The Gender Line

Men, Women, and the Law

Nancy Levit

• Publisher: NYU Press
• Year: 1998
• Print ISBN: 9780814751220
• eBook ISBN: 9780814752951
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

Despite tremendous advances in civil rights, we live in a world where the sexes remain sharply segregated from birth to death: in names, clothing, social groupings, and possessions; in occupations, civic association, and domestic roles. Gender separatism, so pervasive as to be almost invisible, permeates the fabric of our daily social routines. Preferring a notion of gender that is fluid and contextual, and denying that separatism is inevitable, Nancy Levit dismantles the myths of gender essentialism Drawing on a wealth of interdisciplinary data regarding the biological and cultural origins of sex differences, Levit provides a fresh perspective on gendered behaviors and argues the need for careful cultivation of new relations between the sexes.
With its focus particularly on men, The Gender Line offers an insightful overview of the construction of gender and the damaging effects of its stereotypes. Levit analyzes the ways in which law legitimizes the social segregation of the sexes through legal decisions regarding custody, employment, education, sexual harassment, and criminal law. In so doing, she illustrates the ways in which men's and women's oppressions are intertwined and how law molds the very definition of masculinity.
Applying feminist methodology to the doctrine of feminism itself, Levit artfully demonstrates that gender separatism infects even our contemporary views of feminism. Levit asks questions that have been too long been unspoken--those that lie at the core of the feminist project, yet threaten its very foundations. Revealing masculinity as both a privileged and a victimized condition, she calls for a step forward, past the bounds of contemporary feminism and its conflicts, toward a more egalitarian and inclusive feminism. This brand of feminism would reshape traditional masculinity, invite men into feminist dialogue, and claim men as political allies.

1
Introduction

Our first child, Aaron, loves books and likes to draw, cook, and play any game involving a ball.

Our second child, Dylan, is also a sports fanatic. When Dylan entered toddlerhood we stationed two Little Tykes basketball goals at opposite ends of the living room so that we could play “full court.”

People meeting our second child are often surprised to find out that Dylan is a girl.

Names have a gender.

When Dylan wears her brother’s hand-me-down overalls, strangers are uncomfortable with the gender bending. There seem to be expectations of fair advertising with respect to one of society’s most visible means of classification.

Clothes have a gender.

Among the gifts Dylan received for her second birthday are mini-cooking utensils, a vacuum cleaner that lights up as it sweeps the floor, and a Cabbage Patch doll that came with an adoption certificate identifying her as Belinda Doreen. No one outside the family gave her cars or trucks or tools.

Toys have a gender.

One night Aaron and Dylan were helping prepare dinner. Dylan had taken over Aaron’s old job of setting the table, while Aaron had graduated to substantive food preparation and was pouring milk. Dylan carefully put two spoons at one place. The next place setting was a neatly positioned fork and knife. I complimented her on the third effort: “That’s right, sweetie. One knife, one fork, and one spoon for each person.”

“Good girl!” I added. It’s a phrase that trips pretty easily off the tongue. But it’s one that I never seem to use when she’s fielding grounders or shooting hoops.

Parents reinforce gender daily. Unthinkingly. Unnecessarily. Even when they know better.

We still live in a world in which the sexes are sharply segregated: early in life, in names, clothing, and possessions; later, in occupations, civic associations, social groupings, and domestic roles. This gender separation is so pervasive it is almost invisible. Gender is constructed in everyday social routines. Traditional gender practices are embedded in social institutions, where they guide what we think proper about the relationship of sex and gender.

People generally believe that men and women are fundamentally different in interests, inclinations, and abilities. We accept that boys excel at math, girls at verbal skills, that women exhibit nurturing behaviors while men are less capable in that realm. The images and messages sent through the cultural portrayal of gender end up limiting the visions and options of boys and girls.

The first aim of this book is to expose the ways gendered behaviors are carefully cultivated. Chapter 2 traces the pink and blue tracking that begins in infancy. Beginning with the first few moments and months of life, countless social practices reinforce gender differences and keep the sexes separate: toys, sports, songs, books, advertisements, fashions, schooling, and peer and parental habits, expectations, and pressures. Different gendering of the sexes occurs within the spheres of home and school, media, church, and work. It takes place in everyday language. Girls and boys grow up to be women and men who live in different cultures of gender.

One persistent theme resonates throughout these spheres of socialization. Masculinity is tied to the strict separation of the genders and the avoidance of characteristics and behaviors perceived as feminine. Boys are trained to distance themselves from girls and not to identify with women: “In the hierarchical and rigorously competitive society of other boys, one categorical imperative outranks all others: don’t be a girl.”¹

The social segregation of the sexes is often justified by the idea that inherent biological differences create the different cultural worlds that men and women inhabit. Chapter 2 reviews the empirical evidence regarding the biological basis of sex differences. Cumulatively, the physical, neurophysiological, and psychological evidence, as well as measures of academic performance and achievement, shows few purely biological sex differences. Given these findings, the question is how to explain the popular perceptions of extensive differences between the sexes?

Differences in mental abilities and emotional responses of men and women are far more intriguing than similarities. People are more interested in reading about differences. Men Are from Mars, Women Are from Venus is a best-seller; it has a great deal more pizzazz than would a book about gender similarities, entitled perhaps Men and Women Are from Earth. An emphasis on the politics of difference rather than sameness encourages attention to differences. Differences are emphasized in many ways, from research biases to media reporting to popular interpretations of scientific research.

Media reports on gender highlight differences, putting the spotlight on ones that are found. For political reasons, researchers too may be more interested in exploring gender differences than similarities, if only because research results showing differences command publication opportunities. This information is then received by the public in accordance with preexisting stereo-types about sex role differences. Finally, in popular opinion, tendencies and probabilities may be remembered simply as differences, with the visible correlations between gender and behavior converted into “obvious” causal relations. Politicized research and reporting thus combine with resilient stereo-types and social practices to create cultural feedback loops that replay conventional images of gender.

To the extent that they are mistaken or exaggerated, these beliefs about the biological bases of gender have frightening consequences. History is replete with examples of the use of biological characteristics to classify certain groups not just as different but as cognitively or socially inferior. Even to the extent that they are accurate—sex differences may have biological or cultural bases, and often some of both—the fact of sex differences is relatively uninteresting. The cultural construction—the significance that we give to those differences that do exist—is what, in Martha Minow’s words, “makes all the difference.”²

Law collaborates with other institutions in the creation and maintenance of gender differences, constructing and legitimizing both the separation of the sexes and the conception of gender in naturalistic terms. In chapter 3 we see that sex in law is bipolar. Assumptions about the importance of biological distinctions between males and females have driven legal theory. The idea of a natural order is embedded in legal analysis, making gender differences seem natural and inevitable. Constitutional doctrine, for example, perpetuates the idea that gender is a biological phenomenon by looking for “real” or “immutable” differences.

The images of gender contained in Supreme Court and lower federal court decisions show that “separate but equal” remains very much alive in constitutional gender cases. The decisions in the Citadel and Virginia Military Institute (VMI) cases, which concerned women seeking admission to the two remaining male-only public military colleges, illustrate the point. The analysis in this chapter will not concentrate on the schools’ insistent rejection of women, their attempts to rationalize these all-male preserves as providing a “diversity” of educational experiences, or, in Virginia’s case, the proposed construction of a parallel, all-female military academy, woefully underfunded, with an expected enrollment of twenty-five students and no barracks life, uniforms, or military training (which the Supreme Court later called a “pale shadow” of VMI). Instead, the focus will be on what the images of gender tacitly accepted by the lower federal courts and some members of the Supreme Court say about the constitutional construction of gender and the significance of those legal images in the minds, hearts, and behaviors of men and women.

In the VMI litigation, the trial court accepted, and the appellate court approved, the idea that the creation of good “citizen-soldiers” required the exclusion of women. Despite the wealth of empirical evidence to the contrary, the lower courts adopted the school’s position that single-sex education was beneficial for men. Not only was masculinity shaped by the compulsory separation of men from women, but “adversative training”—which subjected freshmen (called “rats”) to rigorous physical exercise, spartan barracks living, a complete lack of privacy, random stresses, unrelenting control of daily life, and constant harassment—was deemed essential to character formation. Boys, through this process that induced terrorbonding, endurance of pain, and disconnection from their feelings, would become men and soldiers. The images of gender in the Citadel and VMI litigation are not the anachronisms they seem, but instead represent the conventional constructions of masculinity that are still embodied in our dominant social and legal traditions. Stereotypes about women are becoming more visible to us, but stereo-types about men and implicit discrimination against men, the unthinking acceptance of traditional expectations of males, remain largely imperceptible because we have not been looking for them.

In many other areas, courts have staunchly supported the rigid separation of the sexes. We will look at cases dealing with defiance of dress and grooming codes in schools and employment situations, objections to Ladies’ Night and other practices of gender-based pricing at dry cleaners, gas stations, and hair salons, and challenges to sex-segregated voluntary associations, such as the Jaycees, Rotary, Elks, and Boy Scouts. In controlling cross-dressing, condoning gender separatism, and promoting traditional images of the sexes, courts endorse the gender line and help keep it firmly in place.

*

The second objective of this book, an inquiry that begins in chapter 3 and continues in chapter 4, is to explore the ways men are harmed by gender stereo-types. These chapters apply insights from feminist thought to situations in which gender role stereo-types operate to the detriment of men. Chapter 3 looks at two recent, celebrated Supreme Court decisions, the VMI case and another concerning a manufacturer’s “fetal protection policy” that excluded fertile women, but not fertile men, from positions threatening hazardous lead exposure. In each of these cases, the Court disregarded actual physical harms to men and, at a deeper level, reinforced separation from women and cultural expectations that men defy risks and suffer harms in stoic silence.

Chapter 4 considers the ways legal constructs and methods of analysis have helped to shape masculinity. Maleness has been constructed in a number of ways by statutes, judicial decisions, and legal reasoning. One component of male aggression has been legal doctrines that shape concepts of personhood by dictating who society’s criminals and warriors are. The image of masculinity is also formed by legal responses to areas in which men suffer injuries. Laws preventing male plaintiffs from suing for same-sex sexual harassment, as well as analysts’ lack of interest in male rape and spousal battery of men, contribute to a climate in which men are taught to suffer in silence. In the areas of parental leave and child custody, men are socially and legally excluded from caring and nurturing roles.

Various legal doctrines thus send distinct messages about what it means to be male. But this cumulative ideology of masculinity—the package of cultural myths and symbols, constructed in part by law, that dictates appropriate male behavior—is underexplored. Some of the damaging stereo-types and harms suffered by men have been invisible to public consciousness because they are particular to men, while the feminist project has so clearly concentrated on women.

The remaining chapters explore the relations between feminism and men. Part of the focus of feminist legal theory needs to shift. The project of cataloging the omission of men from feminist theory should not be seen as an attempt to diminish the centuries of horrors experienced by women. The argument is that a key part of the problem remains to be explored. In what ways have men systematically been harmed by gender stereo-types? How does this harm redound to the disadvantage of women and society generally?

It may seem odd to suggest that feminist theory has overlooked men. In varying ways, liberal feminism, difference theory, dominance theory, and postmodern feminism have analyzed, objectified, vilified, and deconstructed men as a population, maleness as a gender and constellation of role expectations and typical behaviors, and men as historical crafters of doctrine, theory, and language. Yet in several important respects, men have been largely omitted from feminism, except for their crucial role as culprits.

Feminist legal theorists have paid mild attention to whether men could embrace feminist objectives—the “Can men be feminists?” question. This issue is treated as a relatively unimportant one, usually relegated to footnotes.³ Legal literature has given relatively modest and incidental attention to how a wide variety of gender role stereo-types harm men, and how legal constructs perpetuate these stereo-types.⁴ The injurious effect gender role stereo-types have on men is typically subsidiary to the main focus of feminist legal literature, documenting patterns of subordination of women.

Theorists in disciplines other than law have demonstrated significantly more interest in constructs of masculinity.⁵ Perhaps most importantly, though, men have been omitted as participants in the reconstructive project. This may have been a necessary omission during the formative years of the second wave of feminism, or at least it seemed so at the time, but is it one that has outlived its usefulness? Australian sociologist R. W. Connell frames the dilemma:

Men who do undertake action in support of feminism are not in for an easy ride. They are likely to be met with antagonism and derision from other men, picturing them as eunuchs, queers or sell-outs to “political correctness.” They will not necessarily get warm support from feminists—some of whom are deeply suspicious of all men, most of whom are wary of men’s power, and all of whom make a primary commitment to solidarity with women.⁶

Chapter 5 unpacks the popular image of feminism: it examines the reasons feminism has acquired such a bad name. In doing so, it looks at those strands of the feminist movement that have alienated potential supporters (racial exclusivity, the failure to include men, a politics of anger, and an uneasy alliance between feminism and lesbianism), questions the necessity of the factionalism within feminism, and points to the need for coalition-building (intergenerational, international, and inter-issue) among feminists.

Intrafeminist controversy has the power to spark useful debate, encourage thoughtful reflection, and mobilize political action. In its recent guises, it has done little of that. The chapter touches on the schisms and personal hostilities of pop culture feminists who adopt splashy labels (such as “gender feminism” and “victim feminism”) and hurl insults at one another. The chapter also reviews the deeper theoretical battles in which feminists have fractured over issues such as pregnancy accommodation, pornography, and abortion. It is important to situate events in their historically appropriate time frame. This requires recognition that the exclusionary rhetoric a few fringe feminist thinkers mouthed several decades ago may be replayed misleadingly as representative of modern feminism.

While chapter 5 will explore the ways some feminists have alienated potential supporters and discouraged adherents, it is intended as a sympathetic critique, since many, if not most, misunderstandings of feminism are caused by its opponents, not its supporters. This chapter considers public opinion surveys about feminism and explores the construction of the popular ideology of feminism. How did we arrive at a place where “feminist” translates into “feminazi” in the popular mind, where the label itself is dangerous, as Marc Lepine proved when he burst into Montreal University’s engineering school in 1989 armed with a semiautomatic rifle and slaughtered fourteen women whom he called “a bunch of feminists”?

Some of the misunderstandings come from an unskilled or unsympathetic treatment of feminist issues by reporters. Most of the attacks on feminism do not originate from objective, unbiased sources, but from people who have deep-seated reasons to try to undermine it. The images and labels attached to feminism are used as forms of denigration by people who have a vested interest in continuing the subjugation of women. The label “feminism” feels accusatory because it is used as an accusation of a panoply of evils. It is a technique of silencing that feminists are likely to understand, whether they accept the label or not. The incessant warring among feminist camps and media glee over these battles accentuate the lack of popular acceptance of feminism. With respect to many specific events and ideas in the feminist story, the cultural reactions to them often define the phenomena in the popular mind. I thus try to separate some of the strands of academic feminism from their popular culture incarnations. The various incarnations of feminism are not fundamentally misguided, but they are plagued by unnecessa...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• 1 Introduction
• 2 Gender Separatism
• 3 How Courts Enforce Gender Separatism
• 4 Making Men: The Socio-Legal Construct of Masculinity
• 5 The “F” Word: Feminism and Its Detractors
• 6 Feminist Legal Theory and the Treatment of Men
• 7 Reconstructing Images of Gender in Theory
• 8 Remaking Gender in Practice: Looking Forward
• Notes
• Index
• About the Author