Sex Inequality

Catherine MacKinnon, Women’s Lives, Men’s Laws, Cambridge, MA: Harvard University Press, 2005.

Major points in chapters 2, 3, 4, 12:

MacKinnon’s major theoretical contribution is that sex inequality is a hierarchy that is substantively sexual at base and merges especially crucially with inequalities of race and class. And she argues that one of law’s main functions is to organize social power relations among groups and that doctrines like abstract equality or speech absolutism are epiphenomenal smokescreens for outcomes that are in fact, consciously or not, predicated on the substance of historical experience or group identification or power interest.

She finds that some judges and legal commentators seem genuinely to believe they are called upon to apply their minds neutrally to abstract legal questions but that although this may rein in their biases to some extent, it more surely conceals them, even from themselves, and permits unconscious commitments on substance, which tend to favor the status quo and established interests, to control.

She believes that abortion is a sex equality issue and that denial of access to abortion denies women, and only women, a final act of control over the reproductive consequences of male sexuality as it largely seals women’s lack of control over their time, which is what life is made of.

She finds that sex equality as a legal concept has not traditionally been theorized to encompass issues of sexual assault or reproduction because equality theory has been written from men’s practice, and not women’s.

MacKinnon critiques a postmodern approach to theory for reproducing existing relations of dominance, in part because it is “an utterly removed elite activity.” She argues that all theory is a form of practice “because it either subverts or shores up existing deployments of power” (p. 22). She argues that the task of feminist theory is to “engage life through developing mechanisms that identify and criticize…to make tools of women’s consciousness and resistance that further a practical struggle to end inequality” (p. 23).

“So what is meant by treatment “as woman” here? To speak of being treated “as a woman” is to make an empirical statement about reality, to describe the realities of women’s situation. She argues that in the United States, with parallels in other cultures, women’s situation is made up of unequal pay combined with allocation to disrespected work, sexual targeting for rape, domestic battering, sexual abuse as children, and systematic sexual harassment together with depersonalization, demeaned physical characteristics, use in denigrating entertainment, deprivation of reproductive control, and forced prostitution. To notice that these practices are done by men to women is to see these abuses as forming a system, a hierarchy of inequality (p. 24).

She argues that the group “woman” can be seen to have “a collective social history of disempowerment, exploitation, and subordination extending to the present” (p.24). To speak of social treatment “as a woman” is not to invoke any abstract essence…but to refer to this diverse and pervasive concrete material reality of social meanings and practices…” (p.24).

She notes that “The everyday sexuality of many women is thus controlled every day through fear due to the recently strengthened possibility of men seeking custody of children” (p.38). And, that “Family law keeps a lot of women in place and in line, fearful of altering their lives because of how it could be made to look in court. Some do not go public with past abuse through pornography for this reason. Many stay with men who abuse them because they fear the man would try to take their children away, and he would look better under existing legal standards—high income, intact new family, white picket fence—than they do. Most women feel they married an individual but find on considering divorce that he represents the law and the law represents him. He is the law of the state in the home” (p. 38).

“The realm in which women’s everyday life is lived, the setting for many of these daily atrocities, is termed “the private.” Law defines the private as where law is not, that into which law does not intrude, where no harm is done other than by law’s presence. In everyday life, the privacy is his. Obscenity is affirmatively protected in private. Equality is not guaranteed in private. Prostitution, when acts of sex occur out of public view, is often termed private. In private, women who can afford abortions can get them, but those who cannot afford them get no public support, because private choices are not pubic responsibilities” (p. 38).

She finds that if you look at the laws against rape and battering and sexual abuse of children they are arranged so virtually nothing is done about them, and that law supports male power in the home as a virtual absolute, and the law then proclaims its profoundest self-restraint, its guarantee of liberty where it matters most, in “the right to be let alone.”

Equality was not part of the original Constitution; it was added after the Civil War to help eliminate official racism and was not applied to sex until 1971 (Reed v. Reed, 404, U.S. 71 (1971). Its threshold requirement is that equality claimants must be “similarly situated” to those not treated unequally before an equality claim can be made” (p. 45).

MacKinnon asks, “Why can differences justify inequalities?”

“If equality is a sameness and gender a difference; if first-order equality is defined in terms of sameness, and women as such are “not the same” as men, women cannot be equal to men until they are no longer women” (p. 50).

“Nothing in Aristotle’s approach prevents treating someone less well who is “differently situated” or “different” by virtue of being already less well off” (p. 51).

“Women had no voice in contesting Aristotle’s formulation in his day and have had little institutional power in shaping its legal applications since. Despite this lack of representation, including in democracies, women have in the last twenty years begun to articulate their condition in public. The facts that have emerged in this way, taken together, have revealed a grim system of unequal pay, allocation to disrespected work, sexual stigmatization, sexual violation as children and adults, and domestic battering. Women are attributed demeaned physical characteristics, used in denigrating entertainment, depersonalized as objects, deprived of reproductive control, and forced into prostitution—all this in the civilized West.” Elsewhere, if women are permitted gainful employment at all, it can be all that and chattel status, early and forced marriage, inability to divorce, compulsory veiling, genital mutilation, honor killings, ritual murder as in suttee, and more” (p. 51-52).

MacKinnon argues that once women are seen as men’s human equals—an assumption presumably made when a legal sex equality standard is adopted, at the same time making it more possible to notice that the sexes are social unequals—systematically fewer material resources and life chances and more sex-specific victimization for one sex become difficult to justify. Once the hierarchy of social outcomes is noticed, it becomes difficult to explain why men are not paid less and assaulted by women more for their “differences.”

“Measuring the equality approach created in women’s silence and exclusion against the realities of women’s lives, as women have begun to articulate them, the analytical and practical short-comings of the existing approach thus emerge, revealing the need for a reconstructed equality theory to remedy them. The new paradigm moves behind and beyond sameness and difference to the subordination and dominance that has been the real problem of inequality all along” (p. 53).

“…it is hierarchy, not difference as such, that is the opposite of equality” (p. 53).

MacKinnon argues that the purpose of an equality provision is to “promote equality.” This does not sound like much, but to her it is everything: given social inequality, it requires that law has to move the world to be legal. It no longer leaves equality law standing neutrally in the face of an unequal world, sorting sameness from difference, reinforcing social inequalities by law. Promoting equality to MacKinnon requires courts to interpret laws so as actually to produce social equality.

In a chapter titled “The Power to Change,” MacKinnon reviews the history of women’s rights in the late nineteenth century including the right to property in their own name, so their material existence no longer had to be dependent on husbands by law. And the problems for women (and children) associated with a sex-unequal marketplace that did not necessarily provide them with economic independence. She reviews the 1963, Equal Pay Act which guaranteed equal pay on the basis of sex for work that requires equal skill, effort, and responsibility. But, points out, that women have been and remain segregated into occupations that mostly women do—jobs that either are different or are seen as different from those men do and that pay less. She notes that the Title VII of the Civil Rights Act of 1964, propelled by the civil rights movement, prohibited discrimination on the basis of sex in employment, although it had been introduced in Congress for partly racist reasons. Later Congress did take sex discrimination seriously—for example, by prohibiting discrimination on the basis of pregnancy in employment in 1978 and extending Title VII to the federal labor force. Under the aegis of Title VII, sexual harassment and sex stereotyping as an employment standard were made actionable as violations of sex-equality rights, and intersections of race and sex discrimination were increasingly recognized as a joint or combined basis for legal action. But despite more than 30 years of legal guarantees of workplace sex equality—and some progress, mainly for elites—the workplace remains overwhelmingly gender-unequal, to women’s disadvantage.

MacKinnon finds that once women exposed the line between public and private as gendered—revealing that masculine is to public as feminine is to private—the male bias built into the definition of the public by law was also exposed. The public/private line that distinguished the properly legal from the legally exempt stood revealed as a barrier that excluded and marginalized women from law, she notes, and under and within it as well. Women, she argues, thus began to claim a place in the public world of law, to redefine the legal as already involved in the private and as a determinant of women’s status and treatment, top to bottom and society-wide. As women thus became subjects of law, the hidden and denied ways women had been subordinated to men prior to law and under law became revealed to public view, requiring accountability for the first time.

She also describes how in the latter quarter of the twentieth century, some aspects of rape law were reformed in an attempt to make them more effective. The numbers of rapes reported soared for a time, but conviction rates rose barely, if at all. Initiatives were taken to shelter women from battering in their homes, and to contain and educate the men who attacked them, but the rate of physical assault of women by men in intimate relationships did not significantly drop. Moreover, she argues, pornography’s harms were legally confronted as a form of sex discrimination, but the pornographers retained their First Amendment right to violate women’s civil rights through pornography—at least for now. The Violence Against Women Act—a legal tool to empower survivors by holding batterer and rapists directly accountable to them for sex-based violence—was passed by Congress in 1994, but was invalidated (as a violation of states’ rights) in 2000 by the U.S. Supreme Court. And while some statutes and international protocols have begun to address international sex trafficking, little to nothing has been done by law for women in prostitution.

MacKinnon observes that most women think of law as alien, subject to influence they do not have, ignorant of the realities they live. Many conclude that law can do nothing for them, so they should stay as far away from it as possible. One result of this turning away, however realistic its reasons, is that male power continues to own law unopposed. When law is abandoned to the powerful, corruption and physical force remain the real law, a fact ignored by those who, having a choice, urge abdicating this ground. MacKinnon adds that it is hard to avoid the feeling that women are urged to think law can do nothing for them precisely because it can do so much.

MacKinnon is a leader in defining sexual harassment. As the first legal wrong to be defined by women, sexual harassment has been called a feminist invention. Women were subjected to sexual attention they were not in a position to refuse long before the state recognized it as an injury under some circumstances. Sex discrimination law now prohibits requiring sexual compliance in exchange for material survival or educational benefits and tolerance of sexual propositions or byplay as a condition of work, as well as compulsory provocative uniforms that make women appear to “ask for it” on the job. Sexual objectification, the unifying dimension of these prohibitions and a central dynamic of gender inequality, is to this extent illegal, women’s resistance to it to this degree legitimized. But it took a women’s movement to expose these experiences as systematic and harmful in the first place, a movement that took women’s point of view on our own situation as significantly definitive of that situation, as the basis for beginning to embody it in the law of sex equality.

In chapter 12 titled “Reflections on Sex Equality Under Law” MacKinnon describes how “no woman had a voice in the design of the legal institutions that rule the social order under which women, as well as men, live. Nor was the condition of women taken into account or the interest of women as a sex represented.” She notes that to Abigal Adam’s plea to John Adams to “remember the ladies” in founding the United States, he replied, “We know better than to repeal our Masculine systems.” Mostly one senses, women as such were beneath notice at the time.

The political theory that formed the principled backdrop for the new American republic certainly did not encourage their visibility. MacKinnon observes that Hobbes grounded natural equality in the ability to kill, Locke argued that whoever did not leave a regime consented to it, Rousseau once posited the primitive passions as “food, a female, and sleep.” It seems women to defend themselves effectively, far less to aggress, or that they had any place to go to escape male supremacy, even if they had the means of exit. And whatever need they conceived for “a female” probably went largely unfulfilled. Yet the applicability of these reigning conceptions of equality, consent, and human need to at least half the population went unquestioned as women—including those owned neither in marriage nor in slavery—were deemed in theory to be participants in the social compact, while most women in life were not allowed to sign a contract.

MacKinnon finds that law for women moved from seeking access to an unchanged legal regime to developing a substantively critical grasp of its tools, toward reshaping the law so that women can use it. Through such efforts, battered women’s normal survival response to years of assault has begun to be reflected in the law of self-defense, so that those situations in which women are most likely to need to kill to save themselves are beginning to shape doctrine.

Some positive impacts women have made in law are noted by MacKinnon: State by state, the law of rape is being expanded to include rape in marriage, to that some of the most common rapes in life become rapes in law. Some protection has been extended to women testifying as rape victims, shielding their sexual history so they do not become cast as live pornography in court. Abortion has been largely, if precariously, decriminalized. Statutes of limitations in cases of incestuous sexual abuse of children have begun to be extended. The law of the family has been confronted by practitioners and theorists alike as an enforcement of patriarchy, in an attempt to empower women in marital dissolutions and child custody disputes. Tort concepts of harm and measures of damages have been scrutinized from the standpoint of women’s situation, in an attempt to encompass women’s injuries. The law of contract has been criticized for abstracting from gender by assuming an at arm’s length one-at-a-time atomism in transactions, and for presupposing behaviors and forms of power that imagine and favor men over women.

For MacKinnon, in these instances, women’s legal initiatives have transformed inclusions into change. They have moved from a request to be permitted to play by the rules to an understanding that having no say in the rules means not being permitted to play the game. They have moved from the use of existing doctrine to a critical practice of reconstruction. They have begun to move from advancing within the gender hierarchy to subverting it” (wlml 125).

She finds that because the “similarly situated” requirement continues to control access to equality claims, the laws of sexual assault and reproductive control—areas crucial in the social construction of women’s inferior status as they are laden with misogyny—have not been seen as amenable to constitutional sex equality attack. Comparatively few men are raped and no men are denied abortions; gender comparisons are therefore unavailable or can be strained. So sexuality and procreation become happy differences or unhappy differences but never imposed inequalities.

The legal system’s treatment of rape, which is putatively illegal while overwhelmingly permitted, is not regarded as state action that discriminates on the basis of sex, nor is criminalizing or refusing to fund a medical procedure that only women need. Because, according to the law, first there must be similarly situated men with whom to compare. Men’s comparative lack of sexual and reproductive violation is not visible as a lack because it is relatively unthinkable that men would be hurt in these ways, although some men certainly are. As a result, when sex inequality is most extreme—the vast majority of victims of sexual assault with impunity and all those denied legal or funded abortions are women—it drops off the sex inequality map.

These are the social practices of dominance that become, create, the gender difference as we know it. Once the “similarly situated” assumption is revealed as the white male standard in neutral disguise, the fist of dominance in the glove of equality…dominance essential zed as difference becomes the fist on the equality agenda rather than the last, or not there at all” (wlml p. 126-127).

MacKinnon argues that the inequality of women to men deserves a theory of its own. The status of women resembles other bases for inequality, but, like every inequality, is also particular and unique. Women’s situation combines unequal pay with allocation to disrespected work; sexual targeting for rape, domestic battering, sexual abuse as children, and systematic sexual harassment; depersonalization, demeaned physical characteristics, and use in denigrating entertainment; deprivation of reproductive control; and prostitution. These abuses have occurred, in one form or another, for a very long time in a context characterized by disenfranchisement, preclusion from property owner ship, possession and use as object, exclusion from public life, sex-based poverty, degraded sexuality, and a devaluation of women’s human worth and contributions throughout society.

She finds that like other inequalities, but in its own way, the subordination of women is socially institutionalized, cumulatively and systematically shaping access to human dignity, respect, resources, physical security, credibility, membership in community, speech and power. Composed of all its variations, the group “women” has a collective social history of disempowerment, exploitation, and subordination extending to the present.

To be treated like a woman, according to MacKinnon, is to be disadvantaged in these ways as an incident of being assigned to the female sex. To speak of social treatment “as a woman” is thus not to invoke any universal essence or homogeneous generic or ideal type, but to refer to this diverse material reality of social meanings and practices such that to be a woman “is not yet the name of a way of being human” (wlml 127-128).”

MacKinnon, humorously remarks that “usually, sex precedes reproduction.” But that because there is so much forced sex, procreation has also provided a crucial occasion, pretext, and focus for the subordination of women to men in society. Many of the social disadvantages to which women have been subjected have been predicated upon their capacity for and role in childbearing. Although reproduction has a major impact on both sexes, men are not generally fired from their jobs, excluded from public life, beaten, patronized, confined, or make into pornography for making babies. This point is not the biological one that only women experience pregnancy and childbirth in their bodies, but the social one: women, because of their sex, are subjected to social inequality at each step in the process of procreation” (wlml 134).

She finds that under male dominance, pregnancy… and the potential to become pregnant are socially fundamental in women’s inequality to men. Grounding a sex equality approach to reproductive control requires situating pregnancy in the legal and social context of sex inequality and capturing the unique relationship between the pregnant woman and her fetus.

The legal system, MacKinnon argues, has not adequately conceptualized the relationship between the fetus and the pregnant woman. This may be because the interests, perceptions, and experiences that have shaped the law have mainly not included those of women. The social conception of pregnancy that has formed the basis for its legal treatment has not been from the point of view of the pregnant woman, but rather from the point of view of the observing outsider, gendered male” (wlml 135).

She believes that the “private” is a distinctive sphere of women’s inequality to men. Because this has not been recognized, the doctrine of privacy has become the triumph of the state’s abdication of women in the name of freedom and self-determination. Theorized instead as a problem of sex inequality, the law of reproductive control would begin with the place of reproduction in the status of the sexes. A narrow view of women’s “biological destiny” has confined many women to childbearing and childrearing and defined all women in terms of it, limiting their participation in other pursuits, especially remunerative positions with social stature.

Women who bear children, she observes, are constrained by a society that does not allocate resources to assist combining family needs with work outside the home. In the case of men, the two are traditionally tailored to a complementary fit, provided that a woman is available to perform the traditional role that makes that fit possible.

Women often do not control the sexual conditional under which they become pregnant, hence are deprived of meaningful control over the reproductive capacities of their bodies. Women are socially disadvantaged in controlling sexual access to their bodies through socialization to customs that define a women’s body as for sexual use by men. Sexual access is regularly forced or pressured or routinized beyond denial. She argues that laws against sexual assault provide little to no real protection.”

Contraception, she argues, is inadequate or unsafe or inaccessible or sadistic or stigmatized. Sex education is often misleading or unavailable or pushes heterosexual motherhood as an exclusive life possibility and as the point of sex. Poverty and enforced economic dependence undermine women’s physical integrity and sexual self-determination” (wlml 137).

MacKinnon observes that after childbirth, women tend to be the ones who are primarily responsible for the intimate care of offspring—their own and those of others. Social custom, pressure, exclusion from well-paying jobs, the structure of the marketplace, and lack of adequate daycare have exploited women’s suit, which is not even considered an occupation but an expression of the X chromosome. Also, she argues that women do not control the circumstances under which they rear children, hence the impact of those conditions on their own life chances.

Men, as a group, are not comparably disempowered by their reproductive capacities. Nobody forces them to impregnate women. They are not generally required by society to spend their lives caring for children to the comparative preclusion of other life pursuits. It is women who are caught, to varying degrees, between the reproductive consequences of sexual use and aggression on the one side and the economic and other consequences of the sex role allocations of labor in the market and family on the other. As a result of these conditions, women are prevented from having children they do want and forced to have children they do not want and cannot want because they are not in a position responsibly to care for them because they are women. That is what a social inequality looks like.

MacKinnon argues that reproduction is socially gendered. Women are raped and coerced into sex. When conception results from rape or incest, it is a girl or a woman who is violated, shamed, and defiled in a way distinctively regarded as female. When a teenager gets pregnant because of ignorance or the negative social connotations of contraception, it is a young woman whose life is on the line. When miscarriage results from physical assault, it is a woman who was beaten. When there is not enough money for another child or for an abortion, it is a woman who is forced to have a child she cannot responsibly care for.

When a single parent is impoverished as a result of childbearing, usually that parent is female, when someone must care for the children, “it is almost always a woman who does it, without her work being valued in terms of money or social status” (wlml 137).

Thus, for MacKinnon, “because forced maternity is a sex equality deprivation, legal abortion is a sex equality right” (wlml 146). “Sex equality would be advanced if women were permitted to control sexual access to their bodies long before an unwanted pregnancy. Sex equality would be advanced if society were organized so that both sexes participated equally in child care. Sex equality would be advanced by economic parity between women and men. Equality for women would gain from racial equality. Those who support the abortion right in the name of a “woman’s right to control her own body” might start earlier, before women are pregnant, with the issue of sexual access. If women cannot, socially speaking, control sexual access to their bodies, they cannot control much else about them” (wlml 146)

Also in chapter 12 “Reflections on Sex Equality Under Law” MacKinnon describes how “sexual aggression by men against women is normalized. In traditional gender roles, male sexuality embodies the role of aggressor, female sexuality the role of victim, and some degree of force is romanticized as acceptable. Sexual assaults frequently occur in the context of family life or everyday social events, often perpetrated by an assailant who is known to the victim. In one study, one-third of American men in the sample say they would rape a woman if assured they would not get caught. The figure climbs following exposure to commonly available aggressive pornography.

Pornography, which sexualizes gender inequality, is a major institution of socialization into these roles. The evidence suggests that women are targeted for intimate assault because the degradation and violation and domination of women is eroticized, indeed defines the social meaning of female sexuality in societies of sex inequality. Sexual assault thus becomes a definitive act of sexualized power and masculinity under male supremacy.

Only a fraction of rapes is reported, the most frequently mentioned reason for nonreporting being fear of the criminal justice system. Women of color fear its racism particularly. Only a fraction of reported rapes is prosecuted. Many rapes are “unfounded,” to unfound being an active verb in police lexicon for a decision not to believe that a rape happened as reported. Only a fraction of prosecuted rapes results in convictions. Rape sentences are often short. Most rapists therefore continue to lie in society either undetected or unpunished and unrehabilitated. In many instances, one must suppose that they remain unaware that they did anything even potentially culpable.

Perhaps these data are viewed with complacency on the unconscious belief that sexual assault is inevitable or a constant that cannot be taken seriously because it is so common. Perhaps sexual assault would not be so common if it were taken seriously. Seen in this way, MacKinnon argues, sexual assault in the United States today resembles lynching prior to its recognition as a civil rights violation. It is a violent humiliation ritual with sexual elements in which the victims are often murdered. It could be done to members of powerful groups but hardly ever is. When it is done, it is as if it is what the victim is for; the whole target population cringes, withdraws, at once identifies and disidentifies in terror. This horror, for MacKinnon, keeps the group smaller, quieter, more ingratiating. The legal system is dominated by members of the same group engaged in the aggression. The practice is formally illegal but seldom found to be against the law. The atrocity is de jure illegal but de facto permitted” (wlml p 130-131). “Sexual assault, in this argument, has a special place in women’s social status, and the law of sexual assault has a distinctive place in the history of women’s oppression by government” (wlml 133).

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