Feminist Legal Theory (Second Edition)

A Primer

Nancy Levit, Robert R. M. Verchick, Martha Minow

• Publisher: NYU Press
• Year: 2016
• ISBN:
  9781479840403
• Topic: Social Sciences
• Subtopic: Feminism & Feminist Theory
• Index: Social Sciences

Feminist legal theory is one of the most dynamic fields in the law, and it affects issues ranging from child custody to sexual harassment. Since its initial publication in 2006, Feminist Legal Theory: A Primer has received rave reviews. Now, in the completely updated second edition of this outstanding primer, Nancy Levit and Robert R.M. Verchick introduce the diverse strands of feminist legal theory and discuss an array of substantive legal topics, pulling in recent court decisions, new laws, and important shifts in culture and technology. The book centers on feminist legal theories, including equal treatment theory, cultural feminism, dominance theory, critical race feminism, lesbian feminism, postmodern feminism, and ecofeminism. Readers will find new material on women in politics, gender and globalization, and the promise and danger of expanding social media. Updated statistics and empirical analysis appear throughout. The authors, prominent experts in the field, also address feminist legal methods, such as consciousness-raising and storytelling. The primer offers an accessible and pragmatic approach to feminist legal theory. It demonstrates the ways feminist legal theory operates in real-life contexts, including domestic violence, reproductive rights, workplace discrimination, education, sports, pornography, and global issues of gender. The authors highlight a sweeping range of cutting-edge topics at the intersection of law and gender, such as single-sex schools, abortion, same-sex marriage, rape on college campuses, and international trafficking in women and girls. At its core, Feminist Legal Theory shows the importance of the roles of law and feminist legal theory in shaping contemporary gender issues.

1

Feminist Legal Theories

Feminism is a dirty word. . . . Misconceptions abound. Feminists are portrayed as bra-burners, manhaters, sexists, and castrators. Our sexual preferences are presumed. We are characterized as bitchy, . . . aggressive, confrontational, and uncooperative, as well as overly demanding and humorless.

—Leslie Bender, “A Lawyer’s Primer on Feminist Theory and Tort”

[W]oman is the Other.

—Simone de Beauvoir, The Second Sex

My life is a sheer privilege because my parents didn’t love me less because I was born a daughter. My school did not limit me because I was a girl. My mentors didn’t assume that I would go less far because I might give birth to a child one day. These influences are the gender equality ambassadors that made me who I am today. They may not know it but they are the inadvertent feminists needed in the world today. We need more of those.

—Emma Watson, Hermione from Harry Potter and UN Goodwill Ambassador, speech to UN HeForShe Campaign

What is distinctive about feminist legal theory? Do criteria exist for who can be a “feminist”? Are there compulsory feminist beliefs? What is the meaning of equality?

The development of feminist legal theory was intertwined with the growth of feminism generally. Many of the first rights the women’s movement fought for were political rights, like the right to vote. Some of the early strategies—such as Sojourner Truth’s claim to equal treatment because she had “ploughed and planted” just like a man—foreshadowed visions of equality that would emerge as important legal theories in later years. Often, feminist political action preceded feminist legal theory. While feminist lawyers were urging courts in the 1960s and early 1970s to address gender inequalities, it was not until the later 1970s and early 1980s that legal scholars developed distinct branches of feminist legal theory.

Feminist legal theory comes in many varieties, with some overlap. But all the theories share two things—the first an observation, the second an aspiration. First, feminists recognize that the world has been shaped by men, who for this reason possess larger shares of power and privilege. All feminist legal scholars emphasize the rather obvious (but unspoken) point that nearly all public laws in the history of existing civilization were written by men. If American law historically gave men a leg up, this news can hardly come as a surprise. Second, all feminists believe that women and men should have political, social, and economic equality. But while feminists agree on the goal of equality, they disagree about its meaning and about how to achieve it.

Equal Treatment Theory

Sex-based generalizations are generally impermissible whether derived from physical differences such as size and strength, from cultural role assignments such as breadwinner or homemaker, or from some combination of innate and ascribed characteristics, such as the greater longevity of the average woman compared to the average man.

—Wendy W. Williams, “Equality’s Riddle”

The first wave of feminist legal theory began in the early 1960s with the emergence of equal treatment theory (also referred to as “liberal” or “sameness” feminism). Equal treatment theory is based on the principle of formal equality that inspired the suffrage movement, namely, that women are entitled to the same rights as men. The theory drew from liberal ideals in philosophy and political theory that endorse equal citizenship, equal opportunities in the public arena, individualism, and rationality.1 The equal treatment principles were simple: the law should not treat a woman differently from a similarly situated man. Also, the law should not base decisions about individual women on generalizations (even statistically accurate ones) about women as a group.

Early efforts to attain equal treatment for women pursued two goals. The first was to obtain equivalent social and political opportunities, such as equal wages, equal employment, and equal access to government benefits. The second was to do away with legislation intended to protect women by isolating them from the public sphere. Examples of such protective legislation included limiting women’s career options or employment hours. Perhaps in part as a reaction to the historical treatment of women as in need of special protection, equal treatment theorists stressed the ways women were similar to men, and used this as the platform for claiming equal employment and economic benefits.

In the 1970s and 1980s, organizations such as the American Civil Liberties Union (ACLU), the National Organization for Women, and the League of Women Voters won a series of lawsuits in the Supreme Court that helped dismantle barriers for women as breadwinners, property owners, and economic players. In the 1970s, the ACLU created a Women’s Rights Project (WRP) to bring sex discrimination lawsuits. Under the direction of future Supreme Court Justice Ruth Bader Ginsburg, the WRP followed the strategy of civil rights pioneers in seeking formal equality. To obtain equal treatment under the Constitution, women had to establish that they were “similarly situated” to men, so the WRP argued that women did not differ from men in ways that should matter legally. In 1971 in Reed v. Reed, they persuaded the Supreme Court that men and women were equally qualified to administer estates, so a law that preferred male relatives over female relatives as administrators of a decedent’s estate was unconstitutional.2 Two years later, in Frontiero v. Richardson,3 the WRP argued in an amicus brief4 that female members of the military deserved the same family benefits as male service members. In Frontiero the Supreme Court held unconstitutional a benefits policy in the military that presumed that all wives of servicemen were financially dependent on their husbands but did not make the same presumption in the case of husbands of service women. In his opinion for the Court, Justice Brennan observed that “our Nation has had a long and unfortunate history of sex discrimination . . . rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”5

The WRP initially adopted a strategy that used male plaintiffs to challenge laws that, at least superficially, favored women. WRP lawyers surmised that since most judges were men, they would see discrimination best if they could envision themselves as its possible victims. The strategy produced mixed results. The Court upheld a law giving widows, but not widowers, a property tax exemption. The state tax exemption, in the Court’s view, was an appropriate equalizing measure for the discrimination that women encounter in the job market, because the law was “reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden.”6 On the other hand, the Court struck down a law that prohibited the sale of low-alcohol beer to females under the age of eighteen and males under the age of twenty-one, basing its decision on the supposedly greater traffic-safety risks posed by underage males.7 When the state presented only weak empirical evidence of a correlation between gender and driving drunk (0.18 percent of females and 0.2 percent of males between eighteen and twenty-one were arrested for driving under the influence), the Court rejected the stereotype that young men were more reckless than young women.

One of the strengths of Ginsburg’s approach in litigating the equal treatment cases was that she directly attacked the notion that “natural” differences justified dissimilar treatment under the law. She showed that many of these differences were socially constructed—that social norms prescribed different roles for men and women. She also argued that if biological differences distinguished the sexes, discrimination based on these immutable differences justified a higher level of judicial scrutiny.

During the late 1970s and the 1980s, the formal equality tactic was usually successful in eliminating explicit barriers to equal treatment. The Supreme Court found that a statute imposing obligations only on husbands to pay alimony violated equal protection, as did a congressman’s discharge of a female administrative assistant because of her sex.8 Nursing schools could not reject potential students because they were male; attorneys could not reject potential jurors because they were female.9 In some cases, though, the Court permitted women to recoup such benefits as extra Social Security allotments as compensation for market disadvantages they experience.10

Equal treatment theory achieved immense gains in access for women, particularly in the areas of education and employment. Its rationale was easy to understand and was accepted by the mainstream. Part of the reason the strategy won public support was that it targeted individual instances of inequality and sought only gradual change. But, this meant the theory was tame, incremental, and slow moving. In addition, equal treatment lawsuits remained focused on public activities—such as taxes, liquor sales, and education—rather than on the more controversial realm of personal behavior.

Equal treatment theory accepts male experience as the reference point or norm. Women attain equality only to the extent that they are similarly situated with men. One flaw in this symmetrical approach is that its emphasis on similarity disadvantages women on issues related to pregnancy, childbirth, and allocation of property at divorce.11 In response, a second group of theorists challenged the equal treatment framework, arguing that women’s rights should be defined without reference to a male baseline. This premise gave rise to cultural feminism.

Cultural Feminism

I will never be in a man’s place, a man will never be in mine. Whatever the possible identifications, one will never exactly occupy the place of the other—they are irreducible the one to the other.

—Luce Irigaray, An Ethics of Sexual Difference

Cultural feminism (also called “difference theory” or, sometimes pejoratively, “special treatment theory”) argues that formal equality does not always result in substantive equality. Cultural feminists criticized the sameness model as male-biased, serving women only to the extent that they could prove they were like men. Purely formal equality of opportunity did not lead to equality of results. People judged women harshly on the basis of their inability to conform to the male norm. Gender-neutral laws can keep women down if they do not acknowledge women’s different experiences and perspectives. This theory emphasizes the differences between men and women, whether the differences in question are biological differences related to childbearing or cultural differences reflected in social relationships. Cultural feminists note that many institutions, such as the workplace, follow rules based heavily on male-dominated experiences, which can disadvantage women. For instance, the voluntary-quit rules of unemployment compensation typically disqualify from receiving benefits people (predominantly women) who leave their jobs because of work-family conflicts. Damages in most tort cases are based on anticipated losses of future earning capacity, so female plaintiffs often receive damage awards discounted by anticipated work absences during childrearing years. Traditional self-defense rules in criminal law, which require an imminent threat before a defense is allowed, offer limited protection to a battered woman who, though she lives in constant fear of a domestic attack, is unable to predict exactly when her partner will strike.

Cultural feminists argue that men and women should not be treated the same where they are relevantly different and that women should not be required to assimilate to male norms. They urge instead a concept of legal equality in which laws accommodate the biological and cultural differences between men and women. Some cultural feminists see the connectedness of women as rooted in biological as well as cultural origins. They maintain that women are “essentially connected” to other humans, through the physical connections of intercourse, pregnancy, and breastfeeding, and to humanity, through an ethic of care. The problem with legal theory, then, is that it “is essentially and irretrievably masculine” because it treats humans as distinct, physically unconnected, and separate from others.12

Cultural feminist theory in law drew on the “different voice” scholarship of educational psychologist Carol Gilligan.13 Gilligan challenged the dominant theory in psychology, associated with Lawrence Kohlberg, that use of abstract concepts of justice and rights was correlated with higher stages of moral development. She advanced the theory that boys and girls learn different methods of moral reasoning. Girls are taught to value empathy, compassion, preservation of harmony, and a sense of community, while boys are taught to privilege abstract moral principles, rights, autonomy, and individualism. Girls grow into women who reason with “an ethic of care,” emphasizing connections and relations with other people; boys become men who reason with “an ethic of justice” that values abstract rights, rules, and autonomy.

Advocates of special treatment urged a model that focuses on differences between the sexes, whether rooted in culture or biology: differences in reproductive functions, caretaking responsibilities, and even emotions and perceptions, such as the ways women perceive rape, sexual harassment, and various aspects of reproduction. Cultural feminists say that significant differences between men and women should be acknowledged and compensated legally where they disadvantage one sex. They have favored special maternity leaves, flexible work arrangements, or other workplace accommodations for women. Further, cultural feminists have advocated for female-centric standards in the law, such as the reasonable woman standard in sexual-harassment employment-discrimination cases, whereby the harassed female plaintiff has the option to instruct the jury to examine her claim from a woman’s point of view, rather than a person’s (arguably a male’s) point of view.14

Some feminists have criticized Gilligan’s methodology as anecdotal, arbitrary in its assignment of characteristics as masculine or feminine, and based on an inadequate sample of privileged subjects. A number of these critics deny that many differences exist along gender lines, and point out that more variation exists among women than between men and women.15 Others say that creating social policies with an emphasis on differences will reinforce gender stereotypes. Gilligan has replied to these methodological critiques, and others have supported her findings, although the empirical support has not been strong.16 But, intriguingly, these criticisms have not diminished the general acceptance of her theories.

Cultural feminism does more than identify women’s differences; it applauds them: “Cultural feminis...