men and women were natural and inevitable. As early as 1792, Mary Wollstonecraft argued in A Vindication of the Rights of Woman that many of the apparently natural differences between men and women were in fact a result of their different educations.

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This insight into the social development of gender was taken much further by later theorists. Famously, French philosopher Simone de Beauvoir said that ‘one is not born, but rather becomes, a woman’.¹ In other words, female biology does very little to explain femininity, which is the result of a lifetime of socialisation. At its root is the construction of men as human and women as Other – as different and inferior, as not-men.

De Beauvoir’s insight has been followed, developed, and critiqued by subsequent feminist theorists. We explore the key feminist legal theories in more detail in the next chapter, and will see that there are many different feminist responses to the question of gender difference. We will also see in this chapter that gender theorists agree that gender is socially constructed – but suggest that sex is as well.

It is important to note that understanding gender as socially constructed does not mean that it is always constructed in the same way: we have already seen that gender norms differ widely in different times, places and cultures. Nor is it easily changed: the lifelong process of gender construction pervades our society and culture and affects all aspects of our socialisation, education, self-image and psychology. Girls and boys are treated differently from infancy, in ways that we often do not even notice because they seem ‘natural’. Recognising this as a social, rather than biological, process does not mean that it is not pervasive, deeply rooted and highly resistant to challenge.

There are also very different views among feminists about the importance of gender differences. As they are constructed rather than inevitable, should feminists seek to minimise their impact? Many would say so, but some – often referred to as difference feminists – suggest that women’s socialisation offers them valuable insights which could usefully be incorporated into areas such as the law. They draw upon the work of educational psychologist Carol Gilligan, who argued that boys and girls use different forms of moral reasoning. She used the example of the answers two children, Jake and Amy, gave to the same problem: Heinz was a poor man whose wife needed life-saving medication he could not afford. Was he morally justified in stealing the medication? Jake said yes; if he was caught, the judge could give him a lower sentence. Amy asked whether there were alternatives to stealing, and considered the effect on Heinz’s wife if he was caught and prosecuted. Gilligan argued that Amy was using an ‘ethic of care’ rather than a lack of logic, showing an awareness of the relationships and connections between people to which ‘rational’ systems such as the law do not pay sufficient attention.²

Gilligan’s approach can seem essentialist, reflecting ideas that women are innately more caring and less logical than men. Some ...