Modern Feminism & The Law
The kind of strident activism sometimes employed by advocates for marginalized groups serves one incredibly important purpose: it forces those in a position of power to pay attention, to take pause, to ask questions.
A new study conducted by the University of Toronto and published September 16 indicates that as a society, we tend to distrust movements heavily supported by overt activism.
Salon’s Tom Jacobs concludes:
So the message to advocates is clear: Avoid rhetoric or actions that reinforce the stereotype of the angry activist. Realize that if people find you off-putting, they’re not going to listen to your message. As Bashir and her colleagues note, potential converts to your cause “may be more receptive to advocates who defy stereotypes by coming across as pleasant and approachable.”
In the context of modern feminism, it is clear why angry activists are angry. American women make 81 cents on the dollar when compared to men. The United States is one of only 8 countries in the world that don’t offer paid maternity leave (with the likes of Suriname, Liberia, Palau, Papua New Guinea, Nauru, Western Samoa and Tonga). In 2011, women ran only 12 of the Fortune 500 companies. In 2010, women accounted for only 31.5% of all lawyers. Unfortunately, I could go on with employment (and other) disparities.
It hasn’t been that long since blatant sexism placated the very systems meant to reflect our societal values. Women in “the world’s oldest democracy” have had the right to vote for less than 100 years. It is obvious that generations of subservience and acquiescence to males and the male-dominated legal system will not be undone overnight.
While policies that focus on neutrality and objectivity have helped shrink these disparities, they stubbornly persist. Thu, some argue that principles of neutrality and objectivity are not enough. Others argue that more strident activism is also unhelpful.
To protect and promote the significance of the progress made, and to also urge it along, modern feminist legal theorists are weighing in with a more nuanced approach. Their contributions offer valuable insights into the legal world and the justice it seeks.
Feminist legal theorists are frustrated by what they essentially describe as an atmospheric sexism in the legal world. Consider Sandra Petersson’s discussion surrounding sexist language in the law:
I refer to the legislative authority to use words denoting males when referring to both sexes as ‘the masculine rule.’ For example, until recently federal interpretation legislation provided that ‘[w]ords importing male persons include female persons and corporations.’ This provision supplies the argument that any word seeming to refer to men also includes woman.
Locating Inequality — The Evolving Discourse on Sexist Language, 57.
Perhaps the loudest call is for the eradication of neutrality with respect to legal rules. Catharine MacKinnon argues that the law has generally come to be seen--and thus taught--as an objective set of rules designed by citizens to govern their society. However, MacKinnon and others argue that the law isn’t actually objective; rather, it is typically a reflection of male-dominated thinking. With the law reflecting a male-dominated perspective, it necessarily discriminates against women because it has excluded them from the process.
In the opinion of MacKinnon, Petersson, and Katharine Bartlett, the law should instead be viewed through a subjective lens, and must be dramatically changed if it is to adequately represent the views of more than straight, white, upper-class males. “Feminists have both used gender neutrality and criticized its limitations. A deeper critique leads to a criticism of neutral principles in constitutional law generally in favor of substantive contextualized approaches.” Mainstreaming Feminism in Legal Education, 208.
In order to overcome a male-biased legal system, Bartlett urges the adoption of certain practices, starting with encouraging lawyers, judges, professors, law students, and others to consistently couch analysis of legal rules in The Woman Question. See Feminist Legal Methods. 103 Harv. L. Rev. 831, 1990. Says Bartlett:
Once adopted as a method, asking the woman question is a method of critique as integral to legal analysis as determining the precedental value of a case, stating the facts, or applying law to facts. ‘Doing law’ as a feminist means looking beneath the surface of law to identify the gender implications of rules and the assumptions underlying them and insisting upon applications of rules that do not perpetuate women’s subordination. It means recognizing that the woman question always had potential relevance and that ‘tight’ legal analysis never assumes gender neutrality.
Feminist Legal Methods, 843. While Bartlett concedes that asking The Woman Question necessitates a consistently subjective approach to the law, she and others argue that such an approach is crucial.
Consider Mari Matsuda’s keynote address at Yale Law School in April, 1988:
A professor once remarked that the mediocre law students are the ones who are still trying to make it all make sense. That is, the students who are trying to understand the law as necessary, logical, and co-existive with reality. The students who excel in law schools – and are the best lawyers – are the ones who are able to detach law and to see it as a system that makes sense only from a particular viewpoint. Those lawyers can operate within that view and then shift out of it for purposes of critique, analysis, and strategy. . . The multiple consciousness I urge lawyers to attain is not a random ability to see all points of view, but a deliberate choice to see the world from the standpoint of the oppressed.
When the First Quail Calls: Multiple Consciousness as a Jurisprudential Method, 299.
These scholars and others argue that it is imperative for those who work with the law to make an effort to effectively and appropriately apply concepts such as The Woman Question. They argue that to see a continuation of the progress and advancement for which so many have fought, and to see a workplace where women are equally valued and also uniquely considered, it is imperative that modern feminism not be restricted to strident activism or reliance on idealistic concepts.
#sexdiscrimination #TheWomanQuestion #TitleVII #EmploymentLaw #genderdiscrimination
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Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.