Research Handbook on Feminist Jurisprudence [1 ed.] 978-1786439680

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Research Handbook on Feminist Jurisprudence [1 ed.]
 978-1786439680

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Research handbook on feminist jurisprudence

PART 1II FEMINIST LEGAL THEORY AND REPRODUCTIVE RIGHTS 13 Reproductive rights and justice: a multiple feminist theories account Lisa C. Ikemoto 14 Against Roe exceptionalism: degendering abortion Noya Rimalt PART IV

Contributors 249 264

Susan Frelich Appleton Lemma Barkeloo and Phoebe Couzins Professor of Law, Washington University in St. Louis School of Law

FEMINIST LEGAL THEORY, SEX DISCRIMINATION AND SEXUAL HARASSMENT

15 Sexual harassment law: an evolution in theory, scope and impact Kimberly A. Yuracko 16 A dignitarian feminist jurisprudence with applications to rape, sexual harassment and honor codes Orit Kamir 17 Sex equality, gender injury, Title IX and women's education Katharine K. Baker

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PART VI

PART Vil

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FEMINIST LEGAL THEORY AND PRIVATE LAW

20 Feminist legal theory and tort law Martha Chamallas 21 Feminism and contract law Hila Keren 22 How feminism remade American family law (and how it did not) Susan Frelich Appleton 23 Feminism and family leave Julie C. Suk

Cynthia Grant Bowman Dorothea S. Clarke Professor of Law, Comell Law School Irem Çaglar Visiting Research Fellow at the Institute of Advanced Legal Studies, University of London

PART V FEMINIST LEGAL THEORY AND CONSTITUTIONAL LAW 18 The gendered jurisprudence of the Fourteenth Amendment Julie A. Nice 19 Beyond 'Free Speech for the White Man' : feminism and the First Amendment Mary Anne Franks

Katharine K. Baker University Distinguished Professor of Law, IIT Chicago-Kent College of Law

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Martha Chamallas Robert J. Lynn Chair in Law, Moritz College of Law, Ohio State University Chao-ju Chen Professor, National Taiwan University College of Law Martha Albertson Fineman Robert W. Woodruff Professor; Director of the Feminism and Legal Theory Project and the Vulnerability and the Human Condition Initiative, Emory University School of Law

406 426 446

Mary Anne Franks Professor of Law, University of Miami School of Law Berna Akçali Gür Visiting Research Fellow at the Institute of Advanced Legal Studies, University of London; Lecturer at Kadir Has University School of Law

FEMINIST LEGAL THEORY AND INTERNATIONAL LAW

24 Intemational law and feminism Adrien K. Wing 25 The state's due diligence obligation Irem Çaglar and Berna Akçali Gür

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Nan D. Hunter Professor of Law, Georgetown University Law Center Lisa C. Ikemoto Martin Luther King, Jr. Professor of Law, University of Califomia - Davis School of Law Orit Kamir Professor of Law; Founder and President, Israeli Center for Human Dignity

vi ii Research handbook on feminist jurisprudence Hila Keren Professor of Law, Southwestern Law School Sylvia A. Law Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry Emerita, NYU Law School Nivedita Menon Professor, Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, Delhi Ngaire Nafline Bonython Professor of Law, University of Adelaide Law School Julie A. Nice Herbst Foundation Professor of Law, University of San Francisco School of Law Victoria Nourse Professor of Law, Georgetown University Law Center Noya Rimalt Professor of Law, Faculty of Law, University of Haifa Dorothy E. Roberts George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights, University of Pennsylvania Law School Laura A. Rosenbury Dean and Levin, Mabie and Levin Professor of Law, University of Florida Fredric G. Levin College of Law Julie C. Suk Professor of Law, Cardozo School of Law Deborah Tuerkheimer Professor of Law, Northwestern University Pritzker School of Law Robin West Frederick J. Haas Professor of Law and Philosophy, Georgetown University Law Center Adrien K. Wing Associate Dean for lnternational and Comparative Law Programs and Bessie Dutton Murray Professor of Law, University of Iowa College of Law

Contributors

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Kimberly A. Yuracko Dean and Judd and Mary Morris Leighton Professor of Law, Northwestern University Pritzker School of Law

Preface

Preface

Contemporary feminist legal scholarship engages with law in both criticai and normative ways: it aims to understand how law contributes to the subordination of women, and to articulate the ways in which law might be best used to end that subordination and thereby improve women's lives, consistent with Jaw's commitments to justice. The body of work that has resulted has employed a range of theoretical points of departure for the criticai dimension of th_is mission, i~cl~ding, amo~? others, liberal theory, Marxism, pragmatism, postmodermsm and the mstghts of cnucal race and gender studies, and has impacted a range of areas of law, including family law, antidiscrimination law, constitutional law, intemational law and criminal law, among others. After an introductory essay that provides an overview of these schools and their contributions, the chapters in this volume explore both the theoretical and normative dimensions of legal feminism. Part I explores legal feminism's major theoretical variants, with essays on liberal feminism, radical feminism, relational and vulnerability-based feminisms, socialist feminism, intersectional and criticai race feminisms, postmodem feminism and sex-positive or queer feminisms._Collectively? the chapters in Part I explore legal feminism's internai debates and varymg perspectlves, which often follow from these often radically contrasting theoretical perspectives. Parts n through vn then explore feminism's critique and reconstruction of some o f the major doctrinal areas of Jaw that have to date been most impacted by feminist interventions. Part I begins with a chapter by Sylvia Law, one of the architects of liberal feminism and a major contributor, both as a Jawyer and as a scholar, to liberal and liberal feminist reform efforts over the Iast half century. Professor Law provides in her chapter a history of liberal feminism and defends both the theory and its achievements against efforts by the ascendant far right to undermine it. Those efforts have achieved a kind of culminating victory in the election of Donald Trump in the United States but also reflect worldwide trends. Law's chapter spells out those anti-feminist and anti-liberal efforts, and responds. The next chapter, on radical feminism, by Chao-ju Chen, first restates Catharine MacKinnon's major theoretical contributions, including, prominently, a radical critique of sexuality and an anti-subordinationist theory of equality. It then defends radical feminism (sometimes called 'equality feminism') against its most prominent critics, including some liberal and sex-positive feminists who worry that it overstates the significance of sexuality to women's subordination and others who are concemed that MacKinnon's theory makes women into victims and paves the way to excessive state involvement in women's and men's private lives. Robin West's chapter on relational feminism focuses on the potential of relational feminist legal theory to look toward transformative goals that assume a more relational rather than highly individualized human subject. Martha Albertson Fineman's chapter on vulnerability theory provides a history of dependency and vulnerability theory and relates that history to feminism. Cynthia Grant Bowman reintroduces socialist feminism to modem readers, exploring the ways in which its intersectional approach to X

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feminist and socialist commitments can clarify the subordinating dimensions of some areas of law and the liberatory trends of others. The remaining theoretical perspectives introduced in Part I are united by one criticai point of departure that distinguishes them ali from those in the first set: they ali, in various ways, eschew all-explanatory 'grand narratives' and those narratives' attendant ideais and impulses. Consequently, and to varying degrees, they ali criticize liberal, radical and relational feminisms (primarily) for indulging them. Dorothy Roberts' chapter on criticai race feminism summarizes both the criticai and substantive contributions of intersectional feminists: first, their criticism of radical, liberal and relational feminisms for their tendency to prioritize white women and a circumscribed set of concems and ambitions - the ambition to smash glass ceilings, to achieve success relative to men and to secure rights to abortion and birth control technologies, primarily. Roberts then describes an affirmative and intersectional feminist agenda more attuned to, but also more driven by, the ambitions and ideais, as well as lhe interests, of women at the intersection of axes of discrimination, including African American women and other women of color, lesbians, trans and disabled women. !ntersect~onal feminisi? seeks a theoretical stance that privileges rather than marginalIzes the mterests and tdeals of women with these multiple identities. Postrnodem and sex-positive feminisms are explored in the chapters by Laura Rosenbury and Nan Hunter, respectively. The two chapters reveal a substantial overlap between these two perspectives - both rest on a resistance to the overarching claims regarding the oppressive nature of sexuality central to radical feminism, and both seek a more open, less essentialist and Jess absolutist account of the human subject than that put forward by radical, liberal or relational feminist approaches. Postmodem feminism, however, is more focused on method, and particularly on ensuring a pragmatic approach to strategic issues of concem to feminist advocates as dictated by women's felt interests, while pro-sex feminism couples that pragmatism with a more substantive and affirmative stance toward sexuality. The pro-sex branch of feminism thus Jooks very broadly to understand feminism as a body of thought and advocacy that will affirm rather than challenge a range of sexualities and gender performances. The remainder of the book examines some of the areas of doctrinal law most impacted by feminist scholarship and highlights the ways in which the reforms advocated in that Iiterature reflect that body of scholarship's theoretical commitments. The four chapters in Part ll explore the role of law in regulating, prohibiting, sanctioning or facilitating sexual violence. Deborah Tuerkheimer begins with an examination of the contemporary debates over the definition of rape and the role of rape law in the US in regulating, and sometimes facilitating, sexual violence against women. Nivedita Menon's contribution examines rape and rape Jaw in India, as well as feminist and post-feminist efforts to reform that law. Victoria Nourse examines a contradiction in the condemnation of violence at the heart of systems of criminal justice, alongside the widespread resistance by otherwise liberal men to the feminist idea that violence against women should be Jegally attacked as violative of women's civil rights. Ngaire Naffine looks at a similar contradiction inherent in legal systems worldwide and in traditional criminal jurisprudence, by virtue o f their condemnation of rape and other crimes of violence yet simultaneous endorsement of the perrnissibility of sexual violence against wives by husbands, as embodied in so-called 'marital rape

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exemptions.' Ali four chapters rest either explicitly or implicitly on the radic_al _feminist theoretical claim that violence against women is a concern not only of the cnmmal law, but of feminism as well, and that acts of violence are not only criminal assaults, but also subordinating violations of women's equality. The chapters in Part III look at reproductive rights and liberties. The first, by Lisa Ikemoto, compares liberal and intersectional feminist approaches to abortion rights, using the comparison as a way to bring out the strength - and necessity - of both approaches. The second, by Noya Rimalt, acquaints the reader with what she believes to be the strongest liberal feminist (and liberal) defense of abortion rights: that, without this right, women, but not men, carry obligations to help strangers, thus vi~lating political and constitutional norms against formal equality. Both chapters questiOn the wisdom of the US Supreme Court's privacy jurisprudence, but do so in very different ways. Ikemoto aims to construct an account of abortion rights based on antisubordinationist and intersectional understandings of equality. Rimalt looks toward the construction of a universal understanding of the abortion right, strengthened rather than weakened by a classically liberal argument stressing the need to equalize the burdens placed on all by virtue of shared citizenship. Part IV includes three chapters that revolve around women's civil rights at work or school and sexual harassment as a violation of those rights. The first two in this set focus in different ways on sexual harassment law, in the US and in Israel. Kimberly Yuracko looks at the development of harassment law in the US, providing a history and analysis of its strengths and shortcomings. Orit Kamir introduces a feminism based on the centrality of dignity, rather than equality or liberty, which she argues better reflects international feminism and can better counter honor-based systems of reward and punishment. She then situates Israel's sexual harassment law, which she helped to author, in that context, contrasting it with US and liberal approaches. She concludes with a discussion of the possibility of rethinking rape law as grounded in the value of dignity and of what a rape law so construed would constitute. Katharine Baker's piece on education law closes out the chapters on the fields of law influenced by the US civil rights acts. Baker usefully contrasts the role of formal equality and the antidiscrimination principie in Title IX, which guarantees women equal educational opportunity, with the understanding of antidiscrimination that dominates Title VII law, which govems employment, and particularly with the iconic Title VII cases prohibiting race discrimination in employment. Part V examines constitutional law and constitutional values, and the role of feminism both in constructing them and in criticizing them. Julie Nice looks critically at the Fourteenth Amendment to the US Constitution, assessing its massive contributions to second- and third-wave feminism, but also its limitations for feminist politics and women's equality. Mary Anne Franks looks at the First Amendment, and the promise and peril it holds for women's equality, explaining the ambivalence toward it felt by a range of feminists because it constructs a wall of rights- but also of privilege - around large swaths of behavior, as well as around speech and thought. That wall o f privilege is a mixed blessing at best for subordinated groups, including women. The two chapters taken together suggest the promise but also the severe limits of constitutional approaches to the political work of achieving equality on behalf of disempowered groups.

Preface

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The chapters in Part VI look at the impact of feminism on the development of three core fields of private law: tort law, contract law and family law. Martha Chamallas tracks the impact of feminist intervention in the field of tort law from the development of a reasonable woman standard to the increased salience of various torts promising relief for emotional harm. Hila Keren examines feminist theory and contract law, comparing the roles of economic or market-based valuations with other forms of value and the use of each in contractual decision-making. Susan Frelich Appleton looks at the near-complete revolution undertaken in family law, largely by virtue of feminist law reform efforts and feminist scholarly insights, from the movement away from faultbased divorce and alimony assessments to the recognition of non-traditional families. Julie Suk's chapter looks in detail at one aspect of family law and life: the provision for family or matemity leave accorded working women and men by their employers. She examines both maternity leave policies and gender-neutral parenta! leave policies, showing how some stem from liberal premises of anti-stereotyping and formal equality and others from non-liberal or relational premises valuing maternal and parenta! life. Finally, Part VII takes up feminist critiques and reconstructions of the field of international law. It begins with a chapter by Adrien Wing that looks in detail at the contribution to internationallaw made by feminists and criticai race theorists, as well as the contribution to feminist legal theory made by intemational lawyers. The book then closes with a chapter by Irem Çaglar and Berna Akçali Gür, two feminist legal scholars from Turkey, which looks at one comer of human rights law: the duty of the state to protect its citizens against violence, including sexual assault and domestic violence. Çaglar and Akçali Gür examine the impact of feminist activism and scholarship on the increasing trend in international law to recognize and enforce such an obligation. The chapters in this volume collectively reveal a coherent body of legal scholarship aimed at both criticism and reform and grounded in feminist understandings of the centrality of gender, sex and sexual orientation to the development of both law and theories of justice. They also evidence the degree of intra-feminist debate or contestation:. f~minist legal theorists disagree on the wisdom of regulating pornography, of legahzmg sex work, of providing or requiring additional benefits for pregnant women and mothers on the job that may not be required for disabled men, of responding to the ongoing and various epidemics involving sexual violence with the criminal justice arm of the state, of 'sanitizing' the workplace of sexual expression through sexual harassment law and of providing maternity leave or familial Ieave from employment. Some of these differences have been prescriptive or pragmatic, but some have been deeply theoretical or philosophical: they reflect differing assessments of the value of formal equality, of the nature of subordination, o f the role of sexuality in subordination and liberation, ~f the value and importance of different modes of moral thinking that ~ay ~orre!ate w1th sex or gender and of the cohesiveness and sensibility of categorical IdentificatiOns such as 'woman' or 'gay' or 'African American.' Those differences in turn. reflect still deeper disagreements over the value or point of 'grand narratives,' of the 1mporta~ce or limitations of perspectiva! accounts of truth, of the appropriate role of t_h~ state m the governan~e of a just society, of the place of cross-cultural analysis in pol~tical theory and of the 1mportance or authenticity of phenomenological or experientlal accounts of subjectivity in both politics and law. The chapters collected in this

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volume do not individually or collectively settle any of these disagreements. They may, however, help to clarify their terms, implications and origins.

Acknow ledgments

Robin Wesl Baltimore, Maryland June 2018 Cynthia Grant Bowman lthaca, New York June 2018

This volume is very much a collective effort. Robin West and Cynthia Grant Bowman, the co-editors, are immensely grateful for each other's talents, support and commitment, without which this wonderful collection of essays would never have seen fruition. We would also like to thank our research assistants, Ryan McAnally, Alison Smith, and Molly Nelson, the library staff at both Georgetown and Cornell law schools, and our administrative assistants, Ashley Freeman, Elizabeth Moulton, Lyndsey Clark, and Ernestine DaSilva for their work on this collection. We both thank the editors and administrative staff at Edward Elgar Publishing for ali they have added to it. Mostly, however, we thank the authors for their insight, their writing, their passion, and their dedication to seeing this project through to completion. Sylvia Law would also like to thank Natalie Nicelli, NYU Law class of 2018, and Susan Appleton would like to thank Cora Allen, Washington University School of Law class of 2019. Orit Kamir wishes to express gratitude to the volume's editors for their support and would like to dedicate her work on the volume to the memory of her mother, Shulamit Kamir, a Holocaust survivor who cherished human and animal dignity, and died as this book was going to press.

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Introduction to the Research Handbook on Feminist

Jurisprudence Robin West

Contemporary feminist legal theory is a body of scholarship produced over the last half of the twentieth century and the first quarter of this one that proffers explanations of Iaw's complicity in the ongoing subordination of women and sexual minorities, while also pursuing the possibilities within Iaw for achieving lasting gender and sex equality. lts purpose is thus both descriptive and criticai on the one hand, and normative and aspirational on the other. lt attempts, descriptively, to map the contours of the ongoing legal supports for gender- and sex-based subordination in existing law and to explain the persistence of those supports in an era characterized by a liberal consensus on very basic norms of nondiscrimination and formal equality. lt is, thus, a criticai theory of Iaw. At the same time, however, feminist legal theory is also embedded in - and very actively participates in - the ideais, aspirations and commitments of contemporary legalism, and feminist legal theory's goals are accordingly normative as well as criticai. Feminist legal theorists both directly and indirectly contribute to the construction of various fields of law - civil rights Iaw, constitutional law, criminal law, tort Iaw, contract law, family Iaw, international law and private law, and those contributions are to varying degrees aimed at ending just that subordination. That degree of engagement itself rests on the bedrock assumption that those efforts can at least sometimes bear fruit. Thus, feminist legal theory taken in its entirety hás shown, if not consistently expressed, a view of law as not only a mechanism for the subordination of over half the human community but also a potential vehicle for equalizing and improving the quality of Iife for women and ali gender and sexual minorities. The working assumption is that law is both complicit in gender and sexual subordination and that legal reform is both possible and essential to gender and sexuality justice. As a consequence, broadly construed, feminist legal theory of the Iast half century has contributed to our understanding o f law's complicity in injustice and its realized and potential contribution to justice and has Iaid the foundation for our continued study of both. The criticai and the normative sides of feminist legal theory bear the mark of the influence of a number of jurisprudential movements that carne to prominence during approximately the same period, including, most notably, liberal legalism, critica! legal studies, neo-Marxism, postmodernism and criticai race theory. The substantial crossfertilization between feminist legal scholarship and general jurisprudence has given ri se to various theoretical branches of and within feminist legal theory, while feminism itself continues to serve as the trunk. Liberal feminist legal theory, to take one example that will be discussed in some detail below, has embraced long-standing liberal values as well as the broad liberal descriptions of social life and human nature on which those values rest. Thus, liberal feminism has largely embraced liberalism's commitment to individualism, according to which all of us are defined primarily by our individual 1

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attributes and ambitions rather than by any socially mandated role or set of presumed characteristics, and the value of autonomy, by which is meant the irreducible importance of self-determination and the pursuit of one's own understanding of the good life without societal or state-based censorial contrai. Of equal importance to feminism is modem liberalism's commitment to the descriptive claim that ali human beings universally share important attributes, including both a capacity for moral reasoning and a desire to contribute to and be included in the political and economic life of the community. Those descriptive claims regarding human. nature and it.s un.iversality undergird liberalism's commitment both to formal equahty and expansiVe nghts and liberties that protect individual conscience as well as política! participation. Liberal feminism has insisted that these truths of our nature are equally true of women as of men and that the values and commitments based on them must therefore be extended to include women. Liberal feminist legal theory has worked to embed these commitments in law. To take a second example, radical feminist legal theory, also explored in some detail below, has embraced methods of understanding the nature of exploitation, subordination and alienation that were first explored by Marx and Marxists in relation to labor. Radical feminists have applied these methods and insights - developed in the context of labor - to the exploration of the nature of sexual exploitation suffered by women. In Catharine MacKinnon's now classic exposition, '[s]exuality is to feminism what work is to Marxism: that which is most one's own, yet most taken away.' 1 This fusion of a feminist political sensibility with neo-Marxist method an.d i~sight has ~nric?ed feminism's understanding of the centrality of sexual expl01tat10n and aiienatton to the subordination of women while also enriching Marxism's understanding of the scope of subordination itself. Subordination exists, we can understand radical feminists as insisting, along the axis of sexuality no less than along the axis .~f labor. A si~!lar claim can be made for each of feminism's theoretical subfields: cnttcal race femm1sm has enriched both criticai race theory and feminism, and postmodem feminism has done likewise for feminism and postmodemism both. Contemporary feminist legal theory, however, has also been influence~ by femini~t advocacy, that is, the legal and política! advocacy at the heart of the vanous women. s movements of the last century and across the globe. The theoretical advances m feminist (and, indirectly, non-feminist) legal theory thus reflect not only their crossfertilization with jurisprudential movements but also their origins in women's mo~~­ ments during that time. Those prominently include the movements for equal and clVII rights in employment and education,2 the worldw~de campaigns. for a wom~'s right to choose whether to conceive and whether to contmue pregnanc1es to term, the 1970s and 1980s struggles for the right to pursue employment and education free of sexual 1 Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for . . . . Theory, 7 SIGNS 515, 516-17 (1982). 2 See chapters by Sylvia A. Law, In defense of liberal femmrsm; Kathanne K. Baker, Sex equality, gender injury, Title IX and women's education; Kimberly A. Yuracko, Sexual harassment law: an evolution in theory, scope and impact, in this volume. J See chapters by Lisa C. Ikemoto, Reproductive rights and justice: a multi~le f~mini~t theories account; Noya Rimalt, Against Roe exceptionalism: degendering abortron, m th1s volume.

lntroduction

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harassment in workplaces and schools 4 and the right to enjoy physical sovereignty over one's own body free of the dangers posed by rape, sexual assault and sexual battery (or at least secure in the knowledge that the state is committed to protecting against those risks). 5 Ali of these political and legal movements have influenced the development of feminist legal theory, sometimes quite directly, sometimes less so. For example, the legal campaign in the United States to secure for women a constitutional right to birth contrai and abortion has not only extended to women various Fourteenth Amendmentbased rights to privacy, liberty and equality but has also informed feminism's understanding of traditionally liberal commitments of self-determination, selfsovereignty and bodily integrity. 6 If these commitments to individualism and autonomy are to have meaning for women, then women themselves must have decisional power over their own reproductive lives. And, of course, if liberalism is to make good on its ecumenical promises, it must have meaning for women - thus the conclusion that liberalism itself requires reproductive autonomy. Likewise, the broad legal campaign of the 1970s and 1980s to secure rights to be free of sexual harassment in the workplace has deepened our understanding of the role of work in women 's and men 's lives and the importance of sexual sovereignty and agency in ali spheres of life, including but not limited to the workplace.7 The exploitation of workers' vulnerabilities, this movement has taught us, does not extend solely to the capture of their surplus labor value by employers; it extends as well to the capture of their sexuality by co-workers, supervisors and customers. Identification of sexual harassment at work as a wrong, then, deepens our understanding of the nature of exploitation generally, not only of women's subordination. A third example is the now sophisticated but still developing understanding in intemational Jaw and in some domestic legal systems of the contours of a state's duty to protect its citizens and of correlative rights of citizens to that protection, which has been furthered by feminist scholarship on the failure of criminal law and of states to protect women from domestic and sexual violence.s That scholarship has itself been rooted in feminist advocacy, including the attempts by feminist and human rights lawyers to secure recognition in intemational law of rape as a war crime,9 the attempt to secure the abolition of marital rape exemptions and to understand those exemptions as violations of the obligation of states to protect citizens against violence 10 and the development of legal critiques of so-called honor- and passion-based defenses to violent criminal acts against women that rely on traditional

4 CATHÁRINE A. MACKiNNON, THE SEXUAL HARASSMENT OF WORKJNG WOMEN (1976). See also Yuracko, supra note 2. 5 See chapters by Victoria Nourse, Violence against women and liberal sexism; Deborah Tuerkheimer, Sexual agency and the un.finished work of rape law reform, in this volume. 6 See Law, supra note 2. 7 See Tuerkheimer, supra note 5. 8 See chapters by Irem Çaglar and Berna Akçali Gür, The state's due diligence obligation and Adrien K. Wing, lntemational law and feminism, in this volume. 9 See CATHARINE A. MACKINNON, BUTTERFLY POLITICS 140-61 (2017). 10 See chapter by Ngaire Naffine, 'Some gentle violence': marital rape immunity as contradiction in criminal law, in this volume.

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understandings of women's roles as excusing conditions for often ~e~hal crimes. Ali ~f these advocacy- and practice-based campaigns have informed femtmst legal scholarshtp and its various theoretical branches. Finally, as noted above, feminist legal theory is a normative field of scholarship as well as being descriptive and criticai. lt has over time influenced the path of the law and the substance of our politics. Contemporary family law, constitutionallaw, criminal taw and civil rights law have ali been changed, and in some cases fundamentally transformed, by contributions from feminist perspectives and advocates, themselves influenced by feminist legal theory. Each of these fields o_f law as well as ~the:s must countenance the equality of women, their equal rights to hbe~al sel~-d~termmatt~n and self-regard and their entitlement to an equal regard for the~r asptrattons for hbe~y, accomplishments and aspirations. Doing so is not as stratghtforward as changmg pronouns to include women in law's domain. Women's lives have been _different f:om men's in the spheres of intimacy, work and public engagement, and thetr expectatwns and needs for law, as well as their hopes for it, are therefore different. If women's equality is the premi se of women's citizenship and of women's equal protection by and acces~ to Jaw, then the content of that law, and not only the reach of its protection, must change. . And change it has, as the essays in this volume attest. To take some now obvtous examples: Criminal law made some decades back for ~ battere? sp~mse syndrome defense, in part to compensate for the lack of regard tt h~d htstoncally accorded intimate· violence - the kind of violence more often sustamed by women - and therefore its lack of appreciation of the different dynamics that characteri~e violence ~n the intimate sphere as distinguished from violence between strangers m the pubhc sphere. Tort law has begun to countenance the possibility of permitting recovery for negligently and intentionally inflicted emotional harms, in pa~ becaus~ women are ~o longer legally marginalized. The emotional harms women dtsproportwnately sustam have moved toward the center and away from the margins of that body of law.l2 Family law had to virtually reinvent itself to rectify the ways in which women's domestic labor was historically exploited or ignored and to acknowledge the need to create opportunities for women's greater participation in the public sphere and men's greater participation in the família! sphere without sacrificing the needs of children f?r. pru:en~al involvement.I3 Civil rights law has expanded its purview well beyond the anttdtscnmmation norm, both to embrace the harms women sustain by virtue of their subordination that cannot be captured by the norm of formal equality - not only harms inflicted through sexual harassment at work but also harms inflicted through facially neutra! 11

11 See Victoria Nourse, Passion 's Progress: Modem Law Reform and the Provocation Dejense, 106 YALE L.J. 1331 (1997); Self-Defense and Subjectivity, 68 U. Chi. L. Rev. 1235 (2001); Hearts and Minds: Understanding the New Culpability, 6 BUFE_ CRIM. L. ~Ey. 361 (2002); Lama Abu-Odeh, Honor Killings and the Construction of Gender m Arab Soc1et1es, 58 AM. J. COMP. L. 911 (2010). See also chapters by Tuerkheimer, supra note 5; Naffine, supra note lO· Nivedita Menon, Sexual violence and the law in India, in this volume. 12 S~e chapter by Martha Chamallas, Feminist legal theory and tort law, in this volume. 13 See chapter by Susan Frelich Appleton, How feminism remade Americanfamily law (and how it did not), in this volume. See generally MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND ÜTHER TwENTIETH CENTURY TRAGEDIES (1995).

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workplace norms that adversely impact women's advancement- and to include visions and aspirations of civic inclusion in workplaces and public spheres that go beyond the mandate of being treated the same as men have been. 14 The remainder of this introduction will explore this interplay between feminist legal theory and other contemporary movements in legal theory on the one hand, and between feminism and positive law on the other. The first two sections look at liberal and radical feminist legal theory respectively, with a primary focus on the profound differences but also on the substantial shared ground between them. I will look in particular at the influences of extra-feminist theoretical movements, most notably liberalism and criticai legal studies, on the development of both subfields, as well as at the influence of political and legal advocacy. The third section then introduces the major remaining subfields within feminist legal theory, including relational feminism (sometimes called cultural or difference feminism), criticai race feminism (sometimes called intersectional feminism), socialist feminism, postmodern legal feminism, and sex-radical feminism (sometimes subsumed within queer theory). For each, attention is paid to the influence of non-feminist theory and law on the development of each substrand and to the intluence of the particular feminist legal theory on the ultimate path of our law. The conclusion makes tentative predictions regarding the trajectory of theoretical legal feminism.

I. LffiERAL LEGAL FEMINISM The liberal legal feminism developed over the last 50 years, as its name suggests, yokes distinctive liberal political commitments to feminist aspirations and then draws out the implications for law. This has not been a seamless union or an easy marriage. By the three-quarter mark of the last century, liberal political theory had come to be defined by its embrace of three major values, each of which in turn rested on a broad description of human nature, the state and the relationship of both to civil society. First, twentiethand twenty-first-century liberalism adheres to an expansive commitment to the value of . individual liberty or, more broadly, of individualism, and to an account of individual human nature that undergirds it. Individuais and their fulfilled individual choices are the primary source of value, and therefore individuais must be as free as possible given maximal liberty and authority - to make choices through their own volition and in accordance with their own conception of the good and of the good life. Respecting individual choices made by individuais in open markets is deemed to be the best way to create value, whether value is in turn defined as subjective utility, objective well-being or personal autonomy. Second, liberalism eventually carne to embrace - and indeed be identified with - a commitment to the formal equality of persons under the purview of a liberal state - what some call liberalism 's 'anti-caste principie.' ts This value as well 14 See Law, supra note 2; Yuracko, supra note 2. See generally Ellen D. Katz, Justice Ginsburg's Umbrella, in A NATION OF WIDENING ÜPPORTUNITIES: THE CIVIL RIGHTS Acr AT FIFTY 264 (Samuel Bagenstos and Ellen Katz eds., 2014); Julie C. Suk, Disparate lmpact Abroad, in id. at 283. 15 Cass Sunstein, The Anticaste Principie, 92 MICH. L. REV. 2410 (1994).

6 Research handbook on feminis! jurisprudence the value of formal equality - rests on a set of descriptive and aspirational claims, the most central of which is that every individual should be regarded as similarly situated - that is, basically the same - with respect to those attributes that matter for legitimate state purposes. Thus, every person is naturally bestowed with a capacity for reason, an autonomous will and an entitlement to be treated with dígnity and respect. That universalism, however, is thin. Beyond those universais, we are ali individuais and our nature is radically individualístic, with no shared group characteristics; our identity is determined by our own choices and individualized attributes, not by any group-defined status, set of characteristics or role. 16 Third, modem liberalísm has adhered to the conviction that the private sphere, largely construed - íncluding our íntimate lives, our família! líves and our commercíal líves - is a realm of ínteractíons between free and autonomously self-determíned individuais, while the publíc sphere - the sphere of regulation, politics and government - albeit necessary, poses a potential danger to the freedom of the individual and of the prívate sphere. The public arm of the state, therefore, ís a potentíal source of oppression, while the prívate realms of intímacy, family and commerce are places of freedom and nurturance. The prívate sphere must be protected against possible encroachments from the public sphere. The jurisprudential view that is now commonly called liberal legalism consists of the attempt by legal and constitutíonal philosophers to outline the basíc contours of legal systems that embrace these liberal commitments. The impact of liberal legalism is felt in virtually ali areas of law, but in some fields - US constitutional law, civil ríghts law, contract law and family law - more heavily, and concretely, than others; and liberal legalists have created a sizeable body of literature mapping that domain. In US constitutional law, according to liberal legal constítutíonal scholars, liberal commítments to individual autonomy and the ímportance of índívídualistíc conceptíons of value and of the good life are reflected in strong protections for individual rights generally, and more specifically in First Amendment protections of individual (and corporate) deliberation, decision-making and expression, particularly in the realms of political and religious lifeP The liberal valorization of the private sphere and wariness toward the state, politics and the public realm are ali reflected in a very general identification of constitutional rights with negative rights that counsel a restrained rather than activist state, a range of individual rights to speech and belief, substantive due process rights against state encroachment on the private sphere and a conceptíon of privacy that is so extensive as to protect commercial and sexual life as well as the spheres of religion, community and family. 18 In contract law, the impact of líberalísm has been felt in the diminution over the Jast five decades of nineteenth- to midtwentieth-century constraints on contractual freedom, includíng the demise of various 'policing' doctrines internai to contract law, such as the unenforceability of unconscionable contracts and equitable constraints on the consideration doctrine, as well as expansion of the realm of contract to areas once excluded, such as prenuptial agreements and surrogacy agreements, and in the gradual expansion, over the same

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time period, of contractual limits on various non-contractual legal obligations and rights, such as rights to sue and rights to nondiscrimination. 19 Ali of these expand the realm of individual self-determination through the expansion of legally binding contractual obligations and the diminution of legal obligations not defined by contract. Fínally, in the United States and elsewhere the liberal commítment to formal equality has been concretized in a broadly embraced body of civil rights law which commits states and major employers to an antidiscrímination principie forbidding díscrímination and segregation against members of groups on the basis of immutable characterístics, including race, ethnicíty, religious affiliation, gender and, increasingly, sexual orientation and gender expression as we11.2o These three core liberal commitments - to individualism, to formal equality and to the creation and protection of a private sphere into whích the state may not intrude have províded extraordinaríly fertile ground for the expansion of women's liberty and · ríghts, both in theory and in practice, and collectively they have come to be strongly identified with liberal femínist legal theory as well. First, liberal individualísm - the broad claim that we are each o f us determined by individual rather than group traits and that our lives must be to the greatest degree possible dríven by our individually chosen rather than assigned paths - undercuts entirely the justificatíon for separate spheres ideology, the cult of domesticíty, the exclusíon of women from various male professions, trades and jobs, and the general exclusion of women from public life. If women are not, contrary to centuríes-long teachíngs, peculíarly a group for família! tasks and peculiarly incapacitated for masculine pursuits, then there is no justification for their exclusion from the public world and restriction to the intimate. Nor should men be incapacitated from the família! or be presumed better suíted for the public. Rather, ali women, índivídually, as well as ali men, should be the authors of their own fates through their own choices that reflect their own individual aspírations, capacities and will. Not ali women are cut out to be firefighters or legislators, or medicai doctors or lawyers, but then neither are ali men; and therefore questions regardíng whether, and which, women should have a claím to those professíons and callings must be a functíon of individual capacities and decisions. Likewise, not ali women are cut out to be mothers, nor are ali men cut out for fatherhood; to the greatest degree possible, these modes of living should be a matter of individual inclination and choice. Not ali women are best suited for secretaria! work, or waitressing, or grade school teaching, or nursing or maternal labor, although some may be, as is true of some men. These ways of life themselves are not pernicíous - índeed ít ís contrary to the índívídualist premises of both feminísm and líberalísm to víew them as such - but the channeling of one gender or the other ínto them runs roughshod over liberal and feminist commitments to individual freedom. Whether to partake in any particular way of life must be the

19

See Ronald Oworkin, On Liberalism, in A MAITER OF PRINCIPLE 188 (1985). 17 See, e.g., BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980). 1s Se e chapter by Mary Anne Franks, Beyond 'Free Speech for the White Man ': feminism and the First Amendment, in this volume. 16

7

See chapter by Hila Keren, Feminism and contract law, in this volume. See chapter by Julie A. Nice, The gendered jurisprudence of the Fourteenth Amendment, in this volume. See generally Paul Brest, The Supreme Court 1975 Term. Foreword: In Defense of the Antidiscrimination Principie, 90 HARV. L. REV. 1-55 (1976); 3 BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION (2014). 20

8 Research handbook on feminist jurisprudence decision of the individual, made without the constraints of socially imposed expectations defined by gender or scx.21 The liberal commitment to formal equality, or the anti-caste principie, has also become a clear underpinning of liberal feminism and of liberal feminist legal theory. Women, according to the liberal commitment to formal equality, can be neither treated nor viewed as unequal to mate counterparts or as essentially different from them in ways that would in turn justify unequal and worse (or better) treatment. Women as a group, then, cannot be excluded from forms of political life and ~x~ression, such a~ the vote or the jury box, or from economic or social fora of assocJatJOn, such as pnvate clubs, or from public spaces, such as the public square or legislative assembly. Any state action which segregates women or treats them differently because it presumes otherwise is unjustified and today will almost assuredly be found unconstitutional in US law.22 Thus, social security Iaws that favor widows over widowers (and therefore favor deceased male spouses over deceased female spouses) on stereotypical grounds regarding need and breadwinning capacities, or military benefits that do likewise, have been ruled unconstitutional, basically on anti-caste grounds. 23 Single-sex schools maintained so as to perpetuate stereotypical conceptions of masculinity and femininity have met the same fate.24 Women and men should be treated as individuais. But more concretely, women may not be treated differently as a group based on false and stereotypical assumptions regarding their nature. Third, the liberal commitment to the value of an untrammeled private sphere has likewise been absorbed by liberal feminism and liberal feminist legal theory, although in a particular context rather than across the board, and with significant reservations rather than unequivocally. Reproductive rights, both to birth control and abortion, are justified largely (not entirely) by a commitment to the exercise of choice within a private domain, untrammeled by moralistic conceptions of right and wrong that often dictate the criminalization of those processes, products and decisions. 25 Similarly, gay and Iesbian sexuality, marriage and parenthood are often threatened by undue legislative intrusion into these private realms. Liberal feminism has for the most part followed 21

For early discussions and fonnulations of liberal feminism and its commitment to equality,

see Wendy W. Wtlliams, The Equality Crisis, Some Reflections on Culture, Courts, and Feminism, 14 WOMEN'S RTS L. REP. 151 (1992); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985). For a recent application, see Naomi Mezey and Comelia T. L. Pillard, Against the New Maternalism, 18 MICH. J. GENDER & L. 229 (2012).

22 For discussion of the early sex discrimination cases under the Fourteenth Amendment, see Nice, supra note 20. 23 Frontiero v. Richardson, 411 U.S. 677 (1973) (invalidating military benefits given differentially on the basis of sex); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (invalidating social security scheme allowing widows but not widowers to receive survivors' benefits based on the deceased spouse's eamings). 2• Mississippi University for Women v. Hogan, 458 U.S. 718, 725-26 (1982) (invalidating single-sex admissions policy of the Mississippi University for Women); United States v. Virgínia, 518 U.S. 515 (1996) (invalidating single-sex admissions policy of the Virginia Military Institute). 25 See lkemoto, supra note 3. See generally EILEEN L. McDONOUGH, BREAKING THE ABORTION DEADLOCK: FROM CHOICE TO CONSENT (1996); Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737 (1989).

lntroduction 9 liberalism in its inclination to defend these spheres of sexuality against legislative intrusion. The resulting nondiscrimination rights, the criticai stance toward ali gender distinctions grounded in positive law and the respect for women's choices regarding child-bearing, reproduction and sexuality that now characterize liberal legal regimes have contributed to women's equality and liberty in countless ways. It may be fair to conclude that the embrace of these liberal commitments by feminist political advocates, and eventually by feminist legal theorists, has proven to be more than justified. That absorption - the embrace of liberalism and its principies by so many feminist legal theorists - has not, however, been without costs, nor has it been without criticism from feminists as well as other political actors. The three liberal commitments listed above to individual autonomy, to a broad opposition to caste-based or stereotypical treatment of groups and to the valorization of the private sphere - have had costs for women, some easily seen and some more subtle. I will mention three, ali of which are discussed in greater detail in the chapters that follow. First, the liberal and liberal feminist insistence on the value of autonomy and the consequent reliance on women's choices and stated preferences as a guide to their well-being and liberty frees women from the constraints of domesticity, of role, of gender stereotypes and the caged pedestal. At the same time, however, it feeds a neoliberal inclination to overly valorize or, more simply, to unduly rely upon individual consent as the harbinger of value, that is, to infer value, or goodness, from the behavioral fact of individual consent. This reliance can be deeply misguided. Consent is not always a consistent or even rough indicator of a transaction that will enhance the felt life or life prospects of the person who renders it. A laborer who unquestionably consents to work may be consenting to a bad deal which has little to commend it other than its being better than any proffered alternative, but it may nevertheless be a bad deal. A consumer who consents to a sales contract with disclaimers and mandatory arbitration clauses may likewise have unquestionably consented, but it does not follow that the agreement is a good one. A decent legal system, or reform, should aim to provide better altematives, not simply free the power of the laborer or consumer to proffer consent free of patemalistic state interference with the contract on the table. Giving women the power to consent to participate in the sex trade, pornography or to poorly paid jobs with no paid leave for maternity care, or to sex with boyfriends or johns or pimps or supervisors or teachers they do not weicome and may abhor may free them from worse alternatives, but it should nevertheless not be heralded as having provided utility-maximizing trades or bargains, liberating and improving the lives of ali participants. Consent to bad deals can go a long way toward legitimating those deals, or at Ieast acquiescing in their necessity. Celebrating ali consensual trades, bargains or transactions as good - because they are the free result of unfettered consensual trades runs the risk of insulating those transactions even from critique, much less from regulation. That legitimation, that acquiescence and that celebration - along with the deregulation that often accompanies it - may be unjustified when prompted by the consent of any subjugated group. It might be particularly and poignantly so for women, for whom a training in self-sacrifice and domestic altruism - and therefore a training for the rendering of apparent consent under coercive conditions - is such a central part of the mechanisms of social control that perpetuate their subordination. The high value

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1O Research handbook on feminist jurisprudence placed on individualism and autonomy by liberal feminists has accordingly been subjected to considerable criticism by radical feminists and others peculiarly attuned to the ways in which subordination is often achieved, not necessarily at gunpoint but 26 rather through the more subtle extraction of the consent of the weak. Second, while the high value placed on the private sphere by liberalism and liberal feminism has insulated some women's private decisions regarding contraception and abortion from state interference, as well as the lives and choices of sexual minorities from the preening cye of moralistic state legislators, protection of familial privacy has also carried real risks. Women, children and sexual minorities have also struggled with the failure of states to protect them against the harms, injuries and violence visited upon them in those private and intimate spheres. While.liberalis~ has t~erefore bee? a helpful corrective to the harmful moralism of state leg1slators, 1t has fmled to prov1de any sort of theoretical corrective to the state's failures to protect women, children and sexual minorities against the sexual violence they suffer in the privacy of their homes. The danger posed by liberalism, and particularly by liberal feminism, quite simpl~ is that the privacy that Iiberalism bestows will not be worth the loss of the protectwn against violence that insulation entails. Women need their individual choices regardin~ their own reproductive and sexual lives and bodies respected, but they also need theu 27 bodies protected against the violence that the veil of privacy can sometimes insulate. Lastly, the complex commitment to formal equality and the claim of a universal, cross-gender human nature on which it rests carry promise but also peril for women. The now widely held view that women and men are similarly endowed with t~e capacities for reason, moral action, political deliberation and the ability to perform m careers and trades is a vital breakthrough for liberalism, feminism and justice; women's exclusion from spheres of employment and the public world of politics has largely been justified, when justification was felt to be needed, on spurious claims of women's incapacities for those pursuits. The peril from the seemingly self-evident claim of broad similarity across sexual and gender tines arises from the spheres of life and experience in which women aRd men are not so similar, or in which women's paths diverge, for whatever reason. Women's reproductive lives are undeniably different from men's: women experience both wanted and unwanted pregnancies, menstruation, lactation and childbirth, which impact their bodies and often their health, while men do not. Women also have sexual lives that are on average different from men's in at least two important respects: they are more vulnerable to sexual assault and rape, and they are as a result more vulnerable to nonconsensual impregnation that can result from those assaults. The differences do not end, however, with these biological markers. Women and girls arguably, or at least much of the time, experience a different acculturation, which leaves them on average more conciliatory, passive and acquiescent, as well as arguably 26 See chapter by Chao-ju Chen, Catharine A. MacKinnon and equality theory, in this volume; CATHAR!NE A. MACKINNON, Rape: On Coercion and Consent, in TOWARD A FEMINIST THEORY OF THE STATE 171-83 (1989) (hereinafter FEMINIST THEORY OF THE STATE]; CATHARINE A. MACKINNON, Francis Biddle's Sister: Pomography, Civil Rights, and Speech, in FEMINISM UNMOD!FIED 163-97 (1987) (hereinafter FEMINISM UNMODIFIED]. See also Robin West, Sex, Law and Consent, in THE ETHICS OF CONSENT: THEORY AND PRACTICE (Franklin G. Miller and Alan Wertheimer eds., 2009). 27 See Chen, supra note 26; MACKINNON, FEMINISM UNMODIFIED, supra note 26, at 93-102.

11

more inclincd toward a moral imperative structured around duties of caregiving rather than one o f. p~inciple and abstract consistency. Ando f course women are 1ess powerful, wealthy, pnvtleged and educated than men are worldwide. A liberalism and a liberal feminism predicated on claims of sameness can have perhaps unintended consequences that ~re not always optimal for women. It can render the profoundly differentiating expenences ?f ~rcgnancy and childbirth invisible because they are not part of the shared expencntml pool of the cross-gender universal human prototype; it can fail to c?~ntenance altogether intimate sexual violence because it is so disproportionately VISited upon women, girls and sexual minorities; it can fail to attend to the coercive social structures that produce consent from women and girls to much of their subord!nation; an~ it can reward only those women who are already most like men, shattenng on the1r behalf glass ceilings but rendering ali the more invisib1e the struggles of those nowhere near the top, whose conditions Ieave them so unlike men as to .benefi.t al~ost not at ali from a legal regime of nondiscrimination. Although the um~e:sal~st Ideais, ~Iaims and ambitions of liberalism tend it toward a generous assm~IIat~on ?f prev10usly excluded outsiders and a suspicion of stereotyping claims that JUSlify mtolerance, even those clearly Iaudable aims can have the effect of entrenching a status quo, albeit one that has broadened to accept those who were once irrationally excluded. It might not, however, have the criticai capacity to question the terms of inclusion.

ll. RADICAL FEMINIST LEGAL THEORY Radical feminist legal theory owes its origins to a distinctive insight, felt dimly through first- and second-wave feminist movements in the nineteenth and twentieth centuries but stated most forcefully over the last half-century by Catharine MacKinnon, that women's sexuality, including the entire sphere of women's sexual acts, sexual choices, sexual desires and sexual being, is a site of women's exploitation and subordination. To use her phrasing, women's sexuality 'is that which is most her own but most taken from her.' 28 As such, women's sexuality and its ownership by others objectively defines what it is to be a woman. A woman simply is a being from whom sex can be taken for the benefit, pleasure, use and profit of others - much as, for Marxists, a laborer is a human being from whom labor can be taken. Women 's sexuality is objectified rendered a thing to be owned or had - and then alienated from them in acts of rape and sexual assault most forcefully, but also through marriage, prostitution, trafficking, pomography and harassment. It is taken without their consent by force or coercion, and it is taken with their apparent or real consent in exchange for promises of safety, economic maintenance, affection or money. But either way, it is taken. It is taken with or without their cooperation, their acquiescence or their complicity and regardless of their own desires, pleasures, initiative, Iack of pleasure, desire or initiative. Women are prime~ as ~irls t~ ~ubmit to the forced alienation of their sex and sexuaJity - to accept that ahenat10n WJl!ingly - through a training in passivity conveyed in their upbringing, culture, religious traditions and education, ali of which contain powerful Iessons in the 28

MacK.innon, supra note 1, at 516-17.

12

Research handbook on feminist jurisprudence

virtue or necessity of feminine submissiveness. The alienation of sexuality t~at is at the root of women's subordination results in unwanted and often lethal matermty, lowered participation in labor markets, lesser educational opportun_iti_e~, overt disc~m~nati~n, shrunken po1itical participation and markedly lessened credJbJ!tty. A woman s Jdent1ty as defined by the alienation of her sexuality marks her as a vessel for sex, rath~~ than as an equal citizen. It also renders her, in the minds of herself and others, poht1cally unequal, incapable of reason, unequally and unduly emotional and sentimental, unequally altruistic and caring in the intimate sphere, and to be valued as such, so long as contained within walls. The law's complicity in the alienation and expropriation of women's sexuality is both direct and indirect, both overt and covert, both transparent and opaque. On th~ one hand laws in both liberal and illiberal societies directly empower men to expl01t and appr~priate women's sexuality through lo~g-standing le~al regimes the world o~er that permit, or until very recently have permJtted, the _:hastisement and rape of w1ves by husbands, that permit or ignore the pimping and purchase o f sexual labor from. wo~en at starvation wages, that facilitate or turn a blind eye to tlle sale of young g1riS 1~to marriage or prostitution and that steadfastly ;efu_se to inve~ti?ate.' pros~cute or convict women's rapists or sexual assailants. Even m hberal societies m which rape, sexual assault and marital rape are ali clearly criminal, the law enco~rages_ or condo~es the alienation of women's sexuality in a host of more subtle ways, mcludmg protectmg the propagation of pornography - texts which encourage and s~~ualiz~ the s~xual assault of women and girls under the guise of free spe~ch - and glVl~g _wide l~t1tude !o se~ual harassment in workplaces and schools, sometlmes under a similar rat10nale. 2 Radical feminism, with its singular focus on sexual violence and the subordination of women through sexual transactions and assaults committed ~n. t~e private sphere,_ o~ns a window not only on non-liberal or traditional state facihtatJOn of the subordmatJOn of women but also on liberalism's facilitation of the same subordination. It thus helps us to understand the otherwise peculiar staying power of mechanisms of women's subordination even within liberal societies, which on their face should seemingly be averse to it. Simply put, somehow tlle subordination of women persists not only in traditional or illiberal societies but also in liberal legal cultures tllat have embraced both antidiscrimination norms and the criminalization of sexual assault and battery. Radical feminism provides a tlleoretical account of how that has happened and of how law might be used more effectively to end it. . . More specifically, radical feminist legal theory provid_es ili~ grou~dwork ~o~ a r~dical feminist critique of both liberalism and liberal legahsm, mcludi_ng femm1st. hberal legalist achievements and aspirations. Refer back to _the tllree core hberal ~omm1t~ents embraced by liberal feminism listed above - the Importance of protectmg a p~wate sphere from the state, a universalist understanding o f human nature and tlle necess1ty ~f restraining state action so as to protect individu_al autono_my. Ea~h. of ~ese IS problematic if we assume tllat there is some_ trut~ m the radi~al femm~st ~la1m ~at female sexuality is one of, and perhaps the, hnchpm of women s subordmat10n. Flrst, the liberal commitments to the privacy and insularity of the private worlds of intimacy and family life have the consequence, which radical feminism distinctively highlights, 29

See Chen, supra note 26.

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13

of further insulating the private sphere and the violence, subordination and alienation that occurs within that sphere. 30 Protecting reproductive rights by conceiving of them as within the sphere of privacy rights guarded against state interference has the effect of further insulating or legitimating the hierarchical relations within that sphere. 31 Second, the universalist premises of liberalism that ground both antidiscrimination norms and the liberal commitment to formal equality are a compromised victory if women's subordination has the appropriation of sexuality at its core. Rigorous gender neutrality from the state will not address, because it will not see, the appropriation of female sexuality. The state may, for example, treat women and men the same with respect to marital rape exemptions - exempting the rape of husbands as well as wives from the reach of the state's criminal arm - and the effect will be that the marital rape of women will go unaddressed. Likewise, the state could evenhandedly decide to decriminalize rape altogether, and so long as it did so in a gender-neutral way, it would not necessarily fail to respect the demands of gender neutrality or formal equality. 32 More broadly, subordination - whatever its cause- will not be addressed if the antidiscrimination norm is premised upon the assumption that women and men are basically the same for ali purposes that should matter to the state. Women and men are not the same to whatever degree women's interests are subordinated to men's, and that degree is considerable: women are less educated, poorer, less skilled, more vulnerable to sexual violence and less politically active. Thus, both the cause of subordination - the appropriation of sexuality - and its consequences - women's lesser lives - are unaddressed and to a considerable degree valorized or legitimated by insistence on formal equality. Third, both the quintessentially liberal deference to individual choice and the equally quintessential liberal suspicion of states and state action will backfire if the linchpin of women's subordination is the appropriation of women's sexuality. Women's choices will be determined by ilieir subordinate condition, and an undue valorization of choice, particularly tllose choices that are bom of sexual alienation and false consciousness, will thus simply freeze ilie conditions for those choices in place. Likewise, an across-the-board suspicion of states and state action will deprive feminism of the use of ilie state to police against, deter or compensate sexual injuries. The subordination of women is accomplished in private spaces, by private actors, through criminal means. The state can and should be expected to protect women against just those criminal invasions. A state unduly minimized, indeed vilified, by those who seek to protect the privacy within which women are subordinated, whether done by liberais in the name of individual liberty or by traditionalists in the name of patriarchy, does women very little good. Radical feminism also provides the basis for a critique of traditional Marxism: Marxism overstates the degree to which subordination takes place exclusively along an axis of labor subordination and alienation and misses entirely the ways in which it occurs along an axis of sexuality. Thus, radical feminism highlights not only the ways 30 See id. See generally MACKiNNON, FEMINIST THEORY OF THE STATE, supra note 26, at 184-94. 31 See id. at 101-02. 32 See Naffine, supra note 10.

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in which liberalism fails to sce the private subordination of women through sexuality but also the ways in which Marxism, even if fully attuned to private sphere subordination, nevertheless fails to sec that subordination when it is facilitated through sexual rather than labor subordination.33 It methodologically follows Marxism up to a point: it highlights the cffects of private subordination on women's consciousness; it has within it a critique of liberal rights, particularly rights to privacy and autonomy, that echo Marxist critiques of rights of contract and property; and it contemplates a public role for política! action that is not overly concemed with the interests of individuais in keeping the state distant. Its application of the methodological tools of traditional Marxism - the understanding of the mechanisms of alienation, the capacity to see that alienation in consensual transactions, the appreciation of the power of private groups and actors, including cultural and intellectual actors, in creating conditions for private sphere subordination, and the complicity of states in private sphere subordination through the protection of thosc realms o f insularity -to the realm of sexuality, however, is utterly novel. It is as novel, in fact, as the application by liberal feminists of the tools of analysis and change rooted in liberalism to the distinctive circumstances of gender. Although they have different premises, goals and methods, nevertheless the degree of common ground among radical feminism, liberalism and liberal feminism, on the one hand, and radical feminism and Marxism, on the other, should not be understated. Radical feminism is by no means foreign to either liberal feminism or to liberalism per se, and in both cases, their shared point of contact lies in their appreciation of law and of its capacity for improving lives, as well as its capacity for facilitating subordination. Radical feminism distinctively targets sexual expropriation and alienation of female sexuality as the point, and origin, of women's subordination. That expropriation and alienation, however, are accomplished through the commission of acts of violence by private actors on other private actors or, put differently, through the commission of crimes that can and should be, and sometimes are, targeted by the state. The protection of individuais from the criminal violence occasioned upon them by other private actors is key to philosophically liberal understandings of the raison d'être of the state. Radical feminism seeks the protection of the state to expand that sphere of protection to include sexual crimes and to target the coercion of sex that is at their core. The insistence that the state use its muscle to protect women against violent crime is hardly antithetical to the purposes and ends of the liberal state. It is, rather, very much at its core, and for that reason, radical feminism, whatever its commitment to radicalism methodologically, is also profoundly liberal in its view of the basic role of the state in the prevention of private violence. Liberal and radical feminists share a commitment to the guarded use of state power - liberais to protect women against discrimination, and radicais to protect women against subordination, particularly subordination brought on through sexual violence. What radical feminism shares with Marxism is also vivid. Radical feminists, like Marx and Marxists, are attuned to the mechanisms of power as wielded by private entities or individuais (capitalists, for Marxists, and men, for radical feminists), the ways in which that power is intemalized by the subordinate class and eventually comes to define it. Both are likewise attuned to the ways in which law, in liberal regimes, 33

See

MACKINNON, FEMINIST THEORY OF THE STATE,

supra

note 26,

at 23-36.

15

facilitates that exercise of sovereignty in the private sphere. Rights of property and contract and eventually cven rights of nondiscrimination and speech facilitate the appropriation of thc surplus value of labor and thus thc subordination of workers' interests to those of their employers. In a parallel way, rights of privacy, of speech and of autonomy facilitate the appropriation of the surplus value of women's sexuality and thus the subordination of women's interests to those of men. Patriarchy, like capitalism, uses the rhetorical powers of law, rights and sovereignty, alongside the rhetorical powers of culture, to acculturate both men and women - lhe former to instill a sense of entitlement, and the latter to instill a sense of inevitability. Thus, radical feminism employs the analytic tools of Marxism to understand the role of law in women's subordination but at the same time shares with liberais a commitment to the use of the state to resist violence against women that has the effect of alienating them from their sexuality. It is, in other words, radical in its criticai orientation but also deeply liberal in its stance toward the Jaw. For example, it fully embraces the mandate of equal protection and aims to extend that mandate to include the equal protection of women against sexual violence. As a consequence, while radical feminism shares with criticai legal studies an indebtedness to Marxism, unlike criticai legal studies and Marxism, it is, no less than liberal feminism, fully committed to the project of legalism, that is of using law in a way that respects its norms and aspirations, including most centrally its norm and ideal of equal protection. Lastly, while radical feminist legal theory shares with liberal legal feminism both a commitment to the well-being of women and to the legal project of improving women's lives through law and law reform, it views constitutional law and its regime of rights that both broaden liberty and shrink the state with suspicion and looks instead to quite different arcas of law - sexual harassment law and criminal law - as the means by which the appropriation of women's sexuality- and hence the cause of women's subordinationmight be meaningfully addressed, and rectified.

m. FEMINIST LEGAL THEORIES: DIVISION AND MULTIPLICITY Radical and liberal feminist legal theories emerged as discrete and competing approaches to women 's inequality in the 1980s. They sharply contrast on severa! key axes. Liberal and radical feminist theorists held and still hold opposing views regarding the reliability of women's choices, particularly their sexual choices, and the wisdom of relying upon the state to regulate sexual markets. They accordingly take opposing positions on issues that implicate both, such as the regulation of pomography and the legalization or criminalization of sex work. They hold contrasting views regarding the value of the insularity of private and intimate spheres: liberais and liberal feminists hold the quintessentially liberal commitment to the private sphere as a realm of free individual choice, individuation and maturation, while radical feminists, echoing general themes in radical legal scholarship, contest the distinction between the public and private and even more sharply contest the freedom of choices made within the private sphere, focusing on the coercive impact of individuais or institutions who retain relative power over others in those spaces.

16

Introduction

Research handbook on feminist jurisprudence

Their oppositional nature, however, should not be overstated. In some contexts their approaches are complementary. Thus, while liberal feminists target state and em.ploycrbased discrimination and look to nondiscrimination principies and formal equahty. as a key to women 's inclusion and empowerment, radical feminists targe~ the pnv~te alienation and appropriation of women's sexuality by men and the resultmg sub?r~m­ ation of women and look to legal tools, including civil rights laws, reform of cnmmal law and anti-pornography regulations, to end ~h~t s~bo~dination. On som~ of these issues - the regulation of pomography and decnmmahzatiOn of sex .work - hbe:al and radical feminist approaches directly conflict. On other issues, there ts less confltct and quite a bit of shared ground and mutual ~upport. Altho~gh son:e~imes for different reasons or with different emphases, both hberal and radtcal femtmsts concu~ on the need to end overt and covert discrimination against women at work, to mcrease women's role in political life, to provide equal educational opportunities on college campuses and to assure women's reproductive autonom~, in part by legally guarantee. . ing safe and legal access to both birth control .and abor~10n. The deep theoretical differences between ra~tcal a~d hberal ~e?al f~mtmsm, however, are sharp and it is those differences that dommated mtra-femtmst dtalogue and debate during th~ 1970s and 1980s, most famously over MacK.innon and Dworkin's proposed anti-pomography regulations.34 By 1990, ~owever, ~h~ sex wars had begun t~ a~a~e, and, at the same time, liberal and radtcal femmtsm began to Jose thetr JOtnt monopolistic hold on feminist scholarship. This eventually opened ~pace for the development of a plurality o f theoretical approaches, ~s well as a prag~attc openness to hold starting premises tentatively rather than dogmattcally, a pragmattsm that ha~ held into the present. The results in feminist theory ge.nerally ~~ a less ferven~ commt~ment to the theoretical premises of either liberal or radtcal femmtsm and more mtere.st t~ the development of doctrine in ways that would demonstrably help women s hves, untethered to overarching grand narratives. The loosening of the hold of these structuralist approaches created room for the entry of altemative theoretical app~oaches, which in turn suggested additional doctrinal reforms. Severa! such altemattves are explored in the chapters that follow and are briefly mentioned here.

A. Relational Feminism One such alternative was the emergence of what carne to be called relational feminist legal theory. One core and perhaps organizing insight of relationa! feminists was th~t women's subordination, or inequality, might be traced at least m part not to thetr sexuality, as per radical feminism, or to their differential treatment by the .sta~e, as per liberal feminism but rather to their matemalism and, more broadly, to thetr dtsproportionate role in c;regiving and reproductive labor in and outside of familie~. Put in .terms congenial to radicalism, the key insight was that men clearly have a~ mterest m th.e appropriation and exploitation of women's maternal labor no less than m the appropr.tation and exploitation of their sexual labor, and therefore much the sa~e dynamtc explored by radical feminists in. the context of sex ~ay well be true ~n the. often all-consuming context of matermty. The felt male entttlement to women s bodtes, to 34

See chapter by Nan D. Hunter, Feminism, sexuality and the law, in this volume.

11

their reproductive labor and to their borne children, the control by men of women's pregnancies and impregnability and the defining of women's nature in a way that facilitates this exploitation are ali central insights of relational feminism. In the maternal context no less than in the sexual, Jaw contributes to the appropriation and exploitation of women's labor both directly and indirectly - directly through prohibitions on women's participation in most male careers, trades and workplaces and restrictions on the franchise, and indirectly, but just as profoundly, through the lack of substantial assistance with child care, restrictions on rights to abortion and regulation and preservation of traditional roles in family life. In terms congenial to liberalism, the failure of the state to compensate women for their maternal labor or to recognize women's right to control it themselves constitutes a massive failure of the liberal state, comparable to the state's complicity in slavery. More broadly, relational feminists have pointed to a plethora of ways in which law has failed to acknowledge the particular harms women sustain by virtue of their disproportionate involvement in relational life, from restrictions on tort recovery for emotional harms, 35 to the lack of any legal mechanism for sharing the costs of unintentional pregnancies36 and to the absence of any way to compensate women for their disproportionate domestic labor in the home, either contract based or regulatory. 37 At the same time, relational feminists sometimes argue, maternal labor, care for dependents in the home, the preservation of relationality in households and neighborhoods and even the uncompensated nature of that labor arguably instill in the women who disproportionately perform it a way of being in the world and of viewing oneself and others that skews toward an ethic of care, rather than an ethic of principie, and a sensitivity to the risks and dangers of excessive commodification - particularly of labor - in the commercial and public worlds. An ethic of care, as well as a skeptical stance toward the commodification of labor, are neither rewarded nor reflected in either liberal legalism or radical legalism, although they have dose ties to the communitarianism arguably at the heart of the latter. 38 Women's individual economic well-being may take a hit by their embrace of an ethic of care, particularly where that ethic is informed in part by willing self-sacrifice which is itself tainted by false consciousness. The world, though, may take a hit by virtue of the lack of such an ethic of care in public life, both in liberal and non-liberal states. One impulse within relational feminism is to highlight this paradox and to find a way to resolve it that heals the world as well as protects women against abuse and exploitation.

B. Vulnerability Theory A closely aligned approach pioneered by Martha Albertson Fineman has focused feminists and feminist theorists on the under-appreciated and under-theorized role of vulnerability and dependency in virtually ali of our individual lives and the communities we form, as well as the well-being and rights of those who care for 35

See See 37 See 38 See 36

Chamallas, supra note 12. Shari Motro, Preglimony, 63 STAN. L. REV. 647 (2011). Keren, supra note 19. chapter by Robin West, Relational feminism and law, in this volume.

18

Research handbook on feminist jurisprudence

dependents. As she recapitulates in her chapter in this volume, Fineman argued in a body of scholarship developed over severa! decades that liberalism and liberal legalism have long presupposed independent, autonomous, mature individuais as the primary subjects of the liberal state and of liberalism generally. 39 Constitutional Iaw presupposes fully formed, rational, independent and mature beings as its freely thinking, acting and associating subjects; contract and property law presuppose independent contractors and owners who can and should achieve self-sufficiency; criminal law presupposes victims who are independent of those who may prey on them and defendants who can be incarcerated with no significant costs to anyone but themselves. Ali of this, Fineman has argued, belies human and social reality. For much of our lives we are dependent on others, and for much of our lives (for many of us, disproportionately women, for most of our lives), we are caregivers for those who are dependent upon us. When we care for dependents, we ourselves become vulnerable: the unpaid caregiver, bound by ties of affection, obligation or duty, is to some degree incapacitated from wage labor, and the paid caregiver is rarely paid sufficiently to become fully autonomous. Yet the concerns, rights and vulnerabilities of those who care for dependents, whether those dependents be young children, aging parents or severely disabled relatives, are afterthoughts at most to liberalism. A liberalism reconfigured to center rather than marginalize the straightforward biological fact of dependency, rather than independence, and caregiving, rather than self-serving labor, would be demonstrably better for caregivers generally, the majority of whom are still women, and for the dependents who rely upon them.

C. Intersectional Feminism(s) Feminist scholars of colar have critiqued and then enriched feminist legal theory across the board, first by highlighting the degree to which feminism in ali the forms rehearsed above has prioritized the perspectives and interests of white women, and then by bringing the intersectional perspectives of black, brown, lesbian and disabled women to bear on problems of subordination and discrimination. 40 The experiential base of liberal, relational and radical feminism, according to early criticai race theorists, neglected or marginalized the experiences of women of calor, and the resulting conceptions of law and life show it. Black women, for example, have a different history of engagement and disengagement with the state's family law than do white women, a different history of engagement in the paid labor force, a different history of victimization from domestic violence, a different history of solidarity with black men falsely accused of rape by white women and white communities, a different history of engagement and disengagement with the state's Iaws of marriage and motherhood and 39 See chapter by Martha Albertson Fineman, The limits of equality: vu/nerability and inevitable inequality, in this volume. 40 See chapters by Wtng, supra note 8; chapter by Dorothy E. Roberts, Critica/ race feminism, in this volume; Kimberlé Crenshaw, Demarginalizing the lntersection of Race and Sex: A 8/ack Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U. CHI. LEGAL F. 139 (1989); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990).

lntroduction

19

vastly different experiences with discrimination at work and in educational institutions.41 Asian American women and Latinas have different experiences with immigration law, different challenges with language and accent discrimination and different experiences with barriers to employment. 42 Lesbian and disabled women have different experiences of Iaw than do straight or non-disabled women.43 The collective message of these comparative analyses is that the claims of liberal feminism that the major impediment to women's advancement is discrimination by the state and major employers, or of radical feminism that sexuality is the key to women's subordination, or of relational feminism that matemalism is central to women's lesser Iives are ali grounded in the experiences of white women, with their distinctive array of privileges and challenges. Feminist legal theories, accordingly, have not incorporated the perspectives of women who experience multiple forros or sources of discrimination or subordination or different forros of community and family than those of white women. While this critique is key, it has been the affirmative presentation of distinctively intersectional experiences of women of calor that has fundamentally reshaped feminism. Indeed, the intersectional experiences of women of calor, as well as those of Iesbian, disabled, trans or queer women, have become not just central to but in some ways emblematic of the development of contemporary feminist legal theory. They collectively evidence a conscious attempt to direct feminism - and by implication and extension, ali legal reform movements - toward a centering of the experiences of persons previously marginalized or sidelined, or most subordinated, and to re-imagine those experiences and their subjects as foundational rather than peripheral to the development of a sound criticai as well as normative jurisprudence. The result for feminism and for feminist legal theory has not only been to aspire to an inclusive and intersectional self-understanding but also to embrace pluralism rather than essentialism regarding women's nature, nimbleness rather than rigidity with respect to method and strategy, and pragmatism rather than ideology with respect to goals and aspirations. The movements toward intersectionality counsel broadly for the need to attend to the voices at the bottom of various ladders of hierarchy and success, rather than solely to the voices of those seeking to crack glass ceilings. Thus, intersectional feminist legal theory has ushered in not only greater respect and attentiveness to marginalized voices but, just as important, a form of theory that is attentive to context, to particularity and to immediacy, eschewing grand theories of women 's nature or universal human nature as well as broad claims of shared values, such as liberty or even equality. On the basis of this contingency, pragmatism, fluidity and plasticity, feminist legal scholars might then fashion doctrinal arguments that respond to the needs of ali women, as well as of ali those who depend on or befriend them, and build the coalitions necessary to address those needs.

41

Crenshaw, supra note 40, at 140. Mari J. Matsuda, Looking to the Bottom: Critica/ Legal Studies and Preparations, 22 HARV. CIV. RTS.-CIV .Lms. L. REv. 323, 356 (1987). 43 See, e.g., Patricia Cain, Lesbian Perspective, Lesbian Experience, and the Risk of Essentialism, 2 VA. J. Soe. PoL'Y & L. 43 (1994). 42

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20 Research handbook on feminist jurisprudence

21

D. Postmodern, Queer, Sex-Radical and Sex-Positive Feminism(s)

E. Socialist Feminism

In the last decade, a distinctively queer legal theory has emerged from an engagement of feminists in law with the representations of sexual and gender fluidity, the politics and aspirations of sex-positivist and sex-liberatory feminism and postmodem skepticism toward claims of generality and truth. Queer theorists, both feminists and otherwise, have expressed doubts about the broad descriptive claims of both radical and relational feminism regarding the root of female subordination, as well as reservations regarding the normative or aspirational goals reflected in feminist attempts to arrest the appropriation of women's sexuality, particularly those strategies that rely upon criminal law or harassment law. 44 'Carceral feminism' has been labeled and then targeted by queer feminists as an umbrella term encompassing feminist movements - such as anti-rape and anti-sexual assault campaigns - that unduly rely upon the state, and particularly the criminal justice system, to police against and then punish and deter sexual and relational violence. 45 Claims of injury, and particularly claims of sexual assault, according to one influential strand of queer theory, might sometimes reflect a real injury but might sometimes reflect nothing more than intemalized sexual self-loathing and shame regarding the purported victim's own sexual impulses - what carne to be called in the l990s a sex panic, meaning a cultural moment that transformed openly expressed sexuality into a moral and then a legal crisis.46 Thus, queer theorists who so hold have sought to decentralize the accounts of women claiming injury from sexual harassment on the job or from rape or assault in the home or on the street and to attend instead to the accounts of women and men who resist the repression of sexual expression in all forms, whether in the name of traditional conceptions of sexual morality or feminist conceptions of sexual harms.47 These claims have given new life and new forro to the sex wars from two decades back, with the liberal and libertarian premises of the anti-censorship side of those debates recharacterized and broadened so as to be grounded in these queer and loosely postmodem or poststructuralist premises.48 As has been true of intersectional feminists, however, beyond these particularized disagreements, queer theorists have more broadly called on feminism and feminist theorists to embrace a theoretical pluralism and to eschew reliance on grand narratives of sexual harm and injury across the board, as well as on grand general claims about the nature or identity of women, men, girls or boys.

Finally, some feminist legal scholars over the last fcw ycars, including prominently Cynthia Grant Bowman, both an editor of and contributor to this volume, have re-enlivened the project of socialist feminism, spelling out its implications for both law and legal reform. 49 The focus of the newly emergent, or re-emergent, socialist feminist legal theory is on the relation of women to the worlds of production and reproduction, with an eye toward the role of law in appropriating their surplus labor value in both realms. Such an analysis promises a fresh look at the nature of women's subordination that avoids privileging either the appropriation of sexuality or the exploitation of their maternal labor but seeks to account for both, as well as for the undervaluation of women's labor in the paid labor markets. Socialist feminist legal theory thus constitutes a challenge to virtually ali of the theoretical approaches that have preceded it. It departs from liberal feminism's grand commitments to liberal values, from the defining radical feminist claim that sexuality is the linchpin of subordination, the relational feminist understanding that matemalism is the sole or primary locale of such exploitation, and intersectional, postmodem and queer claims that feminism has nothing further to leam or absorb from overarching narratives or definitional accounts.

44 Janet E. Halley, Sexuality Harassment, in DIRECTIONS IN SEXUAL HARASSMENT LAW 182 (Catharine A. MacK.innon and Reva Siegel eds., 2004); Jeannie Suk, Criminal Law Comes Home, 116 YALE L.J. 2 (2006). 45 For a general discussion and response to this criticism in the international context, see Menon, supra note 11; for discussion in the US domestic context, see Nourse, supra note 5. 46 See Halley, supra note 44. 47 Janet Halley, The Politics of Injury: A Review of Robin West's Caring for Justice, UNBOUND 65 (2005). 48 See Hunter, supra note 34.

IV. CONCLUSION The debates between and among liberal, radical, relational, socialist, postmodern, queer, sex-positive and intersectional feminists are ongoing, and there is by no means a clear trajectory from which we might predict where ali this is heading. The debates as well as the particular positions continue to be influenced by both political shifts in the world and intellectual movements in the legal academy. The #MeToo movement has brought sexual harassment and sexual harassment law into clearer focus and made more compelling (and for a new generation) radical feminist claims that the sufferance of those assaults is a near universal and hence defining condition of women's lives. Liberal feminism continues to play the central role in the ongoing efforts of feminist litigators and advocates to preserve a domain of reproductive freedom and reproductive rights for women facing unwanted pregnancies. Relational feminism and vulnerabilitybased feminist approaches continue to serve as a grounding for broad claims of women's and men's needs for greater assistance in providing for the needs of dependents. Queer and intersectional feminisms continue to provoke and challenge, often resting on the perspectives of once marginalized outsiders, including women of color, lesbians, trans-women, trans-men and children. In short, ali of these movements continue to be influenced by legal developments as well as by non-feminist theoretical movements. And ali continue to lay claim to descriptive and analytic accounts of women's continuing inequality, as well as normative or aspirational claims regarding the use of law and legal reform to combat it. While aspirations for pragmatism, pluralism and theoretical fluidity are fair descriptors of the current state of feminist 49

See chapter by Cynthia Grant Bowman, Socialist feminist legal theory: a plea, in this

volume.

22 Research handbook onfeminist jurisprudence legal theory, that very fluidity - and the pragmatism it counsels - could themselves eventually be subjected to critique and change. lt is fair to predict that the aspirations of theoretically grounded feminisms for causal accounts of women's subordination and for narratives that explain legal choices and strategies that might combat it will persist, at least as long as that subordination itsclf persists as a widespread and diminishing force in women's and girls' lives.

PARTI FEMINISM AND LEGAL THEORY: VARIETIES OF FEMINIST LEGAL THEORY

In defense of liberalfeminism

25

I. LIBERALISM AND FEMINISM IN FORMATIVE AMERICAN MOMENTS OF CONSTITUTIONALISM

1. In defense of liberal feminism 1 Sylvia A. Law

A. The Constitutional Founding

This chapter describes and defends liberal feminism and, more specifically, the liberal feminist commitments to an expansive conception of women's liberty and women's liberalism from Mill equality. Liberty and equality have been the central co~pon~nts and Locke through to Dworkin and Rawls. Non-femm1st hberahsm rarely focuses on what it means to extend liberty and equality to women. Feminism, on the other hand, in ali forms has been committed to women's well-being. But it has fallen to liberal feminists' in contrast to other forms of feminism, to focus on the difficulties and challeng~s of securing the liberal values of liberty and equality for women. Liberal feminism, accordingly, is the branch of liberalism committed to women's liberty and equality and the branch of feminism committed to the att.a inment of these liberal values for women. This chapter discusses liberal feminism, with a particular focus on U.S. legal and constitutional history. The chapter first reviews the relationship between liberal political theory and feminism in the United States during three periods: the eighteenth-century constitutional founding; the nineteenth-century Civil War; and the 'Second Wave' of feminism that began in the 1970s. By the 1990s, it became commonplace to understand liberalism as requiring women's equality and liberty. Liberalism and feminism had forged to create a powerful poli ti cal and theoretical movement - liberal feminism - that vastly improved women's lives. Many of those gains, however, are now under attack. Current political movements and forces are undermining women's equ~l rights to_health care, to physical security and protection against assault, and to econom1c well_-bemg. At the same time, women 's resistance to patriarchy is fierce. The second sectwn of the chapter considers the challenges to women's equality and liberty - and thus to both liberalism and feminism - posed by these political winds. Finally, the chapter attempts to defend the liberal feminist commitment to liberty and equality against this direct and hostile assault.

o:

Against a long tradition that conceived of legitimacy and powcr as flowing from God or the monarch, the eighteenth-century founders of the American Republic were revolutionary in creating a constitution where ali lawful power derives from the people: the people themselves are sovereign and self-goveming. This political theory of selfgovernance was influenced by ideas that emanated from the coinciding Enlightenment era, including an understanding of knowledge and values as grounded in accumulated experience, and a belief in progress through rational questioning and dialogue. 2 These ideas eventually carne to be understood as a part of the liberal tradition. The idea of self-govemance the founders eventually embraced, however, rested on two seemingly conflicting elements: Though the state was to be controlled by the will of the majority, the power of the state would be strictly limited by the non-majoritarian precepts of a constitutional structure and guarantees protecting specified individual liberties from state infringement. 3 The constitutional structures that limit state power include the division of power among the legislative, executive and judicial branches at the federal levei and the allocation of power between the federal government and the states. 4 The liberties protected from popular will include freedom of conscience, speech and assembly, the right to be free from unreasonable searches, numerous rights protecting people accused of wrongdoing, and due process for people injured by state actions.s An independent judiciary was regarded as necessary to enforce these structural and substantive constitutional limits. In addition to forming the heart of the American political system, the ideas of popular democracy, constitutional limits on state power, rule of law, respect for facts and dialogue and an independent judiciary have come to form the heart of liberalism. Each of these concepts is complex and contested. The eighteenth-century liberal vision was blind in many respects. First, as discussed in more detail below, it was non-feminist, and even anti-feminist, in assuming that the basic unit of political participation was the male-headed nuclear family, not the individual person. Within the family, women were assigned, on the basis of status, to perform the essential work of production, reproduction, maintenance, consumption and acculturation in the home. Home and family, the core social units upon which liberalism was built, were constructed on the premise that women were not active citizens or fui! people. 6 The eighteenth-century founding vision aimed to maximize liberty and equality, but it did not extend that vision to women. Second, the 2 See, e.g., JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNOERSTANDING 424-607 (Roger Woolhouse ed., 2004) (1689). 3 See JOHN LOCKE, TwO TREATISES OF GOVERNMENT 141-265 (Peter Laslett ed., 1988)

(1690).

Parts of this chapter elaborate ideas first introduced in my essay Liberalism and Feminism included in the collection FEMINIST JURISPRUOENCE IN THE UNITEO STATES ANO ASIA: A TRANSPACIFIC DIALOGUE (Cynthia Grant Bowman and Yu Xingzhong eds., 2017) published in Chinese. 1

24

4

U.S. CONST. art. 1, § 1; id. art. 2, § 1; id. art. 3, § I. U.S. CONST. amends. I, IV, V, VI, VII, VIII; id. amend. XIV, § 1. 6 CARL N. DEGLER, AT ÜOOS: WOMEN ANO THE FAMILY IN AMERICA FROM THE REVOLUTION TO THE PRESENT 179-209 (1980). 5

26 Research handbook on feminis r jurisprudence eighteenth-century constitution accepted human slavery and restricted the suffrage to white men.7 Third, eighteenth-century liberalism placed a high value on private property, freedom of contract and free markets. As a result of intense political struggle in the nineteenth century and the first few decades of the twentieth, including the Civil War and constitutional amendments, these three flaws - the embrace of patriarchy, the acceptance of slavery and the high value accorded to markets - were corrected, or at least acknowledged, to some degree. Two other limits of the eighteenth-century liberal vision, however, persist to this day. First, modem liberalism, like its eighteenth-century counterpart, perceives the state as the primary threat to individual liberty and human flourishing. Concentrated private power, however, can also threaten democracy, liberty, equality and other important values. Although popular democracy can place limits on private power, the Constitution generally does not do so. Second, and relatedly, the substantive rights protected by a liberal constitution are negative constraints on state power, rather than affirmative obligations to provide the material and social support for human well-being. Again, the people through democratic action may choose to provide citizens the support and services they need, but a liberal constitution generally does not require the people to do so. With respect to women, the liberalism of the eighteenth century was extremely restrictive and assumed that in public, economic and political life, women were represented by their husbands or fathers. The married woman was civilly dead, her legal identity merged into that of her husband. She could not sue, be sued, enter into contracts, make wills, keep her own earnings or contrai her own property. Her husband had the right to chastise her, restrain her freedom and force her to engage in sexual intercourse against her will. Because, under liberal theory, political rights were tied to ownership of property, women had no political voice. 8 While this regime denied women's voices, historians have richly documented manifold acts of resistance and rebellion, as well as material and intellectual contributions by women of ali races and classes in this era. 9

B. The Nineteenth Century: First Wave Feminism and Abolition During the nineteenth century, conceptions of family and women changed dramatically with urbanization and industrialization. Average family size declined from seven 7 The Thirteenth Amendment outlawed slavery and involuntary servitude in 1855. U.S. CONST. amend. XIII, § 1. The right to vote was expanded by the ratification of the Fifteenth Amendment in 1870 and the ratification of the Nineteenth Amendment in 1920. U.S. CONST. amend. XV, § I; id. amend. XIX. 8 2 BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES ANO OF THE COMMONWEALTH OF VIRGINIA 442-44 (St. George Tucker ed., 1803); Wendy W. Williams, The Equality Crisis: Some Reflections on Culture, Courts and Feminism, 7 WOMEN'S RTS. L. REP. 175, 176-77 (1982). 9 See, e.g., MARY BETH NORTON, LIBERTY'S DAUGHTERS: THE REVOLUTIONARY EXPERIENCE OF AMERICAN WOMEN, 1750-1800 (1980); LINDA K. KERBER, WOMEN OF THE REPUBLIC: INTELLECT ANO !DEOLOGY IN REVOLUTIONARY AMERICA (1980).

In defense of liberal feminism

27

°

children in 1800 to three in 1900. 1 For the first time, respected political philosophers argued that discrimination against women was irrational, unjust and socially harmfuJ.II Also, from the 1830s, the abolitionist cause drew women into public life. 12 Some of the women who met in the anti-slavery movement perceived parallels between the subjugation and disenfranchisement of black people and the oppression of women. In 1848 the First Women's Rights Convention, held in Seneca Falls, New York, issued a proclamation that closely tracked the original Declaration of Independence.I3 Women were further invigorated to fight for equality after the adoption of three constitutional amendments between 1865 and 1870. The Thirteenth Amendment prohibited slavery and involuntary servitude; the Fourteenth Amendment prohibited states from denying people the privileges and immunities of citizenship or the equal protection of the law or from depriving them of life, liberty or property without due process of law; and the Fifteenth Amendment provided that the right to vote should not be denied on account of race, color or previous condition of servitude.l4 In the late nineteenth century women achieved significant liberal victories. States repudiated the notion that married women were civilly dead and allowed them to own property. A few extraordinary women entered some institutions of higher education. Across the country, women campaigned for women's suffrage and won the right to vote in some states. However, when women sought to invoke the grand liberal ideais represented by the Reconstruction Amendments to claim the right to vote, to practice law and engage in other professions, to be judged by juries that did not exclude women and to resist other arbitrary denials of liberty and equality, their claims were rebuffed.l5 After a century of struggle, women, finally, won a constitutional amendment giving them the right to vote in 1920. 16 But neither women 's suffrage no r the Reconstruction Amendments changed the economic, política! or social situation of women - rich or poor, black or white - until the rise of the so-called Second Wave feminist movement in the 1970s. 17 The Constitution, laws and social practices of the United States remained blatantly sexist well into the twentieth century. In 1943 the Supreme Court upheld a law excluding women from tending bar, unless she was the wife or daughter of the owner.1s As late as the 1960s, qualified women were openly excluded from desirable jobs and 10 Max Rosner, Fertility Rate, ÜUR WORLD IN DATA (Dec. 2, 2017), https://ourworldindata. org/fertility-rate. 11 Mary Wollstonecraft, A Vindication of the Rights of Women, in THE FEMINIST PAPERS: FROM ADAMS TO BEAUVOIR 40-85 (Alice Rossi ed., 1988); John Stuart Mill, The Subjection of

Women, in id. 12 ELEANOR FLEXNER & ELLEN FITZPATRICK, CENTURY OF STRUGGLE: THE WOMEN'S RlGHTS MOVEMENT IN THE UNITED STATES 195-207 (1996). 13 SUSAN B. ANTHONY & ELIZABETH CADY STANTON, SELECTED PAPERS OF ELIZABETH CADY STANTON ANO SUSAN B. ANTHONY, IN THE SCHOOL OF ANTI-SLAVERY, 1840 TO 1966 (Ann D. Gordon ed., 1997). 14 U.S. CONST. amend. XII, § 1; id. amend. XIV, § 1; id. amend XV, § 1. 1 See FLEXNER & FITZPATRICK, supra note 12. ' 16 U.S. CONST. amend. XIX. 17 See Sylvia A. Law, The Founders on Families, 39 U. FLA. L. REv. 583 (1987). 18 Goesaert v. Cieary, 335 U.S. 464, 467 (1948).

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educational opportunities in the legal profession. 19 The law excused women from jury duty, military service and other civic obligations historically associated with full citizenship. 20 Abortion was a crime in most states, and abortion and contraception were unavailable to many women, particularly the poor, the young, the uneducatcd and thosc living in rural areas. 2 L Criminal law was defined and enforced in ways pervasively damaging to women, particularly in relation to rape, marital rape, sexual harassment22 and domestic violence. 2 3 Family law devalued women in relation to child custody and support, as well as marital property. Society failed to support the work of caring for the frail, both young and old, and instead expected that women bear thc burden of this essential work, without recognition or compensation. 24 Ali these forms of discrimination violated basic liberal norms of equality and liberty. In the 1970s politically active women in the United States were deeply involved in the civil rights movement for racial equality, the popular opposition to the U.S. war in Vietnam and the fight for economic justice for the poor. Women made significant contributions and provided important leadership in ali of these struggles, but women's influence was often devalued or claimed by men. Like their sistcrs in the eighteenthcentury movements for the abolition of slavery, women in the 1970s saw parallels between themselves and other groups subject to irrational discrimination and subjugation, as well as possibilities for change through study, education, organization, and political and legal mobilization. 25

C. Second Wave Feminism from the 1970s to the Present Second Wave liberal feminists of the 1970s utilized many methodologies to address a range of substantive issues. 26 Consciousness raising, for example, was a core methodology of Second Wave feminists. For many, regularly meeting with a small group of women to share personal stories and understand those experiences in a larger política! context was powerful in generating both understanding and action. Feminists also urged federal and state courts to redress claims of gender discrimination, using novel theories 19 See Cynthia Bowman, The Entry of Women into Wall Street Law Firms: The Story of Blank v. Sullivan and Cromwell, in WOMEN ANO THE LAW: STORIES 415, 416-19 (Elizabeth M. Schneider and Stephanie M. Wildman eds., 2011). 20 See, e.g., Hoyt v. Florida, 368 U.S. 57, 68 (1961) (exempting women from jury duty); Rostker v. Goldberg 453 U.S. 47, 83 (1981) (holding that it is constitutional to require only men to register for the draft). 21 See Rhonda Copelon and Sylvia A. Law, 'Nearly Allied to Her Right to Be'- Medicaid Funding for Abortion: The Story of Harris v. McRae, in WOMEN ANO THE LAW STORIES 207 (Elizabeth M. Schneider and Stephanie M. Wildman eds., 2011). 22 See CATHERINE A. MACKINNON, SEXUAL HARASSMENT OF WORKJNG WOMEN: A CASE OF SEX DISCRIMINATION (1979). 23 Reva Siegel, 'The Rute of Lave': Wife Beating as Prerogative and Prívacy, 105 YALE L. J. 2117, 2122 (1996) (tracing common law roots of domestic violence). 24 See, e.g., Chai R. Feldblum, Home Health Care for the Elderly: Programs, Problems and Potentia[s, 22 HARV. J. LEG. 193, 195 (1985). 25 26

Jd.

For an excellent description of liberal feminism of the 1970s, see ZILLAH R. EISENSTEIN, FEMINISM ANO SEXUAL EQUALITY: CRISIS IN LIBERAL AMERICA (1984).

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under both statutes and constitutions. Others sought legislative change and became involved in electoral politics. Some sought to change cultural understandings. These methodologies were not mutually exclusive and were often uscd together. Pregnancy discrimination is one complex example of how liberal feminists used the many tools in the feminist kit to fight for change. In the 1970s, employers, public and private, commonly discriminated against pregnant women even when the woman was fully competent to do her job. Women were fired when the pregnancy showed, so as not to embarrass customers, students or co-workers. 27 Employment-based health insurance commonly excluded coverage for childbirth on the ground that childbirth was a lifestyle choice, not a medica! need. Disability plans, provided to many workers, paid for leave necessitated by everything except pregnancy. 28 If a worker was disabled because of a prostate condition, a skiing accident or anything else, the employer paid. But if a worker was physically disabled because of pregnancy, the employer would not give her leave. Feminist lawyers, led by Ruth Bader Ginsburg, now a justice on the US Supreme Court, challenged these discriminatory practices as a form of gender discrimination prohibited by the Fourteenth Amendment's guarantee of the equal protection of the laws. The Supreme Court held that excluding pregnancy-related disabilities from an otherwise comprehensive benefit for people with disabilitíes did not constitute gender discrimination. 29 The program distinguished, the Court said, between pregnant people and non-pregnant people and had nothing to do with gender discrimination. 30 That decision profoundly violated core liberal commitments to equal treatment, not to mention logic and the English language. Since the Supreme Court's word on the Constitution is final, in response, liberal feminists mobilized public understanding that discrimination against pregnant 'people' was in fact discrimination against women. They persuaded Congress to adopt the Pregnancy Discrimination Act as an amendment to Title VII, prohibiting sex discrimination in employment.3 1 Second Wave feminists achieved impressive changes in law and culture. Constitutional norms were interpreted to strike down state policies that overtly discriminated on the basis of gender. The numbers and influence of women in every area of human endeavor increased exponentially, though women are still underrepresented in desirable and influential positions. 32 As chapters in this volume by Susan Frelich Appleton, Deborah Tuerkheimer and Victoria Nourse recount, important reforms in family law 27 FLORA DAVIS, MOVING THE MOUNTAIN: THE WOMEN'S MOVEMENT IN AMERICA SINCE 1960 299 (1999). 28 Id. 29 Geduldig v. Aiello, 417 U.S. 484, 494-95 (1974). 30 Id. at 496-97. 31 Pub. L. No. 95-555, § 1, 92 Stat. 2076 (codified at 42 U.S.C. §§ 2000e(k), 2000e-2, 20000e-3 (1982)). 32 See, e.g., Women In Elective 0./fice, CTR. FOR AM. WOMEN ANO POL., http:// www.cawp.rutgers.edu/women-elective-office-2018; Matt Egan, Still Missing: Female Business Leaders, CNN (Mar. 24, 2015), http://money.cnn.com/2015/03/24/investing/female-ceo-pipelineleadership/; Tiffani Lennon, Benchmarking Women's Leadership in the United States, U. DENVER (Aug. 18, 2013), https://womenscollege.du.edu/media/documents/Benchmarking WomensLeadershipintheUS.pdf.

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and criminal law were implemented. Through Title IX of the Civil Rights Act, prohibiting sex discrimination in education, girls were able to gain access to athletic activities that traditionally were only for boys. 33 Access to abortion and contraception was transformed from a crime to a right, 34 albeit one that remains highly contested . Liberal feminism, however, has faced a harsh backlash. Since Second Wave feminism precipitated deep social, economic and political change, backlash is not surprising. Change is disconcerting. Conservative defenders of patriarchal family arrangements, as well as those who benefit culturally and economically from traditional assumptions of white male privilege, have been understandably resistant. This backlash has led us to a time where both liberalism and feminism are under constant assault.

11. CONTEMPORARY ATTACKS ON WOMEN' S EQUALITY AND LffiERTY: THE BACKLASH TO LIBERAL FEMINISM The election of Donald Trump in 2016 is perhaps the epitome of the twenty-firstcentury backlash to liberal feminism. Full review of the Trump threat to liberal democracy is beyond the scope of this chapter, but, in short, Trump and many who support him deny core liberal values. Popular democracy is challenged by voter suppression, tolerance of clandestine Russian interference in the electoral process and the enormous, secret influence of concentrated wealth, for example. Executive deference to the rule of law, as well as respect for facts, science and rational dialogue, are at an ali-time low. While in the past half-century, explicit, open, state-sponsored racism and sexism have been condemned as legally and culturally inconsistent with core liberal American values, Trump's blatant racism and sexism is excused by bis many supporters as frank speaking, irreverent personal style or simply worth tolerating in pursuit of other goals. The Trump presidency highlights various forms of backlash to liberalism, feminism and liberal feminism . Three forms of backlash, however, have been particularly devastating. First, the widespread rejection, by both officials in govemment and a large swath of the American public, of the core liberal feminist claim that individuais are entitled to control their reproductive lives undermines all of women's other gains. Second, the continued existence of pervasive sexual harassment is devastatirig to women's health and well-being. lt undermines women's liberty in the public sphere and possibilities for advancement and fulfillment in the worlds of work and school. Third, the deepening disparity in wealth, income and opportunity between the people at the top and those at the bottom has a particularly harsh impact on the equality of women and people of color.

33 See Title IX & Issues: What is Tztle IX, WOMEN'S SPORTS FOUND. (Sept. 20, 2011), http://www.womenssportsfoundation.org/en/home/advocate/title-ix-and-issues/what-is-title-ixltitleix-myths-and-facts. 34 Roe v. Wade, 410 U.S. 113, 164-67 (1973).

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A. Reproductive Health Care for Women In the decades prior to the rise of Second Wave feminism, the Catholic Church Jed opposition to contraception. 35 The Democratic party, which inciuded a disproportionately large number of Catholics, promoted this view in the public sphere. The Republican party, by contrast, favored access to contraception as a matter of individual liberty and, for some, concern about over-population, particularly among the 'wrong' people. 36 Because Catholics are a mínority, and many do not follow the teachings of their Church in relation to contraceptíon, state bans on contraception persisted only in states that were strongly Democratic and Catholic. In I 965 the Supreme Court held that the Constitution protects the right of married couples to use contraception in Griswold v. Connecticut. When the case was decided, only Connecticut and Massachusetts prohibited adult women from obtaining contraception.J7 After Griswold, the Church resolved that, even though contraception is a mortal sin in the eyes of the Church, it should discourage contraception through education and example, rather than efforts to mobilize state criminal authority to restrict access to contraception.38 The Republican party soon joined the Catholic Church in opposing access to reproductive health care. Until Senator Joseph McCarthy was censured in 1954 for conduct 'contrary to Senatorial traditions,' opposition to Communism was a core moral principie of the Republican party.39 The brilliant Phyllis Schlafly, who had built an influential career within the Republican party fighting Communism, appreciated that the party needed a new moral core. She found it in opposition to the Equal Rights Amendment (ERA) and to abortion. 40 As recently as 1976, 'public opinion polls showed that Republican voters were, on average, more pro-choice than their Democratic counterparts.' 41 Opposition to the ERA was not an enduring issue. By the time it was defeated in 1982, after a decade of debate, the Supreme Court had interpreted the Fourteenth Amendment to prohibit most explicitly sex-based laws that the ERA would have condemned. 42 But disagreement about abortion remained centrally controversial. In 1976 the Republican party adopted a plank calling for a constitutional amendment to

35 See DAVID ÜARROW, LJBERTY & SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE (1994). 36 Id. 37 Griswold v. Connecticut, 381 U.S. 479, 485 (1965). 38 CHARLES E. CURRAN, TOWARD AN AMERJCAN CATHOLIC MORAL THEOLOGY 29 (1987). 39 The Censure Case of Joseph McCarthy of Wisconsin (1954), U.S. SENATE HIST. ÜFF., https://www.senate.gov/artandhistory/history/commonlcensure_cases/133Joseph_McCarthy.htm. For information on The Red Scare, see Red Scare, HISTORY, http://www.history.com/topics/coldwar/red-scare. 40 Douglas Martin, Phyllis Schlafly, 'First Lady' of Political March to the Right, Dies at 92, N.Y. TIMES (Sept. 5, 2016) https://www.nytimes.corn/2016/09/06/obituaries/phyllis-schlaflyconservative-leader-and-foe-of-era-dies-at-92.html. 41 Daniel K. Williams, The GOP's Abortion Strategy: Why Pro-Choice Republicans Became Pro-Life in the 1970s, 23 J. PoL'Y HIST. 513, 513 (2011). 42 See Ann E. Freedman and Sylvia A. Law, Thomas I. Emerson: A Pioneer for Women's Equality, 38 CASE W. RES. L. REV. 539 (1988).

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protect human life from the moment of fertilization. 43 Moderate Republicans sought a state's rights approach to the issue but were rebuffed. Republicans sought to appeal to Catholic voters and were sometimes successful both with them and with fundamentalist Protestants. Adherence to this plank has sincc become a litmus test for Republicans seeking federal office. This opposition to reproductive choice has been most successful in banning federal funding for abortion.44 The original 1976 federal funding ban was restricted to poor women. That ban has since been extended to ali abortions for federal employees, military personnel, disabled Medicare beneficiaries, federal prisoners and Peace Corps volunteers. Even after implementation of the Affordable Care Act (ACA) in 2010, making health insurance available to ali citizens for the first time in U.S. history, federal funding for abortion is still prohibited. Opposition to reproductive choice is not limiting to funding, however. Many states place burdensome regulations on women seeking abortions and doctors who provide them. Doctors are subject to threats of violence, and some have been killed. While pro-choice forces resist, the outcome of this battle remains unclear. 4 5 Lack of health insurance coverage for childbirth and contraception also compromises women's liberty and equality. Traditionally, insurance coverage was denied on grounds that these were cosmetic, lifestyle services, not medicai needs. In the 1990s, liberal feminists persuaded state legislators that such exclusions discriminated on the basis of gender and that coverage made sense from the perspective of health, money and women's dignity. Workers persuaded their unions or employers, and students and teachers persuaded their schools, to include contraception in their insurance plans. Some federal courts held that the Pregnancy Discrimination Act prohibited exclusion of contraception from otherwise comprehensive coverage for prescription drugs, illegally discriminating against women. 46 All of the legal tools for feminist reform were enhanced by the mobilization of popular cultural support. Between 1999 and 2009 the proportion of employment-based health insurance plans that covered prescriptive contraception rose from 30 percent to 90 percent.47 After implementation of the ACA, insurance coverage was again expanded. The ACA required that plans cover 'preventive care and screenings' without cost sharing, including preventive services and screenings for women as recommended by the Health Resources and Services Administration (HRSA). 48 In 2011, following Williams, supra note 41, at 532. See Copelon and Law, supra note 21. 45 See, e.g., Eric Eckholm, Texas Ruling on Abortion Leads to Call for Clarity, N.Y. TIMES (June 10, 2015) https://www.nytimes.com/2015/06/lllus/clarity-sought-on-undue-burdenstandard-for-abortion-laws.html. 46 See, e.g., Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1276 (W.D. Wash. 2001). 47 Cynthia Dailard, Contraceptive Coverage: A 10-Year Retrospective, GUTIMACHER INSTITUTE (June 10, 2004) https://www.guttmacher.org/gpr/2004/06/contraceptive-coverage-10-yearretrospective. 48 The ACA contains a section on the coverage of preventative services. Patient Protection and Affordable Care Act of 2010, Pub. L. 111-14, § 1001 (adding § 2713 to the Public Health Service Act) (codified as 42 U.S.C. § 300gg-13 (2012)). It also includes a separate section outlining Essential Health Benefits, which include preventative services. 42 U.S.C. § 18022 43 44

In defense of liberal feminism

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consultation with the Institute of Medicine, HRSA determined that a review of evidence-based preventive services data required that insurance plans cover a wide range of contraceptive methods. Though the coverage standards were broad, their implementation was not. In compliance with long-standing Internai Revenue Service regulatory policy, the Department of Hcalth and Human Services (HHS) grantcd an cxemption to 'churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusivcly religious activities of any religious order.' 49 In addition, the rules created an accommodation, rather than an outright exemption, for certain non-profit organizations that hold themselves out as religious organizations and object on religious grounds to including some or ali contraceptive services in the services they provide to employees, students or clients. Organizations eligible for the accommodation had to file a one-page form with their health insurance issuer, which was then required to provide payment for contraception for women in the plan at no cost to the women or to the organization. The accommodation was designed to ensure that women continued to receive the coverage to which they were entitled while effectively taking the religious employer out of the picture. The federal government assumed that insurers would absorb the cost of coverage on the theory that their outlays would be offset by the savings achieved from the prevention of unintended pregnancy. Many employers challenged the regulations. The first case to reach the Supreme Court was Burwell v. Hobby Lobby Stores (Hobby Lobby), decided in 2014.50 The lawsuit was brought by a closely held, for-profit corporation that argued that the federal Religious Freedom Restoration Act (RFRA) protected its right to refuse to provide employees insurance coverage for contraception. RFRA provides that the '[g]ovemment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability,' unless the burden is 'in furtherance of a compelling government interest' and the challenged law is 'the least restrictive way in which to further the govemment interest.'51 For the first time in history, Justice Samuel Alito, writing for a 5-4 majority, found that profit-making corporations are entitled to claim protection for the free exercise of religion. He conceded, for the purpose of the case, that the government had a compelling interest in assuring that women have access to the full range of contraceptives, but he did not explore the nature of that interest. In her dissent, Justice Ginsburg quoted Planned Parenthood v. Casey, which recognized that '[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to contrai their reproductive lives.' 52 She further observed 'that the cost of (2012). See also Women's Preventive Services Guidelines, HEALTH RES. & SERVS. ADMIN., https://www.hrsa.gov/womensguidelines/. 49 Group Health Plans and Health lnsurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013). 50 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2788 (2014). 51 42 U.S.C. § 2000bb-1(a), (b) (1993). 52 Hobby Lobby, 134 S. Ct. at 2788 (Ginsburg, J., dissenting); see also Planned Parenthood of Southeastem Pa. v. Casey, 505 U.S. 883, 856 (1992).

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an IUD is nearly equivalent to a month's full-time pay for workers earning the minimum wage.'53 The pivotal holding, which won the decisive fifth vote from Justice Anthony Kennedy, was that there was a less restrictive way to promote the compelling government interest without burdening the plaintiffs' religious objections. Secular, profit-making corporations could be offered the 'accommodation' given to religious non-profits. 54 In the years that Hobby Lobby was pending, eight Circuit Courts of Appeals considered claims from religious non-profit organizations arguing that the requirement to notify their insurers that they had religious objections was a violation of RFRA. Seven Circuits concluded that the requirement to file a notice imposed no significant burden on the exercise of religion. 55 One Circuit held that the requirement to file a notice declining contraception coverage burdened religious freedom by making the employer complicit in the use of birth contrai and that the notice requirement was not the least restrictive altemative because the govemment could create a publicly funded program or offer separate, subsidized contraception policies to employees of objecting organizations.56 Given the Court's seeming endorsement of the Hobby Lobby accommodation then in effect, many were surprised when, three days after the Hobby Lobby decísion, the Court granted certiorari in the pending cases and issued an injunction urging the parties to find a compromise.57 With the election of Trump, the picture changed. The Administration Jeaked new rules in May 2017 and issued Interim Federal Rules (IFRs) on October 13, 2017. 58 The new IFRs expanded accommodations, which were already available to non-profit religious employers and closely held corporations controlled by people with religious objections, to include profit-making enterprises. The rules also added 'moral objection' as a Jegitimate reason for excluding coverage for contraception, thus expanding the accommodation to cover both moral and religious objections. Moreover, employers who take advantage of the accommodation no longer have to provide any form of notice to the govemment or to their employees in order to allow responsibility for coverage to be assumed by the insurer or the claims administrator. Rather, changes in coverage only need to be reflected in plan documents, requiring employees to monitor these documents, which are ever-changing and often difficult to find. The regulations are bizarre, both substantively and procedurally. Substantively, the IFRs rejected the factual findings of the Institute of Medicine and rely instead on the

53 Hobby Lobby, 134 S. Ct. at 2800. 54 Id. at 2760. 55 See, e.g., Notre Dame Univ. v. Burwell, 786 F.3d 606 (7th Cir. 2015). 56 Geneva Coll. v. Sec'y U.S. Dep't of Health & Human Servs., 778 F3d. 422 (3d Cir. 2015). 57 Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014). 58 Religious Exemptions and Accornmodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47792 (2017), https://www.gpo.gov/fdsyslpkg/FR2017-10-13/pdf/2017-2185l.pdf; Moral Exemptions and Accornmodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47838 (2017), https://www.gpo.gov/fdsyslpkg/FR-20 17-1 0-13/pdf/20 17-21852.pdf.

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sole dissenting member of the committee.s9 For example, the IFRs discounted statistical evidence that acccss to contraception correlates with decreased rates of unintended pregnancy, observing that correlation does not equal causation. Additionally, they asserted that most forms of contraception were available for $50 a month, ignoring evidence that more effective forros required higher up-front costs and that $50 a month was a significant financiai cost to most American women. The IFRs further stated that the women 'most at risk' of unintended pregnancy were young, unmarried, low-income minority women, who were not the kind of women who had employer-based group health coverage or attended private universities. This of course ignores that ali sexually active women of childbearing age are at risk of unintended pregnancy. Perhaps most preposterously, the IFR observed that increased access to contraceptives could 'exacerbate the long run negative effects of changing sexual behavior by, for example, providing contraceptive access to teenagers and young adults who are not necessarily in the sexually active at-risk population of women.' These are only a few examples of the rejection of the National Academy of Medicine's evidence-based responses to ali these claims. 60 Procedurally, the IFRs were even stranger. The federal regulators issued the new rules as IFRs on October 6, 2017, effective 60 days after publication in the Federal Register, and requested post-issuance comments by December 5, 2017. There was no pretense of compliance with the notice-and-comment procedures required by the Administrative Procedure Act (APA). New York, Califomia and other states filed federal court challenges to the new IFRs and the process through which they carne about. On December 15, 2017, Pennsylvania Federal District Judge Wendy Beetlestone became the first to hold the Trump contraception regulations illegaJ.6I On the procedural issues, she rejected the Trump claim that there was an emergency that justified departure from standard APA process. 6 2 On the substance, Judge Beetlestone noted the 'remarkable breadth' of tlie moral objection: '[any corporation] can deny contraceptive coverage for the corporation's women employees not just for religious re~sons but also for any inchoate - albeit sincerely held - moral reason they can arttculate.' 63 Of the new 'moral objection', the judge asked, 'Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice?' She observed that 'the Adrninistration has conjured up a world where a govemment entity is empowered to impose its own version of morality on each one of us.'64 The IFR also provided that the requirement that objecting employers provide notice to insurance carriers or the govemment imposed a substantial burden on religious freedom under RFRA. Judge 59 See id. To read Dr. Lo Sasso's dissenting opinion, see INSTITUTE OF MEDJCINE OF THE NATIONAL ACADEMIES, CLINICAL PREVENTIVE SERVJCES FOR WOMEN: CLOSING THE GAPS 231-35 (20 11 ), https://www.nap.edu/read/13181/chapter/14. 60 ld. 61 Cornmonwealth v. Trump, No. 17-4540, 2017 U.S. Dist. LEXIS 206380 (D.Pa. Dec. 15

w1n 62 63 64

'

Id. at *40. ld. at *44. ld.

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Beetlestone noted that federal courts had rejected that claim and that judicial findings cannot be reversed by regulation. 65 The strucra!e over access to contraceptives is not solely about federal laws, 00 . . recrulations and judicial decision, though those are important. 1t is also about mobi!tzati'on on the ground, resistance, facts and evidence. In 2013 the University o f Notre Dame sued the federal govemment, challenging the requirement that it notify its insurer that it did not want to provide its employees the contraceptive coverage required by the ACA.661t lost that case. In 2018, when the Trump Administration notified Notre Dame that it no 1onger needed to either provide coverage for contraception or send a one-page notice to its insurer, the university informed ali faculty and staff that contraception was no longer included in their hea1th plan. A week !ater, Notre Dame changed its mind and informed employees that contraception would be covered, without cost sharing. The university explained its sudden reversal as it carne to recognize 'the plurality of religious and other convictions among its employees.' 67 Consideration of health insurance coverage for contraception can be read as a testament to the power o f the liberal values o f separation of powers, judicial review and grass-roots engagement to assure imp1ementation on the ground. Altem~tive1y, it can be read as a tale of the fragility of liberal feminism. After Griswold held m 1965 that the Constitution protects married couples' right to use contraception, and the Supreme Court extended that right to single people in 1972, one might have assumed that contraception would be treated like other medicai services. That assumption proved wrong. As health care costs rose and insurance coverage, public and private, became essential, contraception was routinely excluded from private insurance until the 1990s, when liberal feminists mobilized to persuade employers, state legis1ators and courts that this exclusion was irrational in terms of health, insurance costs and the burdens disproportionately imposed on women. 68 The ACA expanded that development. The end of this story has not yet been written.

B. Sexual Harassment Law and Backlash A second form of backlash to liberal feminism can be seen through the lens of the #MeToo movement, which focuses on sexual harassment. Sexual harassment of working women is not a new issue to liberal feminists and indeed was a prominent issue on the agenda of Second Wave feminists. In 1979, Catharine MacKinnon brilliantly documented that the sexual harassment of working women was widely practiced, systematically ignored and constituted illegal gender discrimination under 65 Id. at *51. 66 Univ. of Notre Dame v. Sebelius, 988 F. Supp. 2d. 912 (N.D. Ind. 2013). 67 Christina Cauterucci, Notre Dame Reverses Its Stance on Birth Control Coverage for Employees, SLATE (Nov. 7, 2017), http://www.slate.comlblogs/xx_factor/2017/11/07/notre_ dame_reverses_its_stance_on_birth_control_coverage_for_employees.htrnl; Emma Green, Why Notre Dame Reversed Course on Contraception, THE ATLANTIC (Nov. 8, 2017), https:/1 www.theatlantic.com/politics/archive/2017/11/notre-dame-birth-control-obamacare-reversaV5452 82/. 68 See Sylvia A. Law, Sex Discrimination and Insurance for Contraception, 73 WASH. L. REV. 363 (1998).

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Title VII of the Civil Rights Act of 1964.69 In 1980 the Equal Employment Opportunity Commission (EEOC) issued regulations defining sexual harassment and stating it was a form of sex discrimination prohibited by thc 1964 Civil Rights Act, and the Supreme Court recognized sexual harassment as a violation of Title VII in 1986.7° The Court characterizcd unwelcomeness as the gravamen of any sexual harassment claim. Moreover, 'voluntariness' was deemed irrelevant because an employee can feel compelled to acquiesce to unwelcome sexual attention to avoid termination, the very situation gender discrimination law seeks to avert.7 1 Despite sexual harassment being recognized as illegal sex discrimination, it remains pervasive. Each year in the early twenty-first century, the EEOC and related state agencies received over 10,000 new charges of sexual harassment on the job_72 The 2016 Presidential election put a new focus on the pervasiveness of sexual harassment. On October 7, 2016, just before the election, the Washington Post published a vídeo of candidate Trump bragging to television host Billy Bush about sexually assaulting women: 'I don't even wait. And when you're a star, they let you do it, you can do anything ... grab them by the pussy.' 73 He subsequently 'apologized' explaining, '[t]his was locker roam banter, a private conversation that took place many years ago. Bill Clinton has said far worse to me on the golf course - not even close. I apologize if anyone was offended.'74 The public response was immediate. Legal experts opined that the behavior Trump described constituted criminal sexual assault in most states; Republicans called for him to step down in the Presidential race; and dozens of women filed legal complaints against him.7 5 On the day after Trump's inauguration, women gathered around the world to oppose his policies and to support women's rights, as well as other rights. The Women's March in Washington, D.C. was the largest protest in U.S. history.7 6 Despite this large public outcry, Trump refused to issue a true apology or take a stand against 69 CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN (1979). 70 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). 71 See Tanya K. Hemández, 'What Not to Wear' - Race and Unwelcomeness in Sexual Harassment Law: The Story of Meritor Savings Bank v. Vinson, in WOMEN ANO THE LAW: STORIES 277 (Elizabeth M. Schneider and Stephanie M. Wildman eds., 2011). 72 EQUAL EMPLOY'T ÜPPORTUNITY COMM'N, Charges Alleging Sex-Based Harassment FY 201 0-FY 2016, https://www.eeoc.gov/eeoc/statistics/enforcementlsexual_harassment_new.cfm. 73 Trump Recorded Having Extremely Lewd Conversation About Women in 2005, WASH. POST (Oct. 8, 2016), https://www. washingtonpost.com/politics/trump-recorded-having-extremelyJewd-conversation-about-women-in-2005/2016/1 0/07/3b9ce776-8cb4-11 e6-bf8a-3d26847eeed4 story.html?tid=a_mcntx&utrn_term=.ec4575efe7bb. 74 Aaron Blake, Donald Trump Finally Said Something So Bad He Had to Apologize, WASH. POST (Oct. 8, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/10/07/ donald-trump-fina11y-said-something-so-bad-he-had-to-apologize-kind-of/?tid=a_mcntx&utm_ term=.dad2a4ed0879. 75 Megan Twohey, Trump's Female Accusers Feel Forgotten. A Lawsuit May Change That, N.Y. TIMES (Nov. 1, 2017), https://www.nytimes.com/2017/11/0llus/po1itics/trumps-femaleaccusers-feel-forgotten-a-1awsuit-may-change-that.html. 76 Leanna Garfield, The 11 Biggest Marches and Protests in American History, Bus. INSIDER (Feb. 8, 20 17), http://www.businessinsider.com/largest-marches-us-history-2017-2/#themarch-on-washington-for-jobs-and-freedom-august-28-1963-1.

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sexual harassment. lndeed, over a year after the release of the tape, President Trump suggested that the tape was a 'fake.' 77 Billy Bush, who was fired from his job as host of the Today Show for his role in thc tape, responded in a New York Times Op-Ed, 'Yes, Donald Trump, You Said That.' Bush acknowledged that he and the other mcn on the bus 'were guilty of sacrificing a bit of ourselves in the name of success.' 78 In October 2017, the New York Times and the New Yorker reported that dozens of women had accused the prominent movie producer, Harvey Weinstein, of sexual abuse over decades.79 More than 80 women in the film industry subsequently accused Weinstein of such acts. He was dismissed by the Weinstein Company, which he co-owned, and expelled from the Academy o f Motion Picture Arts and Sciences. At the time of writing, criminal investigations are ongoing in Los Angeles, New York City and London. Soon after the Weinstein scandal, the #MeToo movement exploded. On October 15, 2017, actress Alyssa Milano tweeted 'If you've been sexually harassed or assaulted write "me too" as a reply to this tweet.' 80 By the next day, millions of people used #MeToo on Twitter, Facebook and other social media platforms. 81 In the social media firestorm, it was revealed that 'Me Too' was created in 2007 by Tarana Burke. Burke is an African-American women's rights activist who leads a non-profit organization, Just Be Inc., that helps young survivors of sexual harassment and assault. Burke called her work 'Me Too.' After Milano leamed about the original #MeToo movement, she tweeted a link to Just Be Inc.'s website. 82 At first, those speaking out were mostly from the worlds of media and entertainment, but the hashtag quickly spread. By November, Califomia farm workers were marching on the streets of Hollywood to express their solidarity with celebrities. In December, n Aaron Blake, Trump Js Reportedly Suggesting the 'Access Hollywood' Tape Js Fake News. He Should Talk to 2016 Trump, WASH. POST (Nov. 27, 2017), https://www.washington post.com/news/the-fix/wp/20 17/11/27/trump-is-reportedly-saying-the-access-holl ywood-tape-wasfake-news-he-should-talk-to-20 16-trump/?utm_term=.65a57e8141 e6. 78 Billy Bush, Billy Bush: Yes, Donald Trump, You Said That, N.Y. TIMES (Dec. 3, 2017), https://www.nytimes.com/2017/12/03/opinionlbilly-bush-trump-access-hollywood-tape.html. 79 Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. TIMES (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harveyweinstein-harassment-allegations.html; Ronan Farrow, From Aggressive Ovenures to Sexual Assault: Harvey Weinstein's Accusers Tell Their Stories, THE NEW YORKER (Oct. 10, 2017), https://www.newyorker.com/news/news-desk/from-aggressive-overtures-to-sexual-assault-harveyweinsteins-accusers-tell-their-stories. 80 Alyssa Milano (@Aiyssa_Milano), TwiTTER (Oct. 15, 2017; 1:21 PM), https://twitter. com/Alyssa_Milano/status/919659438700670976/photo/1 ?ref_src=twsrc%5Etfw&ref_url=https %3A %2F%2Fwww.nytimes.com%2F20 17%2F1 0%2F20%2Fus%2Fme-too-movement-taranaburke.html. 81 Sandra E. Garcia, The Woman Who Created #MeToo Long Before Hashtags, N. Y. TIMES (Oct. 20, 2017), https://www.nytimes.com/20 1711 0/20/us/me-too-movement-tarana-burke.html. 82 Alyssa Milano (@Aiyssa_Milano), TWITTER (Ocr. 16, 2017; 4:24 PM), https://twitter. com/Alyssa_Milano/status/9200679750 16624128?ref_sre=twsrc%5Etfw&ref_url=https%3A%2F %2Fwww.bostonglobe.com%2Fiifestyle%2F20 17%2FI 0%2FI7%2Falyssa-milano-credits-activisttarana-burke-with-founding-metoo-movement-years-ago%2Fo2Jv29v61jObkKPTPB9KGP%2F story.html.

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Time magazine honored the Silence Breakers as the 2017 Person of the Year. 83 Of course, 'the paradox is that, in many cases, those women were not silcnt at ali. lt was that nobody listened when they spoke.' 84 Even though many of thc publicized cases involved public figures, harassment of women is often worsc for economically vulnerable women and women of color, and it is not limited to scx. 85 lndeed, after the Silence Breakers were named Time's Person of the Year, Burke notcd, 'We have to keep our focus on people of different class and race and gender.' 86 It is still too soon to know the impact of the #MeToo movement on the behavior of men, women and society. Yet the history of liberal feminism holds a few lessons regarding these dramatic developments. First, here as elsewhere, legal rules prohibiting sexual harassment are necessary, but never alone sufficient. Broader cultural changes are needed to allow women to speak and be heard, to educate men like Donald Trump and Harvey Weinstein that their behavior is harmful and wrong and to discourage those who are complicit in their wrongful behavior. 87 A major lesson o f the struggle for marriage equality was that empathy and respect were difficult as long as people, particularly those in positions of power, could say, 'l've never met a gay person: Similarly, progress in relation to abortion rights has been difficult because the reality of abortion was and remains a secret in both private life and popular culture.88 In short, #MeToo has sparked a broad, constructive conversation. Second, liberal feminism, like liberalism, demands reliance on facts, evidence and due process. Much of the conversation triggered by #MeToo has focused on the interests of men accused of sexual harassment. New York Senator Kirsten Gillibrand was the first senator to call on her colleague, AI Franken, to resign. The allegations against Franken were mild compared to the actions of Trump or Weinstein. Gillibrand asserted, 'when we have to start talking about the differences between sexual assault and sexual harassment and unwanted groping, you are having the wrong conversation. You need to draw a Iine in the sand and say none of it is O.K.' 89 Zephyr Teachout responded, saying that zero tolerance for sexuai harassment should go hand in hand with due process and proportionality: '[P]roportionality means that while ali forms of inappropriate sexual behavior should be addressed, the response should be based on the 83 Stephanie Zacharek, Eliana Dockterman and Haley S. Edwards, Person of the Year 2017: The Silence Breakers, TIME, http:/ltime.com/time-person-of-the-year-2017-silence-breakers/. 84 Jessica Bennett, The #MeToo Moment: No Longer Complicit, N.Y. TIMES (Dec. 7, 2017), https://www.nytimes.com/20 17/12/07/us/the-metoo-moment-no-longer-complicit.html. 85 Susan Chira, We Asked Women in Blue-Collar Workplaces About Harassment. Here Are Their Stories., N. Y. TIMES (Dec. 29, 201 7), https://www.nytimes.com/201 7/12/29/us/blue-collarwomen-harassment.html. s6 The Silence Breakers, supra note 83. 87 Megan Twohey et ai., Weinstein's Complicity Machine, N.Y. TIMES (Dec. 5, 2017), https://www.nytimes.com/interactive/2017/12/05/us/harvey-weinstein-complicity.html. 88 Scott Skinner-Thompson, Sylvia A. Law and Hugh Baran, Marriage, Abortion and Coming Out, 116 COLUM. L. REv. ÜNLINE 126 (2016), http://columbialawreview.org/content/ marriage-abortion-and-coming-out/. 89 Shane Go1dmacher, On Sexual Misconduct, Gillibrand Keeps Herself at the Fore, N.Y. DMES (Dec. 6, 2017), https://www.nytimes.com/2017/12/06/nyregionlgillibrand-franken-sexualmisconduct.html.

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Research handbook on feminist jurisprudence

nature of the transgressions.'9° Current procedurcs for dcaling with harassment accusations are utterly inadequatc in Congress as well as in most U.S. institutions. This is a complex discussion and bcyond lhe scope of this chaptcr, but the urgent liberal legal work of demanding accountability combined wilh duc process will now bc better informed by the voices of #MeToo.

C. Economic Inequality and Liberal Feminism In addítion to reproductive choice and sexual harassment, a third, core, twenty-firstcenlury challenge for libcralism, feminism and the movement for racial equality is presented by the gross disparilies in economic opportunities, weallh and income, based not on abílity to perform and contribute, but rather on race and gender. In the months before he was assassinated in 1968, Martin Luther King sharply condemned thesc growing disparities and drew connections between racial equality and economic equality.91 Looking back, we know that the period from the end of World War 11 until the mid-1970s was an unusual golden moment of economic growth and growing re1ative economic equalíty, both in the United States and around the world. Since lhat time, disparities in wealth, income and economic opportunity have become dramatically worse.92 In 1965, the average U.S. CEO earned 20 times more than the average worker in his firm; in 2014, he earned 303 times more. 93 The relationship between liberalism and economic inequality is complex. In the agrarian economy of the cighteenth century, classic liberalism placed a high value on private property, free markels and freedom of contract. With urbanization and industrialization in the late nineteenth century, states and the federal governments adopted limited measures to ameliorate the harshesl excesses of capitalism and protect vulnerable workers. Untíl 1937, the U.S. Supreme Court, in the name of liberalism embodied in the Constitution, struck down these modest efforts. 94 The Great Depression and the New Deal response produced a sea change in the understanding of constitutional liberalism. Since 1937, the U.S. Supreme Court has broadly held that 90 Zephyr Teachout, /'m Not Convinced Franken Should Quit, N.Y. TIMES (Dec. 11, 2017), https://www.nytimes.com/2017/12/lllopinionlfranken-resignation-harassment-democrats.htrnl. 91 Dr. Martin Luther King addressed these issues at my commencement from Antioch College in June 1965. Audio of his speech available at http://wyso.org/post!revisiting-dr-martinluther-king-jrs-1965-commencement-speech-antioch-college. 92 See, e.g., Emily Badger, Whites Have Huge Wealth Edge Over Blacks (But Don't Know Jt), N.Y. TIMES (Sept. 18, 2017), https://www.nytimes.com/interactive/2017/09/18/upshotlblackwhite-wealth-gap-perceptions.html; Changes in U.S. Family Finances from 2013 to 2016: Evidence from the Survey of Consumer Finances, 103 FED. RES. BULL. 1, 10 (2017), https://www.federalreserve.gov/publications/files/scfl7.pdf ('The wealth share of the top I percent climbed from 36.3 percent in 2013 to 38.6 percent in 2016 ... the wealth share of the bottom 90 percent of families has been falling over most of the past 25 years, dropping from 33.2 percent in 1989 to 22.8 percent in 2016'). 93 Lawrence Mishel and Alyssa Davis, Top CEO's Make 300 Times More than Typical Workers, ECON. PoL'Y INST. (June 21, 2015), http://www.epi.org/publication/top-ceos-make-300times-more-than-workers-pay-growth-surpasses-market-gains-and-the-rest-o f- the-0-1-percent/. 94 See, e.g., Lochner v. New York, 198 U.S. 45 (1905) (striking down a New York law setting maximum hours for bakers on the ground that it violated freedom of contract).

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economic regu1ation is a matter of political choice, stating that 'a constitution is not intended to embody a particular economic theory,' 95 and courts should defer to legislative judgments in Lhe adoption of economic regulation. The Constitution gives the political branches, 'the voice of the people,' great latitude to choose between policies that promote economic security and opportunity for ali and policies that favor private capital accumulation and historie wealth. In the New Deal era, Democrats favored progressive taxation and other policies promoting economic equality and public social services and embraced a liberal identity. In lhe 1980s, conservative leaders, including Ronald Reagan in the Uníted States, Margaret Thatcher in Great Britain and Augusto Pinochet in Chile, appropriated the mantle of 'liberalism.' Defining themselves as 'Neo-Liberals,' they promoted policies of fiscal austerity, deregulation, privatization, free trade and reductions in public spending.96 At the same time, many Democrats, who once identified as liberais, now often define themselves as 'fiscally conservative' and socially liberal. In short, the meaning of 'liberalism' in relation to economic justice is contested. Like liberalism, feminism does not have a core consensus position on issues of economic equality and opportunity. However, like other movements on behalf of historically oppressed and marginalized people, including movemenls for racial justice, LGBTQ liberation and people with disabilities and immigrants, feminism often focuses on issues of economic fairness and seeks to promote the welfare of women and the economically vulnerable. One twenty-first-century liberal feminist effort to address economic inequality focused on the situation of people, overwhelmingly women, racial minorities and immigrants, who perform the vital work of caring for the vulnerable young and old. 97 lt illustrates some of the strengths and weaknesses of liberal feminism. The classic eighteenth-century liberal assumption that women perform the essential work of caring for those who need help because of youth, age or disability remains largely intact. Women at the top of the economic ladder hire other women to help care for their familíes. In the Depression of the 1930s, Congress first set a national minimum wage and rules for overtime pay and passed the Fair Labor Standards Act. The political compromise lhought necessary to pass the Fair Labor Standards Act in 1938 required exemptions for domestic and agricultura! workers. Obviously, those workers need the protection of a minimum wage more than most. But they were and are politically weak, in significant part precisely because they are disproportionately women, people of color and immigrants. In the 1970s Congress amended the law to correct this racial and gender-based discrimination and extend the minimum wage protections to domestic and home health care workers. However, the Department of Labor never implemented the authorized changes. In 2011 organized domestic workers persuaded the Obama Administration to adopt the protections thal Congress had authorized. After employers fought back, a 95 Jd. at 75 (Holmes, J., dissenting). 96 See MONICA PRASAD, THE POLITICS OF FREE MARKEfS: THE RISE OF NEOLIBERAL ECONOMIC POLICIES IN BRITAIN, FRANCE, GERMANY ANO THE UNITED STATES (2006). 97 See Peggie R. Smith, Regulating Paid Household Work: Class, Gender, Race, and Agendas of Reform, 48 AM. U. L. REV. 851 (1999).

42 Research handbook on feminist jurisprudence federal court battle ensued, delaying implementation of the rules until January 2016. 98 It is unclear whether these protections will remain in place under the Trump Administration.99 The situations of older people who need home care and of those who provide it pose a serious challenge to feminists in the twenty-first century. Both groups are hugcly, disproportionately, women. Ninety percent of older adults want to stay in their home as they age, and assisted home care is often less costly than institutional alternatives. But for many, paid home care workers are essential to enable them to remain at home. 100 Indeed, as the population ages, the need for home health care workers grows at a rate five times faster than the rate of overall job growth. 101 Home care wages, however, are poverty wages, with average annual earnings of just $18,598. Moreover, most home hea1th care workers do not have benefits, paid time off or paid sick time. Schedules and hours are unpredictable, and nearly half of home care workers are not offered full-time or consistent work. The struggles o f the past provide the tools for this fight and a cadre of people skilled at mobilizing them, but it is unclear when this fight will be won.

ID. CONCLUSION Liberal feminism has been criticized by the political right and feminists alike. 102 Liberal feminism is often depicted as pathetically anemic by its critics, as a feminist theory that demands recognition and protection of women's individual autonomy, rights to full equality, dignity and respect. This chapter seeks to articulate a more complex vision of liberal feminism. Liberal rights are never, alone, sufficient to achieve justice. Rights are, however, an important part of the struggle for justice, particularly for vulnerable people. Edward V. Sparer, a principal founder of civil legal services in the United States, primary architect of the concept that welfare, Medicaid, Medicare and food stamps are entitlements deserving of the protections granted to the property of the more affluent and General Counsel to the National Welfare Rights Organization when it flourished, Home Care Ass'n of America v. Weil, No. 15-5918 (D.C. Cir. 2015). Ben Peno, Home-Care Industry Wants Wage Rute Reversed by Trump Labor Chief, BLOOMBERG NEWS (Apr. 12, 2017), https://www.bna.com/homecare-industry-wants-n579820 86560/. 100 E. Tammy Kim, Americans Will Struggle to Grow Old at Home, BLOOMBERG BUSINESSWEEK (Feb. 9, 2018), https://www.bloomberg.com/news/features/2018-02-09/americans-willstruggle-to-grow-old-at-home. 101 Caitlin Connolly, Aging in Place Will Require lnvesting in Home Care Workers, NAT'L EMP. L. PROJECT (May 14, 2015), http://www.nelp.org/publication/aging-in-place-wil!-requireinvesting-in-home-care-workersl. 102 See, e.g., Robin Morgan, Light Bulbs, Radishes and the Politics of the 21st Century, in RADICALLY SPEAKING: FEMINISM RECLAIMED 5 (Diane Bel! and Renate Klein eds., 1996); Denise Schaeffer, Feminism and Liberalism Reconsidered: The Case of Catharine MacKinnon, 95 AM. POL. Sei. REV. 699 (2001); Dorothy Roberts, Reproductive Justice, Not Just Rights, DISSENT MAG. (Fali 2015), https://www.dissentmagazine.org/article/reproductive-justice-notjust-rights; Lynn M. Paltrow and Jeanne Flavio, Arrests of and Forced lnterventions on Pregnant Women in the United States, 1973-2005: /mplications for Women's Legal Status and Public Health, 38 J. HEALTH POL., PoL:Y. & L. 299 (2013). 98

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died prematurely in 1983. At the time of his death, he was writing an articlc rcsponding to claims that liberal rights are incoherent and inherently conservative. His complex responsc was that liberal rights are limited, imperfect, and insufficient, but nonetheless important. 103 Crystal Eastman, an early twentieth-century American feminist, also captured the power and frustrations of liberal feminism. Eastman was a leader in thc suffrage movement, a prime actor in the movement to create a compensation system for injured workers, a founder of the American Civil Liberties Union, and leader of the Women's Peace Party and the American Union Against Militarism. Early in her career, Eastman led the effort to create workers' compensation systems to provide reliable compensation to injured workers and their families. She richly documented the need for compensation in a world where work was unnecessarily dangerous and common law concepts systematically denied workers the ability to sue for injury. She analyzed thencontroversial questions of state power to create alternative remedies and developed a popular and constitutional consensus for reform, and her multifaceted efforts with unions, industrialists and others persuaded many states to adopt workers' compensation. Even as Eastman succeeded in winning compensation for injured workers, however, she argued that compensation was inadequate when injuries were preventable. When the strong young body . . . is caught up by the little projecting-set-screws, whirled around a shaft and battered to death ... when we know that the law of the state has prohibited set-screws for many years, then who wants to talk about 'three years' wages to the widow,' and 'shall it be paid in installrnents, o r in lump sum?' . . . What we want is to start a revolution. Having identified the need for a revolution, Eastman proceeded to detail an accidentprevention program that relied on state regulation, data, transparency and vigorous enforcement: 'The first thing we need is information ... lt seems a tame thing to drop so suddenly from talk of revolutions to talk of statistics. But I believe in statistics just as firmly as I believe in revolution.' 104 This is classic liberal feminism. With respect to reproductive freedom, Eastman argued that there were two central 'facts of feminism': economic independence from men and birth control.

99

Feminists are not nuns . . . We want to love and be Ioved . . . We want our children to be deliberately, eagerly called into being, when we are at our best, not crowded upon us in times of poverty and weakness. We want this precious sex knowledge not just for ourselves, the conscious feminists; we want it for all the millions of unconscious feminists that swarm the earth, - we want it for ali women. Eastman reminds us, 'Life is a big battle for the complete feminist even when she can regulate the size of her family.' tos 103 Edward V. Sparer, A Friendly Critique of the Criticai Legal Studies Movement, 36 STAN. L REV. 509, 524 (1984). 104 Quoted in Sylvia A. Law, Crystal Eastman: NYU Law Graduare, 66 N.Y.U. L. REv. 1963, 1994 (1991). 105 Crystal Eastman, Birth Control in the Feminist Program, BIRTH CONTROL REV. (1918), reprinted in ÜN WOMEN AND REVOLUTION 46 (Blanche Wiesen Cook ed., 1978).

Catharine A. MacKinnon and equality theory 45

2.

Catharine A. MacKinnon and equality theory Chao-ju Chen

In law, equality has been established as a value but constantly debated as a concept. In life, inequality is lived as experiences which, in the eyes of law, are either identified as a wrong or justified as a fact of life, depending on how equality is defined and applied. For Ann Hopkins, an exemplary manager in a male-dominant firm whose promotion to partnership was denied due to her 'unfeminine' style, inequality was the glass ceiling, and equality law has assisted her cracking the ceiling. In Price Waterhouse v. Hopkins, 1 the Supreme Court ruled it sex discrimination to use gender stereotypes as standards for job advancement, noting that it would be non-discriminatory only if Hopkin's promotion had been denied under circumstances similar to those applied to a man. In other words, equality is granted to women when they meet the male standard. For women working in traditional women's jobs, their low paychecks and ranks indicate inequality, but liberal equality law has failed to raise the floor for them. In EEOC v. Sears,2 the sex segregation and gender imbalance at Sears was deemed non-discriminatory because the company's hiring and promotion decisions simply reflected women's different interests. Equality is therefore denied to women if they are considered to be different from men. This mixed picture of equality law's success and failure finds its best explanation in Catharine A. MacKinnon's momentous contributions to feminist theory. One of the most influential feminist legal scholars of the contemporary era, MacKinnon theorizes a critique arguing that the point is not how well women conform to or differ from the standard but why men are the measure o f ali things. Revealing how the law is reflective and constitutive of male dominance, first in her two articles published in the feminist journal Signs in the early 1980s3 and then in her two groundbreaking books, Feminism Unmodified (1987) and Toward a Feminist Theory of the State (1989), MacKinnon's incisive analysis of the maleness of law has become a canon of feminism, law, and political philosophy. Locating the question of equality in the sphere of sexuality, where women's situation differs most from men's and where freedom is thought to be the core issue, she has demonstrated how sexuality is central to women's subordination. Sexual harassment law, which lays the ground for the ever-expanding #MeToo movement, would not have been created and developed as equality law if not for her pivotal 1979 work, Sexual Harassment of Working Women: A Case of Sex Discrimination. 490 U.S. 228 (1989). EEOC v. Sears, Roebuck & Co., 628 F. Supp. 1264, 1288 (N.D. lJI. 1986), aff'd, 839 F.2d 302 (7th Cir. 1988). 3 Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS: J. WOMEN IN CULTURE & SOC'Y 515 (1982); Feminism, Marxism, Method, and the State: Toward a Feminist Jurispntdence, 8 SIGNS: J. WOMEN IN CULTURE & Soc'y 635 (1983). I

2

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Trained as a political scientist and lawyer, MacKinnon craftcd a political and legal theory of equality and sexuality as a theory of power. Practicing as an advocate and engaged scholar, she litigated and originated legal and political strategies to address sexual violation against women, including sexual harassment, pornography, prostitution and rape. Since its emergence in the late 1970s, MacKinnon's work has inspired a revolutionary transformation of equality thinking, facilitating remarkable changes in American law, transnational Jaws, and international human rights law. Her theory and activism has, howevcr, also cncountercd enormous criticism. This chapter begins with an introduction to her theory of equality and sexuality, proceeds with the application of her theory to sex equality law and ends with a discussion of the criticisms leveled against her.

I. FROM DIFFERENCE TO HIERARCHY: A SUBSTANTIVE THEORY OF LIFE ANO LAW The 1970s was an era of second-wave feminism and legal acttvtsm. Feminist legal theory carne to be labeled as a field of scholarship with different schools of thought. The Equal Rights Amendment movement was at its peak, pursuing equality for women by making sex irrelevant to their legal treatment. The second female justice in the Supreme Court, Ruth B. Ginsburg, then a law professor and director of the Women's Rights Project of the American Civil Liberties Union, conceived and pursued a litigation strategy to expand the interpretation of the Equal Protection Clause of the Fourteenth Amendment by targeting sex-based classifications in law, resulting in numerous litigation successes that laid the foundation of sex discrimination law. The progress of gender neutrality in law, however, was also accompanied by a realization of its limited effects in producing changes in real lives, as well as its tensions with gender differences. The Supreme Court's decisions that justified the exclusion of pregnancy and childbirth from insurance plans' disability coverage in the name of difference4 created a theoretical and practical crisis for legal ·feminism, giving rise to a debate over equal versus different treatment that split the feminist community. Liberal feminism responded by arguing for enhancing the landscape of sameness, while relational feminism blamed the devaluation of women's difference and called for the accommodation of difference. The Pregnancy Discrimination Act (PDA) of 1978 and California Federal Savings & Loan Ass'n v. Guerra,s in which the US Supreme Courts upheld the PDA's constitutionality, were fruits of this controversy over the meaning of equality in law and in women's lives. MacK.innon's work emerged as an endeavor to explain the failure of feminism to change the world for women by pursuing her own theoretical approach to equality and male dominance rather than joining either the liberal or the relational feminist camp. Its 4

(1976). 5

Geduldig v. Aiello, 417 U.S. 484 (1974); General Electric Co. v. Gilbert 429 U.S. 125 . 479 U.S. 272 (1987).

46 Research handbook on feminist jurisprudence answer to the question of equality began as the inequality approach in 1979,6 was termed the dominance approach in 1984,7 developed into and was named the substantive equality theory in 1989,8 and was recently highlighted as the hierarchy theory in 2016. 9 Its retlection on women's relationship to the state produced a feminist theory of the state that rebuilt the bridges between life and law, form and substance, and politics and power with a concentration on sexuality.

A. Substantive Equality Aristotle's axiom that equality means treating likes alike and unlikes unlike is the bible of mainstream equality theory. It sees equality as an abstract formula, an equivalence and a symmetry. It carne to be known as the formal equality theory, which, in MacKinnon's early work, was named 'the difference approach,' an 'epistemologically liberal approach' 10 that pursues equality through two paths. The lead path is to be the same as men, a path termed 'gender neutrality doctrinally and the single standard philosophically.' 11 It is a male standard that views women as if women were men. It measures women's similarity tomento determine whether women are or can be men's equals and is hence a male standard. The second path is to be different from men, a path termed 'the special protection role legally, the double standard philosophically.' 12 It is a female standard that views women as men view women. It measures women's dissimilarity from men to see whether women need special protection and are hence not men's equals. For MacKinnon, neither path led to equality because 'masculinity, or maleness, is the referent for both.' 13 Her critique of the sameness standard, also a criticism of liberal legalism and liberal feminism, argues that gender neutrality benefits the privileged few women while sustaining and even extending men's privileges. First, it neutralizes male privileges because the status quo favors men and the law reflects the status quo. Gender neutrality further benefits men by treating a few men Iike most women to make the sexes equal, thus men asserting sex equality have consequently been granted women's chances. 14 Second, in cases where women can be compared with men, gender neutrality uses a 'reverse the sexes and compare' test - it is not sex discrimination 6 CATHARINE A. MACKINNON, SEXUAL HARASSMENT DF WDRKING WOMEN: A CASE DF SEX DISCRJMINATIDN 11~1 (1979). 7 CATHARJNE A. MACKINNDN, Di.fference and Dominance: On Sex Discrimination, in FEMINISM UNMODIFIED: DISCDURSES ON LIFE ANO LAW 32 (1987). 8 CATHARINE A. MACKINNON, Substantive Equality, in BUTIERFLY POUT!CS 110 (2017). 9 Catharine A. MacKinnon, Substantive Equality Revisited: A Reply to Sandra Fredman, 14 lNT'L J. CONST. L. 739, 740 (2016). 1° CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 218 (1991). 11 MACKINNON, supra note 7, at 33. 12

Id.

ld. at 34. MACKINNON, supra note 10, at 222. To illustrate this point, MacKinnon mentioned the use of male plaintiffs in sex equality cases, for example, in Frontiero v. Richardson, 411 U.S. 677 (1973), and Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), and cited David Cole's study on this subject: David Cole, Strategies of Difference: Litigating for Women 's Rights in a Man's World, 2 LAW & lNEQ. 33 (1984). But cf. Wendy W. Williams, Ruth Bader 13

14

Catharine A. MacKinnon and equality theory 47 against a woman if a similarly situated man would be so treated - which may help a woman who approximates the mate norm·yet is denied a man's chance. These women are, in MacKinnon's words, 'the qualified, the least of sex discrimination's victims,' 15 whose presence is in reverse proportion to the degree of inequality in a society. Finally, in cases where there are no similarly situated men to be compared to, gf?nder neutrality suggests either that treating women like women is not considered sex discrimination because it simply reflects a social arrangement enacted by personal choices or nature, or that giving women what they need can be deemed sex discrimination because only women need it. 16 MacKinnon dubs formal equality 'the stupid theory o f equality' 17 because, ironically, the more pervasive sex inequality is, the more it looks like a 'real' sex difference, and hence the more rational it is for the law to ignore it. Although MacKinnon shares her criticism of gender neutrality with relational feminism to some extent, the two differ in their views of difference. Relational feminism finds value in difference, whereas MacKinnon sees the powerlessness of affirming it. She disagrees with Caro! Gilligan's 'different voice' thesis that women value care and think in relational terms, arguing that '[w]omen value care because men have valued us according to the care we give them ... [w]omen think in relational terms because our existence is defined in relation to men.' 18 Her critique of the special protection rule contends that it seems to favor women as a compensation but really is 'the velvet glove on the iron fist of domination' 19 that affirms women's inferiority. MacKinnon argues that women's vulnerability to sexual violence legitimates their disqualification from contact jobs in male-only prisons 20 and exemplifies how law adopts the viewpoint of the reasonable rapist on women's employment opportunities as well as how exclusion became the solution for equality Iaw's doctrinal crisis. 21 Statutory rape law, which criminalizes only men having sex with underage girls and was held constitutional based on girls' potential to become pregnant and consequent need to be protected from sex, 22 is also an example of how special protection ignores the fact that reaching adulthood does not eliminate women's vulnerability to sexual violence, which is not biological but social and political. 23 Consequently, difference justifies dominance. For MacKinnon, formal equality theory's restricted capability, or in some cases inability, to name and change inequality is much more a product of its perspective (although it claims or aspires to have none) than a result of failed enforcement or deliberate manipulation of mainstream equality law. MacKinnon argues that its Ginsburg's Equal Protection Clause: 1970-80, 25 COLUM. J. GENDER & L. 41, 44-45 (2013) (arguing that the assessment would be different if counting in cases litigated but not accepted by the Court). 15 MACKINNON, supra note 10, at 225. 16 Id. at 222. 17 CATHARINE A. MACKINNON, ÜNLY WORDS 98 (1996). 1s MACKINNON, supra note 7, at 39. 19 MACKINNON, supra note 10, at 219. 2o Dothard v. Rawlinson, 433 U.S. 321 (1977). 21 MACKINNON, supra note 10, at 226. 22 Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981). 23 MACKINNDN, supra note lO, at 175-76.

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perspective is male, meaning that it sees and treats women as men see and treat women. It is so systematic and hegemonic that it dominates in the world, shapes reality, defines rationality, becomes objectivity and hence the Jaw's perspective, which does not appear to function as a perspective at ali. It rationalizes the status quo and undermines one's capability of seeing it as inequality. MacKinnon's critique leads to the conclusion that, to change the world, rather than merely mapping it, requires a new perspective, namely, the feminist perspective. MacKinnon addresses the feminist perspective by articulating what she calls 'feminist method' :2 4 consciousness raising, a method that played a pivotal role in the second-wave women's movement. Just as Marxism sees class consciousness as the key to the transition from class-in-itself to class-for-itself, so MacKinnon finds consciousness raising to be the way for women to become a 'sex for itself.' 25 She detines it as 'the collective criticai reconstitution of the meaning of women's social experience, as women Iive through it,'26 meaning that it begins with women's experience under male power and seeks to criticize it, rather than confirming it. It is a method that rejects conventional epistemology's stance toward the world, under which objective knowledge is produced through objectification and aperspectivity. It aims to grasp the collective reality of women's condition from within.27 Its product is the insight that the personal is political, revealing the very fact of the dominance of men-as-a-group over womenas-a-group in a way that both demonstrates how 'women are damaged' and affirms the possibility and necessity of women acting to change it.28 From the feminist perspective, MacKinnon argues that gender and equality are both questions of power29 because the reality o f gender inequality, as revealed by consciousness raising, is shaped by power, not rooted in nature. The questions of whether the classification or gender stereotype is false or accurate, whether the difference is imaginary or reaJ3° or whether or not the sameness standard is satisfied are not the issue. What matters is the hierarchy of power that creates the meaning of gender differences and the subsequent legal and social arrangement based on those differences. Contrary to conventional equality jurisprudence's view, she sees gender as an inequality first (dominance), constructed as a social differentiation (distinction), and mapping itself onto sex as such (difference).3 1 Ascending mainstream equality jurisprudence's tiers of scrutiny is not a solution because the designated meaning of rationality reflects existing conditions.32 The law of equality, therefore, must begin by identifying and at 83. 25 at 104-05. 26 at 83. 27 at 121. 28 at 103. 29 MACKINNON, supra note 7, at 40. 30 In her early writings, MacKinnon distinguished three types of difference: imaginary, imposed and original. Jd. at 36-37. 3 1 MacKinnon uses the story of creation to explain the dissimilarities between her approach and the difference approach. The difference approach's story begins with difference, but her approach's story begins with dominance. See id. at 34, 40. 3 2 Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 MINN. L. REv. 1, 5 (2011-2012). See id. at 5-6 for her discussion of the sex equality cases based on rational 24

ld. ld. Jd. Jd. ld.

challenging the power system of dominance and subordination, rather than by struggling with sameness and difference. This concept of equality is termed 'substantive equality.' MacKinnon defines hierarchy as its core concept, which refers to 'what is unequal about inequality in substance'33 and which 'identities the substance of substantive equality.'3 4 Under this theory, to see gender as an inequality means to inquire into the concrete substance of the system rather than the abstraction of forms, to be criticai of reality rather than reflective of it, and to challenge the hierarchy of power rather than accommodate it. Substance matters because hierarchy is not an abstract and fungible classification but rather the concrete social content specific to each pre-existing disadvantage in social reality. 35 Formal equality's abstract reverse-and-compare method is therefore incompatible with this approach. Criticism of reality is a necessity because Jaw mirroring the status quo is incapable of changing inequality. Indirect discrimination or the disparate impact theory, which represents the attempt to improve conventional equality theory, is not a substitute for substantive equality because it only works when a disparity is concretely examined through the Jens of substantive hierarchy. 36 Equality can be an asymmetry because hierarchy is an asymmetrical arrangement of power. Affirmative action is not an exception to antidiscrimination law, which carries the stigma of special treatment; it is not discrimination at all.J? In this light, MacKinnon's approach to equality is change-oriented, concrete, and asymmetrical, whereas the formal equality theory is reality-mapping, formalist and symmetrical.

B. Sexuality and Power For MacKinnon, a theory o f equality as a theory of power cannot exist without a theory of sexuality. As much as sexuality is a social construct, she argues, it is both constructed by male power and constitutes 'a form of power.' 38 As much as sexuality is 'the social process through which social relations of gender are created, organized, expressed, and directed,' 39 she contends, it is constitutive of the meaning of gender, which embodies rather than reverses power. 40 The fact that 'sexuality is gendered as gender is sexualized' constitutes feminism's theory of power. 41 Sexuality and gender define and interact so as to produce the dominance and submission dynamic that scrutiny (Reed v. Reed, 404 U.S. 71 (1971)), intermediate scrutiny (Craig v. Boren, 429 U.S. 190 (1976)), and strict scrutiny (Frontiero v. Richardson, 411 U.S. 677 (1973)). 33 MacKinnon, supra note 9, at 744. 34 CATHARINE A. MACKINNON, Substantive Equality Past and Future: The Canadian Charter Experience, in CANADA IN THE WORLD: COMPARATIVE PERSPECTIVES ON THE CANADIAN CONSTITUTION 227, 228 (Richard Albert and David R. Cameron eds., 2017). 35 Jd. at 227, 229. 36 MacKinnon, supra note 9, at 742. 37 There is therefore no need to draw a distinction between unfair and fair discrimination, as the Constitution of South Africa does. 38 MACKINNON, supra note 10, at 113, 128. 39 Jd. at 3. 40 Jd. at 113. 41

Id.

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characterizes the male/female distinction. 42 MacK.innon therefore identifies sexuality as 'the linchpin of gender inequality.' 43 Under this 'linchpin thcory,' as she termed it, 44 issues of sexuality stop being questions of morality and nature and become questions of power and politics. Women's experiences of sexual violation, which were not considered issues of sex equality before the 1970s because they happen predominantly to women, became issues of sex equality precisely because they happen predominantly to women. This linchpin theory evolved from MacK.innon's endeavor to craft a theory of feminism without a modifier - that is, what is called radical feminism was 'feminism unmodified.' MacKinnon argues that both liberal feminism and Marxism neglect the power and politics of male dominance and fail to see women on their own terms: the former, as 'liberalism applied to women,' 45 defines women in individual terms, whereas the latter sees women in class terms. In her search for a feminist theory of the state that is neither liberal nor Marxist but 'methodologically post-marxist,' 46 MacKinnon declared that women's experience produces a distinctive perspective which sees social reality in a way that unpacks the sexual objectification of women as the primary process of women's subjection.47 Her famous sex-class analogy of sexuality to work and women to workers - 'Sexuality is to feminism what work is to Marxism: that which is most one's own, yet most taken away' 48 - demonstrates how the two theories are both theories of power and social inequality that understand the society as a hierarchy and center on exploitation and alienation. 49 Just as the organized appropriation of work defines a class, so the organized appropriation of sexuality defines the sex.so Moreover, women exist as men's other and for men's desire, so that objectification and alienation are indistinguishable for women. 51 'Man fucks woman; subject verb object'52 is MacKinnon's blunt description of heterosexuality's gender hierarchy. Pornography, she argues, is the key mechanism of the eroticization o f male dominance, constructing male sexual domination and female sexual submission as gender difference: 'What is sexual about pornography is what is unequal about social life'- that is, gender. 53 42 43

Id. at 143. Id. at 113, 124.

CATHARINE A. MACKJNNON, SEX EQUALITY 169 (3d ed. 2016). 45 MACKlNNON, supra note 10, at 117. 46 Jd. MacKinnon also sometimes uses the tenn 'post-marxist feminism.' See, e.g., MACKINNON, supra note 7, at 60; MACKlNNON, supra note 10, at 160. 47 MACKlNNON, supra note 10, at 127. •s MacKinnon, An Agenda for Theory, supra note 3, at 515. This parallel argument is to highlight that 'you are made who you are by that which is taken away from you by the social relations the theory criticizes.' CATHARINE A. MACKINNON, Desire and Power, in FEMINISM UNMODIFIED, supra note 7, at 46, 48. 49 MACKlNNON, supra note 10, at 3-4. In MacKinnon's writing, the sex-class analogy and comparison are also used in her attempt to demonstrate how things should be understood if inequality is recognized as reality. so MACKlNNON, supra note 10, at 3. 51 Jd. at 124. 44

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MacK.innon's theory of sexuality as a theory of power does not separate sexuality from women's material condition. Sexual harassment at work is considered one form of unequal sex, where economic power and sexual powcr intcract so that a woman's employment position is used to coerce her sexually while also using her sexual position to coerce her economically.54 Prostitution, which links women's economic survival to their sexual exploitation, is another. Prohibiting sexual harassment at work but permitting prostitution as work is therefore a contradiction in itself from MacKinnon's point of view: 'If this is work, what can it mean to prohibit sexual harassment at work when the sexual harassment is the work?'55 This view of economic power as a form of coercion is part of MacK.innon's criticism of consent. For both left and right, the dominant view is that consent draws the line between uncoerced and coerced sex and distinguishes sex from violence. For MacKinnon, consent is a mechanism of sex inequality, not the answer to it. Defining consent in sexual relations as a concept that describes a disparate interaction between an active party and a passive party, MacKinnon argues, presupposes the acted-upon person's freedom, as if one can be free without being equal, and serves to disguise the actor's hegemony by making the conditions of sex inequality invisible. 56 In heterosexuality, women are assigned to different categories of consent in accordance with their relationship to men: virtuous daughters and young girls are unconsenting, virginal, and rapable; unvirtuous wives and prostitutes are consenting, whores, and unrapableY lt is a relationship of hierarchy, not equality. Identifying the core logic of consent as an 'assimilating accommodation to inequality to freedom for women in sex,' 58 MacK.innon develops her theory of sexuality based on a criticism of how '[c]oercion legitimated becomes consent,'59 in analysing the role of pornography. She blurs the distinction between speech and act and considers pornography to be harm-producing words that construct the way men see and treat women as permanently consenting to sex, and as desiring and enjoying sexual submission.6o She argues that the 'no means yes' in pornography has become what men think of women mean when they say no, and hence produces a 'positive-outcome-rape scenario: dominance plus subrnission is force plus consent.' 61 Under MacK.innon's critique of consent, the distinction between voluntary and forced prostitution is also unnecessary or even misleading because the fact that prostituted people are disproportionately members of socially disadvantaged groups suggests that they are chosen by prostitution, not vice versa. 62 She asks: '[l]f prostitution is a free 54 MACKJNNON, supra note 6, at 7. 55 CATHARINE A. MACKINNON, Pomography as Trafficking, in ARE WOMEN HUMAN?: ANO 0rHER lNTERNATIONAL DIALOGUES 247, 250 (2007). 56 Catharine A. MacKinnon, Rape Redefined, lO HARV. L. & POL'Y REV. 431, 440 (2016). 57 MACKJNNON, supra note 10, at 175. 58 MacKinnon, supra note 56, at 442. 59 MACKlNNON, supra note 10, at 238. 60 MACKlNNON, supra note 17. 61 MAcKJNNON, supra note 10, at 172. 62 Catharine A. MacKinnon, Trafficking, Prostitution and Jnequality, 46 HARV. C.R.-C.L. L. REV. 271, 277-78 (2011).

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choice, why are womcn with the fewest choices the ones most often found doing it?' 63 Consent does nol adequately distinguish sex from rape or sexual harassment. Disputing the dichotomy between sex and violence with an unequivocal rejection of the claim that sexual violencc is violence not sex, MacKinnon argues that violence is erotized and that sexual violence is a form of unequal sex, in which consent is inferred or assumed.64 This view finds its explicit expression in her attempts to write the laws of sexual violation as sex equality laws.

11. MAKING SEX EQUALITY LAWS As an engaged scholar, MacKinnon blended theory with practice, making laws out of scholarship while also turning legal practice into theory. Her legal political activism is metaphorically called 'butterfly politics,' that is, small but criticai interventions that can effect systematic transformation in the gender system and consequently change gender inequality through Iaw. 65 These interventions take the forms of, among others, litigation and Iegislation. Notably, MacKinnon's theory of substantive equality has traveled north since being formatted and, through the collaboration of MacKinnon and Canadian feminists, 66 the Supreme Court of Canada became the first court to adopt this theory in Andrews v. The Law Society of British Columbia, 67 its first recognition of equality claims under section 15 of the Charter of Rights and Freedoms in 1989. Moving away from formal equality's obsession with legal distinctions by noting that a similarity test could be used to justify Hitler's Nuremberg Iaw if applied literally (ali Jews were treated similarly), that such a test would have justified the racial segregation doctrine of separate but equal in the United States (ali blacks were treated similarly), and that it would lead to results akin to those in Bliss v. Attorney General of Canada 68 by treating unlikes unlike (ali pregnant persons were treated equally), the Andrews Court's interpretation of section 15 adopted a context-sensitive and purposive (resultoriented) approach, focusing on the protection of historically disadvantaged groups from discrimination as well as on the promotion of equality for those groups.

63 CATHARINE A. MACKINNON, Prostitution and Civil Rights, in WOMEN'S LIVES, MEN'S LAWS 151, 159 (2007). . 64 CATHARINE A. MACKINNON, Sex and Violence: A Perspective, in FEMINISM UNMODIFIED, supra note 7, at 85. 65 MACKINNON, BUTTERFLY POLITICS, supra note 8, at 1-8. 66 MacKinnon's theory of substantive equality is addressed in the factum submitted by the Women's Legal Education and Action Fund, an intervenor in the case of Andrews v. The Law Society of British Columbia. The factum is published in WOMEN'S LEGAL EDUCATION AND ACTION FUND, EQUALITY AND THE CHARTER: TEN YEARS OF FEMINIST ADVOCACY BEFORE THE SUPREME COURT OF CANADA 3 (1996). 67 [1989] I S.C.R. 143 (Can.). 68 [1979] 1 S.C.R. 183 (Can.) (dismissing the claim that pregnancy discrimination was a violation o f the equality guarantees o f the Canadian Bill of Rights and arguing that there was no discrimination based on sex because ali pregnant persons were treated equally).

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As Andrews bccame a landmark decision of substantive equality,69 MacKinnon's substantive equality theory has been developed into a model of constitutional equality review in Canada, which neither requires proof of discriminatory intent nor relies on a distinction betwecn facial and impact discrimination. Instead, it demands an inquiry into 'whcther the legally challenged inequality is part of the socially prior inequality,'70 which is discerned by a factual investigation and analysis of the concrete substance of the challenged inequality. This is also known as the anti-subordination approach to equality, as opposed to formal equality's anti-classification approach. MacKinnon's theory of sexuality has also produced legal responses that address sexual violations in Iife as sex discrimination in Iaw, of which sexual harassment, pornography, prostitution and rape are the cornerstones.

A. Sexual Harassment Conventionally treated as a personal and private matter of a moral or biological nature, the prevailing practice of sexually subordinating women in the workplace by treating them as sexual objects was traditionally considered either to have inflicted no harm or to have caused only minor individual injuries to be dealt with from a tort perspective.7 1 In Sexual Harassment of Working Women, 12 MacKinnon used the phrase 'sexual harassment' as a legal terrn to describe 'the unwanted imposition of sexual requirements in the context of a relationship of unequal power' 73 and proposed a cause of action for sex discrimination based on Title VII and the Fourteenth Amendment, thus making sexual harassment a group-based legal injury rather than a moral wrong. She distinguished two broad and overlapping forms of sexual harassment at work: 'quid pro quo,' in which 'sexual compliance is exchanged, or proposed to be exchanged, for an employment opportunity' and 'condition of work' (!ater termed 'hostile environment'), in which 'sexual harassment is a persistent condition of work.'74 The doctrine of unwelcomeness was to define unwanted sexual requirements in the condition of unequal power and to avoid the moralism embodied in traditional sexual assault Iaw's consent rule, substituting 'dominating men and subordinated women' for 'bad men and

69 Although the Supreme Court of Canada detoured from Andrews for a time, in particular in its tum to a dignity test in Law v. Canada [1999] I S.C.R. 479 (Can.), it retumed to Andrews in R. v. Kapp [2008] 2 S.C.R. 483 (Can.). 70 MacKinnon, supra note 32, at 10. 71 This is not to suggest that tort law is completely incapable of addressing sexual harassment in equality terms. Martha Chamallas, for instance, argued that a reinforcement of ~i vil rights in tort law bears the potential of capturing the equality dimension of harm to dignity m sexual harassment. Martha Chamallas, Discrimination and Outrage: The Migrationfrom Civil Rights Torts Law, 48 WM. & MARY L. REv. 2115 (2007). See also chapter by Chamallas, Feminist legal theory and tort law, in this volume. 72 The theory had become influential before the publication of the book in 1979. A draft of this book was circulated widely among lawyers as early as 1975. 73 MACKINNON, supra note 6, at I. 74 Jd. at 32.

54 Research handbook on feminist jurisprudence virtuous women' as the typical parties of sexual harassmcnt. 75 Besides, sexual harassment as the linkage of women's inferior status to sexual exploitation is not limited to the work setting, but takes place in educational settings and other social relationships of inequality as well. MacKinnon's pioneering theory of sexual harassment law as equality law has been called a 'feminist invention,'76 an invention that became instrumental domestically and internationally.77 In the US, the District o f Columbia Circuit Court was the first federal court to recognize sexual harassment as sex discrimination in Barnes v. Costle. 18 The Supreme Court recognized both hostile environment and quid pro quo sexual harassment as sex discrimination in violation o f Title VII in Me rito r Savings Bank v. Meche l/e Vinson, a case in which the plaintiff was a black woman and MacKinnon served as co-counseJ.7 9 Sexual harassment law was expanded to cover the same-sex setting in Oncale v. Sundowner Offshore Services, lnc., 80 a case for which MacKinnon authored an amicus brief in support of the petitioner on behalf of the National Organization on Male Violence, which convinced the Court that same-sex harassment is actionable under Title VII as long as it occurs 'because of sex.' 81 The Equal Employment Opportunity Commission (EEOC) adopted this theory in its guidelines on sexual harassment,s2 and the 1991 amendment to Title VII provided for damages. Title IX of the Education Amendment of 1972 also covered sexual harassment on campuses.

B. Pornography Conventional obscenity law's approach to pornography as an issue of speech and morality does not concern equality. Liberais challenge the regulation of obscenity in order to protect the freedom of speech. That freedom was eventually understood to include not only the right to consume obscenity but also the right to consume

75 CATHARINE A. MACKINNON, Beyond Moralism: Directions in Sexual Harassment Law, in WOMEN'S LIVES, MEN'S LAWS, supra note 63, at 184, 190. 76 CATHARINE A. MACKINNON, Sexual Harassment: The First Five Years, in WOMEN'S LiVES, MEN'S LAWS, supra note 63, at 111. 77 For the development of sexual harassment law in different national settings, see DIRECTIONS IN SEXUAL HARASSMENT LAW (Catharine A. MacKinnon and Reva B. Siege1 eds., 2008). Not ali countries define sexual harassment as a violation of equality. Israel and many European countries, for instance, adopt the dignity approach and consider sexual harassment a violation of dignity. See the chapter by Orit Kamir, A dignitarian feminist jurisprudence with applications to rape, sexual harassmellt and honor codes, in this volume. 78 Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977). 79 The brief, co-authored by Patricia J. Barry and MacKinnon, is published in Sexual Harassment: Supreme Court Brief for Mechelle Vinson, in MACKINNON, BUTTERFLY POLITICS, supra note 8, at 63. 80 523 u.s. 75 (1998). 81 Catharine A. MacKinnon, Oncale v. Sundowner Offshore Services, Inc., 96-568, Amici Curiae Brief in Support of Petitioner, 8 UCLA WOMEN'S L. J. 9 (1997). 82 29 C.F.R. § 1604.11 (1999).

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pornography. Claiming that '[o]bscenity is about what men think of sex' and '[p]ornography is about what men do for sex,' 83 MacKinnon instead saw pornography as an issue of both equality and freedom and argued that pornography harms women not by being morally offensive but by silencing women, encouraging sexual violence against them and producing women's sexual inferiority, and hence is a form of sex discrimination and not protected speech. 84 Building on the dual grounds of the First and Fourteenth Amendments, MacKinnon developed a civil rights approach to pomography that, rather than seeking to revise criminal obscenity law, defined pornography in equality terms and provided civil causes of action that provide a legal remedy for pornography's enforcement of women's sexual inferiority through its production, distribution and consumption. A model ordinance against pornography, 85 developed by the collaboration of Andrea Dworkin and MacKinnon and through a series of public hearings,86 was proposed and accepted by the city councils in Minneapolis and Indianapolis. The model ordinance defined pomography as 'graphic sexually explicit subordination of women through pictures and/or words that also includes one or more' depictions described in a number of categories that typify pornography. This definition also included the use of men, children, or transsexuals in the place of women. It was meant to describe pomography that does harm and to minimize problems of the chilling effect on the freedom of speech. 87 Only those harmed by pomography, it was proposed, could sue for damages - alleged victims of trafficking in pomography, victims coerced into performing pomography, victims of assault caused by specific pornography and those injured by being forced to view pomography. Sexual harassment law marked the very first legal success of MacKinnon's theory, yet anti-pomography legislation became her first major defeat. The Minneapolis ordinance was vetoed by the mayor, and the Indianapolis ordinance was invalidated by the Seventh Circuit Court of Appeals in American Booksellers Ass'n Inc. v. Hudnur,ss a decision that MacKinnon variously described as the Plessy (an optimistic evaluation) or the Dred Scott (a more accurate evaluation)89 of the pomography issue. However, her harm-based equality approach to pornography, like her theory of substantive equality, has been better received in Canada. The Canadian Supreme Court partly adopted her theory to review the constitutionality of criminal obscenity law in Butler v. Regina,90 83 CATHARINE A. MACKINNON, Pornography's Empire, in ARE WOMEN HUMAN?, supra note 55, at 112, 114. 84 MACK!NNON, supra note 17. 85 For the contem of the model ordinance, see CATHARINE A. MACKINNON, Notes, in WOMEN'S LIVES, MEN'S LAWS, supra note 63, at 493-97, n.22. 86 For documentations of the hearings and various versions of the ordinance, see IN HARM' s WAY: THE PORNOGRAPHY CIVIL RIGHTS HEARINGS (Catharine A. MacKinnon and Andrea Dworkin eds., 1998). 87 CATHARINE A. MACKINNON, Francis Biddle's Sister: Pornography, Civil Rights, and Speech, in FEMINISM UNMODIFIED, supra note 7, at 163, 176-77. 88 475 u.s. 1001 (1986). 89 CATHARINE A. MACK.iNNON, Civil Rights Against Pornography, in WOMEN'S LIVES, MEN's LAWS, supra note 63, at 299, 307. 90 [1992] 1 S.C.R. 452 (Can.).

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and Butler's harm analysis was applied to gay and lesbian pornography in Little Sisters Book and Art Emporium v. Canada. 91

C. Prostitution The legal regulation of prostilution is one of the mosl controversial issues among feminists . Prostitution has bcen considered immoral bul unavoidable, stigmatized and unprotected or fundamcntally unequal and abolishable. Two main approaches to prostitution have been dcvcloped, advocated, and adopted: the sex work model, which understands prostitution as the oldest profession and favors the legal approach of decriminalization with various forms of legalization, and Lhe sex exploitation or abolishment approach, which sees prostitution as the oldest oppression and seeks ways to abolish it. The choice of Lhe term 'sex workers' or the term 'prostituted people' serves to reveal one's aftiliaLion with one or the other approach. The sex work model, adopted in countries like Germany and the Netherlands and advocated by Amnesty InternaLional 92 as well as by sex workers' organizations, seeks to protect sex workers' rights by distinguishing 'voluntary' prostitution (work) from 'forced' prostitution and trafficking (crime). MacKinnon finds this an invalid distinction because the sex trade is driven not by women's supply but by men's demand to buy sex. What the sex work model views as work and liberation is what she sees as slavery and oppression. She equates prostitution to enslavement because they are both enforced, socially organized, unequal relationships between people, and such inequality prevents them from being considered legal jobs. In the US setting, MacKinnon has proposed a civil rights approach to prostitution, with the Thirteenth and Fourteenth Amendments as grounds for legal claims against prostitution.9 3 lnternationally, Dworkin and MacKinnon developed a substantive equality approach to abolish prostitution, an asymmetrical model that criminalizes buyers and sellers while decriminalizing prostituted people and providing them the assistance they say they want. By punishing the prostituting parties but not the prostituted, it shifts the blame from the victim to the victimizer and focuses on reducing demand and thus also diminishing the supply. This approach to prostitution Iaw was instrumental in the formation of the Swedish prostitution Iaw passed in 1999. 94 It became known as the Swedish or Nordic model, !ater adopted by Norway, Iceland, Canada and France, and recommended by the European Parliament's non-binding resolution.95 91 [2000] 2 S.C.R. 1120 (Can.). 92 Amnesty Int'l, Amnesty International Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers, AI Index POL 30/406212016 (May 26, 2016). 93 MACKINNON, supra note 63. 94 For a discussion of Swedish prostitution law and MacKinnon's contribution to it, see Max Waltman, Prohibiting Sex Purchasing and Ending Traflicking: The Swedish Prostitution Law, 33 MICH. J. INT'L L. 133 (2011); Max Waltman, Appraising the lmpact of Toward a Feminist Theory of the State: Consciousness-Raising, Hierarchy Theory, and Substantive Equality Laws, 35 LAW & INEQ. 353, 354-55, 384-90 (2017). 95 European Par1iament Resolution of 26 February 20 14 on Sexual Exploitation and Prostitution and Its Impact on Gender Equality (2013/2103(1NI)).

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This asymmetrical model is a manifestation of how substantive equality and formal equaliLy differ. A convenLional prostitution law model is also asymmetrical, criminalizing prostiLuLed pcoplc but not the buyers. Under Lhe formal equality approach, this conventional asymmctry could be found to be constitutional and not sex discriminatory due to the lack of formal sex classification, as Lhe South African Constitutional CourL did, 96 or iL could be found to be unconstitutional for LreaLing the buying and selling of sex diffcrently and hence being a case of disparate impact or indirect gender discrimination, as Taiwan's Constitutional Court did.9 7 In neither case did the CourL identify the pre-existing hierarchy and wrongdoing of the buyers, proving MacKinnon's points that formal equality is incapable of grasping the substance of hierarchy and that the disparate impact theory is no substitute for substantive equality. 98 The criminalization model punishes both parlies of the sex trade, and it can be found constitutional and not a violation of equality, as the South Korean Constitutional Court did. 99 However, MacKinnon considered it sex discriminatory to impose criminal punishment on women for thcir victimization and to combine it with disparate enforcement, arguing that this would reinforce women's civil inferiority by piling legal victimization on top of social victimization. 100 The Nordic model targets the hierarchy by punishing those on the top, noL those at the bottom, and therefore eliminates the criminal status of prostituted people.

D. Rape Different legal strategies have been proposed and adopted to address the problems that inequality raises for sexual assault law. 101 The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention), the European Court of Human Rights102 and the Convention on the Elimination of Ali Forms of Discrimination against Women (CEDAW) Committee103 ali chose to highlight non-consent as the core of rape. Canada's rape law reform adopts the 'affirmative consent' standard, called 'yes means yes,' meaning that it is not rape only if a woman freely consents, to right the wrong of presuming women's consent. This standard has been advocated in some contexts in the US as well, being 96 State v. Jordan 2002 (6) SA 642 (CC). The law was amended in 2007 and criminalized the buying and selling of sex. The South African Law Reform Commission issued a report in 2017 recommending that the current criminalization model be retained while highlighting the exploitation of prostitution. SA Law Reform Commission Report Project 107 Sexual Offenses: Adult Prostitution (2017) (S. Afr.). 97 J.Y. Interpretation No. 666 (Const. Ct. Nov. 6, 2009). 98 MacK.innon, supra note 32, at 14-15. 99 Constitutional Court [Const. Ct.], 2013Hun-Ka2 (consol.), Mar. 31, 2016. 100 MACKINNON, supra note 63_, at 155. 101 For discussions of feminist rape law reform from an intemationa1 and comparative perspective, see RETHINKJNG RAPE LAW: INTERNATIONAL AND COMPARATJVE PERSPECTIVES (Ciare McGiynn and Vanessa E. Munro eds., 2010). For MacKinnon's own review of rape law reform, including the American Law Institute's ongoing process, see MacKinnon, supra note 56, at 462-65. 102 M.C. v. Bulgaria, App. No. 39272/98 Eur. Ct. H.R. (2003). 103 Vertido v. Philippines, U.N. Doc. CEDAW/C/46/D/18/2008 (Jul. 16, 2010).

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adopted by some universities and by state laws. lt is a standard that MacKinnon deems incapable of producing real change due to its limitations under conditions of inequality. 104 MacKinnon's rape law reform proposal does not take the consent-based route. From her point of view, an equal sexual interaction does not need consent, and an unequal sexual incursion cannot be made equal by consent. 105 Rape law's consent rui e is what she finds crucial to the questions of why 'rape is a sex crime that is not regarded as a crime when it looks like sex' 106 and why rape is only regulated rather than prohibited. 107 She argues that this rule is an cxpression of the male perspectivc, which presumes women's consent by using thc existence of physical force and resistance against it to determine whether there is a lack of consent and by taking coerced submission - for instance, immigrants consenting to sex due to the fear of deportation - as valid. She further argues that the doctrine of mistaken belief in consent, which allows the perpetrator's conditioned unconsciousness to contraindicate the victim's violation, demonstrates how the law conceives the injury from the viewpoint of a reasonable rapist, making his subjectivity the objectivity of what happened. 108 The legal response, MacKinnon argues, should be to redefine rape as an act of sex inequality and unwelcome sex. Defining sexual assault as gender-based crime is a position embraced by the Violence Against Women Act 109 and severa! intemational and regional human rights documents, including CEDAW and the Istanbul Convention. MacKinnon uses the Intemational Criminal Court for Rwanda's pioneering definition of rape as 'a physical invasion of a sexual nature, committed on a person under circumstances which are coercive' 110 as the legal starting point, and redefines rape as 'a physical invasion of a sexual nature under circumstances of threat or use of force, fraud, coercion, abduction, or of the abuse of power, trust, or a position of dependency or vulnerability.' 11 I Instead of setting the age of consent, her proposal takes in to consideration age-based inequality. Inequalities - including but not limited to sex, gender, race, class, caste, mental and physical disability, and immigration status - will be recognized as coercive when deployed as forms of force or coercion in a sexual setting. 112 MacKinnon's redefinítion o f sexual assault sees women 's sexual violation as a human rights violation in both peace and war time, and it has proven influential in intemational human rights law. The Intemational Criminal Tribunal for the Former MacKinnon, supra note 56, at 454-55. Id. at 476. 106 MACK.iNNON, supra note 10, at 172. 101 Id. at 179. 1os Id. at 182-83. 109 United States v. Morrison, 529 U.S. 598 (2000), invalidated the civil remedy for gender-based violence but did not question the concept of rape as gender based. For MacKinnon's critique of Morrison, see CATHARINE A. MACKINNON, Disputing Male Sovereignty: On United States v. Morrison, in WOMEN'S LIVES, MEN'S LAWS, supra note 63, at 206. 110 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, '1598 (Int'l Crim. Trib. for Rwanda Sept. 2, 1998). 111 MacKinnon, supra note 56, at 474. 104

105

112

Jd.

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Yugoslavia recognized rape as torture, and the International Criminal Court for Rwanda recognized systematic rape with the intent of destroying a group as an act of genocide, both being crimes against humanity. Rape as genocide was also recognized and provided with civil remedies in Kadic v. Karadzié, a case in which MacKinnon represented the Bosnian women survivors of Serbian genocidal sexual atrocities.ll3

III. CRITICISM AND RESPONSES MacKinnon's work resonated with many feminists but has also been contested, proving her words that 'you can't be inspirational in speaking about women and not be controversial.' 114 Charged with essentialism, victim feminism and being anti-sex, her theory has invited criticism from various strands of scholarship ranging from liberal, anti-essentialist, autonomy-based, and sex-positive to postmodem. Providing insights as well as sparking controversies, MacKinnon has become and remains one of the most cited legal scholars in the English language. A. Essentialism and Intersectionality Gender or feminist essentialism is a term with various meanings, of which false universalism, 'naturalist' errors and gender imperialism are some. 115 The charge of essentialism has been leveled against MacKinnon for neglecting or underestimating the role of race, 1 16 equating lesbian experiences with those of heterosexual women, 117 assuming a single true women's point of view, 118 and totalizing the oppression of men over women. 119 What the anti-essentialist critics see in her work is a theory of and for 'the woman object': the white, middle-class, heterosexual woman victimized by heterosexual men and suffering from 'false consciousness.' MacKinnon has responded to her anti-essentialist critics by arguing against essentialism while insisting that gender oppression is real.'2° As early as 1982, she specifically repudiated the claim that to consider women as a group is to suggest that ali women are 113 For her discussion of this case, see CATHARINE A. MACKINNON, Collective Harms Under the Alien Tort Statute: A Cautionary Note on Class Actions, in ARE WOMEN HUMAN?, supra

note 55, at 202. 114 CATHARINE A. MACK.iNNON, On Exceptionality: Women as Women in Law, in FEMINISM UNMODIFIED, supra note 7, at 70. 115 Katharine T. Bartlett, Gender Law, 1 DUKE J. GENDER L. & POL'Y I, 15-17 (1994). 116 Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990). 117 Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 BERKELEY WOMEN's L. J. 191 (1989-1990). 118 Kathryn Abrams, ldeology and Women 's Choices, 24 GA. L. REv. 761 (1989). 11 9 JANET HALLEY, SPLIT DECIS!ONS: How ANO WHY TO TAKE A BREAK FROM FEM!NISM 42-58 (2006). 120 See, e.g., Catharine A. MacKinnon, Points against Postmodernism, 75 CHI.-KENT. L. REV. 687 (2000); CATHARINE A. MACKINNON, From Practice to Theory or What ls a White Woman Anyway, in WOMEN'S LIVES, MEN'S LAWS, supra note 63, at 22; CATHARINE A. MACKINNON, Keeping it Real: On Anti-Essentialism, in WOMEN'S LIVES, MEN'S LAWS, supra note 63, at 84.

60 Research handbook on feminist jurisprudence the same, claiming that women's commonality is the measurement of women by the male standard, nota denial of women's particularities.l21 Her rejection of the charges of essentialism explicitly noted that gender is neither the single cause of everything nor the only thing there. 122 Echoing Kimberlé Crenshaw's path-breaking work on intersectionality, she proposed to treat intersectionality as an operative, transformative, and inhcrently substantive method that aims at the convergence of multiple systems of discrimination and that targets both the outcomes and the forces of the problem.123 To highlight her attention to the intersection of race, class and sex, MacKinnon even suggcsted that a theory that works for women of color will work for ali women.124 She has also used race-sex comparison to show how the legal record in the United States had approached thc substance in racial discrimination cases by identifying the substance of hierarchy, such as black inferiority in Brown v. Board of Education125 and white supremacy in Loving v. Virginia, 126 but missed it in sex discrimination cases.127 MacKinnon's attempt to address heterosexuality's harm in the same-sex setting can be understood as a refusal to categorically see homosexuality as immune from the influence of male dominance; similarly, her theory can be seen as a feminist endeavor to identify women as a socially disadvantaged group and a legally protected class that intersects with other social groups, although tensions can and do arise at some intersections. Substantive equality theory is unlikely to offer perfect solutions but does serve to overcome the Iimitations of formal equality in combating the status quo of inequality. Sessions v. Morales-Santana, 128 an intersectional case of race, gender, class and nationality, provides a window into how substantive equality embraces intersectionality and why it has the potential to produce anti-hierarchical outcomes. The MoralesSantana Court ruled that the Immigration and Nationality Act's gender-based distinction (making it more difficult for fathers than for mothers to transmit US citizenship to their non-marital children bom abroad) violated the Equal Protection Clause of the Fifth Amendment and applied the 'exceedingly persuasive justification' criterion for gender-based classification from United States v. Virginia129 to repudiate the Iaw's gendered and stereotypical assumption that unwed fathers cared Iittle about their children whereas 'the mother was regarded as the child's natural and sole guardian.' 13° Facing the thomy question of formal equality's abstract and indeterminate 'treat Iikes alike' solution, the Court chose to treat mothers Iike fathers in this case by arguing that this would have been the Iegislature's intent; as a result, the more restrictive qualification for American men's ability to confer citizenship on their children became the qualification for fathers and mothers alike, Ieaving the non-citizen 121 MACKINNON, supra note 114, at 76. 122 MacKinnon, Points against Postmodernism, supra note 120, at 695. 123 Catharine A. MacKinnon, lmersectionality as Method: A Note, 38 SJGNS 1019 (2013). 124 ld. at 1025-26; MACKINNON, From Practice to Theory, supra note 120, at 22, 26. 125 347 u.s. 483 (1954). 126 388 u.s. 1 (1967). 127 MacKinnon, supra note 32, at 2-5; CATHARINE A. MACKINNON, Reflections on Sex Equality under Law, in WOMEN'S LIVES, MEN'S LAWS, supra note 63, at 116, 121-23, 127. 12s 137 S. Ct. 1678 (2017). 129 518 u.s. 515, 531 (1996). 130 Morales-Santana, 137 S. Ct. at 1691.

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status of Morales-Santana's child intact and the child himsclf facing deportation. A substantive quality approach, if applied, would not only have looked into the substance of the gender stereotypes involved,IJI but would also have used intersectionality as a method to identify the interlocking hierarchy under which Morales-Santana Iived, rather than turning a blind eye to the exaggerated nativism, xenophobia and racism under the Trump administration's immigration policy. It would also have aimed to producc reality-changing and equality-promoting outcomes rather than maintaining and even exacerbating the subordinate status of immigrants.

B. Victim Feminism and Agency One of the critiques against MacKinnon is that her work reduces women to victims and denies their agency. Her theory is labeled a form of victim feminism, 132 charged with seeing women as helpless, acted-on victims awaiting radical enlightenment, 133 as well as with defining gender by 'what is done to women' and failing to value women as differentiated actors.l34 Her metaphor of male dominance as men's feet on women's necksm became an unflattering image of women's victimization in critics' eyes. Others see this criticism as problematic. Allan Johnson argues that the 'victim feminism' criticism creates an illusion either that patriarchy does not exist or that its existence is insignificant. 136 MacKinnon's work reveals her struggle to identify gender oppression under the 'metaphysically nearly perfect' system of power 137 while recognizing the possibility of women acting against it. Rejecting both the objectivist approach of 'false consciousness' and the subjectivist approach of embracing any version of biological female experience, she fihds consciousness raising to be the feminist method that neither claims universality nor reduces to relativity, 138 and sees feminism as affirming women's point of view while 'revealing, criticizing, and explaining its impossibility.'139 This method would be a contradiction in itself if women were deemed to be only the acted-upon and not actors. Both MacKinnon's sexual harassment Iaw and her anti-pornography Iegislation were designed to provide civil remedies to be claimed by victims/survivors as actors. Her analysis of Martinez v. Santa Clara Pueblo, in which she affirmed an indigenous woman's capacity to give 131 MacKinnon argues that it is the substance of the stereotypes, rather than gender stereotyping per se, that is not equal. MacKinnon, supra note 9, at 741. 132 Ratna Kapur, The Tragedy ofVictimization Rhetoric: Resurrecting the 'Native' Subject in International/Post-Colonial Feminist Legal Politics, 15 HARV. HUM. RTS. J. I (2002). 133 Harris, supra note 116, at 612. 134 Martha R. Mahoney, Whiteness and Women, in Practice and Theory: A Reply to Catharine A. MacKinnon, 5 YALE J. L. & FEMINISM 217 (1993). l35 Ellen C. Dubois, Mary C. Dunlap, Caro! J. Gilligan and Catharine A. MacKinnon, Feminis! Discourse, Moral Values, and the Law -A Conversation, 34 BUFF. L. REv. 11, 28, 74-75 (1985); MACKINNON, supra note 7, at 45. 136 ALLAN JOHNSON, THE GENDER KNOT: UNRAVELING ÜUR PATRIARCHAL LEGACY 103 (3d ed. 2014). 137 MACKINNON, supra note 10, at 116. 138 Id. at 115-18. 139 ld. at 115.

62 Research handbook on feminist jurisprudence meaning to equality in a way that no white men invcnted, 140 as well as her proposal for personal laws in India, in which the drafting of a uniform code to be used optionally at women's discretion is proposed, based on the belief that 'because of sex inequality, women would make the choice of law,' 141 also demonstrate her efforts to affirm women as actors in different cultures.

C. Sex as Danger or/and Pleasure MacKinnon's linchpin theory of sexuality is widely criticized for depicting a negative and narrow view of female sexuality, treating ali sex choices as coerced and polluted by male dominance, denying sexual pleasure and producing sex panics. Sex-positive feminists, in particular, question her view of sexuality as hierarchy and demand recognition of consensual practices of hierarchical sex as a form of sexual freedom. Critics contend that sexual harassment law constitutes a form of 'sexuality harassment' 142 and condemn MacK.innon for regarding 'ali sex as rape,' 143 as well as for dismissing women's agency to engage in commercial sex. 144 The Dworkin-MacKinnon anti-pornography model ordinance led to strong opposition from feminists who argued that sexuality is a source both of pleasure and power as well as of danger and oppression and that the ordinance constituted sex-discriminatory censorship, as described by Hunter in her chapter in this volume. 145 This divided picture of female sexuality finds its latest expression in the controversy over the #MeToo movement, in which proponents celebrate the victory of victims' voices in the court of public opinion while opponents denounce it as a violation of 'the right to seduce.' lt is reductionist and misleading to categorize MacK.innon's critique of sexuality as a theory that is opposed to sex. As Dorothy Roberts explains, MacK.innon's intent is to demonstrate that the legal dividing line between rape and sex does not correspond to women's experience of violence, not to suggest that women are incapable of telling the difference. 146 Her challenge to the distinction between sex and violence from the male perspective is accompanied by a claim to redefine women's sexual violation from women's point of view. She also specifies that her rape law reform proposal begins with the conditions of inequality but does not treat ali sex acts under the condition of 14° CATHARINE A. MACKINNON, Whose Culture ?: A Case Note on Maninez v. Santa Clara Pueblo, in FEMINISM UNMODIFIED, supra note 7, at 63. 141 CATHARINE A. MACKINNON, Sex Equality under the Constitution of lndia, in ARE WOMEN HUMAN?, supra note 55, at 120, 136. 142 JANET HALLEY, Sexuality Harassment, in DIRECTIONS IN SEXUAL HARASSMENT LAW, supra note 77, at 182. 143 Susan Estrich, Teaching Rape Law, 102 YALE L. J. 509, 512 n. 10 (1992). 144 Sylvia A. Law, Commercial Sex: Beyond Decriminalization, 73 S. CAL. L. REV. 523 (1999-2000). 145 Nan D. Hunter and Sylvia A. Law, Brief Amici Curiae of the Feminist Anti-Censorship Taskforce, et ai., in American Booksellers Association v. Hudnut, 21 MICH. J. L. REFORM 69 (1987-1988). 146 Dorothy Roberts, Rape, Violence and Autonomy, 69 CHI.-KENT L. REV. 359, 370 (1993-1994).

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inequality as unequal on the basis of gender147 and that the goal is 'voluntary compliance, otherwise known as legal socialization or education,' 148 not an increase in incarceration. 'We're saying we are oppressed and they say we're repressed.' 149 This comment explicitly articulares MacKinnon's view of how she differs from her critics: the question is whether sexuality is primarily an experience of oppression or repression, and hence whether we should aspire toward sexual equality or sexual liberty. Whereas MacKinnon asks 'If "no" can be taken as "yes," how free can yes be?' to dispute the meaning of consent under male dominance, 150 Katharine Franke proposes to theorize how and why women say yes to recognize women's sexual desires and pleasure,1s1 Kathryn Abrams chooses to highlight both women's partia! agency and the systematic sexualized inequality, 152 and Robin West calls for a redirection of our skepticism from women's sexual desires to women's sexual choices.l53 As the sexuality controversies continue, the core issues for feminism remain whether the sexual freedom of some is achieved at the price of others, whether heterosexual male sexual privileges are updated or diminished, whether abstract rights continue to 'authoritize the male experience of the world,' 154 and how sexual violations can be addressed to approach sex as freedom under equality.

IV. CONCLUSION For MacKinnon, equality requires a new jurisprudence and a new relation between life and law. 155 Feminist jurisprudence, in this sense, is a rejection of men's laws dominating women's lives and an endeavor to change women's lives, along with other Iives at the bottom, through Iaw. Equality cannot be achieved by Iaw alone, and inequality cannot be changed without law. Law is 'the art o f the impossible.' ts6 To rewrite law from a feminist perspective is to claim the law's power to change and also to resist its power to dominate. MacK.innon's method of consciousness raising shows women's situation in a way that affirms women's ability to change their situation not despite the law but by engaging with the law. Her theory's embrace of intersectionality as a method seeks to unpack the interlocking forces of oppression, of which male power is one. 147 MacKinnon, supra note 56, at 471. 148 ld. at 477. 149 MACKINNON, supra note 64, at 85 (emphasis in original). ISO MACKINNON, supra note 10, at 185. 1S 1 Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law and Desire, 101 COLUM. L. REV. 181 (2001). 1 2 Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 S COLUM. L. REV. 304 (1995). IS3 Robin West, Law's Nobility, 17 YALE J. L. & FEMINISM 385 (2005). 154 MACKINNON, supra note 10, at 248. ISS fd. at 249. 156 CATHARINE A. MACKINNON, lntroduction: The An of the lmpossible, in FEMINISM UNMODIFIED, supra note 7, at 1.

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Starting with the reality of inequality but not bound by it, MacKinnon's equality theory aims to face, name, and change that inequality from the perspective of the oppresscd against that of the dominant. lt has produced legal strategies against sexual harassmcnt, pornography, prostitution, and rape in a way that has led to both changes and challcnges. The sexuality controvcrsies involve not only ongoing debate about the mcaning of gender and equality in law and life but constant conflict over women's ontology and which epistemology can confront that ontology. Sex-positive feminists imagine an equal world where consensual sex is protected as sexual freedom and where sex can be freely practiced and traded irrcspective of gender. MacKinnon envisions a future where women become 'the na me o f a way o f being human' 157 - neither the same as men nor different from men but equal human beings. In this future, sexual subordination will not define women's collective condition, and gender will not be a form of inequality.

157 This is MacKinnon's quotation of Richard Rorty's reading of her work: that 'to be a woman "is not yet the name of a way of being human".' CATHARINE A. MACKINNON, Toward a New Theory of Equality, in WOMEN'S LIVES, MEN'S LAWS, supra note 63, at 44, 52.

3.

Relational feminism and law* Robin West

What should a liberal legal order require of women who are its subjects, and what should women require of a liberal legal arder? One answer to both questions that has dominated both mainstream and fcminist Westem legal analysis over the last halfccntury is 'legal equality': women should be treated equally by law. Indeed, women's equality under law has become a working ideal for liberal legal orders around the globe. Women's legal equality is required, sought after and honored in international law, 1 enshrined in national and state constitutions,2 pronounced in Supreme Court opinions from a number of countries including the United States3 and reflected in a widc array of civil rights laws and traditions, again both in the United States and in other liberal advanced democracies. 4 Common to ali of these legal aspirations for women's equality is the complex moral judgment that sex is a difference that should not make a legal difference; women should be subject to the same legal demands as are men and should be entitled to the same treatment by law as men. 5 Behind this demand, in turn, is an empírica! claim about women's and men's nature: that women are like men in the ways that should matter to a liberal state and that claims to the contrary rest on stereotypical falsehoods. Women, like men, yeam for liberty, respect and dignity;

* An earlier version of this chapter appears as Relational Feminism included in the collection Feminist Jurisprudence in the United States and Asia: A Transpacific Dialogue (Cynthia Grant Bowman and Yu Xingzhong eds., 2017), pub1ished in Chinese. 1 See, e.g., The Convention on the Elimination of Ali Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13; 19 I.L.M. 33 (1980). 2 See, e.g., S. AFR. CONST. 1996; CAL. CONST. art. 1, § 31 (discrimination based on race, sex, color, ethnicity, or national origin; gender-based qualifications in public emp1oyment, education, or contracting); lLL. CONST. art. 1, § 18 ('No Discrimination on the Basis of Sex'); Mo. CONST. Declaration of Rights art. 46 ('Equality of rights under the law shall not be abridged or denied because of sex' ). 3 See, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973); Craig v. Boren, 429 U.S. 190 (1976); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982); United States v. Virginia, 518 U.S. 515 (1996). 4 See, e.g., Tit1e VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (unlawful for an employer to discrirninate in employment on the basis of sex); Title IX of the Education Amendments of 1972 ('No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrirnination under any education program or activity receiving Federal financiai assistance .. .'). s For powerfu1 articulations of this view, see Wendy W. Williams, Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. L. & Soe. CHANGE 325 (1985) and PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE lMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA (2007), as well as the Supreme Court opinions in United States v. Virgínia, 518 U.S. 515 (1996); Frontiero v. Richardson, 411 U.S. 677 (1973); Reed v. Reed, 404 u.s. 71 (1971). 65

66 Research handbook on feminis r jurisprudence women, like men, thrive when they are treated as autonomous beings; women, like men, are individuais first and members of particular races, genders or nations only secondly; women, like men, benefit from gainful and meaningful and chosen work; and women, like men, flourish when they are equal participants in a democratic political process. If these empírica! claims are true - that women have these attributes and aspirations - then women should be treated by the law the same as men are treated because it is precisely these attributes - a yearning for liberty, an autonomous spirit, an engagement with the material world through chosen work, a fierce individualism and an aspiration for participation in a civic republic and a pluralist democracy - that ground the liberal justifications for state authority over men as weli as the liberal justifications for the limits of that authority. If these claims are true, then the ways in which women are or may be different from men, whatever the cause or causes of those differences, are irrelevant to the goal of legal justice. Differences are rooted in either stereotype or biology, and, either way, their recognition in law essentializes women and men, stultifies fluid gender performances and identity, and perpetuates inequality. Such differences do, of course, exist. Many women and no men experience pregnancy. Many women and no men give birth, menstruate and lactate. Many women and fewer men perform the bulk of childcare and elder care around the world for either no or very low wages. Culturally, many women and fewer men employ subtly different forms of moral reasoning that are generally more relational and less individualistic than that employed by most men. And, perhaps most importantly, many women and no men have experienced the harms and su~ering attendant to unwanted pregnancies, and many more women than men have expenenced sexual assaults and unwanted heterosexual intercourse. These differences, according to the view now often called 'liberal legal feminism,' should not be celebrated or worried over; more to the point, they should not be recognized in law in any way. To do so, according to liberal and liberal feminist legal reformers and theorists, is a step backwards - back to an eighteenth- and nineteenth-century conception of separate spheres and cults of domesticity. Rather, law should recognize and act on the ways in which women and men share essential attributes: an identity that is deeply individualist rather than collectivist, a quest for autonomy, a drive for achievement and accomplishment in a competitive world and engagement in civic affairs on an equal footing with co-citizens. Law, in other words, should assume sameness across the divide of gender, rather than focus on, magnify or acknowledge difference. In the United States, this understanding of the requirement of formal, or legal, equality - that women should be entitled to the same treatment by law as men, on the assumption, or premise, that for purposes of law women and men are more similar than not- has been a central goal, although not the only goal, of what is now called 'liberal feminism' in liberal legal states for the last 150 years. That liberal feminist quest for formal equality, with its focus on these fundamental, humanistic and shared qualities of men and women, has brought gains for women in liberal legal orders that would have been unimaginable in earlier times: the ability to contract and own property, the right to vote, the right to work in jobs, trades and careers once closed to women, the capacity to choose with whom to be intimate or to marry, the full criminalization of rape, including marital rape and other forms of sexual assault, some measure of reproductive rights and dramatic gains in educational achievement. Liberal legal feminism, in short,

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has been a twentieth- and twenty-first-century success. The gains achieved evidence not only the persistence and passion and genius of the activists who brought this revolution to fruition. lts very success also evidences the wisdom of its theoretical commitments: women and men share a liberal and individualistic humanity that the law must honor. There are, however, limits to the reach of formal equality as an overarching principie or tool for enhancing women's lives and for making our shared world safe and hospitable for ali of us. I wili address three of them, which I wili characterize loosely as problems or dilemmas with liberal feminism, ali of which originate in some way with its assumption that women and men are the same in ali ways that should matter to law- a premise that can be calied as a shorthand the 'sameness' assumption. I wili then quickly address a few solutions to these problems that are express or implied by current feminist reform movements, each of which, I believe, is problematic. The solution I will ultimately endorse to each of them is the foundational claim of what is sometimes known, in brief, as a 'relational legal ferninism.' The first problem, or dilemma, with both liberal feminism and with the assumption of formal equality on which it is based - that law should treat women and men the same, on the premise that for legal purposes women and men are basically the same is political and strategic: liberal feminism does not always deliver much substantive equality or sometimes delivers substantive equality to only a small number of women.6 To treat women the same as men in ali legal spheres will most benefit women who are already the most like men - women who do indeed thirst for liberty, hunger for meaningful work, wish to vote and own property, are fiercely individualistic and so on and are not attaining these classicaliy liberal ends only because of discriminatory legal impediments, themselves rooted in false stereotypes. Women who are well situated, for example, to achieve success in competitive labor markets - women who are educated, relatively independent and capable - but could not succeed in a world in which some careers and jobs are denied them by virtue o f sex, will fi li those markets, compete and thrive once those legal impediments are lifted. But formal equality may not help women who are not already relatively autonomous because their adult lives are tethered by too many dependents and too much caregiving labor - women who are pregnant, or giving birth, or nursing infants, or raising toddlers or children, or caring for aged parents or an aging spouse - women, in other words, upon whom others are largely dependent for their daily care. These women will not be made equal by being treated the same as men who do not have the burdens of caregiving responsibilities. These women - and of course there are rnillions of them - are not going to be the beneficiaries of a feminism that is focused on legal or formal equality as the route to substantive improvements in women's lives. Second, a feminism that aims for formal equality will not address, and perhaps will not see, what I call the 'invisible harms' women sustain, by which I mean harms that, 6 See Catharine MacKinnon's essays on sameness and difference in TOWARD A FEMINIST THEORY OF THE STATE (1989) and FEMINISM UNMODIFIED (1987). See also Christine A. Littleton, Reconstructing Sexual Equality, 75 CAL. L. REV. 1279 {1987); EVA F. KITIAY, LOVE'S LABOR: ESSAYS ON WOMEN, EQUALITY, ANO DEPENDENCY (1999); Eva F. Kittay, Taking Dependency Seriously: The Family and Medica[ Leave Act Considered in Light of the Social Organization of Dependency Work and Gender Equality, 10 HYPATIA 10, 10-18 (1995).

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by virtue of past and present practice, have not registered as worthy of regulation or eradication or deterrence or compensation by traditional patriarchal regimes and are not made visible by virtue of the shift away from traditionalism to formal equality or liberal Iegalism.7 The harm done to married women in traditional legal systems by fully legal forced sex within marriage is one example. Rape within marriage in most of the world until very recently was oxymoronic: it did not exist by definition. Rape was, for example, defined by most US states, well into the last quarter of the twentieth century, as the nonconsensual forced intercourse with a woman not one's wife. 8 So a married woman by definition could not be raped by her husband. But she could obviously be the victim of his forced penetration of her body against her will, and that unwanted, nonconsensual forced penetration of her body by his body could obviously harm her in very deep ways. Now with a shift to a liberal legal regime informed by formal equality, these so-called marital rape exemptions did undergo a change, but it was initially a change to gender neutrality. So, in the first wave of rape reform, informed by the ideais of formal equality, rape was re-defined not as forced intercourse with a woman not one's wife, but rather as forced intercourse with a person not one's spouse. 9 But note: this did not make rape within marriage a crime. Rather, it made the invisible harm of marital rape gender neutra!, meaning that post-reform the husband was treated the same as the wife, meaning that, if a man was married, then he too did not get the benefit of protection of the law against sexual assault. But it did not address the actual harm of marital assaultive sex. To uproot and address that problem - marital sexual violence required much more than a regime of gender neutrality. lt required addressing, and countering, the effects of centuries of religious, moral and legal thought that presumed that married women by definition were people whose earthly purpose - the point of their existence - was their availability to their husbands for sexual release and reproduction. Other invisible harms which Iikely should not be addressed by criminal Iaw but which nevertheless should be addressed are also further shrouded rather than illuminated by a regime of formal equality. As research is only now beginning to make clear, women worldwide, both married and unmarried, endure an extraordinary amount of both unwanted consensual sex and unwanted but consensual pregnancy and maternity, which, at least much of the time, is injurious. 10 Women consent to unwanted, undesired See ROBIN WEST, The Concept of Harm, in CARING FOR JUSTICE 94 (1997). See generally Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REv. 1373 (2000); Robin West, Equality Theory, Marital Rape, and the Promise of the Founeenth Amendment, 42 FLA. L. REV. 45 (1990). 9 For full discussion, see West, supra note 8, at 63-67. w Alyson K. Spurgas, Embodied Invisible Labor and Sexual Carework: Women's Roles in Sexualized Social Reproduction within Intimate Relationships (unpublished manuscript) (on file with author); Emily A. Impett and Letitia A. Peplau, Why Some Women Consent to Unwanted Sex with a Dating Panner: Jnsights from Attachment Theory, 26 PSYCH. OF WOMEN Q. 360 (2002); Shantee Foster, Consensual Unwanted Sex: Motivations and Reservations (May 1, 2011) (unpublished Ph.D. dissertation, University of North Carolina at Greensboro); Sarah J. Walker, When 'No' Becomes 'Yes': Why Girls and Women Consent to Unwanted Sex, 6 APPLIED & PREVENTIVE PSYCH. 157 (1997); Susan Sprecher et ai., Token Resistance to Sexuallntercourse and Consent to Unwanted Sexual llltercourse: College Students' Dating Experience in Three 7

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and unpleasurable sex out of a sense of duty, of religious imperativc, custom or community cxpectation if they are traditionally married, because of a need for material support if they are economically dependent upon the relationship for their own or their children's survival, because of a fear of future violcnce if they are in an abusive relationship or, particularly if they are teenaged, because of the pressures of peers or the insidiously disciplining machinations of an aggressively sex-aftirmativc popular culture or a belief that they must do so to retain the affections of a boy or a belief that the sex is 'inevitable' anyway if the boy is aroused, so that they may as well consent and keep everything peaceful. That consensual but unwanted sex - which some Marxian feminists are calling 'work' 11 and some liberal feminists are referencing as 'maintenance sex' 12 - even though it is not rape, can nevertheless be plenty harmful; it can harm a woman's sense of physical integrity, her autonomy, her moral integrity and her sense of self-sovereignty. In liberal regimes that presuppose as central to personhood just those qualities - physical and moral integrity, autonomy and self-sovereignty - a self that regularly consents to its debasement will be almost by definition dysfunctional. That is a quite real and debilitating harm, one which carries implications for women's equality. 13 A legal insistence on formal equality and formal consent as the sine qua non of women's equality and the guarantor of a good world for both women and men further marginalizes our recognition of this phenomenon and its profundity. Third, an insistence on formal equality truncates aspirational feminism and therefore truncates aspirational political thought more generally. Ethical and political feminism globally and broadly understood has never been only about achieving equality or seeking redress for women's injuries or making visible the harms women sustain. It has also been about refashioning the world which ali sentient creatures - men, women, children, animais - inhabit, in a way that is more conducive to flourishing; it has been about constructing lives that are healthy and meaningful, and finer and more Ioving and pleasurable than what can be achieved in patriarchal regimes. To do so, feminism has criticized the way that the aspirations for our world reflected not only in patriarchy but also in non-feminist legal and political liberalism have sometimes marginalized those Countries, 31 J. SEX RES. 125 (1994); Lucia F. O'Sullivan and Elizabeth R. Allgeier, Feigning Sexual Desire: Consenting to Unwanted Sexual Activity in Heterosexual Dating Relationships, 35 J. SEX REs. 234 (1998); Charlene L. Muehlenhard and Stephen W. Cook, Men's Self-Repons of Unwanted Sexual Activity, 24 J. SEX RES. 58 (1988); Miriam Lewin, Unwanted Intercourse: The Difficulty of Saying No, 9 PSYCHOL. OF WOMEN Q. 184 (1995); Pamela I. Erickson and Andrea J. Rapkin, Unwanted Sexual Experiences Among Middle and High School Youth, 12 J. ADOLESCENT HEALTH 319 (1991); Amy Buddie et ai., Consenting to Unwanted Sex: E.ffects of Gender and Relationship Type, Paper Presented at the Annual Meeting of the Southeastem Psychological Association (2011); Robin West, Sex, Law and Consent, in THE ETHICS OF CONSENT: THEORY AND PRACTICE (Franklin G. Wertheimer and William Miller eds., 2009). 11 Alyson K. Spurgas, Embodied Invisible Labor and Sexual Carework: Women's Roles in Sexualized Social Reproduction within Intimate Relationships (unpublished manuscript) (on file with author). 12 Tracy Moore, How to Have Maintenance Sex, JEZEBEL (Jan. 5, 2015), http://jezebel.com/ how-to-have-maintenance-sex-1677160234. See also Susan Frelich Appleton, Toward a Culturally Cliterate Family Law, 23 BERKELEY J. GENDER L. & JUST. 267 (2008). 13 West, supra note 10.

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moral aspirations and the experiences which have been more central to many women's lives than to many men's and which have accordingly not contributed to our collective understanding of what it might mean to lead a flourishing, safe, healthy, life.I4 Legal liberalism, for example, ncither centralizes nor countenances the complex and often conflicting moral aspirations central to many women's cxpcriences, for example, of pregnancy, childbirth, brcastfeeding, caring for the aged, raising young children and building communities of family and kin. Some of those experiences of caregiving are marginalized because thcy are tied to women's biological differcnces from men and some are marginalized because they are tied to cultural differcnces and some to political differences, but they ali share this resemblance: they havc enriched as well as narrowed women's experience of the world; they are a source of meaning as weli as a source of oppression; they havc been an affirmation of self as well as a denial; and they are not well reflected in liberal understandings of the content of a good life and, even more, in liberal understandings of the concept of harm. When we seek to minimize the negative and harrnful impact of caregiving on the realm of women's choices and on the quality of our lives - when we seek a world that liberally welcomes women into the non-domestic domains of employment, education and civic participation - we need to take care not to negate or trivialize or marginalize the experiences, the vision, the moral perspective and the political sensibility that accompany an immersion in a world of caregiving, of relationality and o f kinship. There is much that is wrong, that is inhuman and cruel, about our idealized liberal vision of unencumbered souls marching through chosen lives of productivity and earned incomes unencumbered by human connection. Feminism can be and has been a way to highlight what is wrong with such a vision and to seek a more humane and inclusive ideal for communal life. We will not be able to even articulate it, however, much less achieve it, if our own aspirational sights are limited to assimilating into what may be a tragically over-individualized and atomistic social world. What to do? How can we secure the gains of formal equality in a way that does not make substantive equality illusive, does not further marginalize or shroud invisible harrns and does not shortchange aspirations for political vision? Let me just suggest three directions that I believe are dead ends and then focus on one that might not be. The first dead end is what US feminists for severa! decades now have calied special or different or asymmetrical treatment. 15 Treat women differently because and where they are different. Carve out a space - what will invariably be a domestic space - within which women's differences from men are assumed and hopefully respected and address women's needs within that space but !cave ali else the same. The push for Iegally or constitutionally required paid maternity !cave can be understood as a reform based on this understanding, as might be a maternity exemption from combat in a liberal regime with a mandatory draft or a gender-specific criminal law of sexual assault. There are severe problems with this approach: it focuses attention on a subset of women rather

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11

than ali women, and it threatens a return to a world of domesticity cults and separate spheres, where women are regarded as caregivers and mcn as producers, women as mothers, men as workcrs and so on. There may well be short-term gains- in the US a decent maternity !cave policy would be a big one - but the long-term costs are gigantic, even unfathomable. The second dead end, I believe, is almost the opposite, and that is an assimilationist or integrationist vision. The idea here is that if women simply assimilate or integrate in to mate domains, then women 's distinctive contributions both material and moral as well as the harms women differentially suffer might become more salient. 16 They will be naturally absorbed, so to speak, by liberal legal ideology and eventually recognized in law itself. The problem is that this may not be realistic. The subordination of women and the marginalization of their harms and contributions has been a multi-millennia project, and it is not clear that it will be turned around through integrating some exceptional women into a skewed world built on an unjust foundation. Integration and assimilationist strategies quite consciously leave the foundation intact. The third dead end I think of as a reliance on the liberal empire of choice; others refer to it as gender fluidity. This approach advocates that to whatever degree possible, and that degree is changing and widening, we make gender itself, like sex and pregnancy, a matter of choice. Thus, if we make the world safe for transgendered or non-gendered or multi-gendered people, the roles associated with traditional fixed genders will either disappear or become benign. This too has great appeal, and it will bring real gains in liberty and authenticity for countless numbers of trans people. But nevertheless, it also has limits that have not been widely acknowledged. Chosen gender roles and chosen genders may prove as oppressive for some as the non-chosen variety, while the mask of choice may do little but legitimate the stultification that characterizes those roles for the vast majority of the world's peoples. At the heart of the movement sometimes calied relational feminism is the claim that we might best address ali the problems, or limits, within liberal feminism summarized above by reconceptualizing the human being and doing so in a way that centralizes precisely the experiences, emotions, ambitions, fears and dreams shared by many women that are marginalized by liberal conceptions of the human. Perhaps human beings are not, contrary to any number of political theorists writing within the liberal tradition, essentially separated from or disconnected from other human and animal life and uniquely knowledgeable of that separationP Perhaps human beings are not embodied in a physical self that acts as a 'container' of each individual being. If we centralize women's experiences to the definitional and tentative accounts we give of humanity, a different and truer picture might emerge. Perhaps human beings are essentially connected to rather than separated from human life. Women clearly are connected to human life when pregnant; ali of humanity is connected to human life when in utero; and women and men both are ali culturally connected to others through ties of kinship and friendship and membership

14

For early examples, see CAROL GILLIGAN, IN A DIFFERENT VOICE (1982); NEL NOODINGS, CARJNG: A FEMININE APPROACH TO ETHICS ANO MORAL EOUCATION (1984); EVA F. KITTAY, LOVE'S LABOR: ESSAYS ON WOMEN, EQUALITY, ANO DEPENOENCY (1999); AN ETHIC OF CARE (Mary J. Larrabee ed., 1993). 15 See Williams, supra note 5; Littleton, supra note 6, at 1294-301.

16 Wendy Williams' embrace of formal equality is premised on this basically predictive claim. See Williams, supra note 5. 17 I explored this possibility in Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1 (1988).

72 Research lwndbook on feminist jurisprudence in political and civil communities. Those conneclions can be harmful or joyous, but they are seemingly central, not marginal, to human existence for women and men both. If so, then wc should build a liberal order on a foundation that rightly values choice and individualism, but that also centers and recognizes human connection: ali human beings are connccted to others socially, culturally and biologically; ali human beings thrive on but are also threatened by those connections; ali of us become most fully human when we are generously giving ourselves and our care to our dependents in our communities, but we are also most debased when we are drained or exploited or violated by thosc who depend upon us. These descriptions are true of men as of women: again, we were ali once in utero and born with an umbilical cord attaching us to another life; many of us of both genders sucked from a breast that connected us biolo!!ically and emotionaliy to another human being; we ali, women and men alike, have bodies that are porous; most of us engage in sexual acts that are connective in some profound way; and many of us of both or ali genders are engaged in some form of reproduction that connects us to other human beings in central ways, as well as production that individuates us and differentiates us from others. The significance of these connective experiences to our understanding of the human, though, is obscured by a liberal jurisprudence that prioritizes production over reproduction and isolation over connection, and marginalizes experiences of caregiving labor, as weli as of the invasion and intrusion, as well as the meaning and value, that caregiving labor entails. It is no wonder then that a liberal legal order that does so also marginalizes both the harms and the moral aspirations to which those experiences give rise, that it does not see the invasive harms of rape in marriage or in unwanted sexuality or pregnancy, that it does not recognize the moral imperatives that stem from the vulnerability of human life, that it does not comprehend or countenance the multiple ways in which our human flourishing depends upon not only our needs for the caring support of others but also our engagement in that work. The harms as well as value attendant to such labor may be clarified by a jurisprudence that centralizes them. Nearly ali human beings at some point in their lives care for dependents and literaliy ali of us need that care, particularly at the beginning and end of Iife. The legal structures of work outside the home should be premised on that fact. Ali human beings have the capacity to empathize with others with whom we feel a connection, and in ali of us that capability should be strengthened as we mature and are educated, so as to broaden our sympathies to extend beyond a narrow circle of family, kinship, tribe or nation. Our jurisprudence, and particularly our theories of justice, should recognize and indeed rest on these empathic capacities. Ali of us are vulnerable to invasive and violent sexuality, whether in our homes or in prisons or on the streets. Ali human beings sometimes feel invaded or intruded upon in exploitative ways, whether through unwanted pregnancies or through unwanted and excessive parenting. Our Jaws of tort, criminal Jaw and civil rights should recognize these harms and respond appropriately. And so on. If we centralized women's experiences of both the harrns and the aspirations that are rooted in some way in this fundamental fact of human connectivity to the understanding of humanity that undergirds our liberal legal orders, we might thereby construct a more humane as weli as more inclusive liberal legal order.

4.

The limits of equality: vulnerability and inevitable inequality Martha Albertson Fineman

What follows is an account of the development of a theory based on human vulnerability in which the state is theorized as the legitimate governing entity and is tasked with a responsibility to establish and monitor social institutions and relationships that facilitate the acquisition of individual and social resilience. The theory is based on a descriptive account of the human condition as one of universal and continuous vulnerability. The Anglo-American liberal legal imagination often obscures or overlooks this real ity. 1 The potential normative implications o f the theory are found in the assertion that state policy and law should be responsive to human vulnerability. However, the call for a responsive state does not dictate the form responses should take, only that they reflect the reality of human vulnerability. Thus, this approach to law and policy allows for the adaptation of solutions appropriate to differing legal structures and political cultures. Vulnerability theory provides a template with which to refocus criticai attention, raising new questions and challenging established assumptions about individual and state responsibility and the role of law, as well as allowing us to address social relationships of inevitable inequality. In this regard, vulnerability theory goes beyond the normative claim for equality, be it formal or substantive in nature, to suggest that we interrogate what may be just and appropriate mechanisms to structure the terms and practices of inequality. In considering human vulnerability, it is significant that, as embodied beings, individual humans find themselves dependent upon, and embedded within, social relationships and institutions throughout the life course. While the institutions and relationships upon which any individual relies will vary over time and in response to changes in embodiment and social contexts, the fact that we require some set of social relationships and institutional structures remains constant. A vulnerability approach argues that the state must be responsive to the realities of human vulnerability and its corollary, social dependency, as well as to situations reflecting inherent or necessary inequality, when it initially establishes or sets up mechanisms to monitor these relationships and institutions. 1 I believe that vulnerability theory has the potential to go beyond the Anglo-American frontier. The influence of neoliberalism as a mercantilist process of social relations, as well as a forrn of rationality capable of extending to ali fields of existence, also has relevance within the European and Latin American contexts. See WOLFGANG STREECK, BUYING TIME: THE DELAYED CRISIS OF DEMOCRATIC CAPITALISM (2014); WENDY BROWN, UNDOING THE DEMOS: NEOLIBERALISM'S STEALTH REVOLUTION (2015).

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I. THE LIMITS OF EQUALITY Undcrstanding human vulnerability suggests that equality, as used to measure the treatment of individuais or groups, is a limiting aspiration when it comes to social justice. Equality typically is measured by comparing the circumstances of those individuais considered equals. 2 This approach inevitably generates suspicion of unequal or diiTerential treatment absent past discrimination or present stereotyping, particularly i f practiced by the state. 3 Even in its substantive form, assessments of equality focus on specific individuais and operate to consider and compare social positions or injuries at a particular point in time. 4 An equality model or nondiscrimination mandate is certainly the appropriate response in many instances: one person, one vote and equal pay for equal work are arcas where equality seems clearly suitable. However, equality is less helpful and may cven be an unjust measure when applied in situations of inescapable or inevitable inequality where differing leveis of authority and power are appropriate, such as in defining the legal relationship between parent and child or employer and employee. Such relationships historically have been relegated to the 'private' sphere of life whether family or market - away from state regulation. When explicitly addressed, situations of inevitable inequality are typically handled in Iaw and policy either by imposing a fabricated equivalence between the individuais or by declaring that an equality mandate does not apply because the individuais to be compared are positioned 2

This includes those who are not socially or economically equal but regarded as such under the law. ' Moreover, equality implies a comparison that Jeads to the problematic question: equal to whom? In the case of women, are male norms and standards the appropriate measure? Such an assimilationist approach to equality presumes that the socially and culturally imposed roles, obligations and burdens are similar or equal in nature as regards women and men. If this is not the case, equal treatment will often result in further consolidating existing unequal power relationships, effectively reinforcing the very gender system that feminists oppose. In addition, the idea of choice may suggest to some that existing inequalities show not a failure of equality per se but are simply the result of different life choices freely made by autonomous men and women. If women choose to devote more time to family and relationships, rather than investing their energies in the labor market, the resulting gender disparities are merely the neutra) result of differing choices made by equally autonomous and free adults. 4 Substantive equality is the subject of much debate. The conflicting opinions of Justices LeBel and Abella in Quebec (Attorney General) v A [2013] I S.C.R. 61, interpreting section 15[1] of the Canadian Charter of Rights and Freedoms is an example of the nature of disagreement. Both justices agreed that the specified section guaranteed substantive rather than mere formal equality and was designed to protect human dignity. Justice LeBel insisted that a Jaw was not discriminatory unless it involved a distinction based on an enumerated or analogous ground of discrimination or prejudice or the perpetuation of prejudice or stereotyping, even when it otherwise imposed a disadvantage on the plaintiff (note 7 at '1185). Justice Abella in the majority opinion rejected the view that prejudice or stereotyping were necessary elements, opting for a 'flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant' (note 7 at '1325). This disagreement reflects the tension between certainty and flexibility that creates ambiguity and incongruity in substantive equality jurisprudence. See COLLEEN SHEPPARD, INCLUSIVE EQUALITY: THE RELATIONAL DIMENSION OF SYSTEMIC DISCRIMINATION IN CANADA (2010).

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diiTcrently. An example of the imposition of fictitious equality in response to inevitable inequality is evident in situations involving parties who occupy obviously unequal hargaining positions, like the contract that is fabricated in the cmployment context.5 Thc distinction in the legal treatment of children as compared with adults also cxcmplifies a differently positioned resolution for unequal legal treatment. In both instances, state responsibility for ensuring equitable treatmenl for differently positioned individuais is minimized within thc overriding framework of equality.

A. Gender Equality in Context: Family The scries of legal events that initially shaped my critique of equality included the no-fault divorce 'revolution' and subsequent reforms of family Iaw and the civil rights movement. These social movements created political pressure that Ied to the creation of nondiscrimination legislation that (at least forrnally) mandated gender neutrality in the workplace and other arcas of public life. 6 In both of these contexts, gender equality was presumed and legally imposed.7 My early scholarship focused on the family in late twentieth-century America, which was at that time the site of substantial reform efforts. 8 Arguments for marital property and joint custody reflected the idea that marriage should be seen as a partnership between equals, not as a hierarchical, gender-dependent union. 9 The problem with the 5 These are typically contracts of adhesion or involving corporate entities and individuais whcre there is a predictable inequality of knowledge, bargaining power and access to legal resources. 6 I use the term 'nondiscrimination' here rather than 'antidiscrimination.' The prefix 'non' is used for negation of something (denial or disapproval), while 'anti' means in opposition to something (taking an active stance against). See THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 88, 1306 (Stuart Berg Flexner and Leonore Crary Hauck eds., 2d ed. 1987). Although typically Jabeled as 'antidiscrimination,' US equality law is not opposed to ali discrimination. Rather, US law only actively opposes some forms of discrimination, that explicitly targeting discrete individuais or groups, and therefore may be more appropriately described with passive nomenclature. 7 For example, the Equal Pay Act of 1963 that required employers to give women and men equal pay for equal work; Title VII of the Civil Rights Act of 1964, prohibiting employers from discriminating individuais on the basis of race, color, religion sex, or national origin; and the Pregnancy Discrimination Act of 1978, amending Title VII to make clear that discrimination based on 'pregnancy, childbirth or related medicai conditions' is discrimination based on sex. 8 MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (199 I); Manha L. Fineman, The Politics of Custody and the Transformation of American Custody Decision Making, 22 U.C. DAVIS L. REv. 829 (1989); Manha L. Fineman, Dominant Discourse, Professional Language, and Legal Change in Child Custody Decisionmaking, 101 HARV. L. REV. 727 (1988); Martha L. Fineman, lntroduction to the Papers: The Origins and Purpose of the Feminism and Legal Theory Conference, 3 WIS. WOMEN'S L.J. I (1987); Martha L. Fineman, A Reply to David Chambers, WIS. L. REV. 165 (1987); Martha L. Fineman, Jllusive Equality: On Weitzman 's Divorce Revolution, AM. B. FOUND. RES. J. 781 (1986); Martha L. Fineman, lmplementing Equality: Jdeology, Contradiction and Social Change, WIS. L. REV. 789 (1983). 9 FINEMAN, THE ILLUSION OF EQUALITY, supra note 8, at 29. The partnership image gives rise to the idea of contribution, which is an equalizing concept but also an acknowledgement and

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imposition of an equality paradigm in family law was that, as our most gendercd institution, the functional family was riddled with inequalities. Women were certainly not equal when it carne to work, and their roles as wives and mothers further disadvantaged them in the market. 10 This not only created an economic disadvantagc but also had negative implications within the family when decisions about residence or assumption of domestic rcsponsibilities were at issue. Lower wages and fewcr opportunities lessened the bargaining power of mothers when it carne to family decisions, such as who should assume the burdens associated with caring for childrcn. Economic realities directed that the primary wage earner be freed to further devclop his career or market skills in thc interest of the family as a unit. It was not surprising Lhal women were overwhelmingly primary caretakers, and this was Lrue whether they wcrc employed or not. 11 An additional family-centered inequality was associated with divorce. Just as during marriage, women typically assumed primary responsibility for children after divorcc. 12 As a result, existing inequality in the market and within the family was compounded at divorce. Caretaking during marriage had led to reduced income potential and fewer job prospects for women, and divorce drastically cut the income available to the singleparent family. Children's necd for care (both nurturing and material) does not diminish with divorce. On the contrary, it may increase or become more complicated to providc. At divorce, the primary wage earner takes most of his salary with him and likely abandons any assistance with care he may have provided within the continuing, but now altered, family unit. 13 Divorce also does not cure a workplace culture hostile to those with caretaking responsibilities. acceptance of differences. Marital property sees property (narrowly defined) not in terms o f who eams the money or owns the property, but as joint, presumably equally shared in spite of different material contributions to the acquisition of property made by husband and wife, wage eamer and homemaker. 10 In my early work, I advocated for the recognition of difference and the meaning of a 'gendered life,' in which differences are socially constructed rather than inherent to the person. Martha L. Fineman, Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship, 42 FLA. L. REV. 25, 44 (1990); Martha Albertson Fineman, Feminist Theory in Law: The Difference lt Makes, 2 COLUM. J. GENDER & L. 1, 2 (1992). 11 This pattem generated a huge amount of scholarship during that time, including my own contributions; for example, the project published as Law Firms and Lawyers with Children: An Empirical Analysis of Family/Work Conflict, 34 STAN. L. REV. 1263 (1982). See a/so Mary Jo Bane et ai., Child Care Arrangements of Working Parents, 102 MONTHLY LAB. REV. 50, 52-53 (1979). One study estimates that a mother staying out of the labor force until her child reached 14 would forego, on average, $100,000 in eamings. Elizabeth Waldman et ai., Working Mothers in the 1970's: A Look at the Statistics, 102 MONTHLY LAB. REV. 39, 42 (1979). 12 This was true regardless of the form of custody award because even in 'joint custody' cases mothers typically do the bulk of the day-to-day daycare. FINEMAN, THE ILLUSION OF EQUALITY, supra note 8, at 37. 13 There were also further inequalities imposed by the mandate of shared parenting, such as the requirement that custodial parents get permission to take the child out of state, even if the purpose of the move was to take a better job or move with a new spouse. These aspects of inequality resulting from equality-based divorce reforms are beyond the scope of this chapter but were the subject of much of my writing from the 1980s through 2004. FINEMAN, THE ILLUSION OF EQUALITY, supra note 8; Martha L. Fineman, Custody Determination at Divorce: The Limits

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It seemcd ironic that the remedy to existing gendcr incquality within both the family and workplace was dccmed to be the imposition of a legal regime of equality that ignored the diffcrcnccs in social and economic positions between womcn and mcn. 14 Reformers sought Lo 'frec' cx-wives from the 'stigma' of alimony, which was secn as a patriarehal indicalor of womcn's dependencc on men. Conservatives concerncd with welfare dependency and single motherhood insisted upon work or marriage as solutions to the poverty of single mothers. Under a gender equality regime, women were to bc responsible for thcir own economic futures, as well as equally responsible for their children's support. Men were expected to fulfill their cconomic responsibility to children through child support, but they also gained strategic legal advantages in the form of presumptions of joint custody and shared parenting models. In contras! to prevailing reform efforts premised on formal equality in spite of lcss than equal outcomes, my early work suggested a 'substantive equality,' or resultoriented system. Considering what the now single-mother, post-divorce family would need, I argued that that unit should be awarded more marital property (particularly the house) and some form of family support that recognized the limits caretaking placed on work and wages. 15 I wanted unequal treatment in view of unequal needs created by an inequality in circumstances pre and post divorce and suggested that this form of inequality would recognize the sacrifices and major contributions women made as mothers, as well as showing that society valued such work. 16 It was not long before equal rights feminists and fathers' rights groups joined to condemn my suggestion, rejecting result-oriented divorce policy as violating the fundamental principies of gender equality.t7

of Social Science Research and the Fallacy of the Liberal Jdeology of Equality, 3 CAN. 1. WOMEN & L. 88, 110 (1989); Fineman, Dominant Discourse, Professional Language, and Legal Change, supra note 8; Fineman, lllusive Equality: On Weitzman's Divorce Revolution, supra note 8. 14 This revealed the 'paradox of equality,' as explained in Martha Albertson Fineman, Evolving Jmages of Gender and Equality: A Feminist Journey, 43 NEW ENG. L. REV. 437 (2008-2009). 15 FINEMAN, THE ILLUSION OF EQUALITY, supra note 8, at 175-80. l6 Martha Albertson Fineman, Our Sacred lnstitution: The Ideal of the Family in American Law and Society, 2 UTAH L. REV. 387 (1993) (arguing-that the no-fault reconstruction of the family narrative is the characterization of marriage as a partnership between equals and a deviation from the nuclear family in that it is not a hierarchical model); Fineman, Dominant Discourse, Professional Language, and Legal Change, supra note 8; MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL CONTRACT AND OTHER TWENTIETH CENTURY TRAGEDIES (1995). 17 FINEMAN, THE lLLUSION OF EQUALITY, supra note 8, at 43. There were many strange implications of the gender equality approach. For one thing, children were not part of the economic equation outside of child support. Consistent with the marriage as an equal partnership (ora partnership between equals), the marital property was to be divided between the partners to the marriage. When I suggested that the children be considered junior partners, I was ignored.

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B. Equality in Context: Market and State Onc prohlcm with family law reform was that it was seemingly impossible for many peoplc to scparate the issue of gender cquality from the question of the needs of the post-divorcc family raising children. Divorce rcform was argued as if it werc part of a gender war, waged to define the status of men versus women; rules had to be equal or men and womcn would not bc, and the symbolic implications of law ovcrtook practical considcrations. Responding to this gender equality dilemma, I argued that we should look bcyond the individuais within the family- and their genders- to the role that the family as an institution was serving in socicty. Part of thc criticism bcing made by legal feminists at that time was directcd at the supposed linc drawn bctween 'public' and 'private.' 18 The family was the quintessential private institution, and the state represented the public; while the market, chameleon-like, drifted bctween private and public depending on which designation gave it the most freedom and flexibility. 19 Erasing this line in the context of family law reform, I argued there was a social or collective responsibility for caretakers and their childrcn. 20 In the wake of divorce reform and the increased number of unmarried mothers, it was clear that the traditional marital (private) family was failing and could not reliably meet the economic and nurturing needs of its membcrs. The solution was clearly to share the burden across society's institutions, an approach that seemed both just and justified. While the family was acknowledged as playing an important role in the reproduction of society, other social institutions - even when they directly benefited from the work carried out by the family - were not seen as directly responsible for ensuring its success. I bclieved there needed to be a more equitable distribution of institutional responsibility for cnsuring the provision of essential care principally delegated to the family in contemporary policy and Jaw. In making this argument for shared institutional responsibility, I introduced the related concepts of 'inevitable' and 'derivative' dependency. 21 Beginning with the 18 Frances E. Olsen, The Family and the Market: A Study of Jdeology and Legal Refonn, 96 HARV. L. REV. 1497 (1983); Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829 (1990); Frances Olsen, Constitutional Law: Feminist Critiques of the PublidPrivate Distinction, lO CONST. COMMENT. 319 (1993); Martha Albertson Fineman, Cracking the Foundational Myths: lndependence, Autonomy, and Self-Sufficiency, 8 AM. U. J. GENDER Soe. POL'Y & L. 13 (2000). 19 The characterization of the market in this public/private scheme is interesting. It is cast as public vis-à-vis the family, but private vis-à-vis the state, seeming to gain the advantage of each category. In this regard, it is interesting to note that when the comparison is of market versus family, the 'private' sphere of the family is subject to heavy public regulation, mostly because it retains aspects of 'status' and is not govemed by contract. In contrast, the 'public' arena of the marketplace is governed by bodies of designated 'private' 1aw, such as contract. These contrary characterizations have ideological nuances. 20 I argued against the construction of a discourse in which the socially and economically based deprivations that poor children and their mothers suffer are thereby transforrned into deprivations attributable to and based upon their deviant family forrn. See Martha L. Fineman, lmages of Mothers in Poverty Discourses, 2 DUKE L.J. 274 (1991). 21 Dependency typically was used as a highly stigmatized terrn at that time, particularly in the context of 'welfare reforrn.' Dependency and the idea of cycles of intergenerational

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observation that human dependency was inevitable, I suggested that the dominant political language extolling self-sufliciency and independence was both unrealistic and inappropriate.22 Dependency was a complex phenomenon. 'Inevitable dependency' described the needs for care associatcd with certain biological and dcvelopmental stages of life. Infants were inevitably dependent, as were many people as thcy aged or bccame i li or disabled. Yet this form of dependency had bcen privatized by assigning it to thc family. It had also bcen gendered within the family, falling on the shoulders of those who were assigned the social roles of wife and mother. 23 The advent of the gender equality movement had revealed contradictions and incompatibilities between the structure of the family and the workplace. The demands of the employrnent market conflicted with the needs of the family, preventing gender equality from bcing implemented. It seemed clear that in order to achieve such change, other institutions would have to undergo complementary evolutions, incorporating new family expectations into their operations. 24 To effect such change, I suggested that inevitable dependency should be the concern of society generally, with responsibility shared across social institutions. 25 This responsibility could bc fulfilled through accomrnodation and support for those who assumed the role of caretaker as the derivatively dependent. We ali owe a debt to those who care for inevitable dependents, and this debt must bc paid through collective means; such a duty could not bc discharged simply by bcing nice to your own mother. Making an analogy to military service, I argued that individual soldiers were assigned the responsibility of defending society, but they were also given the resources necessary to do that job, as well as bcing compensated economically. 26 Caretakers are also dependent on resources to accomplish their socially important and essential work. Those resources could not (and were not in ali too many cases) supplied by the family. I argued that social responsibility must bc more equitably spread across the societal institutions that bcnefited from care work, with the workplace, in particular, expanding to accommodate caretakers. dependency were used to justify draconian cuts to an already meager safety net for poor women and their children in the US. However, single mothers who attained that status through divorce could look to their ex-husbands for resources, remaining dependent on them rather than the state. Nonetheless, the gendered social roles and expectations within the family affected the way women were seen and received in society independent of their own family situation or motherhood status. Martha L.A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 VA. L. REV. 2181 (1995). 22 Martha Albertson Fineman, lntimacy Outside of the Natural Family: The Limits of Privacy, 23 CONN. L. REV. 4, 955 (1991); see also Fineman, Jmages of Mothers in Poverty Discourses, supra note 20, FINEMAN, THE NEUTERED MarHER, supra note 16; Fineman, Our Sacred ln.stitution, supra note 16. 23 I realized that the nuclear family functions on an ideological levei in our society as the repository of dependency. Fineman, Our Sacred lnstitution, supra note 16, at 387. Interesting1y, this argument had both a structural (family in society) and equality or discrimination (women versus men) dimension, although I did not perceive this at that time. 24 Fineman, Our Sacred lnstitution, supra note 16. 2.'i Fineman, Cracking the Foundational Myths, supra note 18. 26 See id. at 19.

80 Research handbook on feminis/ jurisprudence State responsibility should result in regulations designcd to cnsure such accommodation, as well as the provision of services like childcarc ccntcrs or subsidies, in order to ease the structural and cconomic burdens that incvitablc dcpendency places on the caretaker and family. These arguments were motivated by an undcrstanding of the family as a social institution that is not isolated, but rathcr connected to and co-dependent upon other institutions that need the futurc workcrs, citizens, entrepreneurs and so on, whom the family nurtures in its role in rcproducing society. 27 The mainstream academic responses to my arguments about incvitable dependency wcre predictable. The situation of children was easily ovcrlookcd when it carne to an assessment of equality and state responsibility. They were not cquals. Their inevitable dependency differentiated them from the adults in the family, but it was a disadvantage everyone suffered and would outgrow. Children were the responsibility of the family, and their interests could justly be subsumed within it. As for thc ill and elderly, they had the personal responsibility to provide for themselves in old age through insurance and pension plans. If they did not do so, means-tested social welfare programs existed for those who had failed to live up to their personal responsibility to protect themsel ves. 2s I thought that the arguments about derivative dependency would be somewhat harder to deflect, but the prevalence of economic modeling for assessing just about any social institution and relationship facilitated their dismissal by many mainstrcam law scholars. Caretakers were free and equal individuais who had made a 'personal choice.' lt was hardly society's responsibility to subsidize that choice. In the words of one commentator, if one person had a preference for a child, while another preferred a Porsche, why should society treat these choices differently?29 These were merely individual 27

MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY

(2004). 28 ELINOR BURKETT, THE BABY BOON: How FAMILY-FRIENDLY AMERICA CHEATS THE CHILDLESS 183 (2000) (arguing that childless workers are stigmatized and exploited in arder to accommodate parents in lhe workplace). For a discussion of Burkett's book, see Andrew Hacker, The Case Against Kids, N.Y. REv. BOOKS, Nov. 30, 2000, at 12 (book review); Amy L. Wax, Rethinking Welfare Rights: Reciprocity Norms, Reactive Attitudes, and the Political Economy of Welfare Reform, 63 L. & CONTEMP. PROBS. 257 (2000) (defending a constitutional recognition of state welfare accommodations subject to individual responsibility, that is, which 'recognizes an indefeasible right to govemment help, but only for those in need through no fault of their own or who consent to work in exchange for assistance'); see also, William A. Galston, Civil Society, Civic Virtue, and Liberal Democracy, 75 CHI.-KENT L. REV. 603 (2000) (arguing in defense of marriage for promoting children's well-being); Mary Ann Case, How High the Apple Pie - A Few Troubling Questions about Where, Why, and How the Burden of Care for Children Should Be Shifted, 76 CHI.-KENT L. REV. 1753 (2001) (claiming that statc support may involve inadequate monitoring functions); Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L. REV. 181 (2001) (holding that state support of caretakers would reinforce matemalization of women and lhe 'reproduction' of capitalist society through the commodification of childrearing. Also, she sustains lhat it would be unfair to taxpayers who have no children). 29 The 'Porsche Preference' argument states that if someone prcfers a child, this preference should not be treated differently than any other choice, like the choicc to own a Porsche. Society should not subsidize either preference. For advocacy of this idea, see Greg Mankiw, /s

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decisions, and neithcr prcfcrencc deserved social subsidy. Thus, an emphasis on personal liberty and autonomy was combined with an assertion of equality or impartiality and uscd to argue against directing law and policy to address existing inequality.3o Once again, argumcnts for a collectivc or social ideal of justice wcre beaten back by refercnce to thc ideal of individual, not institutional, responsibility. While it was not persuasive to the liberal, individual choice-oriented commentators, the development of the concept of derivative dependcncy in the family context was a theoretically important step in the evolution of vulnerability theory. It had moved my thinking beyond the individual, and individual charactcristics, such as gender, to focus on societal structures and the characteristics of social institutions and relationships. The advent of formal equality in family law did not mean that society's institutions of family and work were transformed. Those structures continucd to subordinate, but no longer formally on the basis of gender. Structural disadvantagc remained intact, a product of a reality in which society either does not placc much value on caretaking as a social function and therefore need not accommodate it or that society (or some segments of it) places so much value on caretaking that it should not be diminished by being quantified or monetized in social policy. In other words, it is the nature of and significance given to the social task of caretaking that operates to disadvantage the individuais who occupy that role, not the gender of the caretaker. lf men become caretakers, they also suffer economically and professionally. The market is structured so as to assume no responsibility for the reproduction of society. When the state concedes it has some responsibility, it is only to serve as a highly stigmatized backup when the family 'fails.' Ali caretakers, regardless of sex, will be subordinated by this structure and the ideology of family autonomy, independence and self-sufficiency that supports it. 31 At that time, I realized that what I had been analyzing as a gender problem was actually a societal problem that extends well beyond a gender equality frame. I ultimately understood that what was needed was community rating Jair? GREG MANKIW's BLOG (Nov. 11, 2013), http://gregmankiw.blogspot. com/201311 1/is-community-rating-fair.html. But see also, for a more sophisticated development of this Jine of reasoning, Mary Ann Case, How High the Apple Pie, supra note 28. 30 When women shed the patriarchal family status of wife and mother and become just half of the generic and gender-neutral partner and parent, they were relegated to the world of consent and contract, where lhe illusion is that individuais can operate independem of society, culture and history. 31 This is not an assertion that gender misbalance of power or gender discrimination has disappeared, of course. It is, however, the assertion that over the past half-century things have changed in regard to gender dynamics within the family, as well as in family Jaw. These changes should be taken into account when we are defining what constitutes the contemporary problem. As interesting as lhe history of gender discrimination as manifested in family law and policy may be, assuming lhat remains as the maio problem suggests the solution is nondiscrimination, equality-based reform. On the other hand, moving away from a starting place that assumes existing gender discrimination or disadvantage reveals that the contemporary legal and política! problems are intertwined with the continuing characterization of the family as 'private' and its conceptual and political isolation from the regulation and reforrn of other institutions, such as lhe workplace and the state. These problems transcend gender, which is why vulnerability theory initially focuses on lhe structure and nature of social institutions and relationships, not the situation of specific individuais or groups.

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an approach to social justice that chalfenged the liberal refiance on individual choicc and the construct of the privatc family. My current focus extends welf beyond thc famify to incfude ali social and institutionaf relationships and ·the justice probfems they may reveal in contemporary society. In devefoping a vufnerability approach to the justice issue, I have been guidcd by the reafization that social problems need social or coffective, not just individual, solutions. Devefoping a coffective or social justice approach requires that we undcrstand Lhe naturc of those who compose Lhe coflective. I thus begin with a descripLive or empírica! undersLanding of what it means to be human. From that foundaLionaf premise, I develop a normative, or theoretical, perspective on the just affocaLion of responsibility for individual and societal wefl-being. Such responsibility must be shared between the individual and the state and its institutions. At the same time, social problems also require a confrontation with, and response to, situations of inherenL or inevitable inequality.

11. VULNERABILITY THEORY Although it is often narrowly understood as merely openness to physical or emotional harm, vulnerability should be recognized as the primai human condition. As embodied beings, we are universally and individually constantly susceptible to change in our well-being. Change can be positive or negative - we become ill and are injured or decline, but we also grow in abilities and develop new skills and relationships.n The term 'vulnerable,' used to connote the continuous susceptibility to change in both our bodily and social well-being that ali human beings experience, makes it clear that there is no position of invulnerability, no conclusive way to prevent or avoid change.

A. Reconstructing the Political Subject as the Vulnerable Subject in Law For the most part, human vulnerability has been ignored or marginalized in mainstream legal theory or political philosophy. Particularly in contemporary politics, increasingly shaped by themes of austerity and purported threats from immigration, we see a growing fixation on personal responsibility, individual autonomy, self-sufficiency and independence, buoyed by an insistence that onfy a severely restrained state can be an economically responsible one. When the term vulnerability is used, it is typically (and inaccurately) attributed to only some individuais or groups, who are referred to as 'vulnerable populations.' It is also used as a basis for comparison: some people are viewed as more or less vulnerable, or as differently or uniquely vulnerable. This perspective ignores the universality and constancy of vulnerability as I use the term and is merely another way of identifying bias, discrimination and social disadvantage rather than focusing on structural arrangements that affect everyone. In other words, it is another way to present an equal protection argument. 32 I first developed the concept of vulnerability in Manha Albertson Fineman, The Vulnerable Subject: Anchoring Equa/ity in the Human Condition, 20 YALE J.L. & FEMINISM (2008).

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Human vulnerability has social, as wefl as physical and material, consequenccs. On the most obvious levei, our cmbodiment means thaL we are innately dependent on the provision of care by others when we are infants and often when we are ifl, aged or disabled. It is human vufnerability that compefs the creation of social relationships found in designated social institutions, such as the family, the market, the educaLionaf system and so on. The very formation of communities, associations and even pofiLicaf entities and nation-states is a response to human vulnerability. 33 Social probfems emerge when these social institutions and relationships are not functioning weff. Importantly, a vulnerability approach does not begin with discrimination or ditTerence in legal treatment as the primary evil to be addressed. Rather, it begins with the assertion that we need to rethink this conception of the legal subject .to make it more retlective of the actual human experience. It requires that we recognize the ways in which power and privilege are conferred through the operation of societal institutions, relationships and the creation of social identities, sometimes inequitably. Because law should recognize, respond to and, perhaps, redirect unjustified inequality, the criticai issue must be whether the balance of power struck by law was warranted. Social identities are manifested within institutions and do not manifestly retlect individual characteristics, such as race or sex. However, they do represent the alfocation of power and privilege between occupants based on the social function of the institution and their social roles within it. Individuais occupy different social identities as they age and expand their interaction with different social institutions and relationships (for example, from child to teenager to adult and from family to schoof to workplace). General ideafized social identities, such as parent/child, employer/empfoyee and shareholder/consumer are formed and operate as functional and ideological constructs, which tend to shape individual options. These finked, complementary social identities also may retlect an intrinsic inequality between their occupants, an inequality that is often not only justifiable but also necessary. Idealized identities are human constructions, and, as such, they are not static. However, as archetypes they do retlect the historie values and priorities of society and tend to be relatively stable for extended periods of time. Proposed changes in, or widespread deviations from, these idealized identities can provoke social turmoil and backlash. So too, changes in individual status can give rise to insecurity and anger or frustration, as well as a sense of accomplishment or opportunity. What vulnerability theory offers is a way of thinking about political subjectivity that recognizes and incorporates differences and can attend to situations of inevitable inequality among legal subjects. In this regard, one advantage of vulnerability theory is that it can be applied in situations of inevitable or unresolvable inequality: it does not seek equality, but equity. A vulnerability analysis incorporates a life-course perspective while also retlecting the role of the social institutions and relationships in which our social identities are formed and enforced. It also defines a robust sense of state responsibility for social institutions and relationships.

33

See id.

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B. Taking Account of Differences The process of analyzing the differences that arise from individual cxperience within social structures does not begin with the particular characteristics of the individual but with the nature of social arrangements. Thc abstract and inevitably contested legal principies often referred to in human rights literature, such as equality, liberty and dignity, are not the measure for this inquiry, however. Nor does it rely on placing individuais into distinct but comparable categories for purposes of equal protection analysis (male/female; white/black ele.). There are two relevant forms of individual difference in a vulnerability approach those that arise because we are embodied beings and those that arise because we are social beings embedded in social institutions and relationships. Consideration of these two forms of difference will inevitably draw attention to distinct facets of social organization and activities. These differences also require distinct legal and policy approaches and suggest specific roles for the state to play regarding its responsibility for citizens. 34

1. Embodied differences Perhaps the most evident of embodied differences are the physical variations exemplified in antidiscrimination Iaws. These represent the horizontal assessment of difference. These physical differences have a census quality, accessing variations and characteristics that exist in society at a given time. They tend to be constructed as static and are often distinguished doctrinally with terms such as 'immutable.' While discrimination laws address some of these differences, others, such as age and those associated with physical and mental ability, continue to serve as justification for differential treatment. In addition to the bodily differences that are manifest across various members of society at any given time are those differences that evolve within each individual body. These differences reflect the progressive biological and developmental stages within an individual human life. Individual bodies will mature and grow, as well as age and decline. We can think of these differences as occurring along a vertical and temporal dimension of analysis within the individual over time. 35 These differences form the basis for classifying groups along developmental !ines as infants, children or the elderly. The Iaw as it is currently fashioned does allow for differential treatment, or discrimination, based on these developmental differences. 34 What I call the 'vulnerability paradox' relies on the importance of acknowledging differences while recognizing that vulnerability is a fundamental and universal part of the human condition. Vulnerability must be understood as particular, varied and unique on the individual levei. Impermissible bias and discrimination based on sexuality, race and gender differences should continue to be addressed in law and policy; we also need to recognize the ways in which differences can be the basis for community building and a source of strength and resilience for individuais. See Martha Albertson Fineman, Vulnerability, Resilience, and LGBT Youth, 23 TEMP. POL. & Crv. RTS. L. REV. 307 (2014). 35 Martha Albertson Fineman, 'Elderly' as Vulnerable: Rethinking the Nature of Individual and Societal Respo11sibility, 20 ELDER L.J. 71 (20 12) (arguing against a conception o f old age as a separate designation or category of human existence and for its restatement as simply 'one end of the continuum that represents the life-course of the vulnerable subject').

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Based on categorical assumptions about capabilities and competence, the law recognizes 'special' treatment for some groups based on developmental difference. The Iaw actually creates a modified legal subjectivity (a distinct legal identity) for those not neatly fitting within the ability boundaries defining the contemporary legal subject. As a result, as an individual passes through various developmental stages, their legal identifier changes - from child to adult, but also from adult to elderly or, sometimes, disabled. To the extent that shifting legal subjectivity also ignores or diminishes what is considered to be the appropriate levei of state responsibility for individual well-being, this is a problem. For example, the way that the law defines relationships within the family may result in parenta! privilege eclipsing or obscuring the state's independent responsibility for the well-being of the child. While the institutions and relationships will change, our understanding of state responsibility with regard to human vulnerability must be consistent across the life course. Infancy and childhood should be understood as merely inevitable developmental stages in the life of the vulnerable subject, not as the occasion for the creation of distinct and diminished categories of state responsibility. Perhaps not surprisingly, it is the vertical dimension of embodied difference that is of primary interest in a vulnerability analysis. The differences we each experience over time show the inevitability of human dependence on others and on society and its institutions. They also illuminate the inevitable nature of inequality in social relationships. Physical or emotional dependence on others is particularly evident in infancy and childhood but is also often found with severe illness, disability and advanced age. This form of dependency I previously referred to as inevitable; it is universally experienced, an inherent characteristic in the human condition. There are laws and norms that guide the unequal relationship between a caretaker and a dependent infant, for example. Law defines parenta! responsibility but also confers a parallel parenta! right that can work to keep state surveillance at bay. Currently, there is a great deal of debate about the nature and extent of parenta] rights and the tension generated when the child is also positioned as a rights-holder. 36 Each state must respond to this tension as it negotiates the balance between parenta! privilege or rights and the child's right to protection and provision from the state in its laws. It addresses this tension when it creates laws governing legal relationships such as the marital family or custodial parent. It is also responding when it defines parenta! responsibilities with regard to mandatory laws addressing children's education, health and discipline. The concept of family privacy attempts to draw a line between family and state responsibility in favor of the parent. 37

36 In the US, this conflict is what led many conservative commentators to reject the Convention on the Rights of the Child. See Martha Albertson Fineman and George Shepherd, Homeschooling: Choosing Parenta[ Rights over Children's lnterests, 46 U. BALT. L. REV. 57, 106 (2016). 7 3 While there may be differences between states, the fundamental questions of allocation o f authority and responsibility for vulnerability and dependency are universal in nature.

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2. Embedded differcnces A consideration of the vulncrability that marks each of us, and does so throughout the life course, should makc it apparent that, of necessity, human beings are social bcings. From the moment of birth until we die, we inevitably act, interact and react in relationships with others and within institutions. However, thcse social interactions necessitated by our sharcd vulnerability also produce diffcrences among individuais. Ali infants are dependcnt on the care provided within an institutional arrangemcnt, often designated as 'family.' However, there are differenccs among individual families with regard to the resourccs and abilities they bring to Lhe social task of providing care. Institutional differcnccs affecting individual outcomes are also evident in the expanding sets of social rclationships found in educational, employment, financiai and other institutions upon which we must rely as we proceed through life. Predictably, every society is composed of individuais differently situated within webs of economic, social, cultural and institutional relationships that profoundly affect our destinies and fortunes, structuring individual options and creating or impeding opportunities. The initial questions raised in a vulnerability perspective are structural: does the state monitor a given institution in a way that is responsive to human vulnerability? In other words, can the differences in treatment be justified?

III. INSTITUTIONS AND RESILIENCE As previously explained, as vulnerable human beings we are ali, and always, dependent upon societal structures and institutions, which provide us with the assets or resources that enable us to survive, and even thrive, within society. This institutional focus has the effect of supplementing attention to the individual subject by placing individuais within their social context. 38 Although nothing can completely mitigate our vulnerability, resilience is what provides an individual with the means and ability to recover from harm, setbacks and the misfortunes that affect our Jives. While a vulnerability analysis begins with a description of universal vulnerability, it is the particularity of the manifestations of vulnerability and the nature of resilience that are of ultimate interest. Resilience is the criticai, yet incomplete, solution to our vulnerability. There are at least five different types of resources or assets that societal organizations and institutions can provide: physical, human, social, ecological or environmental and existentiaJ.39 Physical resources determine our present quality of life and include such things as housing, food, entertainment and means of transportation. Physical resources also provide for our future well-being in the form of savings and Martha Albertson Fineman, The Vulnerable Subject and the Responsive State, 60 EMORY L.J. 251 (20 10). 39 The list of resources is an expansion on the list of assets developed in Fineman, The Vulnerable Subject, supra note 32, at 13-15, based on the four types of assets identified in PEAOAR KIRBY, VULNERABILITY AND VIOLENCE: THE lMPACT OF ÜLOBALIZATION (2006). In discussing resilience, Kirby builds on earlier definitions that understood resilience as 'enabling units such as individuais, households, communities and nations to withstand internai and externai shocks.' Id. at 55 (quoting lhe United Nations Economic Commission for Latin America and the Caribbean). 38

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investments. Human resources contribute to our individual development, allowing participation in thc market and the accumulation of material resources. Human resources are oftcn refcrred to as 'human capital' and are primarily developed through systems that provide education, training, knowledge and experience. Social resources give us a sense of belonging and community and are provided through the relationships we form within various institutions, including the family, social networks, political parties, and labor or trade unions. In recent decades, identity characteristics, such as race, ethnicity and gender, have constituted powerful networks of affiliation within political and other institutions. By contrast, ecological resources are related to the positions we occupy in relation to the physical, built or natural environments in which we tind ourselves. On the spiritual levei, existential resources are provided by systems of belief or aesthetics, such as religion, culture or art, and perhaps even politics. These belief systems can help us to understand our place within the world and allow us to see meaning and beauty in our existence. There is a link between these various types of resources and state responsibility. Many of the institutions providing resources that give us resilience can only be brought into legal existence through state mechanisms. 40 Importantly, resilience is not something we are born with, but is accumulated over the course of our lifetimes within social structures and institutions over which individuais may have little, if any, contrai, whether these institutions are classified as public or private or are called family, market or state. Resilience is also cumulative. The degree of resilience an individual has is largely dependent on the quality and quantity of resources or assets that they have at their disposal or command. A resilient individual can take advantage of opportunities knowing that if they take a risk and the desired outcome fails to transpire, they have the capacity to recover. While sometimes a lack of resilience can be deemed an individual failing, often it is a function of unequal access to certain societal structures or the result of unequal allocations of privilege and power within those structures. 41 Too often, we take those who are deemed to be failing and segregate them according to some characteristic or another, such as poverty, illness or age, and then classify them as 'more vulnerable' to harm or disadvantage. However, labeling some individuais and herding them into 'populations' defined as differently or particularly vulnerable (and therefore s~meh?w inadequate) stigmatizes those individuals.42 This is so if the purpose of the destgnatton of a vulnerable population is to protect (as it is with children or the elderly) or to punish or contrai (as it is with at-risk youth or single mothers). 40 Robert Dahl observed that 'without the protection of a dense network of laws enforced by public govemments, the largest American corporation could not exisl for a day.' GAR ALPEROVJTZ & LEW DALY, UNJUST DESERTS: HOW THE RICH ARE TAKING ÜUR COMMON lNHERITANCE 138 (2008) (quoting ROBERT DAHL, DILEMMAS OF PLURALIST DEMOCRACY 183-85 (1982)). Dahl also noted that the view of economic institutions as 'private' is an 'ill fit' for their 'social and public' nature. Jd. at 139. 41 In fact, we ali benefit from society and its institutions, but some are relatively advantaged and privileged in their relationships, while others are disadvantaged. See Fineman, The Vulnerable Subject, supra note 32, at 15. 42 ld.

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In a vulnerability analysis, the basis for distinguishing some individuais from better-positioned but equally vulnerable individuais in the first instance would revolve around questions of access to sufficicnt resourccs, with a deficit indicating that they lacked the resilience necessary to address human vulnerability. Significantly, thc initial emphasis here is on the distribution or allocation of resources and the structures within which they are produced. This suggests that thc first question to be considcred is whether institutional, not individual, functioning is inadequate. This inquiry shifts thc focus to state and social responsibility because it recognizes that a deficit in resources often reflects an institutional or societal failing more than an individual one. 41 The fact that a vulnerability analysis brings the life course into focus is also important in thinking about resilience. Resiliencc-conferring institutions operate both simultaneously and sequentially in society. That thcy are sequential is significant. The failure of one system in this sequence to provide necessary resources, such as the failure to provide an adequate education, affccts an individual's future prospects in employment, building adult family relationships, aging and retirement. Given that institutions farther down the line are constructed in ways that are contingent on an individual's successful gathering of necessary resources in earlier systems, it is often impossible to fully recover from, or compensate for, resource deprivation. Someone lacking a solid education typically will have fewer skills and fewer options and opportunities in the workplace, which will makc supporting a family more difficult and also likely mean a more precarious retirement as well as fewer savings to cushion them in the event of accident, injury or illness. Moreover, sometimes privileges conferred in one system can compensate for or even cancel out disadvantages encountered in othcrs. A solid, early start with regard to education, such as that provided by Head Start, an effective preschool program, may trump poverty as a predictor of success !ater in school. 44 This is particularly Iikely when coupled with the advantages that a social or relational system can provide, such as a supportive family and cohesive social network. Society's institutions provide the assets or resources that give us resilience and in so doing actually produce - or fail to produce - social, political and economic opportunities. Access to these opportunities can confer privilege, while exclusion acts to disadvantage. Thus, individual failure should not be seen as merely the consequence of individual irresponsibility. lt also is, perhaps primarily, the failure of society and its institutions.

43

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Martha Albertson Fineman, Equality and Difference - The Restrained State, 66 ALA. L.

IV. CONCLUSION Recognition of the universality or vulncrability is theoretically important to the normative argument for a responsivc statc. It provides for both thc critique and the suggested construction or reconstruction or social and legal arrangements. The political and legal subject of law in the first instancc is conceived of as a universal subject, an idealized ordinary being, and becomes thc standard and measure under which equality as a principie is structured. The conceptualization of this legal subject encampasses everyone in society: people are seen either as 'fui!' legal subjects, conforming to this ideal, or given a modified legal subjeclivity based on their deviations from that legal subject. Fundamental principies of democracy require, at least in the abstract, that laws should be applied equally to those who are determined to be similarly situated, which underlies the slogan that we are a nation of laws, not men (sic), and that no man (sic) is above the law. A vulnerability approach does not dispute this basic principie, but argues that the characteristics of the legal subject that are universalized must be based on human vulnerability and therefore inclusive across both horizontal and vertical dimensions of difference. When this democratic principie of equality was formed, the política! subject was a limited or refined one - white, mate, property-owning or tax-paying, of a certain age and/or religion and free. Over the coursc of the nineteenth and twentieth centuries, certain qualifiers were removed, and political legal subjectivity formally grew to encompass previously excluded groups. However, this modem legal subject has retained certain secondary characteristics that continue to center on the needs and political sensibilities of an eighteenth-century mate citizen sheltered by institutions such as the patriarchal family and the privileges of a master-servant mentality. As a result, the legal subject typically envisioned in policy and political arguments today assumes a distorted and inappropriate equality of position. This valorizes the fully competent, capable individual adult, as well as liberty, self-sufficiency and autonomy. This prototype of the legal subject ignores vulnerability and dependency and is a radically individualistic mischaracterization of what it means to be human. It must be confronted and contested. I believe the concept of the vulnerable legal subject has the power to disrupt the logic of individual choice and personal responsibility built on this liberal stereotype and to facilitate the construction of an effective counter-discourse with which to confront neoliberalism 's fixation on personal responsibility and its insistence that only a severely restrained state can be a responsible one.45 It does so by articulating a more inclusive and realistic legal subject - one that makes it clear that injury or injustice inevitably arises when the state remains unresponsive to human vulnerability and dependency. This legal subject, who is both embodied and socially embedded, needs access to resources that will enable individuais to endure or prosper from change, even harm, throughout institutions and relationships across the life

609 (2015).

44 Head Start is a federal program advocating school readiness for children from low-income families up to age five by providing nutrition, health and social services, along with educational and intellectual development services. See Office of Head Start, About the Office of Head Start, https://www.acf.hhs.gov/ohslabout (last updated June 15, 2017).

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45

Fineman, Vulnerability, Resilience, and LGBT Youth, supra note 34, at 307.

90 Research handbook on feminist jurisprudence course. A guarantee of equality is not enough for this legal subject. Thc rcsponsive state must be one that recognizcs rclationships or positions of inevitahlc inequality, as well as universal vulnerability and dependency, acting as an instrumcnt of social justice in both its law-making and enforccment functions.

5.

Socialist feminist legal theory: a plea Cynthia Grant Bowman

Feminis! legal theory is the study of the philosophical foundations of law and justice; informed by women's experiences, its goal is to transform thc legal system and the understanding of it to improve the quality of jurisprudence and women's lives. 1 Politically, socialist feminism has always entailed a commitment to radically transform capitalist patriarchal institutions, to create an economy that no longer runs for profit, that is democratically controlled, in which women's work is equally valucd and women do not suffer violence and sexual exploitation. 2

As a young woman, I was a fairly doctrinaire socialist, and socialist feminist theory made a great deal of sense in my attempt to understand the subordination of women. Half a lifetime !ater, after developing a career teaching and writing in the field of feminist jurisprudence, I return to socialist feminist theory beca use o f my dissatisfaction with the constraints of the varieties of feminist legal theory that have been developed since then. Liberal feminism, MacKinnon's equality theory, relational feminism, criticai race feminism, for example, have ali brought us powerful insights into the nature of gender discrimination and a good deal of progress toward greater equality, at least for some groups of women. But none of them is adequate to explain the deeper structures that are responsible for the persistence of male dominance and its ability to adapt and transmute so as to absorb some changes without giving up the ultimate prizes and ceding total equality. A ferninist legal theory grounded in the well-devcloped theory of socialist feminism can do this, and its insights about the interdependence of capitalism and patriarchy offer a foundation upon which to construct campaigns for lasting change. Returning to socialist feminist theory as an older woman, however, I am no longer searching for a totalizing, all-explanatory theory; that seems too ambitious a quest and in ali probability counterproductive. What I argue instead in this chapter is that socialist feminist legal theory can provide a grounding that allows us to see our way out of, or around, some of the obstacles each of the other theories has confronted and help us discern what to do now. In short, this is more a proposal than a description of a developed branch of theory visibly present within feminist legal jurisprudence thus far, although many of its premises appear to be accepted by various feminist theorists in their pleas for public support of many functions otherwise imposed upon women. Many of those theorists, I believe, are convinced that basic changes in the economic and political system are required for women to be genuinely equal. Socialist ferninist theory 1

Robin West, Feminis! Legal Theory, in 3 ENCYCLOPEDIA OF PHILOSOPHY 582 (2d ed.

2006). 2 lRIS MARION YOUNG, THROWING LIKE A GIRL AND ÜTHER ESSAYS IN FEMINIST PHILOSOPHY AND SOCIAL THEORY 5 (1990).

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can also addrcss thc complcxity of making such changcs in an era of global neoliberalism, that is, without forgetting thc opprcssion of women in the Global South in the drive to achicvc equality for thcir more privilcged sistcrs in the North. The foundation for a socialist feminist legal thcory was laid in a literaturc produccd from the late 1960s through the 1980s, which locatcd the sourccs of womcn's status in a dual systcm of patriarchy and capitalism; lhe two are interdependent, and cach depends in essential ways on the unequal status of women. 3 I focus here primarily on the contributions of theorists and activists in the UK, US, Italy and Germany and describe their major contributions, including dual systems theory, an analysis of thc role of houscwork, a class analysis of womcn's status, a racc and idcntity politics approach, pcrspcctivc theory, alienation theory and an analysis of the intcrnational division of labor by scx. I describe the theorctical insights of each of these concepts and explore how each supplements current feminist legal analysis by forming the basis for a critique of various arcas of the law affecting the lives of women. Of particular interest will be what each explains about the limits of current legal systems and how each theory might help select and design legal projects and reforms on which to focus in order to make progress toward genuine equality.

I. THE THEORY OF CAPITALIST PATRIARCHY The most important contribution of socialist feminist theory was its development of the theory of capitalist patriarchy. To understand the jumping-off point of socialist feminists in the 1970s, one must know a bit about Marx 's and Engels' understanding o f the 'woman question.' Both men believed that the liberation of women depended simply upon the abolition of private property and establishment of communism. In the future society, women would be men's equals, entering the workforce and socializing housework. Engels paid more attention to the issue, theorizing how women's subordination and position within the family had resulted from the origins of private property,4 but the Marxist position was that women should simply support the struggle for a proletarian revolution and not raise their own issues, which were seen as distractions from that battle. 5 Yet, although the situation of women changed in substantial ways, somehow the goal of equality never seemed to be reached in the countries where 3

Portions of this chapter, most of them revised here, appeared in Cynthia Grant Bowman,

Socialist feminist legal theory: a plea 93 communist rcvolutions took place. The socialist fcminists' theory of capitalist patriarchy was a way to address this conundrum. I describe thc development of thc theory of capitalist patriarchy in this scction, discussing lirst dual systems theory and thc socialist analysis of housework and then how the contributions these theorists made can be useful to feminist legal theorists today.

A. Dual Systems Theory The roots of the theory of capitalist patriarchy lie in British feminism in the late 1960s and 1970s although it was adopted and expanded by American scholars in the 1980s. In her article, The Longest Revolution, Juliet Mitchell pointed to the failure of Marxist theory and of contemporary socialism to analyze the subordination of women, concluding that they were blinded by their exclusive focus on economic factors to the neglect of other intluenccs. 6 The way to address this problcm, she concluded, was to analyze the condition of women in four separate spheres that formed what she called a complcx unity - production, reproduction, sex and the socialization of children.7 Women's liberation would be achieved, she argued, only by the transformation of ali four structures; reforms in one sphere would otherwise be offset by changes in another, as had happened in the Soviet Union and China. 8 For example, if women were incorporated into the process of production in the economy on an equal basis with men but the division of labor in the domestic sphere were not reorganized or socialized, they could be worse off than before. Thus, although the entry of women into the workforce should remain a key goal, it must be accompanied by changes in family structure and sexuality to genuinely emancipare womenY A Canadian professor, Margaret Benston, agreed with Mitchell that women's subordinare status had economic and non-economic roots that Marxists had ignored, from which personal and psychological factors followed.lO Women, she said, were 'that group of people who are responsible for the production of simple use-values in those activities associated with the home and family,' but their work, however productive, was disregarded because it was outside the money economy. 11 Benston pointed to how the nuclear family - and women - functioned as a stabilizing force in capitalism, not only because women performed household work for free but also because they functioned as an ideal consumption unit and a reserve army of labor. 12 The only route to the liberation of women, in her opinion, was communalization of housework by the

Recovering Socialism for Feminis! Legal Theory in the 21st Century, 49 CONN. L. REV. I 17 (2016). The Connecticllt Law Review has given permission for use of any material from that

article in this chapter. 4 See FRIEDRICH ENGELS, THE ÜRIGIN OF THE FAMILY, PRIVATE PROPERTY AND THE STATE 117:-31 (197~) (1884) (argui~g: based on the anthropological work of Lewis H. Morgan among Nattve ~encans, th~t.t?e ~ngmal stat~ was characterized by both communism and matriarchy; w~en agnc~Itural CIVlhzauons prevatled over hunter-gatherer civilizations, giving rise to ahenable pnvate property, the necessity for ensuring inheritance to men 's legitimate offspring resulted in monogamous marriage and the virtual enslavement of women). 5 See, e.g., Marilyn J. Boxer, Rethinking the Socialist Construction and Intemational Career of the Concept 'Bourgeois Feminism,' 112 AM. HIST. REV. 131, 136-40 (2007).

6

Juliet Mitchell, Women: The Longest Revolution, 40 NEW LEFT REVIEW 11, 13-15

(1966). /d. at 16-17, 30-33. ld. at 29. 9 ld. at 34-36. 10 Margarct Benston, The Política[ Economy of Women 's Liberation, 21 MONTHLY REV. 13, 13-14 (1969). 11 ld. at 16. 12 /d. at 19-2 I. 7

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provision of nurseries and social responsibility for children in general. cnmmunal eating facilities, laundries and the like.n Sheila Rowbotham, a British historian, argued in the early l970s that liberal equal rights feminism had reached the limit of its capacity to improve women·~ lot, which required not just legal changes but also a transformation of the world o f prnduction and the worlds of family and sexuality. 14 Beeause the use of women's unpaid labor in the home was essential to the structure and organization of the market, it was neccssary to study ali these relationships and to develop notions of an alternative socicty. 1' She asked, for example, 'What are the ways in which eapitalism is undcrmining the traditional contained sphere it h as allotted to women . . . and what political consequenees do these have?' 16 An antagonism between men and women was built into capitalism's organization of work, Rowbotham thought, with the family and sexuality not only serving as safety valves but also inculcating the patterns of work and consumption particular to capitalism.17 Women were socialized to perform these functions and to socialize children as well, soas to provide disciplined new workers anda market for capitalism. 1H As a result, without major transformation of both the household and the economy, gendcr equality was impossible. Individual reforms, without understanding their relationship to the structure o f male-dominated eapitalism, would simply result in a larger share o f the cake for women and 'create gradations among the underprivileged.' 19 The first major work of socialist feminism in the US was published by Heidi Hartmann, an eeonomist, in 1981. 20 Hartmann agreed with the British socialist feminists that the problem with Marxist theory was its sex-blindness but pointed to recent work by Marxist theorists attempting to remedy this gap by focusing on housework. 21 Hartmann's plea was to take from Marx his method of analysis, historical dialectical materialism, and use it to examine the status of women.22 The material base of patriarchy, she argued, was men's control over women's labor power.23 Under advanced capitalism, male workers and capitalists had struek a bargain based on the family wage, that is, a wage paid to white males that was sufficient to support a whole family, while accepting Iower wages for women and persons of color.2 4

13

Id. at 22.

14

SHEILA ROWBOTHAM, WOMAN'S CONSCIOUSNESS, MAN'S WORLO iv (1973).

15

Jd. at 68-70, 82-83, 101.

16

ld. at 66.

17

Id. at 53, 57. Id. at 106. ld. at 123.

18

19

20 Heidi Hartmann, The Unhappy Marriage of Marxism and Feminism: Towards a More Progressive Union, in THE UNHAPPY MARRIAGE OF MARXISM ANO FEMINISM: A DEBATE OF CLASS ANO PATRIARCHY 2 (Lydia Sargent ed., 1981) [hereinafter UNHAPPY MARRIAGE]. 21 Id. at 5-11 (discussing, for example, the work of E1i Zaretsky and Mariarosa Dalla Costa). 22

23 24

ld. at 11. ld. at 15. Id. at 21-22.

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Segregating women into lower-paying jobs required them to he economically dependent on men, and their responsibilities in the home reinforccd their inferior labor market position. 25 Women's lower wages and the nced to carc for childrcn thus assured the continucd existence of the family as a neeessary income-pooling unit, one that also functioned well as a consumption unit. 26 The weakness of radical fcminist analysis, in Hartmann's opinion, was its foeus on discontent in the individual psyche and its ahistorical theory of patriarchy.27 The weakness of socialist analysis was its failure to incorporate a gender analysis into its economic theory. Neither socialist nor radical feminist analysis was adequate alone because patriarchal powcr anti capitalist organization were so intertwined; only a dual analysis was equal to understanding their interrelationship and bringing about a society in which women would genuinely be equal to men. 28 The most complete exposition of dual systems theory was presented by the American política! theorist Zillah Eisenstein. Eisenstein described socialist feminism as a theory emerging dialectically as the synthesis of Marxist analysis and radical fcminism, each of which were incomplete but valuable analyses. 29 Marxism, thc thesis, did not examine relations of reproduction in its analysis of the division of labor under capitalism, while radical feminism, the antithesis, saw the biological family and sex roles as central and marginalized capitalism. 30 Socialist feminism, Eisenstein argued, was the dialectical synthesis of the two, capable of analyzing the mutual dependence of the spheres of production and reproduction as well as understanding both the material form of the sexual division of labor and its ideological component. 31 Eisenstein described the current economic and social system as what she called capitalist patriarchy, a mutually interdependent system. 32 Borrowing Juliet Mitchell's categories of production, reproduction, sexuality and socialization of children, she proceeded to argue that the family supported capitalism in the following ways:

I. 2.

women stabilize patriarchal structures by fulfilling their roles as wife and mother; women reproduce new workers and care for both male workers and their children;

2s Jd. at 22. Hartmann developed her analysis of the role of job segregation in this process in her 1976 essay, Capitalism, Patriarchy, and Job Segregation by Sex, I SIGNS 137 (1976) [hereinafter Job Segregation]. 26 UNHAPPY MARRIAGE, supra note 20, at 25. 21 Jd. at 13-14. 2H /d. at 32; Job Segregation, supra note 25, at 168. A !ater scholar classified Hartmann's work as 'Dual Systems Theory - type 2' because Hartmann's theory presented materialist accounts of both patriarchy and capitalism, while Juliet Mitchell (type 1) combined a materialist account of capitalism and a non-materialist (psychoanalytic) account of the family and patriarchy. ROSEMARIE TONG, FEMINIST THOUGHT: A COMPREHENSIVE INTROOUCTION 175-81 (1989). 29 Zillah Eisenstein, Constructing a Theory of Capitalist Patriarchy and Socialist Feminism, 25 CRITICAL Soe. 196, 197-203 (1999) (orig. pub'd in 7 THE INSURGENT SOCIOLOGIST 3 (1977)). Jo Id. at 199-203. 31 /d. at 203-06. 32 ld. at 196.

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3. 4.

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011

Socialist feminist legal theory: a plea

feminist jurisprudence

women work in thc lahor force for lower wages than mcn; and women stabilize thc cconomy through their role as consumers.'3

In this way, capitalism makcs use of patriarchy, and modern-day patriarchy is defined by the needs of capital. As a rcsult, the owners of capital profit, and ali individual men reap substantial benetits as well. 14 The symbiotic relationship between the two systems, however, was inevitably threatened by ehallenges to thc sexual division of labor. 35 The secds of change were contained in the contradictions in thc lives of women, betwcen the demands made upon them by their role in the lahor force and the demands made upon them by their husbands and childrenY• Thus women became a dynamic force for change as they struggled with the increasingly intolerable conditions of their daily lives.37 Eisenstein developed this argument, set against a background of the history of liberal feminist political theory, in her book The Radical Future of Liberal Feminism.3s Now that capitalism required thc majority of women to enter the paid labor force to survive economically, the idcologies of patriarchy and capitalism had come into conflict; the seeds of revolutionary changc lay in the dcveloping consciousness of the contradictions between patriarchal family relations and the needs of thc capitalist economy.39 Constraints upon womcn's succcss in the market, combined with the double day (or second shift, as it carne to be called), would result in womcn coming to realize their second-class status, and to do so across !ines of race and class. 40 Socialist feminist politics - its political program or platform - should be constructed on these premises, she proposed. The contemporary capitalist patriarchal state, according to Eisenstein, functions to contain or deflect the subversive potential of this new consciousness, either by negotiating conflicting demands or obfuscating them ideologically. 41 Yet the state's ability ultimately to negotiate, balance and contain these contradictions is limited because they were fundamentally irreconcilable: capitalism could not or would not afford the reforms necessary to women's equality, such as universal health care, child care and the like, and there were conflicts both within the state and within the capitalist class about key issues such as reproductive freedom. 42 Legal reforms had a potentially contradictory impact in this situation, possibly buying off some women by giving them limited gains, but at the samc time raising their consciousness by the contrast between their developing understanding of the official ideology of equal opportunity and their 33 ld. at 206-11. 34 ld. at 208, 211. 35 ld. at 211. 36 Id. at 209. 37 ld. at 213. 38 ZILLAH R. EISENSTEIN, THE RADICAL FUTURE OF LIBERAL FEMINISM (1981) [hereinafter RADICAL FUTURE]. 39 ld. at 204-06. 40 ld. at 210-13. See also ARLIE HOCHSCHILD, WITH ANNE MACHUNG, THE SECOND SH!FT (1989). 41 EISENSTEIN, RADICAL FUTURE, supra note 38, at 220-29. 42 ld. at 225-27.

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difficult and incomplcte successcs. 43 In short, Eisenstcin attempted to construct a socialist feminist theory of the state and law, upon which a strategy for political action could be based.

B. Socialist Feminist Analysis of Housework As noted above, one o f the problems with traditional Marxist analysis was its treatment of labor in the homc. The traditional view was that this was not productive work and thus not a source of surplus value (the value created by wage labor that is taken as profit by the capitalist). Thc agenda for women was to gct them to enter the workforce, where they would not be economically dependent and would perform productive labor in a social setting that would both raise their consciousness and allow them to organize. In the early 1970s, this view of housework was challenged for the first time by Mariarosa Dalla Costa, an Italian feminist, and Selma James, an American who had worked both in a factory and as a housewife, who argued that unwaged work dane in the home was a hidden source of surplus labor integral to the social relations of capitalism. 44 This set off a debate within both feminist and Marxist circles about the nature of housework. 4 5 Dalla Costa and James argued that the family was a pillar of the capitalist organization of work, in which women performed both the labor of reproducing the labor force but also unpaid labor devoted to subsistence; it also acted as a safety valve for social tensions caused by capitalism by providing objects upon whom working men could exercise their hunger for power. 46 Their proposal was that women must move out of the house, but not just into the paid work force, because capitalism could absorb women workers. 47 Instead women should come together with other women, building relationships of solidarity and· discovering their own authentic selves, including their sexuality. 48 In other words, the goal was not to move women into the position of men under capitalism and to socialize all domestic functions ('not to have communal canteens') but rather to turn them into a revolutionary class, one that would destroy the role of housework by refusing to do this unpaid work and struggle against the organization of labor and against labor time in general. 49 The movement that grew out of this feminist theory was known as 'wages for housework,' although that was not its real goal.

43 ld. at 238-41. MARIAROSA DALLA COSTA & SELMA JAMES, THE POWER OF WOMEN AND THE SUBVERSION OF COMMUNITY 11, 16 (1972). 45 See, e.g., Wally Secombe, The Housewife and Her Labour Under Capitalism, 83 NEW LEFT REv. 3 (1974). 46 DALLA COSTA & JAMES, supra note 44, at 35, 42. 47 Id. at 38, 49. 44

48

Jd. at 38, 48.

49 Jd. at 38, 40.

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In the mid-1970s, Italian political philosophcr Silvia Federici thcorizcd wagcs for housework in terms of socialist feminism. 50 Hcr intent in raising this issuc as a dcmand was to demystify and subvert women's role undcr capitalism. 51 The strugglc was not really to bc paid for housework: In fact, to demand wages for housework does not mean to say that if we are paid we will continue to do this work. It means precisely the opposite. To say lhat we want wages for housework is the tirst step towards refusing to do it, because lhe demand for a wage makes our work visible, which is the most indispensable condition to begin to struggle against it, both in its immediate aspect as housework and its more insidious character as femininity.52 The real struggle was for better working conditions and social services because, as Federici later reflected, 'as long as housework gocs unpaid, there will be no incentives to provide the social services necessary .. .'53 Feminist legal theorist Catharine MacKinnon, who was familiar with thc socialist feminist work of the l970s and l980s, 54 described the wages for housework approach as the only almost successful attempt to synthesizc socialism and feminism, because it 'aspire[d] to explain both sex and class within a theory marxian in scope yet feminis! in basis ... breaking the ideological tie of [house]work to women's biology .. .' 55 Grounding women's power thus in their productive roles, she concluded, 'makes women's liberation a criticai moment in class struggle.'5 6 The problcm with the wages for houscwork approach, MacKinnon said, was that such a wagc would tie women to the home and legitimate their role as homemakers; it also did not address the problem of sexual objectification and violence against women in ali its forms.57 Her first point is true, of course, only if the wages for housework demand is taken literally and not, as Federici described it, a demand meant to be the functional equivalent of a refusal to perform this role and for redistribution of those functions within the household and economy. Despite her critique, MacKinnon was very sympathetic to the wages for housework approach: [T]he theory precisely intends to expose the hidden assumptions of male dominance in marxist economics ... [arguing], in essence, for the commensurability of women's work in the home with other forms of laboring for capital in order to end the inequality il expresses, 50 Wages Against Housework (1975), Why Sexuality ls Work (1975), and Counterplanning from the Kitchen (1975) are ali included in SILVIA FEDERICI, REVOLUTION AT POINT ZERO: HOUSEWORK, REPRODUCTION, AND FEMINIST STRUGGLE (2012). 51 Wages Against Housework, supra note 50, at 15. 52 Jd. at 19. 53 Jd. at 20; Counterplanning from the Kitchen, supra note 50, at 30; Putting Feminism Back on Its Feet, in FEDERICI, supra note 50, at 58. 54 See, e.g., Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS: J. WOMEN IN CULTURE & SOC'Y 515,521 n. 10 (citing the wages for housework literature), 524 n. 15 (citing Rowbolham), 524-25 n. 17 (citing Mitchell, Eisenstein and Hartmann) (1982). 55 CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 63, 65 (1989). 56 ld. at 66. 57 Jd. ai 69.

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in arder to contribute to ending the 'fixcd personal relations of dependence' that are posited as a presupposition for the abstraction of labor necessary for it to have a capitalist characler . . . As an apex of synthelic attempts, it forces reexaminalion both o f housework from a marxist point of view and of marxisl economics from women's poinl o f view ... [W]hat emerges is a simultaneous critique of the society that excludes women from its center and a critique of the marxist theory that can see women only at ils periphery. 5" MacKinnon was the only feminist legal thcorist to pay serious attention to socialist feminism.

C. How the Socialist Feminist Political Economy of Women and Work Can Contribute to Feminist Legal Theory Today The dual systems theory of capitalist patriarchy points quite directly at thc limits of legal reform within the current legal and economic system by showing the interdependence of capitalism and patriarchy and the need to make reforms not just in production but in reproduction, sexuality and the socialization of children, lest reform in one sector be cancelled out by lack of change in another. It reminds us that women's movement into the labor force requires both their ability to control their reproduction and either changes in the household division of labor or communalization of many domestic functions and also that this entails change in the way children are socialized, so that both boys and girls grow up expecting to perform domestic labor equally. The socialist feminis! analysis of the value of housework prefigured the discussion of homemaking and its value by feminists in the legal academy, who have since written about its treatment in tort compensation as well as in divorce settlements. 59 Liberal feminists reached similar conclusions, but their analysis did not go far enough. The insights a socialist analysis adds - about surplus value and the overall critique of paid labor - show that genuinely valuing domestic labor and creating the conditions of equality require fundamental changes in the economy and in the nature and structure of work. Engaging with the earlier socialist feminist analysis can deepen this discussion and intensify the demands for legal reform in these arcas of the law. Socialist feminists suggested a number of tactics to address this exploitative relationship. Since the time when they wrote, the refusal of housework they advocated has been accomplished in part by the entry of women into the work force, although this has been achieved under capitalism by shifting the burden from middle class women to poorer women, especially women of color, and there are still many intra-household conflicts over division of the labor that remains. The necessity for providing social services to support caretaking in general has become obvious to most feminist legal theorists, who write admiringly, for example, of the nurseries and

Jd. at 78, 80. See, e.g., MARTHA CHAMALLAS & JENNIFER B. WRIGGINS, THE MEASURE OF INJURY: RACE, GENDER, AND TORT LAW (2010); Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. REV. I (1996). ss

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100 Research handbook on feminist jurisprudence preschools established in Swcden and France. 60 Dalla Costa's proposal that women move out of the home and in to connection with other women to explore and attempt to realize their own individual natures and desires while also organi;;ing to struggle against the many obstacles facing women has occurred to some extent in the vast amount of feminist organizing that has taken plaee from the 1970s to the present. As Dalla Costa suggested, the importance of women exploring their own sexuality and formulating demands about it has proved important in the process of exploding old patterns. But her recommended discussion of the organization of labor more generally and its time requirements that prevent self-realization for women and men alike has still to take place in US legal scholarship. A socialist feminist approach would make clear how our current individualistic assumptions about law and restriction of its scope primarily to the public sphere foreclose most of the reforms women need. In the field of cmployment Iaw, the injection of socialist feminism would yield a better understanding of the tenacity of discrimination against women in employment, given its centrality to both patriarchy and capitalism. It would offer an analysis of the sexual division of labor that would deepen our understanding of what is necessary in order to change it and an understanding of the gender division of labor as international. To family law, socialist feminism would bring a highly developed analysis of the economic functions of the household and their relationship to the greater economy. Rather than a sometime focus on 'work/life issues,' the spotlight would be on the fundamental incompatibility between the way the household and market economies are currently structured and the assumptions upon which they are based. Attention would be directed to the dependence of American women upon the labor of immigrant women for the care of both the very young and the very old at exploitative rates of pay. The connection between the disruption of communities by economic crisis and violence against women would be explored. Indeed, socialist feminism invites us to explore in general the economic roots of the radical feminist analysis based on power.

li. ANALYSIS OF THE STATUS OF WOMEN BY CLASS AND RACE ~n this section, I discuss how the early socialist feminist theorists began to address Jssues of class and race within their analyses. In many ways, this marks the origin of what we now call 'identity politics,' sometimes condemned for splittino the feminist movement. I discuss instead the major contributions class and race crhiques add to modem feminist legal theory.

• • ~ee,. e.g., Julie C. Suk, Are Gender Stereotypes Bad for Women? Rethinking Antidtscnmmatton Law qnd Work-Family Conflict, I 10 COLUM. L. REV. I, 24-40 (2010). 60

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A. Class Analysis of the Status of Women In arder to understand the workings of capitalist patriarchy and to strategize about tactics to oppose it, Zillah Eisenstein argued that it was necessary to perform a feminist class analysis, classifying groups of women by the work they did within the economy as a whole, whether as housewives, unemployed, working class, professional, or wealthy non-working women, and to relate these dassifications to their activities with respect to reproduction, child rearing, home maintenance, sexuality and consumption, resulting in a much more complex class analysis of women. Eisenstein represented this more complex analysis with a grid showing the intersection of the various classifications. 61 Writing about strategies for political work, Eisenstein concluded that the best way to build a unified movement was to reach out to middle class liberal feminists and radicalize them by working together around issues such as day care, health and reproduction. 62 Liberal feminists were highly motivated because these issues were central to improving their own lives, but they did not yet understand that the equality they sought would require dismantling capitalism. 63 Socialist feminist philosopher Nancy Hartsock pointed out that class distinctions under capitalism affected women and persons of calor in different ways than they did the male workers upon whom the Marxist theory of class was based, and class differences among women had consequence.s for everyday life that must be taken into account in political organizing. 64

B. Race and Identity Politics African American women and lesbians contributed to the development of socialist feminist theory during this period, for example, in the 1977 Statement by the Combahee River Collective (CRC). 65 This document was drawn up by a group ofBlack lesbian women in the Boston arca who formed a separate organization after their disillusionment with the treatment of their issues by white feminists as well as by Eisenstein, supra note 29, at 211-13. Zillah Eisenstein, Reform aml/or Revolution: Towards a Unified Women's Movement, in UNHAPPY MARRIAGE, supra note 20, at 339, 342-43. 63 ld. at 344. 64 Nancy Hartsock, Feminist Theory and the Development of Revolutionary Strategy, in CAPITALIST PATRIARCHY AND THE CASE FOR SOCIALIST FEMINISM 68- 7 I (Zillah R. Eisenstein ed., 1979) [hereinafter CAPITALIST PATRIARCHY] (describing, among other things, the differential verbal abilities and confidence of middle- and working-class women). 6 5 The Combahee River Collective: A Black Feminist Statemellt [hereinafter Combahee River Statement], in CAPITALIST PATRIARCHY, supra note 64, at 362- 72. On the history of the CRC, see Duchess Harris, From the Kennedy Commission to the Combahee Collective, in SISTERS IN THE STRUGGLE: AFRICAN AMERICAN WOMEN IN THE CIVIL RIGHTS-BLACK POWER MOVEMENT 280, 292-301 (Bettye Collier-Thomas & V.P. Franklin eds., 2001); see also Barbara Smith, Doing It from Scratch: The Challenge of Black Lesbian Organizing, in THE TRUTH THAT NEVER HURTS: WRITINGS ON RACE, GENDER, AND FREEDOM 167, 170-72 (2000) (describing the importance of the CRC to organizing Black lesbians). They named their group after the Combahee River, where a military action led by Harriet Tubman in 1863 freed more than 750 slaves - a successful military campaign Jed by a Black woman. Harris, supra, at 294. 61

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males within the movement for Black liberation and with thc conservative nature of thc National Black Feminist Organization. 66 After attcnding a largely white socialist feminist conference in 1975, they 'became more awarc o f thc nccd for us to undcrstand our own cconomic situation and to make our own economic analysis.' 67 The política! manifesto that emerged from the study, analysis and consciousnessraising engaged in by lhe CRC between 1974 and 1977 stands as an important document in the history both of socialist feminism and of idcntity politics. The group described its socialism as follows: We are socialists because we believe the work must be organized for the collective benefit of those who do the work and create the products and not for thc profit of the bosses. Material resources must be equally distributed among those who creatc those resources. We are not convinced, however, that a socialist revolution that is not also a feminist and antiracist revolution will guarantee our liberation. We have arrived at thc necessity for developing an understanding of class relationships that takes into accounl lhe specific class position of black women who are generally marginal in the labor force . . . Although we are in essential agreement with Marx's theory as it applied to the very specific economic relationships he analyzed, we know that this analysis must be extended further in order for us to understand our specific economic situation as black women.68 In short, the CRC's feminist and anti-racist analysis brought them to socialism, but it also brought them to what this group may havc been the first to name 'identity politics.' 69 Their reasons for adopting such an approach were pragmatic as well as theoretical : 'We believe that the most profound and potcntially the most radical politics come directly out of our own identity, as opposed to working to end somebody else's oppression.' 70 The CRC's focus was on their identities as Black women and lesbians, but they worked in allianccs with other groups to address issues that were of common interest, such as violence against women, daycare, welfare, sterilization abuse, abortion rights and health care.71

C. Class and Race Analysis of Women's Status in Feminist Legal Theory Today The tremendous contribution of criticai race theory to contemporary feminist legal theory is evidenced in this volume in the chapter by Dorothy Roberts. The necessity to pay attention to issues of race and class, as well as gender, have become major themes in modern feminist legal theory. 72 A more complex classification of women according to the labor they perform within the economy is also valuable as a tool to understand 66 See Combahee River Statement, supra note 65, ai 368-71. 67 ld. at 370. 68 ld. at 366. 69 See Harris, supra note 65, at 300. 70 Combahee River Statement, supra note 65, at 365. 71 ld. at 371 ; see also Harris, supra note 65, at 297- 99. 72 See, e.g., Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REv. 581 (1990); Kimberlé Crenshaw, Demarginalizing the lntersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U. CHI. LEGAL F. 139 (1989); Laura T. Kessler, Getting Class, 56 BUFF. L. REV. 915 (2008).

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the perspective each group may have on issucs addrcsscd by feminist legal analysis, as well as to política! organizing. Women are frequenlly just subsumed by analysts into the economic class of their husbands if they are married. Yet their viewpoints are formed by a complcx of roles that do not come in to play when analyzing men, whethcr simply as worker or capitalist or according to diiTcrcnces of race, sexuality, cthnic origin and the like. As the CRC taught us, it is important lo begin with analyzing onc's own oppression and thus to understand exactly how. and why, a reform is important to one's own welfare. This is key to engaging the kind of passion that must underlie mass organizing for reform if it is to be sustained in lhe long run. This insight is important both to an analysis of one's own interest and to consideration of the interests of other women, so as to rcveal possible alliances. Socialist feminist groups in the 1970s sought to identify política! activities that reflected these understandings. At a conference in March 1977, for example, socialist feminist groups in New York City decided that reproductive politics, and especially a campaign against sterilization abuse, had the best possibility of intcgrating questions of sex, race and class and building alliances with other groups of womenJ3 Although it never became a broad interracial alliance during its short Iife, the group that organized around these goals, the Committee for Abortion Reform and Against Sterilization Abuse (CARASA) did succeed in focusing attention on the high rate of sterilization of Puerto Rican and Native American women without their consent, resulting in the passage of federal regulations to ensure informed consent to sterilization.7 4 In short, identity politics, rather than being divisive, can encourage each feminist legal theorist to analyze how she herself is positioned within the division of labor, both how her labor is exploited and how she exploits that of other women, and perhaps then to make po1itical decisions that span the interests of both. An example might be for professional women to support the struggle of their children's caretakers for full immigration rights, decent pay and benefits. A class and race analysis of women in the US might also help us to understand the consciousness of women who voted for Donald Trump and to use that important information in organizing to defeat him.

III. PERSPECTIVE THEORY AND ADAPTATION OF MARX' S THEORY OF ALIENATION In this section, I describe the development of perspective theory by socialist feminist theorists in the 1980s, as well as their adoption and adaptation of Marx's theory of alienation to fit women. I then suggest how these theories can be helpful to feminist legal theory today. 73 Rosalind Petchesky, Dissolving the Hyphen: A Report on Marxist-Feminist Groups 1-5, in CAPITALIST PATRIARCHY, supra note 64, at 373, 375. 74 See U.S. WOMEN'S lNTEREST ÜROUPS: lNSTITUTIONAL PROFILES 131-34 (Sarah Slavin ed., 1995) (discussing CARASA); see a/so LINDA GORDON, THE MORAL PROPERTY OF WOMEN: A HISTORY OF BIRTH CONTROL POLITICS IN AMERICA 345-46 (2002) (discussing movement against sterilizaúon abuse).

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A. Perspective Theory By 1983, Nancy Hartsock had begun to develop Lhe concepl of a specifically feminist historical materialism - one that would take over Marx's method but expand his thcory 'that socially mediatcd interaction with nature in the process of production shapcs both human bcings and theories of knowledge.' 75 If individuais and thcir consciousness were formed, so to speak, by the work they perform, Lhe differences between the activities of women and men had signiticant consequences for epistemology. 76 The pcrspective of male workers under capitalism was formed by their participation in thc production of commodities for exchange and led, she argucd, to the dualist, abstract and hierarchical thinking characteristic of capitalist societyJ7 Women, by contrast, spent a largcr part of their work time producing use values rather than commodities for exchange, and their lives as mothers involved them in change, growth and unity with natureJX The resulting construction of female selvcs caused women to value the concrete rather than the abstract and gave them a sense of connectedness and continuity with others and with the natural worldJ9 This standpoint - the standpoint of women based on their life activity - had important epistemological and ontological consequences for understanding and constructing social relationships. 80 More important, this pcrspective provided a model for the socialist society of the future: 'What is necessary is the generalization of the potentiality made available by the activity of women - the defining of society as a whole as propcrtyless producer both of use-values and of human beings.'H 1 In other words, women's life activity formed the basis for a vision on which to build a new society.s 2 Rather than turning women into 'wage slaves' like men, the society envisaged would create the conditions for both to engage in work modeled, for example, on that of a mother. I return to this point about the necessity to transform the nature of work in my conclusion. Hartsock believed that the emancipation of women would require not only a revolution in the way the economy was organized but also a form of collective consciousness-raising, by which women would create an alternative image of themselves, of society and of their role in society. 83 In short, the new society required not

7~ Nancy C.M. Hartsock, The Feminist Standpoint: Developing the Ground for a Speciftcally Feminist Historical Materialism, in DISCOVERING REALITY: FEMINIST PERSPECT!VES ON EPISTEMOLOGY, METAPHYS!CS, METHOOOLOGY, ANO PH!LOSOPHY OF SC!ENCE 283 (Sandra Harding & Merrill B. Hintikka eds., 1983). 76 Jd. at 289. n ld. at 286, 296-98. 7" /d. at 291-94. 79 /d. at 298-99. KO fd. at 299. RI fd. al 304. "2 See NANCY C.M. HARTSOCK, MONEY, SEX, ANO POWER: TOWARO A FEM!NIST HISTOR!CAL MATERIALISM 247 (1983). 83 Nancy Hartsock, Feminist Theory and the Development of Revolutionary Strategy, in CAP!TALIST PATR!ARCHY, supra note 64, at 56-77; see a/so ROWBOTHAM, supra note 14, at 27-29.

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only a ncw economic system but also a new person. To achieve this goal, according to Shcila Rowbotham, it was important to study how 'little girls perceivc themselves in particular families in particular forms of society ... [especially] the process through which lhe family serves to communicate and reinforce Lhe prcvailing values of capitalist society ... the delicatc manner in which human beings stifle and define one another at the point of reproduction.' 84 Socialist feminist work should therefore focus both on pcrsonal lifc and social institutions, with an aim of creating a new society and new individuais with characteristics opposed to the capitalist concept of the individuaJ.H' Presumably that new society would consist of, or reward and encourage, ungendered human beings who valued connection and relationship and who produced use values rather than commodities for exchange.

B. Alienation Theory Alison Jaggar, a philosopher, suggested how Marx's theory of alienation could be adaptcd to socialist feminist purposes.86 In his theory of alienated (sometimes translated as 'estranged') labor, Marx argued that, under the capitalist system of commodity production, workers were alienated (I) from the products of their labor (which do not belong to them), (2) from the act of production (which is controlled by another and necessary to obtain a wage in order to survive), (3) from their species being (as freely creativc beings interacting with nature) and (4) from other human beings (by class divisions and competition with other workcrs).B7 Jaggar applied Marx's concept of alienation to women. She argued that the sexual division of both productive and reproductive labor - sex-segregated employment, laek of freedom over reproduction and compulsory heterosexuality, for example - resulted similarly in an estrangement of women from their bodies and their essential being. 8H The only route to overcoming this alienation was to eliminate the gendered division of labor in every aspecl of life: 'The goal of socialist feminism is to abolish the social relations that constitute humans not only as workers and capitalists but also as women and men.' 89 Jaggar's analysis had substantial implications for the type of political work socialist feminists should do. Women must be freed from the objectification of their bodies and of the need to be 'feminine' in order to overcome the alienation of their sexuality. 90 Moreover, they needed to be able to control the terms upon which they became mothers, how they gave birth and how they reared their children, so as to overcome alienation in those arcas of their livesY 1 Socialist feminist politics thus must not only focus on equal access to and the conditions of paid employment but also work to ROWBOTHAM, supra note 14, at 31-32. Hartsock, supra note 83, at 60-62. 86 ALISON M. JAGGAR, FEMINIST POLITICS ANO HUMAN NATURE 131-32 (1983); see also TONG, supra note 28, at 186. 87 See Karl Marx, Economic and Philosophic Manuscripts of 1844: Selections, in THE MARX-ENGELS REAOER 57-65 (Robert C. Tucker ed., 1972). 8 " JAGGAR, supra note 86, at 130-32. 89 ld. at 132. 84

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ld. at 308-10. ld. at 310-16.

I 06 Research handbook on feminis! jurisprudence further reproductive freedom - to light against involuntary sterilization, for example, and for access to affordable contraception and abortion.n However, women's issues should not just be added to the list of concerns for a revolutionary movement. Rather, lhe very concept of revolution should be enlarged by socialist feminism, so as to include not only legal and structural changes but also changcs in consciousness.9 3

C. The Contribution of Perspective Theory and Alienation Theory to Feminist Legal Theory Perspective theory reinforces the insights o f the analysis o f lhe role o f the housewife and the importance of race and class by underscoring the impacto f women's traditional roles - which many of us continue to perform today- upon lhe fcmalc construction o f sei f and resultant consciousness. The social construction of both femininity and masculinity has been central to feminist legal theory in the decades since Hartsock wrote, although sometimes Iacking a foundation in the economic functions assigncd to each within our society. A particular insight socialist feminists added is that the consciousness formed in this way provides a model for a future society, in which commodities and services would be valued for their use, and care for individual human beings would be a basepoint for ali political, legal and economic systems. Relational feminism, discussed in Robin West's chapter in this book and her work more generally, and Martha Fineman's vulnerability theory, described in her chapter, reflect one way in which these ideas have made their way into feminist legal theory.94 Jaggar's socialist feminist adaptation of alienation theory also helps us understand the importance of certain legal battles. To overcome women's alienation from their bodies, it has been important to confront the objectification of women's bodies, which has been a major theme in feminist legal theory, reflected in legal struggles against rape, pomography and sexual harassment and in significant legal reforms in those areas - and continues in the #MeToo movement and attention to campus sexual assault today. Alienation theory also helps explain the central importance of women's struggles for control over reproduction and assertion of sexualities differing from the traditional male/female dyad. Alienation theory is also still extremely relevant to the subject of women's relationship to work. The ideal of unalienated labor is not attainable by the majority of women or of men within the current economic and social system. Most women work from absolute necessity and take what work they can find, rewarding or not. They work in jobs allocated to women and are paid less than men. They give birth because they were denied reproductive services necessary to control their futures. Most can thrive only in a unit with multiple incomes - which is a substantial incentive to marriage, the Id. at 318-22. Id. at 340. 94 See, e.g., ROBlN WEST, CARING FOR JUSTICE ( 1997); Robin West, Jurisprudence and Gender, 55 Ü. CHl. L. REV. I (1988); MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY (2004). 92

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only legal institution that protects (if inadequately) a woman who 'chooses' that alternative. It is important for feminis! theorists to keep their cyes on the vision that things could be organized differently. As tcchnology takes over more lasks prcviously performed by human labor, lhe time nccessary to devote to work, on a socicty-wide basis, is reduced. Under capitalism, this rcsults in unemploymenl and incrcasing economic inequality. In an ideal world, we would take advantage of the reduction in necessary labor time by dividing the labor lhat rcmains among us ali, including bolh what is now paid and unpaid (domestic) labor. Mcn would be free to share in household labor and childcare in a way they may not bc today. But such a system is not possible in an economy based on profit, such as capitalism.

IV. THE ANALYSIS OF THE INTERNATIONAL DIVISION OF LABOR BY SEX AND FEMINIST LEGAL THEORY TODAY In the Iate 1980s, a German feminis! sociologist, Maria Mies, who had studied women in India, set out to explain the relationship between women in the Global North and South. Her analysis is essential to understanding the role of women in the current period of neoliberalism and global markets. Starting with what she called the 'housewifization' of women in the Global North, she described how an interrelated process had taken place in countries that had previously been colonized. Indeed, she saw women in the industrialized nations as constituting internai colonies, as their roles as housewives produccd invisible but essential labor in the atomized context of the nuclear family.95 In this, shc agreed with and developed upon the analysis of Dalla Costa and the other theorists of the wages for housework movement. Capitalism, however, is a dynamic system that depends upon continuing accumulation and growth, which was enabled by the exploitation of labor and resources in colonies in the past. By the time Mies wrote, the division of labor had become genuinely international. Labor-intensive production had been exported to developing countries, with resultant unemployment in the industrialized countries. Consumer goods such as textiles, clothing and electronics were produced in low-wage settings, usually under the aegis of multi-national corporations, and sold back to consumers in the Global North.96 Women in the Global South were the ideal workforce because their labor was cheap, seen as supplemental to that of men and organized into informal settings without the protections demanded in the formal labor market. 97 (A similar phenomenon had taken place in the Global North, with the so-called 'flexibilization of Jabor.')9B Women in the Global South had shifted much of their agricultura) production from subsistence to commercial agriculture, producing exotic fruit, flowers and the like 95 MARIA MIES, PATRIARCHY AND ACCUMULATION ON A WORLD SCALE: WOMEN IN THE lNTERNATIONAL DJVISION OF LABOUR 106, 110 (1986). 96

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Jd. at 113-17. Id. at 116-20. Id. at 15.

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for consumers in thc Global North. 99 As a rcsult, women in the Global North, as consumers, and womcn in the Global South, as producers, were linked, but in an antagonistic relationship, with the first wanting consumer goods at Iow prices, which depended upon exploitation of the second. 1D0 The emancipation of women in the Global South is impossiblc within this system. Mies argued that consumerism was the drug by which ali parties carne to accept these conditions, but that never-ending growth was impossible without the ultimate destruction of naturc. 101 The acceptance of limitation and a radical change in thc concept of labor was rcquired. 102 Here, Mies returned to Marx's theory of unalienated labor, possible only upon the abolition of private property and the reduction of socially necessary labor time by technology and productivity. The appropriate model for labor in that new world, she argued, would be that of a mother, for whom labor, while sometimes burdensome and sometimes fulfilling, was oriented toward the production of life. A different concept of working time would also be required, more congruent with the life of a mother, not organized into disciplined segments of time but alternating times of work and rest. 103 Men would share responsibility for the portion previously designated as houscwork, even in situations where it was socialized, as in childcare centers.I04 So what was the way forward, and what was the role of middle class women in countries of the Global North? Mies suggested a consumer liberation movement, which would include boycotts based on making the exploitation of women in the Global South visible in commodities offered for sale. 105 Simplification of Iife and Iimitation of artificially created nceds would also be necessary. This, she argued, could prepare the ground for a production liberation movement by women in the Global South, in which their labor would shift from production of Iuxury products for consumers in the North to production of what they needed themselves - food, clothing, shelter, health and education.I06 The phenomena of 'housewifization' and the 'flexibilization' of labor continue in ali parts of the world today. Household work is unpaid the world over, and the trend away from well-paid steady full-time employment with benefits is increasing, as it is replaced by part-time and contract work without benefits or job security and performed at Iow pay, much of it by women. Struggles against this change in the nature of paid labor in both poor and rich areas of the globe are necessary, but probably fruitless without major changes in the assumptions underlying our economy and polity. A politics of consumption that insists upon better pay and working conditions for commodities produced abroad might help, as well as offering better pay to the workers, 99 Id. at 114, 133. 100 Id. at 120. 101 Id. at 208, 211. Mies became increasingly involved in the ecofeminist movement as well. See MARIA MIES & VANDANA SHIVA, ECOFEMINISM (1993). 1o2 MIES, supra note 95, at 211. 103 Id. at 213-17. 104 Id. at 222. 105 Id. at 225-26. 106 Id. at 233.

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domestic and immigrant, who care for our children, clean our houses, maintain our gardens, dclivcr our pizza and support our lifestyles in every respect. This approach calls for integrating an analysis of lhe underlying and mostly invisible economic rclationships embodied in ali the transactions covered by our legal system. It involves labor and employment law, a struggle for labor rights as well as fair and equitablc compcnsation. It entails reforming the law so as to limit thc ability of employers to make use of workers without any job security and at wages below the minimum ncccssary to Iive- and not just to expor! the work overseas. It requires us to understand how the dynamics of race and gender interact to support capitalism, in lhe form of wagc discrimination and low rates of pay for women and people of color. And so on. Many of the insights of intemational socialist feminism have been embraced by ecofeminism 107 and transnational feminism. 108 They have also been developed by feminists more generally in lndia. From references in their articles, it is clear that Indian feminist legal theorists are familiar with dual systems theory, the wages for housework movement, intersectionality and even the works of the CRC. 109 They have applied socialist feminist analysis to the Indian context, adapting it to include caste as well as class. 110 In the wake o f the 2012 gang rape case in Delhi, they also attempted to apply it to rape and sexual violence more generally. 111 Yet the perspectives of socialist feminism have not been incorporatcd and acknowledged in feminist legal theory in thc US.

V. CONCLUSION: THE UNEXPLORED POTENTIAL OF SOCIALIST FEMINIST LEGAL THEORY The incorporation of socialist feminism into the study of law would import a deeper understanding of the interdependence and interpenetration of the private and public spheres and the economic impact of that interdependence, a commitment to the inclusion of race and class as well as gender in legal theoretical analysis and a more 107 See, e.g., VANDANA SHIVA, STAYING ALIVE: WOMEN, ECOLOGY AND DEVELOPMENT 14-26 (1988). 108 See, e.g., CHANDRA TALPADE MOHANTY, FEMINISM WITHOUT BORDERS: DECOLONIZING THEORY, PRACTICING SOLIDARITY (2003). 109 See, e.g., Nivedita Menon, Capitalism, Sexual Violence, and Sexism: Kavita Krishnan (20 13), available at https://kafila.online/20 13/05/23/capitalism-sexual-violence-and-sexism-kavitakrishnan/; Nivedita Menon, Marxism, Feminism and Caste in Contemporary India, in DEMOCRATIC MARXISM 4: RACISM AFfER APARTHEID - CHALLENGES TO MARXISM AND ANTI-RACISM (Vishwas Satgar ed., 2018); Rohini Hensman, Revisiting the Domestic-Labour Debate: An Indian Perspective, 19 HISTORICAL MATERIALISM 3 (2011). 110 See, e.g., Menon, Marxism, Feminism and Caste, supra note 109. 111 See Maya John, Class Societies and Sexual Violence: Towards a Marxist Understanding of Rape (2013), available at https://radicalnotes.org/2013/05/08/class-societies-and-sexualviolence-towards-a-marxist-understanding-of-rape/ (arguing for a class analysis of rape); Menon, Capitalism, Sexual Violence, and Sexism, supra note 109 (exploring the material structures that underpin sexual violence).

I IO Research handbook on feminist jurisprudence complcx class analysis with categorics pcrtinent to women's multiple roles. lt would remind us, as well, that any meaningful analysis of gender rclations must be international in scope, given that lhe majority of women live in lhe Global South, where patriarchy is still strong, and that both domestic and international aspects of cconomic exploitation must be explored. An example of a law review article that reflects such a socialisl feminist approach is Toward a Global Critica! Feminist Vision: Domestic Work and the Nanny Tax Debate by Taunya Lovell Banks. 112 Thc article discussed the public and legislative debate occasioned when the first two women nominated to be Attorney General of the United States were required to withdraw from consideration because they employed undocumented women as childcare workers and failed to pay social security on their wages.IIJ Banks proceeded to address the questions a socialist feminist approach requires: the division of labor in the home that assigns child care to women and the construction of this issue as belonging to the private sphcre, 114 the structure o f labor in the workplace that requires women who aspire to be mcn's equals to hire another woman full time to care for their children, 115 the undervaluation o f such caregiving in both status and pay and its under-regulation, 116 the globalization o f the market for migrant women to serve as low-paid childcare workers because of the lack of work in poor countries 117 and the issues of race, citizenship and class pervading that market. 118 Such an analysis demonstrates the acuity of vision that proceeding from a socialist feminist viewpoint may provide. Socialist feminism also offers many pragmatic suggestions about a strategy for effective change in the legal, political , social and economic position of women. Prioritizing issues that integrate the interests of women of different races, classes and sexual orientations and building alliances among them is key. Rather than simply adding to the entitlements of elite groups of women, the focus should be on reforms that improve the lives of many with respect to issues they have in common, while also increasing both their power and sense of their own power. Socialist feminist authors such as Zillah Eisenstein and Nancy Fraser 119 have proposed that heightening the contradictions in women's lives and in the economy through piecemeal reform will raise the consciousness of ali women in the long run and tum them into a force for systemic change because the conditions for success in their varied life roles require such major change. 112 Taunya Lovell Banks, Toward a Global Criticai Feminist Vision: Domestic Work and the Nanny Tax Debate, 3 J. GENDER, RACE & JusT. 1, 4 (1999). Banks was apparently only familiar with socialist feminism from a description of Alison Jaggar's sumrnary of it See id. at 39 n. 187. m Jd. at 2-4. 114 Jd. at 6-11. 115 Id. at 21-24. 116 ld. at 11-14. 117 Jd. at 30-36. 11 B Id. at 18-21, 24-29. 119 See Nancy Fraser, Social Justice in the Age of Jdentity Politics: Redistribution, Recognition, and Panicipation, in NANCY FRASER & Ax:EL HONNETH, REDISTRIBUTION OR RECOGNITJON?: A POLITICAL-PHILOSOPHICAL EXCHANGE 79-80 (2003).

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Such success is not possiblc under the current economic and política! system. Moreover, it must be foundcd ncither upon the exploitation of some women by other women, as at present in the US, nor on the assimilation of womcn into the world of work created by capitalism sincc the Industrial Revolution. Women joining the labor force on the same terms as mcn is not the goal of socialist feminism, cven if they learn to share domestic work on equal terms. Rather, a fundamental reorganization of the world of work is required, so that men and women alike are free to participare both in domestic and non-domestic work, as well as the work of citizenship. Recent history appears to show thal the underlying principies of democracy as now understood and of capitalism may be incompatible, that effective and equal freedom is not attainable as things stand. The following values would inform an alternative system based on socialism: The economy would not be organized around profit as the sole or primary motivating force. A radically transforrned state, no longer captured by business interests, would function as an instrument to democratize both the economy and the society. To do so, it would use collective resources to ensure that ali citizens were freed of the constraints of basic necessity, could participate in the contrai of their work lives through institutions like collective bargaining or co-management and would have a genuinely effective and equal voice in determining the government that carried out these policies. Women's role would be particularly important in this process, both because their lives demand these changes and because the perspective of women is more aligned with the imperatives of a non-capitalist system - in short, a system in which basic human needs are given priority over profits, production is aimed at and limited by fulfilling those human needs and the conditions of labor are such that other arcas of human flourishing are also encouraged.

Criticai race feminism

6.

Criticai race feminism* Dorothy E. Roberts

At least since lhe formcrly enslaved activist Sojourncr Truth asked 'Ain't I a woman?' at the 1851 Womcn's Rights Convention, women of colar have contributed to feminist theorizing by contesting universalist notions of womanhood based on white women's experiences and by pointing to the importance of ending racism as well as sexism for women's liberation. 1 In the last 50 years, feminists o f colar have developed an intersectional analysis of women's subordination known as criticai race feminism that takes into account the multiple, interlocking systems of oppression that affect women's lives and social status in ways typically overlooked by dominant feminist jurisprudence. Thcy have also followed a long legacy of resistance against combined race- and gender-based oppression by proposing new intersectional frameworks for dismantling unjust hierarchies, systems and institutions. Criticai race feminists have thereby transformed feminist legal theory, making it more relevant to the experiences of ali women and better able to effectively challenge varying forms of women's subordination. Criticai race feminism emerged as part of movements by legal scholars of calor to highlight the vital relationship between racism and law and by feminists of calor to highlight the vital relationship between racism and sexism. In the late 1970s, scholars of colar Iaunched a revolution in legal scholarship called criticai race theory, which engaged in a systematic, race-based critique of legal reasoning and legal institutions by exposing their complicity in the preservation of racial inequality.2 Rather than treat racism as an aberration that contradicts American ideais, criticai race theory holds that racism is systematically embedded in U.S. institutions and culture and is commonly experienced by people of color. 3 Criticai race theorists argue that prevailing legal theory fails to grasp the more subtle and systemic forms of racism that persist despite the gains of the civil rights movement. 4 Criticai race scholars also confronted the failures of feminism, as well as conservative, liberal and criticai legal studies approaches, to address the law's central role in racial subordination.

* Parts of this chapter elaborate ideas introduced in my essay 'Criticai Race Feminism' included in the collection FEMINIST JURISPRUDENCE IN THE UNITED STATES AND ASIA: A TRANSPACIFIC DIALOGUE (Cynthia Grant Bowman and Yu Xingzhong eds., 2017), published in Chinese. 1 BELL HOOKS, AIN'T lA WOMAN: BLACK WOMEN AND FEMINISM (1981). 2 Angela P. Harris, Foreword, in CRITICAL RACE THEORY: AN lNTRODUCTION xvii (Richard Delgado and Jean Stefancic eds., 2001). 3 RICHARD DELGADO & JEAN STEFANCIC, CRJTICAL RACE THEORY: AN lNTRODUCTION 7 (2012). 4 Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988). 112

I 13

At the same time, fcminists of calor were challenging white feminists' lack of attention to women of colar and to the role of racism in women's subordination. 5 They envisioned feminism's mission to liberate women as requiring the abolition of ali forms o f oppression, not only patriarchy. As bell hooks wrote in 1981, To me feminism is not simply a struggle to end male chauvinism or a movement to ensurc that women will have equal rights with men; it is a commitment to eradicating the ideology of domination that permeates Westem culture on various leveis - sex, race, and class, to namc a few ... 6 Criticai race feminism emerged out of these movements in the writings of women of colar in legal academia who pointed out the failure of mainstream civil rights and feminist paradigms alike to see the intersection of racism and sexism in the oppression of women of colar. Like traditional legal doctrines, these more radical approaches also allowed women of calor to 'fali through the cracks.' 7 Criticai race feminists revised mainstream feminist theorizing to reveal the inextricable connection between racism and sexism in the lives of women of calor as well as in legal institutions that support hierarchies of power. 8 The racial critique of feminism's focus on gender as the primary locus of oppression has inspired an ongoing reconstruction of a feminist jurisprudence that includes the historical, economic and social diversity of women's Iives. Section I describes intersectionality, an important theoretical pillar of criticai race feminism. The intersectional approach rejects treating white women's experiences as a universal standard and takes into account women's complex identities and statuses, which are shaped not only by gender but also by race, class, sexual orientation, disability, immigration status and other entangled social hierarchies. Section II focuses on state regulation of Black women's bodies to illustrate a criticai feminist analysis of the interplay of gender, race and class in policies that govem women's childbearing. Section III discusses criticai race feminists' analysis of intersecting legal institutions that work together to marginalize women of calor. Sections IV and V tum to two

5 HOOKS, supra note I; ANGELA Y. DAVIS, WOMEN, RACE, & CLASS (1981); CHERRÍE MORAGA & GLORIA ANZALDÚA, THIS BRIDGE CALLED MY BACK: WRITINGS BY RADICAL WOMEN OF COLOR (4th ed. 2015); AUDRE LORDE, SISTER ÜUTSIDER: ESSAYS AND SPEECHES (2007). 6 HOOKS, supra note I, at 194. 7 Adrien Katherine Wing, lntmduction, in CRITICAL RACE FEMINISM: A READER I (Adrien Katherine Wing ed., 2d ed. 2003). See Kimberlé Williams Crenshaw, Demarginalizing the

lntersection of Race and Sex: A 8/ack Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U. CHI. L. FORUM 139, 140 (1989). 8 See, e.g., Crenshaw, supra note 7; Judy Scales-Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights, 24 HARV. C.R.-C.L. L. REV. 9 (1989); Paulette Caldwell, A Hair Piece: Perspectives on the lntersection of Race and Gender, 40 DUKE L. J. 365 (1991); Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Colot; Equality, and the Right of Privacy, 104 HARV. L. REV. 1419 (1991); Twila L. Perry, Alimony: Race, Privilege, and Dependency in the Searchfor Theory, 82 GEO. L. J. 2481 (1993); Sumi K. Cho, Converging Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suzie Wong, I J. GENDER, RACE & JUSTICE 177 (1997).

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frameworks developed by criticai racc fcminists to resist women's subordination reproductive justice and anti-carceral approaches to domestic violence.

I. INTERSECTIONALITY An essential foundation of criticai racc fcminism is intersectionality - an analytical framework that interrogates how womcn's idcntitics, experiences and social statuses are shaped in varying ways by the simultancous opcration of multiple forms of opprcssion. This approach to feminism centered on Lhe simultaneity of multiple oppressions was articulated in classic texts by women of color in the 1970s and 1980s.9 In 1977 a group of Black feminists called the Combahce Ri ver Collective issued a prominent statcment that captured the importance of intersectionality for feminist theorizing, declaring they were 'actively committed to struggling against racial, sexual, heterosexual, and class oppression' by developing an 'integratcd analysis and practice based upon the fact that the major systems o f oppression are interlocking.' 1o In her influential article, Demarginalizing the lntersection oj Race and Sex ( 1989), Iaw professor Kimberlé Crenshaw coined the term 'intersectionality' to denote the various ways in which race and gender interact to shape women's experiences of subordination. 11 At a societal levei, intersectional analysis examines the ways in which structures of power, including racism, patriarchy, heterosexism and classism, inextricably connect with and shape each other to create a system of interlocking oppressions. This 'matrix of domination' affects ali women in different ways, depending on their particular social positions.'2 Crenshaw centered on Black women to show that the single-axis framework of discrimination analysis, focused on either race or gender, overlooks people who have multiple intersecting identities and ignores people who are harmed by a combination of inequities. An intersectional analysis revealed that Black women suffer the combined effects of racism and sexism and therefore have experien~es that are different from those of both white women and Black men, experiences whtch were neglected by dominant antidiscrimination doctrine. Crenshaw demonstrated that civil rights discourse focused on male interests and feminism focused on white women's interests erased Black women altogether and forced them to choose between identities. Crenshaw has applied an intersectional approach to contemporary reform policies to show how they continue to leave out Black women and girls. For example, she challenged President Barack Obama's My Brother's Keeper initiative, which addresses systemic discrimination against Black boys

9

HOOKS, supra note I; DAVIS, supra note 5; MORAGA & ANZALDÚA, supra note 5; LORDE,

supra note 5. 10

THE COMBAHEE RIVER COLLECTIVE STATEMENT: BLACK FEMINIST ÜRGANIZING IN THE SEVENTIES AND EIGHTIES I (I 986). 11 Crenshaw, supra note 7, at 1244. 12 PATRICIA H!LL COLLINS, BLACK FEMINIST THOUGHT: KNOWLEDGE, CONSCIOUSNESS, AND THE POUTICS OF EMPOWERMENT 18 (2000).

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without attending to thc equally important needs o f Black girls. 11 Thc African American Policy Forum, an organization Crenshaw co-founded and dirccts, launched the #SayHerName campaign in 2015 to bring attention to Black fcmale victims o f policc violence who had bccn ignorcd in campaigns to end police killings of unarmed Black men . 14 • A ycar after Crcnshaw's 1989 artidc was published, law professor Angcla Harris's articlc Race and Essentialism in Feminist Legal Theory highlighted anothcr shortcoming of dominant feminist juri~prudence resulting from its exclusion or women of color. 15 Harris argued that whitc fcminist scholars practiced 'essentialism' when thcy highlighted sexism as the most significant form o f oppression in women 's Iives, wrongly implying that 'there is a monolithic "women's experience" that can be described independently of other racets of experience like race, class, and sexual orientation.' 16 Criticai race feminists h ave revealed how white feminists' assumption o f a universal woman who shares with ali women a common cxperience of sex discrimination reifies the experiences of white women. Harris used the example of beauty to explain the qualitative difference between white and Black women's failure to meet patriarchal standards of physical appearance. Because beauty standards are constructed by race as well as by gender, Black women's frustration with those standards is not simply a more intense form of white women's frustration: it is impossible for Black women to meet a standard of beauty defined as white. 17 Another foundational article by a Black female law professor was Regina Austin's Sapphire Bound!, published in 1989. Austin called on women of color in legal academia to move boldly beyond criticism to 'declare that we are serious about ourselves' by deploying the 'intellectual power and resources that are necessary to combat the systematic denigration o f minority women.' 18 She charted an agenda for Black feminist legal scholarship that touts the importance of the perspective of women of color and the significance of their concerns as legitimate topics of legal scholarship and advocacy. Austin elaborated her approach by examining a court decision, Chambers v. Omaha Girls Club, 19 which held that an organization for girls did not violate Title VII when it fired Crystal Chambers, an African American unmarried arts and crafts instructor, when she became pregnant. Austin pointed out the vilification of

13 Kimberlé Williams Crenshaw, The Girls Obama Forgot: My Brother's Keeper Ignores Young 8/ack Women, N.Y. TIMES, July 29, 2014, https://www.nytimes.com/2014/07/30/opinion/ Kimberl-Williams-Crenshaw-My-Brothers-Keeper-lgnores-Young-Biack-Women.html. See also Paul D. Butler, Black Male Exceptionalism? The Problems and Potential of Black Male-Focused lntervention, 10 Du BOIS REV. Soe. SCI. RES. RACE 485 (2013).

14 African American Policy Forum, #SAYHERNAME - AAPF (2015), http://www.aapf.org/ sayhemame/. 15 Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REv. 581 (1990). 16 Id. at 588. 17 ld. at 596-598, discussing TONI MORRISON, THE BLUEST EYE (1970). IH Regina Austin, Sapphire Bound!, 1989 Wis. L. REV. 539, 542 (1989). 19 Chambers v. Omaha Girls Club, Inc., 834 F.2d 697 (1987), reh'g denied, 840 F.2d 583 (1988).

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Black unwed motherhood underlying the club's claim that Crystal was a negative role modcl. She argued that a Black feminist jurisprudential analysis of Chambers must seriously consider the possibility that young, single, sexually aclive, fcrtile, and nurturing black women are being viewed ominously bccause they havc the tcmcrity to attempt to break out of the rigid economic, social, and political categories that a racist, sexist, and class-stratified society would impose upon them. 20

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single-axis framework across the board 'undermine[s] potcntial collective action.' 26 Intersectionality, in contrast, allows us to develop tools not only to critique the dominant view of discrimination but also to forge bases for solidarity and política) organizing. Uncovering how dominant discourses and systems marginalize certain groups in intersecting ways can thus be a fruitful basis for activism.

11. REGULATING BLACK WOMEN' S BODIES Criticai race feminists, including Black, Asian, Latina and Native American scholars, have dramatically altered feminist legal theorizing by placing women's multiplicity of identities, oppressions and forms of resistance at its center. 21 They have examined a broad range of legal concems particular to women of color that previously remained invisible in existing legal approaches. Criticai race feminists have also examined the particular histories of oppression various groups of women experienced, along with the disparaging, racialized images of minority women's sexuality and motherhood that legitimize their subordination, such as the myths of the licentious Black Jezebel, the hyperfertile Latina and the sexually submissive Asian woman.22 Thc significance of intersectional analysis is not limited to understanding individual womcn's experiences or the ways systems of oppression intersect in individual women's lives. Criticai race feminist scholars have explored the use of intersectionality for multiple purposes. 23 As a framework of analysis, intersectionality has been applied not only to feminist theory but also to empírica! research and political activism.24 It provides a tool to criticize dominant legal discourse as well as to delineare 'a wide range of methodological approaches to the study of multi pie, intersecting, and complex social relations.' 25 Social scientists have conducted multi-group studies to analyse and compare the complex dimensions of advantage and disadvantage experienced by various intersecting categories, such as wage inequality, by gender, race and class. Although Crenshaw focused on the erasure of Black women from dominant discourses in her 1989 article, she concluded that, by categorizing struggles as singular issues, the 20 Austin, supra note 18, at 555. 21 See Margaret Montoya, Mascaras, Trenzas, y Grenas: Un/Masking the Se/f While Un/Braiding Latina Stories with Legal Discourse, HARV. J. L. & GENDER 185 (1994); Berta Hernández-Truyol, Latina Multidimensionality and LatCrit Possibilities: Culture, Gender, and Sex, 53 UNIV. MIAMI L. REV. 811 (1999). 22 Cho, supra note 8; DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE MEANING OF LIBERTY (1997); MELISSA HARRIS-PERRY, SISTER CITIZEN: SHAME, STEREOTYPES, AND BLACK WOMEN IN AMERICA (2011). 23 See, e.g., ANGE-MARIE HANCOCK, lNTERSECTIONALITY: AN lNTELLECTUAL HISTORY (2016).

24 PATRICIA HILL COLLINS & SIRMA BILGE, lNTERSECTIONALITY (2016); Dorothy Roberts and Sujatha Jesudason, Movement lntersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du BOIS REV. Soe. SCI. RES. RACE 313 (2013); Zakiya Luna, 'Truly a Women of Colo r Organization ': Negotiating Sameness and Difference in Pursuit of Jntersectionality, 30 GENDER & SOC'Y 769 (2016). 25 Leslie McCall, The Complexity of lntersectionality, 30 SIGNS 1771, 1772 (2005).

A telling illustration of the need for an intersectional approach to feminist jurisprudence is provided by the particular forms of state regulation of Black women's bodies produced by the entanglement of racism and sexism in the United States. Under the system of chattel slavery, white control of Black women's sexuality and childbearing was vital to capitalist, patriarchal and white supremacist rule in the colonies and new nation.27 White slaveholders classified Africans as an animal-like race that could be legally treated as chattel property. Black women were commercially valuable to their masters not only for their labor but also for their ability to produce children who could be enslaved. Whites, then, could maintain their domination and increase their wealth by devising a legal and política! apparatus that gave them control over Black women's sexuality and childbearing. To create this system of rcproductive control, white settler colonists radieally altered English laws of inheritance and kinship to support it: one of the colonies' very first laws, a Virgínia statute enacted in 1662, gave children bom to Black women and fathered by white men the status of their enslaved mothers. 28 The biological logic of race, written into slave law, marked Black women's wombs as reproducers of children who were bom into a subjugated political position. Centering the reproduction of slave status in Black women's bodies served dual purposes: it excused state violence against Black women as necessary to manage their procreative labor while attributing the inferior status and suffering imposed by the slavery system to the inferior qualities Black women supposedly transmitted to their offspring.29 The exploitation of enslaved women generated a degrading imagery of Black female sexuality designed to legitimize white men's immorality. Through the centuries, the state has deployed racialized and gendered stereotypes of Black women's innately reckless and pathological sexuality to legalize multiple forms of violence against Black women. 30 Although white women are also affected by racism and sexism, they were not treated legally and literally as subhuman property. Moreover, although certain white women, such as sex workers, lesbians, transgender women and single mothers, have been stigmatized as sexually immoral, white women are not seen as categorically and Crenshaw, supra note 7, at 167. ROBERTS, supra note 22; Adrienne D. Davis, The Privare Law of Race and Sex: An Antebellum Perspective, 51 STAN. L. REV. 221 (1999). 28 A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 44 (1980); ROBERTS, supra note 22, at 23. 29 ROBERTS, supra note 22, at 23-24. 30 ld. at 1-21; COLLINS, supra note 12, at 69-96; HARRIS-PERRY, supra note 22, at 28-50. 26

27

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naturally depraved. lndecd, white women rcmain the epitome of sexual purity and femininity in dominant U.S. culture. In contras!, dominant U.S. culture defines Black sexuality as inherently and essentially immoral and treats the Black female body as representing innate promiscuity. This racialized sexual mythology is reinforced by a corollary belief that Black women procreate recklessly and pass on a depravcd lifestyle to their offspring. The cultural opposition of moral white motherhood and depraved Black motherhood has been perpetuated, for example, in the 1960s stercotype of the Black matriarch whose sexual aggression emasculated Black men, creating the female-headed household that Daniel Patrick Moynihan and others blamed for the demise of the Black family.1t Doctors working for government welfare programs sterilized thousands of Black women coercively or without their consent in the 1960s and 1970s. 32 The myth o f the Black 'Welfare Queen,' portrayed as having babies in order to receive public assistance, emerged during the Reagan administration and helped galvanize support for ending the entitlement to welfare in the 1990s. Killing the Black Body: Race, Reproduction and the Meaning of Liberty, published in 1997, recounted the history of regulation of Black women's reproductive lives and exposed a resurgence of policies that devalue Black motherhood, including the disproportionate prosecution of Black women for using drugs while pregnant, state-sponsored programs to encourage use of risky, long-term contraceptives by Black teenagers and welfare reforms designed to deter women receiving public assistance from having children. 33 Noting that mainstream feminist theories of reproductive rights ignored these violations, it argued that 'the meaning of reproductive liberty must take into account its relationship to racial oppression.'34 The reproductive abuse of Native American, Mexican-origin and Asian immigrant women has also entailed gendered and racialized regulation of their reproductive decisions, including racist stereotypes that portray their childbearing as excessive or illegitimate. 35 Identifying these women as the cause of social problems blames them for the toll institutionalized social, political and economic inequities take on their children and diverts attention from state responsibility and lhe need for social change.

fi. INTERSECTING PUNITIVE STATE INSTITUTIONS Criticai race feminists have also used an intersectional framework to investigate how women of color are over-policed and under-protected by a web of legal institutions, systems and structures. Their intersectional social status, along with racialized and 31 DANIEL MOYNIHAN, THE NEGRO FAMILY: THE CASE OF NATIONAL ACfiON (1965); SUSAN D. GREENBAUM, BLAMING THE POOR: THE LONG SHAOOW OF THE MOYNIHAN REPORT ON CRUEL lMAGES ABOUT POVERTY (2015). 32 ROBERTS, supra note 22, at 56-103.

33 34 35

ld. ld. at 6.

ELENA R. GUTIÉRREZ, FERTILE MATTERS: THE POLITICS OF MEXICAN-ORIGIN WOMEN'S REPRODUCTION (2008); LISA SUN-HEE PARK, ENTITLED TO NOTHING: THE STRUGGLE FOR lMMIGRANT HEALTH CARE IN THE AGE OF WELFARE REFORM (2011).

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gendered stcrcotypes that support it, make them especially vulnerable to state surveillance, punishment and violence. These women are routinely blamed for social problems and targeted for social control by a variety of policies and practices that mutually support each othcr in subordinating women of color in particular ways. Moreover, a criticai race feminist analysis highlights how the subordination of women of color is essential to the maintenance of unjust state institutions. Black and Latina women are the fastest growing segment of the U.S. prison population.16 Most of these women are themselves victims of abuse and have been incarcerated for nonviolent crimes related to substance abuse, mental health problems or poverty. Black and Latina incarcerated women need drug treatment, access to high-quality health care, support for their children, housing security or safety from an abusive relationship instead of criminal punishment. Crenshaw notes that 'the "genderresponsive" policies and interventions offered in response often reflect a general inattentiveness to mass incarceration's racial-control dimensions.' 37 Moreover, a criticai feminist analysis reveals that state prison policies not only exclude the interests of incarcerated women of color but also target them for racialized forms of violence. Thus, gender-based programs that incorporare racist views become repressive rather than responsive. For example, California's gender-responsive agenda included a program of unapproved sterilizations of Black and Latina women in Califomia prisons. 38 Recognizing the multiple ways in which the state targets women of color unveils mass incarceration's relationship to a broader apparatus of surveillance, social control and punitive regulation. As Crenshaw puts it, 'Centering their experience helps to reveal that the problem of mass incarceration is not simply a problem of criminal justice per se but of the disciplinary practices of the state and private social power writ large.'39 Focusing on Black women elucidares that the carceral state involves a web of numerous punitive institutions beyond prisons and beyond the state whose intersections are held together by Black women's intersectional vulnerability. The carceral state's multiple dimensions hinge on regulating Black women's bodies. Thus, by centering Black women, intersectional thinking is key to understanding how the U.S. carceral regime works. A 'school-to-prison pipeline' connects even the education system to policing. Black girls are disproportionately assaulted by police officers in schools, which are increasingly becoming an arm of the carceral state instead of an environment designed to help these girls flourish. 40 36 Ronald L. Braithwaite, Henrie M. Treadwell and Kimberly R.J. Arriola, Health Disparities and Jncarcerated Women: A Population lgnored, 95 AM. J. Pus. HEALTH 1679 (2005). 37 Kimberlé W. Crenshaw, From Private Violence to Mass lncarceration: Thinking lntersectionally about Women, Race, and Social Control, 59 UCLA L. REV. 1418 (2012). 38 Corey G. Johnson, Female Prison lnmates Sterilized lllegally, Califomia Audit Conjirms, REVEAL, 2014, https://www.revealnews.orglarticle/female-prison-inmates-sterilized-illegally-

califomia-audit-confirms/. 39 Crenshaw, supra note 37, at 1428. 40 MONIQUE W. MORRIS, PUSHOUT: THE CRIMINALIZATION OF BLACK GIRLS IN SCHOOLS (2015); CARLA SHEDD, UNEQUAL CITY: RACE, SCHOOLS, AND PERCEPTIONS OF INJUSTICE (2015); KlMBERLÉ CRENSHAW, PRISCILLA ÜCEN & JYOTI NANDA, BLACK GIRLS MATTER: PUSHED ÜUT, ÜVERPOLICED AND UNDERPROTECfED (2014).

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Thc contemporary intersection of the wclfare, prison and foster care systems in the livcs of women of color works to bolster the white supremacist, patriarchal and capitalist regime in the United Statcs in a neoliberal age. 41 Ali thrce systems are markcd by glaring race, gender and class disparities. Cash-poor and low-incomc Black mothcrs are disproportionately involvcd in ali of them. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) imp1emented policies targctcd specifically at B1ack women, portrayed in the media as 'Welfare Queens,' including provisions deterring their childbearing and pressuring them to gct married as so1utions to female poverty. Welfarc ceased being an entit1ement and became instead a behavior modification program to control the sexual and reproductivc decisions of cash-poor mothers.42 Once the 1996 law was in place, statcs enacted 'child exclusions' or 'family caps' that aim to deter women receiving public assistance from having babies by denying thcm any increment in their bencfits, violating their reproductive autonomy and denying their families income needed to survive. 43 Congress noted in its 2001 Temporary Aid for Needy Families reauthorization bill that '[s]tates in which African Americans make up a higher proportion of recipients are statistically more likc1y to adopt family cap policies,' and studies havc found that caps influenced Black women's rcproductive decisions the most out of ali women. 44 Women who depend on public assistance to care for their children are increasingly treated as criminais. Some are subjccted to drug testing and home inspections, 45 while accusations of welfarc fraud are brought as felony charges punished with prison sentences rather than administrative violations garnering civil penalties. 46 By denying mothers the resources they need to take care of their chi1dren, welfare policies make these women vulnerable to involvement in the prison and foster care systems. The 1996 abolition of the welfare safety net coincided with the passage of the Adoption and Safe Families Act (ASFA) a year !ater, which emphasized adoption as the solution to the rising foster care population. Like welfare restructuring, ASFA was 41 Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of 8/ack Mothers, 59 UCLA L. REV. 1474 (2012); Dorothy E. Roberts, Complicating the Triangle of Race, Class and State: The lnsights of Black Feminists, 37 ETHN. RACIAL STUD. 1776 (2014); Crenshaw, supra note 37; Priscilla A. Ocen, Unshackling lntersectionality, 10 Du BOIS REV. Soe. Sei. RES. RACE 471 (2013). 42 GWENDOLYN MINK, WELFARE'S END 1-68 (2002); Tonya Brito, From Madonna to Proletariat: Constructing a New ldeology of Motherhood in Welfare Discourse, 44 VILLANOVA L. REV. 415 (1999); KAARYN S. GUSTAFSON, CHEATING WELFARE: PUBLIC ASSISTANCE AND THE CRIMINALIZATION OF POVERTY 1-50 (2012); ANNA MARIE SMITH, WELFARE REFORM AND SEXUAL REGULATION 1-34 (2007). 43 Anna Smith, The Sexual Regulation Dimension of Contemporary Welfare Law: A Fifty State Overview, 8 MICH. 1. GENDER & LAW 121, 184 (2002). 44 Joseph J. Sabia, Blacks and the Family Cap: Pregnancy, Abortion, and Spillovers, 21 J. POPUL. ECON. 111 (2008); Radha Jagannathan and Michael J. Camasso, Family Cap and Nonmarital Fertility: The Racial Conditioning of Policy Effects, 65 J. MARRIAGE & FAM. 52 (2003); Michael J. Camasso and Radha Jagannathan, The Future of the Family Cap: Fertility Effects 18 Years Post-lmplementation, 90 Soe. SERV. REV. 264 (2016). 45 KHIARA M. BRIDGES, THE POVERTY OF PRIVACY RIGHTS 123 (2017). 46 GUSTAFSON, supra note 42, at 63-69.

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promoted by the racially explicit vilification of B1ack mothcrs. ASFA promoters callcd upon states to 'free' Black childrcn for adoption by speeding up tcrmination of their mothers' rights. 4 7 The convergcnce of PRWORA and ASFA markcd the llrst time the federal government mandatcd that statcs protcct children from maltreatmcnt, including placing them in fostcr carc, without a corrcsponding mandatc to provide basic economie support to poor families. 48 Targeting Black mothers, who expcrience thc child welfare system's surveillancc and family disruption as a form of 'Jane Crow,' 49 brings to light that the multi-billion-dollar foster eare apparatus is a criticai part of the carceral regime that operates in tandem with prisons and welfarc. Federal law governing child welfare practice, in turn, encourages the tcrmination of incarcerated mothers' parenta! rights, and local policies do too littlc to keep these mothers in contact with their children or to support their families aftcr they are released from prison.so On the contrary, the collateral penalties routinely inflicted on convicted women, including monetary sanctions and bans on welfare bencfits, public housing, post-secondary financiai aid and professional licenses, place aftirmativc barriers to maintaining a relationship with thcir ehildrcn.st The involvement of women of color in the welfare, foster carc and prison systems is crucial to maintaining the carceral statc, especially in a neoliberal age. Neoliberalism entails the simultaneous shift of the government's welfare provisions to the private realms of market and family and the expansion of brutal state intervention in the very communities most devastated by the evisceration of public resources. 52 Appeals to long-standing notions of Black, Latina, Native American and Asian immigrant procreative pathology and maternal irresponsibility generated public support for these political choices to fund punitive instead of supportive programs, law enforcement, welfare and child welfare supervision of mothers. As Angela Davis observes, the prison-industrial complex 'relies on racialized assumptions of crimina1ity - such as images of black welfare mothers reproducing criminal children- and on racist practices

47 Dorothy E. Roberts, Poverty, Race, and New Directions in Child Welfare Policy, I WASH. U. J. L. POL'Y 63 (1999). See generally DoRarHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE (2001). 48 Mark E. Courtney, The Costs of Child Protection in the Context of Welfare Reform, 8 FUTURE CHILD. 88 (1998). 49 Stephanie Clifford and Jessica Silver-Greenberg, Foster Care as Punishment: The New Reality of 'Jane Crow', N.Y. TIMES, July 21, 2017, https://www.nytimes.com/2017/07/21/ nyregionffoster-care-nyc-jane-crow.html. 50 Roberts, supra note 41. 51 Nekima Levy-Pounds, Children of Incarcerated Mothers and the Struggle for Stability, 2 Moo. AM. 14 (2006); Geneva Brown, The lntersectionality of Race, Gende1; and Reentry: Challenges for African-American Women, AM. CONST. Soe. 1 (2010); George Lipsitz, 'In an

Avalanche Every Snowflake Pleads Not Guilty': The Co/lateral Consequences of Mass Incarceration and lmpediments to Women 's Fair Housing Rights, 59 UCLA L. REV. 1746 (2012). 52 Henry A. Giroux, Public Pedagogy and Politic of Neo-Liberalism: Making the Political More Pedagogical, 2 POL'Y FUTUR. EDUC. 494, 494-503 (2004); LOTC WACQUANT, PUNISHING

THE POOR: THE NEOLIBERAL GOVERNMENT OF SOCIAL !NSECURITY 197-208 (2009).

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in arrest, conviction, and scntencing pattems.' 53 Black mothers are useful to the carceral state because denying thcm state support and regulating their bodies through the interconnected welfarc, rostcr care, prison, education and health care systems seems necessary to protect childrcn and the public from harm. Moreover, blaming womcn of colar for structural inequities obscures the need for radical social change. By attributing families' hardships to maternal deficits, the state hides the systemic causes or thcir disadvantaged status and prescribes carceral and market-based tixes in placc of cquitable distribution of resources and legal reforms. A criticai race feminist analysis shows both that women of calor bear the brunt of these dehumanizing policies and that subordinating these women based on race as well as gender is criticai to promoting them. As bell hooks noted about the antebellum period, 'White women saw black womcn as a direct threat to their social standing - for how could they be idealized as virtuous, goddesslike creatures i f they associated with black women who were secn by the white public as licentious and immoral?'54 Vilifying women of calor continues to garner support for expanding a repressive carceral regime and deters others from joining with women of colar to contest it. Regulating Black and brown women's bodies, then, helps to keep white women from demanding change in patriarchal legal institutions. For example, portraying state agencies' placement of Black children in foster care as necessary to protect them from their depraved or incompetent mothers creates a barrier between these mothers and middle-class white mothers who would benefit from government provision of highquality child care for ali families. In this way, the neoliberal carceral state secures public support for inadequate market-based forms of child care along with punitive govemment surveillancc of parents instead of a unified movement for generous state supports for families. An intersectional analysis of the carceral approach to child care includes both the coercion of cash-poor Black women and the enlistment of more privileged white women in the service of patriarchal, white supremacist and neoliberal ends. Restraining and ultimately dismantling the carceral state requires ending the intersecting forms of social contrai of women of calor; yet this central aspect of carceral contrai remains marginalized in feminist and social justice theorizing and organizing.

IV. REPRODUCTIVE JUSTICE The Combahee Ri ver Collective observed that 'black women always embodied ... an adversary stance to white male rule and have actively resisted inroads upon them and their communities in both dramatic and subtle ways.'55 Criticai race feminists have studied women of color's resistance against oppression, which has often differed from white women's struggles, and advocated incorporating their visions of liberation in 53

Angela Davis, Masked Racism: Rejlections on the Prison Industrial Complex, COLOR1998, https://www.colorlines.com/articles/masked-racism-reflections-prison-indusuialcomplex. 54 HOOKS, supra note I, at 131. 55 THE COMBAHEE RI VER COLLECTIVE STATEMENT, supra note I 0, at I. LINES,

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feminist and anti-racist initiatives. 56 Feminists of calor have been at the forefront of attempts to transform thinking about reproductive frecdom from a framework of choice, which offers limited protcction against state interferencc, ir any, and that only for thc most privileged womcn, to one of reproductive justicc. 57 These activists carne out of movements against violcncc and sterilization abuse as much as abortion rights groups and out of grass roots organizing as much as professionalized reproductive rights organizations. The term 'reproductive justice' was coined in 1994 by 12 Black women participating in a 1994 conferencc in Chicago sponsored by the Illinois Pro-Choice Alliance and the Ms. Foundation for Womcn.~H SisterSong Women of Colar Reproductive Health (now Justice) Collective, foundcd in 1997, pulled together a national coalition of 16 women of colar health organizations to put the reproductive justice framework into action. Since then, women of calor scholars and activists have developed a reproductive justice analysis and movemcnt with intellectual underpinnings that include intersectionality, the human rights framework and African philosophical traditions. 59 An emerging literature on the history of the reproductive rights movement not only includes lhe long-neglected activism by women of colar but also highlights their pivotal position in the movement.60 By centering on the experiences of women of calor, reproductive justice changes feminist jurisprudence on reproductive freedom in severa! radical ways. First, criticai race feminists have demonstrated the weaknesses of the most prominent liberal definition of reproductive rights as a matter of women's 'choice.' Advocates of the right to abortion have, for decades, defined their claims as 'pro-choice' - they oppose government intrusion into the choices women should be able to make about their bodies. In adopting this rhetoric, white feminist activists in the 1970s and 1980s made an expedient political decision to ground their organizing in a 'fundamentally conservative' notion of limiting government intrusion in women's lives rather than creating the social conditions necessary for women's freedom. 61 Criticai race feminists have challenged choice discourse as insufficient to address the intersectional realities of women of color's lives and as harmful to the cause of advancing reproductive freedom for ali women. Choice rhetoric privileges predominantly white upper- and middle-class women who have the ability to choose from reproductive options that are unavailable to poor and low-income women, especially women of calor. As Jael Silliman observes, the choice paradigm 'obscures the social context in which individuais make choices, and discounts the ways in which the state 56 See, e.g., JAEL MIRIAM SILLIMAN ET AL., UNDIVIDED RIGHTS: WOMEN OF COLOR ORGANIZE FOR REPRODUCfiVE JUSTICE (2004). 57 ld. 58 LORETTA J. ROSS & RICKIE SOLINGER, REPRODUCTIVE JUSTICE: AN lNTRODUCTION 63 (2017). 59 See Loretta J. Ross, Conceplllalizing Reproductive Justice Theory: A Manifesto for Activism, in RADICAL REPRODUCTIVE JUSTICE: FOUNDATIONS, THEORY, PRACTICE, CRITIQUE (Loretta J. Ross et ai. eds., 20 17). 60 !d.; JENNIFER NELSON, WOMEN OF COLOR AND THE REPRODUCTIVE RIGHTS MOVEMENT (2003); S!LLIMAN ET AL., supra note 56; ROSS & SOLINGER, supra note 58. 61 SILLIMAN ET AL., supra note 56, at 37.

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regulates populations, disciplines individual bodies. and exercises control ovcr sexuality, gender, and reproduction.'62 The choice framework also ignores the historical and current attempts to dcvaluc and regulate childbearing by women of color through ideologies, policies and practiccs that encourage coercive sterilization and other forms of birth control. The mainstrcam reproductive rights movement currently rejccts its eugenicist lineage, yet population control logic continues to shape such efforts as the promotion of long-acting rcvcrsible contraception for 'risky' populations. 6' Reproductive justice better accounts for thc way white supremacy constrains the ability of women of color to control their reproductivc lives. Second, criticai race feminists advocate a more complicated understanding of reproductive freedom that extends beyond the myopic focus on legalized abortion to encompass a broader human right to reproductive self-determination and wcll-being. Reproductive justice includes the right to have a child, under the conditions desircd by the one giving birth, the right not to have a child and the right to parent any children one has in a healthy, safe and supportive environment. Expanding beyond the choicc to terminate a pregnancy, reproductive justice confronts the history of white supremacist measures such as forced sterilization that have denied the humanity of women o f color. Third, choice discourse proves useless for claiming public resources that most women need for their well-being and in order to freely make decisions about their bodies and their lives. Indeed, giving women 'choices' has weakened the argument for state support, because women without sufficient resources are simply held responsible for making 'bad' choices. 64 Contrary to U.S. Supreme Court jurisprudence, which limits rights to negative protections against state interference, reproductive justice includes an affirmative claim to the state resources necessary for reproductive freedom and well-being. Thus, reproductive justice activists have made repealing the Hyde Amendment, which bans federal funding of abortion except in very limited circumstances, a prominent goal. Finally, criticai race feminists place reproductive rights in their social context of racism, sexism, homophobia, ableism and economic oppression and see the struggle for reproductive rights as part of a broader struggle for social justice. Reproductive justice makes govemment provision of family planning contingent on improvements in general health and living conditions. A social justice focus strengthens the reproductive freedom movement because it provides a more compelling moral argument than choice as well as a concrete basis for building radical coalitions between reproductive rights activists and organizations fighting for racial, economic and environmental justice, for

62 Jael Silliman, Policing the National Body: Sex, Race, and Criminalization, in POLICING THE NATIONAL BODY: SEX, RACE, AND CRJMINALIZATION x-xi (Jael Silliman and Anannya Bhattachaljee eds., 2002). 63 Dorothy Roberts, Reproductive lustice, Not lust Rights, DISSENT MAGAZINE, Fali 2015, https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights. 64 ld.

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immigrant, queer and disabled people, and for systemic change in law cnforccmcnt, health care and education. 6 5

V. ANTI-CARCERAL FEMINISM ANO DOMESTIC VIOLENCE Criticai race feminists have also challenged feminist legal theorists and advocates who champion law enforcement remedies for domestic violence. 66 As with rcproductive oppression, women of color's experience of violence by intimate partncrs diffcrs in significant ways from that of white women because of the impact of structural intersectionality. An intersectional approach reveals that where systems of race, gender, and class domination converge, as they do in thc cxpcriences o f battered women o f color, interventions based solely on the experiences of women who do not share the same class or race backgrounds will be of limited help to women who face different obstacles because of race and class. 67 One of the criticai differences in experiences that affects efforts to cnd domestic violence is the particular vulnerability of women of color to state violencc. As a result, criticai race feminists have developed a sophisticated analysis of state protection and state punishment that places family violence in the context of state violcnce against women and men of color. These scholars and activists have cautioned against participating in a criminal justice regime that incarcerates astronomical numbers of Black men and women, causing devastating consequences to their families and communities. Women of color are also at heightened risk of being victimized by police brutality, including when they seek protection against violence in their homes. 6s Their radical approach to domestic abuse starts from the premise that policies to protect women must address intimate and institutional violence simultaneously and therefore cannot rely on state systems, such as police, prisons and foster care, which themselves unjustly target communities of co\or for violence. Criticai race feminists also situate private violence within a broader context of inequitable social structures, including male domination but also barriers created by poverty, racism and govemment policies that trap many women in violent homes. 69 While incarcerating disproportionate numbers of minority men and women, state and federal governments have refused to allocate similar resources to programs and services 65 Jd.; Dorothy Roberts and Sujatha Jesudason, Movement lntersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Ou BOIS REV. Soe. Sei. RES. RACE 313 (2013). 66 See, e.g., COLOR OF VIOLENCE: THE INCITE! ANTHOLOGY (INCITE! ed., 2016); Beth E. Richie, A Black Feminis/ Reflection 011 the Antiviolence Movement, 25 SIGNS 1133 (2000). 67 Kimberlé Crenshaw, Mapping the Margins: lntersectionality, ldentity Politics, and Violence against Women of Colar, 43 STAN. L. REV. 1241, 1246 (1991). 68 ANDREA J. RITCHIE, INVISIBLE No MORE: POLJCE VIOLENCE AGAJNST BLACK WOMEN AND WOMEN OF COLOR (2017); COLOR OF VIOLENCE, supra note 66; BETH E. RICHIE, COMPELLED TO CRIME: THE GENDER ENTRAPMENT OF BATTERED BLACK WOMEN (1996). 69 COLOR OF VJOLENCE, supra note 66; RICHIE, supra note 68.

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that would make women lcss vulnerable to violence. Indecd 'tough on crime ' post-conviction penalties, such a~ federal lifetime bans on receiving welfare benefits, post-seeondary financiai aid and public housing, intensify the vulnerability of formerly incarcerated women. The criticai race feminist analysis of domestic violence points instead to crossmovement strategies that can contes! multiple forms of systemic injustice and can develop eollective efforts within communities to address private violcnce - efforts that rely on the strengths and accountability of community members rather than on punitive state intervention.

VI. CONCLUSION Criticai race feminists have devcloped an intersectional analysis of women's subordination that takes into account the impact of multiple, interlocking systems of oppression on women's identities, experiences and social statuses. They have also proposed new frameworks for resistance, sueh as reproductive justice and anti-carccral approaches to domestic violence, that put women of color's experiences and organizing at the center. Thus, criticai race feminists have transformed feminist legal theory to be more relevant to ali women and more effectivc at dismantling the apparatus of legal ideologies, systems and institutions that deny women's freedom.

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Postmodern feminist legal theory* Laura A. Rosenbury

Postmodcrn feminis! legal theory analyses how gender is constructed through law and other social structures and imagines how gender might be constructed differently. In doing so, postmodern feminis! legal theory embraees multiple understandings of gender, gender equality and law reform. Given this multiplicity, postmodern feminist legal theory is often defined solely in the negative; postmodern feminist legal theory is thought to esehew the fixed meanings that underlie other eonceptions of feminist legal theory and distinguish them from one another. While generally accurate, such framing leads to impoverished understandings of postmodern feminist legal theory. Postmodern feminist legal theory has much more to offer than mere critiques of other theories or warnings about the dangers of fixed meanings. This chapter sets forth an affirmative eonception of postmodern feminist legal theory, one that embraces its multiplicity and fluidity but also moves beyond it to focus on the value of nuaneed and contextual understandings of gender and feminist law reform. With its emphasis on the eonstruction of both gender and law, postmodem feminist legal theory offers both descriptive and normative insights while also challenging the distinction between descriptive and normative analyses. Descriptively, postmodem feminist legal theory posits that law and gender are not separate concepts but instead constitute one another. Gender does not exist but for law and other social structures, and law has been shaped, and continues to be shaped, by the many meanings society attaches to gender and other aspects of identity. Normatively, postmodern feminist legal theory argues that even feminist law reforms construct gender, meaning that law is much more than a simple tool of oppression or liberation. Even when some or many women may benefit from law reform, other women and men may be harmed by the ways that reform participates in the construction of gender. Postmodern feminist legal theory therefore provides a framework for developing new understandings of gender while simultaneously emphasizing that ali feminist law reform is contingent and deeply contextual. This chapter proceeds by providing a brief historical overview of the development of postmodern feminist legal theory in the United States, sketching one approach to postmodem feminis! legal theory that is rooted in context and time. The chapter then sets forth the affirmative contributions of this postmodern feminist legal theory, focusing on the value of the theory's descriptive account of gender and law and its normative implications. The chapter concludes by highlighting ways postmodern feminist legal theory might inform feminist law reform,

* Parts of this chapter elaborate ideas introduced in my essay 'Postmodem Feminis! Legal Theory: A Contingent, Contextual Account' included in the collection FEMINIST JURJSPRUDENCE IN THE UNITED STATES ANO ASIA: A TRANSPACIFIC DIALOGUE (Cynthia Grant Bowman and Yu Xingzhong eds., 2017), published in Chinese. 127

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including interventions sccking to eliminate workplace discrimination and sexual violence in the United States.

L A BRIEF HISTORY

•,

Scholars in the United States began to develop a postmodern approach to feminist legal theory in the 1980s, cmphasizing that law is one of the many discourses that producc the categories of womcn and men. 1 Legal scholars borrowed from criticai thcorics in other disciplines as they developed this approach, at times referring to their method as poststructuralist instead of postmodern. 2 At other times, scholars used no label at ali to describe their focus on the construction of gender.J This approach crystallized in Mary Joe Frug's A Postmodem Feminist Legal Manifesto (An Unfinished Draft), published by the Harvard Law Review in 1992, a ycar after Frug's murder. 4 In her manifesto, Frug applied postmodern methods - including 'Iocating human expericnce as inescapably within language,' 5 embracing 'a decentercd, polymorphous, contingcnt understanding of the subject' 6 and deploying the 'oppositional character' of postmodern style7 - to unearth the constitutive nature of law. Frug argued that such an analysis was needed 'to explain and challenge the essentializing impulse that places particular sex differences outside the borders of legal responsibility' and 'to provide an analysis of the legal role in the production of gendered identity that will invigorate the liberatory potential of the social construction thesis.'B Frug thereby emphasized that law does not merely act upon individuais, whether by regulating them or liberating them. Instead, our very understandings of individuality, identity and human experience are located within language and institutions, including law. Law thus plays a role in producing, or constructing, gender. By better understanding this constitutive relationship, feminists might more effectively devise and deploy law reform. This postmodem focus on the ways law produces identity has multiple implications for legal feminism. Frug explicitly highlighted some of those implications, emphasizing the ways that legal rules terrorize, maternalize and sexualize women. For example, legal provisions 'inadequately protect women against physical abuse and ... encourage 1

See, e.g., ZILLAH R. EISENSTEIN, THE FEMALE BODY AND THE LAW 1-12 (1988). See Marie Ashe, Mind's Opportwzity: Birthing a Poststructuralist Feminist Jurisprudence, 38 SYRACUSE L. REV. 1129 (1987). 3 See DRUCILLA CORNELL, BEYOND ACCOMMODATION: ETHICAL FEMINISM, DECONSTRUCTION, AND THE LAW (1991 ); Drucilla Comell, The Doubly-Prized World: Myth, Allegory and the Feminine, 75 CORNELL L. REV. 644 (1990); Martha Minow, Justice Engendered, 101 HARV. L. REV. 10 (1987); Martha Minow and Elizabeth V. Spelman, In Context, 63 S. CAL. L. REV. 1597 2

(1990). 4 Mary Joe Frug, A Postmodern Feminist Legal Manifesto (An Unfinished Draft), !05 HARV. L. REV. 1045 (1992). 5 Jd. at 1046. 6 7 8

Jd. Id. at 1047. Jd. at 1049.

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women to seek refuge against insecurity,' 9 'reward womcn for singularly assuming responsibilities aftcr childbirth and ... penalize conduct - such as sexuality o r labor market work- that contlicts with mothering,' 10 and 'legitimate and support institutions such as the pornography, advertising, and entertainmcnt industrics that eroticizc thc female body.' 11 Other legal scholars have built upon and expanded Frug's work in diverse ways that make it diflicult to define postmodern feminist legal theory and identify its implieations.12 Dcspite this diversity, severa! descriptivc and normative insights emerge. These insights form the basis of the affirmative conception of postmodern feminist legal theory set forth in the remainder of this chapter.

II. AFFIRMATIVE CONTRIBUTIONS More so than any other approach to feminist legal theory, postmodern feminist legal theory elucidates and embraces a fluid and complex understanding of gender. This descriptive insight emphasizes that there is no existing truth about gendcr to be discovered, whether that truth be rooted in anatomy, chromosomes, psychology, individual choice, equality or inequality, power differentials or the capacity to gestate and breastfeed children. Or, as Tracy Higgins states, 'gender itself is a product of power and language and social institutions, including law, not a reality that preexists those structures.' 13 Gender is thus fluid and shifting, contingent on history and context, as well as on individual choices about how to perform one's gender within the constraints o f that context and historical moment. 14 In this way, postmodern feminist legal theory is similar to anti-essentialist approaches to feminist legal theory, particularly their distrust of universal claims about

9 ld. w ld. at I050. 11 Jd. 12 See, e.g., DUNCAN KENNEDY, SEXY DRESSING ETC.: ESSAYS ON THE POWER AND POLITICS OF CULTURAL lDENTITY (1995); Libby Ad1er, An Essay on the Production of Youth Prostitution, 55 ME. L. REV. 191 (2003); Anne B1oom, To Be Real: Sexual Jdentity Politics in Tort Litigation, 88 N.C. L. REV. 357 (2010); Devon W. Carbado and Mitu Gu1ati, Working ldentity, 85 CORNELL L. REV. 1259 (2000); Ange1a Harris, Transgender Rights, and Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity, 36 WOMEN' s STUD. Q. 315 (2008) (book review); Jessica Knouse, Using Postmodern Feminist Legal Theory to Interrupt the ReillScription of Sex Stereotypes through the Institution of Marriage, 16 HASTINGS WOMEN'S L.J. 159 (2005); Laura A. Rosenbury, Work Wives, 36 HARV. J. L. & GENDER 345 (2013); Laura A. Rosenbury and Jennifer E. Rothman, Sex In and Out of Intimacy, 59 EMORY L.J. 809 (2010). IJ Tracy E. Higgins, 'By Reason of their Sex': Feminist Theory, Postmodemism, and Justice, 80 CORNELL L. REV. 1536, 1570 (1995). 14 See JUDITH BUTLER, UNDOING GENDER (2004); JUDITH BUTLER, GENDER TROUBLE:

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women that ignore issues o f race, class, nationality and sexuality. 15 Yct postmodern feminist legal theory, unlike some anti-csscntialist approaches, does not seek a more accurate or true understanding of what it means to be a woman or a man. Instead, as Kate Barllctt explains the postmodern posilion, 'being human, or femalc, is striclly a matter o f social, historical, and cultural construction.' 16 Likewise, Pat Cain emphasizes that 'poslmodern feminism tells us to beware of searching for a new truth to replace the old.' 17 Postmodern feminist legal theory therefore rejects the notion that feminism or law can or should better retlecl some notion of 'reality' existing outside of law or feminism. This is because the very concepts of reality and truth are in fact shaped by law, fcminism and other social forces . Postmodern feminist legal theory therefore does not seek to replace universal claims with more accurate and nuanced claims about the lives of women and men. Postmodern feminist legal theory instead seeks to dissect and understand the ways that law and Feminism constitute what we posit as reality. '[P]ostmodern feminism insists that by positing and describing woman, [courts) recreate that category, partially constituting truth rather than innocently identifying it.' 18 There is no reality separate from law or feminism. Reality, like gender, is fluid and contextual, frustrating any attempt to divine more accurate or more realistic conceptions of gender. O f course, this also means that there is no accurate or realistic conception of postmodern feminist legal theory itself. The statements above and in the resto f this chapter claim that postmodern feminist legal theory is or is not X, or that postmodern feminist legal theory does or does not do X. Despite these declarative sentences, postmodern feminist legal theory has no essence. There is nothing fixed, stable or coherent about postmodern feminist legal theory despi te the declaratory nature of this very sentence. This emphasis on construction ali the way down - to include the construction of postmodern feminist legal theory itself - reinforces the strength of the descriptive contribution of postmodern feminist legal theory. Postmodern feminist legal theory emphasizes that everything is constructed, freeing feminists from any suggestion that they should embrace a neutra! stance or otherwise find a truth outside of activism and law reform. This insight both distinguishes postmodern feminist legal theory from other approaches to feminist legal theory and sets forth a unique and important descriptive accounl of the relationship between gender and law. This contribution of postmodern feminist legal theory is more than descriptive, however. First, viewing the world in this manner is a choice; there is nothing natural or neutra) about the construction thesis. Second, once feminists understand and embrace 15 See, e.g., Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 BERKELEY WOMEN' s L.J. 191, 193 (1989-90); Kimbcrlé Crenshaw, Demarginalizing the lntersection of

Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U. CHI. LEGAL F. 139 ( 1989); Ange1a P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990); Madhavi Sunder, Piercing the Veil, 112 YALE L.J. 1399 (2003); Joan Chalmers Williams, Dissolving the Sameness/Di.fference Debate: A Post-Modern Path Beyond Essentialism in Feminism and Criticai Race Theory, DUKE L.J. 296

(1991). 16 Katherine T. Bart1ett, Feminist Legal Methods, 103 HARV. L. REV. 829, 878 (1990). 17 Patricia A. Cain, Feminism and the Limits of Equaliry, 24 GA. L. REv. 803, 838 (1990). 1B Higgins, supra note 13, at 1593.

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thc constructcd nature of gender, law and reality, they are bctter equipped to imagine and advocate for new conceptions of gcnder, law and reality. Drucilla Cornell, among othcr theorists, celebratcs the ways that postmodern interrogations of reality may ultimalcly cxpand the imaginalions o f fcminist activists and law reformers. 19 Thc dcscriptive contribution of poslmodcrn feminist legal theory thereby directly produccs new normative accounts of gcnder and feminist law reform. Yet the normative possibilities are not unlimiled. It is tcmpling to believe that thc constructed nature of gcndcr mcans that we can transccnd or escape gender and idenlily categories. In fact, poslmodern feminist legal theory, like the (postmodern) queer theory thal developed around the same time, 2o queslions lhe very value of identity categories. The problem lies nol in lhe accuracy of the male and female categories or the limited number of exisling gender categories. Instead, categories themselves constrain agency and choice, delermining what is possible and inlelligible. At the same time, and in contrast to some queer theory,2 1 postmodern feminist legal theory does not attempl to eliminate identity categories or seek to somehow free ourselves from gender. Allhough some scholars mistakenly describe postmodern feminist legal theorists as believing 'feminists should seek to eliminate the category "women",' 22 most postmodern feminist legal theorists argue thal attempts to achieve that goal would be futile.23 As Frug famously wrote: 'The question ... is not whether sex differences exist - they do - or how to transcend them - we can't - but the character of their treatment in law.' 24 Similarly, Judith Butler also emphasizes that 'gender is always there, delimiling in advance what qualifies as the human.' 2~ Instead of attempting to eliminate gender or identity categories altogether, postmodern feminist legal theory seeks lo challenge, problematize and reimagine the male/female binary. As Jessica Knouse emphasizes,2 6 this task goes beyond seeking to equalize power between the two categories that make up the binary - the project of what has become known as Calharine MacKinnon's dominance theory 27 - or seeking to change what each category means by redefining or revaluing existing gender roles - the

19 DRUCILLA CORNELL, TRANSFORMATIONS: RECOLLECTIVE lMAGINATION ANO SEXUAL DIFFERENCE (1993). 20 See, e.g., TIM DEAN, BEYONO SEXUALITY (2000); EVE KOSOFSKY SEDGWLCK, EPISTEMOLOGY OF THE CLOSET (1990); MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, ANO THE ETHICS OF QUEER LIFE (2000). 21 See, e.g., LEO BERSANI, HOMOS 3-4, 113-81 (1996); Janet Halley, Sexuality Harassment, in LEFf LEGALlSM!LEFf CRITIQUE 80 (Wendy Brown and Janet Halley eds., 2002). 22 Maxine Eichner, On Postmodern Feminist Legal Theory, 36 HARV. C.R.-C.L. L. REV. I, 44 (2001); see also Knouse, supra note 12, at 166 (describing the goal of postmodem feminist legal thcory as u1timate1y rendering 'man' and 'woman' irre1evant to identity creation). 23 See CORNELL, BEYONO ACCOMMOOATION, supra note 3, at 104-06. 2• Frug, supra note 4, at 1052. 25 BUTLER, GENOER TROUBLE, supra note 14, at 111. 26 See Knouse, supra note 12, at 166. 27 CATHARINE A. MACKINNON, TOWARO A FEMINIST THEORY OF THE STATE 126-54, 195-214 (1989); CATHARJNE A. MACKlNNON, FEMINISM UNMODIFIEO 37-45 (1987).

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project of liberal2 8 and relationaJ29 feminism respectively. Postmodern feminist legal theory distinguishes itself from these theories by interrogating and seeking to deconstruct the male/female binary itself. Postmodern feminist legal thcory analyses law's role in constructing the male/female binary and the perceivcd coherence of gender, examines how the categories of male and female, so constructed, limit potential identities, and imagines how new identities might come into existcnce by blurring the binary. This interrogation of lhe male/female binary emphasizes the relational nature of meaning and identity. Meaning only comes into being in relation to other concepts.3o This postmodern idea is particularly important for feminist legal theory because it reminds us that women come into being only in relation to the male baseline. There is no woman without man. Likcwise, there is no man without woman. The two poles of the binary are dependent on one another for their coherence.3 1 Identity comes into being only through relationship. By taking the construction of gender and relational nature of identity seriously, postmodern feminist legal theory also reminds feminists that feminist law reform is never costless. 32 Just as law plays a role in constructing gender, so does feminism. In constructing gender differently, feminist law reform might benefit many women and men. At the same time, other groups of women and men might not reap those benefits and may in fact be harmed. Even more so, any feminist law reform necessarily participates in the construction of gender, perpetuating a system in which gender is necessary to qualify as human. 33 That system in turn harms those individuais with unintelligible genders and channels other individuais into intelligible genders, limiting the range of possible gender performances. 34 Deconstruction may reconstruct gender or help different gender identities come into being, but feminist reformers cannot escape the construction of gender altogether. As such, the descriptive and normative contributions of postmodern feminist legal theory might best be distilled down to a consideration o f three questions: How does Iaw participate in the construction of gender? How should law participate in the construction of gender? Who wins and who loses, under both the status quo and any alternative approaches? These questions permit more nuanced analyses of the effects of both law and feminis! law reform in the United States, and two examples of the impact of such analyses are set forth below.

28 See CYNTHIA GRANT BOWMAN, LAURA A. ROSENBURY, DEBORAH TUERKHEIMER & KIMBERLY A. YURACKO, FEMINIST JURISPRUDENCE: CASES & MATERIALS 28-99, 117-21 (5th ed. 2018); FRED STREBEIGH, EQUAL: WOMEN RESHAPE AMERICAN LAW (2009). 29 See Robin L. West, The Difference in Women 's Hedonic Uves: A Phenomenological Critique of Feminist Legal Theory, 3 WIS. WOMEN'S L. J. 81 (1987). 30 See EISENSTEIN, supra note 1, at 9. 31 See CORNELL, BEYOND ACCOMMODATION, supra note 3, at 79-118. 32 See IANET E. HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM 32-33 (2006). 33 See BUTLER, UNDO!NG GENDER, supra note 14, at 52. 34 See id. at I.

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UI. TWO APPLICATIONS A feminist legal analysis rooted in postmodcrn principies orten produces different results than other forms of feminist legal analysis. This chaptcr concludes by bricfly providing two examples of the difference postmodern fcminist legal theory makes. In doing so, the chapter highlights ways postmodern feminist legal theory might inform feminist interventions in the context of work and the context of sex acts and sexual violence. In the context of work, feminist law reform in the Unitcd States has attempted to eliminate the significancc of gender in the workplace. US law now prohibits the consideration of gender in almost ali hiring contexts due to Titlc VII,35 a federal law that has been embraced by liberal feminists. 36 Moreover, in large part due to the work of Catharine MacKinnon,37 anti-discrimination law has been interpreted to also prohibit the sexualization of women (and now men) in the workplace. Employees may thus bring suit i f they are subject to a hostile work environment because of their sex, such as when a male supervisor repeatedly disparages female employees or makes severe or pervasive sexual advances toward employees.3 8 These are important advances that have enabled countless women to perform jobs previously reserved for men and to maintain employment in ali jobs increasingly free from sexual expectations and many" sex-based stereotypes. In fact, the advances have been so significant that many judges, legal scholars and other feminists assert that gender should now play no role in the workplace. The Supreme Court, for example, has interpreted the plain language of Title VII to mean that 'gender must be irrelevant to employment decisions.'39 A postmodem feminist legal theory perspective applauds the advances of antidiscrimination law but questions both the possibility and the desirability of making gender irrelevant to work. If, as Butler reminds us, gender is always present, 'delimiting in advance what qualifies as the human,' 40 then gender will always be relevant to the workplace just as gender is relevant to ali other aspects of life. There is no escape from gender, even in workplaces governed by robust anti-discrimination laws. Moreover, from a postmodem perspective, the presence of gender in the workplace need not be a bad thing. In fact, because there is no escape from gender, employees constantly perform their gender in the workplace. At times, these performances may map onto traditional gender roles, but that does not mean feminists should attempt to eliminate ali gender performances in the workplace even if it were possible to do so. 3~

42 U.S.C. § 2000e-2(a) (2006). Se e, e.g., Manha Chama lias, Past as Prologue: Old and New Feminisms, 17 MICH. J. GENDER & L. 157, 159- 63 (2013). 37 CATHARINE A. MACK!NNON, SEXUAL HARASSMENT OF WORK!NG WOMEN: A CASE OF SEX DISCR!M!NAT!ON ( 1979). 38 See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). 39 Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989). 40 BUTLER, GENDER TROUBLE, supra note 14, at 111. 36

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Just as workplaces may be sites of oppressive gender praetiees - the praetiecs th at are increasingly rcgulated and prohibited by law - workplaees may also be sites of gender practices that are not oppressive orare at least eommonly aeeepted.41 Employees may develop friendships at work that mirrar thc gendered patterns of friendships found outside of work, for example. 42 At other times, employees may form affective ties and providc care to others at work in ways that rcsemble relationships found within the home and voluntary assoeiations. 43 In addition, as both male and female employees interact with one another, as well as with male and female supervisors and customers, they may develop gender performances that are different than gender performances in other eontexts. In particular, beeause or feminis! law reform, gender performances in the workplaee may be less eonstrained by the gendered expeetations still found within many families.44 For example, some women may build relationships at work, with men and women, that are free from expectations that women should perform unpaid labor in the home and men should be breadwinners. Women may enjoy thc opportunity to develop emotional ties and perform thcir gender in ways that are less subsumed by the domesticity and dependent carc that pervades many homes, thereby experiencing intimacy and support in new forms that escape traditionally gendered dynamics of care without eschewing gender altogether. Given the tenacity of gender, however, other women may be so used to providing unpaid labor in the home that it is unremarkable (to them and others) to perform unpaid or underpaid labor at work, despite laws prohibiting employment discrimination. Postmodern feminist legal theory therefore emphasizes that gender will always be present at work, but Lhe effeets of that presence will be diverse, shifting and deeply contextual. Most promisingly, postmodern feminis! legal theory provides a framework through which to imagine the workplace as a site where gender and oppression may at times be de-linked. Gender need not be purged from the workplace in order to reduce gender oppression. In fact, attempts to extend feminis! law reform to eliminate gender in the workplace risk perpetuating a narrow and limiting construction of gender,45 one that assumes gender is either oppressive or irrelevant. By insisting that there is no escape from gender, postmodern feminis! legal theory pushes feminists to confront the complexity of gender at work, creating new avenues for imagining alternative performances and consequences of gender in the workplace. A similar analysis may be applied to the regulation of sex acts and sexual violence in the United States. Feminists have successfully pushed for a broader understanding of 41 See Rosenbury, Work Wives, supra note 12, at 399-401; Laura A. Rosenbury, Working Relationships, 35 WASH. U. J. L. & POL'Y 117, 125-26, 129-34, 144-46 (2011 ). 42 Laura A. Rosenbury, Friends with Benefits?, 106 MtcH. L. REV. 189, 233-41 (2007); Rosenbury, Working Relatioi!Ships, supra note 41, at 145-46. 43 See Rosenbury, Working Relationships, supra note 41, at 126, 131; Vicki Schultz, The Sanitized Workplace, 112 YALE L.J. 2061, 2186-90 (2003). 44 Se e, e.g., AR LIE RUSSELL HOCHSCHILO, THE COMMERCIALIZATION OF lNTJMATE LJFE: Nams FROM HOME ANO WORK 204 (2003); ARLIE RUSSELL HOCHSCHJLD, THE TIME BINO: WHEN WORK BECOMES HOME ANO HOME BECOMES WORK 35-45, 200-01 (1997). 45 See, e.g., Eichner, supra note 22, at 70.

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rape and sexual assault and more vigorous prosecution of those crimes,'16 and thcy continue to call for additional reforms. 47 Feminists have also worked to decouplc scx from both reproduction and heteronormativity. 48 Both of these arcas of Iaw reform have greatly expanded the contexts in which women (and men) may experience sexual intcractions free from danger, unplanned pregnancies and social stigma. Oncc again, a postmodcrn feminis! legal theory perspective applauds these advances. At the same time, postmodern feminist legal theory also critically examines lhe premises and consequences of these feminist law reforms. Initially, postmodern feminist legal theory emphasizes that sex itself is a construction, produecd in part by law. 49 In other words, sex is not natural or something otherwise existing outside of law. Instead, the very idea of sex - of what aets count as sex and what eonstitutes sexual pleasure and harm - is eonstructed through discourse, including legal diseourse. Beeause law shapes understandings of sex, law will never merely suppress or liberate sex but instead will also always partieipate in the construction of sex. Feminist law reforms thus do more than preveni harm or expand opportunities for individual sexual choice. Feminist law reforms, like law in general, also parlicipate in the construction of sex.so Some feminist law reform efforls construct sex as inherently dominating or subordinating, with men as sexual agents and women as sexual objects. 51 Desire and power are thereby linked and flow in only one direction. Campaigns to criminalize pornography and prostitution often rely on such constructions of sex. Other feminist law reform efforts construet sex as more properly within the control of the individual, whether male or femalc.s2 For example, many rape reform efforts seek to maximize the eonditions under which women may affirmatively say yes to sex. Efforts to expand access to contraception and abortion also often embrace this construction of sex. Still other feminis! Iaw reform efforts posit sex as valuable to the extent it furthers connection and emotionally intimate relationships in ways that go beyond so-ealled maintenance sex.53 Postmodern feminist legal theory calls on feminists to acknowledge the ways these law reform efforts construct sex and to weigh the eosts and benefits of those constructions. Moreover, postmodern feminist legal theory cautions against adopting 46 See, e.g., Aya Gruber, Rape, Feminism, and the War on Crime, 84 WASH. L. REv. 581, 607, 626 (2009); Lynne Henderson, Rape and Respoi!Sibility, 11 L. & PHtLOSOPHY 127, 128 (1')92). 47 See, e.g., Deborah Tuerkheimer, Rape On and Off Campus, 65 EMORY L.J. I (2015); Deborah Tuerkheimer, Judging Sex, 97 CORNELL L. REV. 1461 (2012). 4R See, e.g., Katherine M. Franke, Theorizing Yes, 101 COLUM. L. REV. 181 (2001); Sylvia A. Law, Homosexuality and the Social Meaning of Gender, WIS. L. REV. 187, 210 (1988); Sylvia A. Law, Rethinking Sex and the Coi!Stitution, 132 U. PA. L. REV. 955, 1019-20 (1984). 49 See, e.g., MICHEL FOUCAULT, THE HJSTORY OF SEXUALITY: AN INTRODUCTJON 103-14 (Robert Hurley trans., 1990) (1978); Rosenbury and Rothman, supra note 12, at 812-13. 5o See Rosenbury and Rothman, supra note 12, at 849-50. 51 See MACKJNNON, FEMINIST THEORY OF THE STATE, supra note 27, at 126-54, 195-214; MACKINNON, FEMINISM UNMOOIAEO, supra note 27, at 37-45. 52 See, e.g., Susan Estrich, Rape, 95 YALE L.J. 1087, 1183 (1986). 53 See Robin West, Desperately Seeking a Moralist, 29 HARV. J. L. & GENOER I, 28-30 (2006); Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 46-58 (1988).

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one totalizing approach to sex in favor of multifaceted, contextual approachcs. Efforts that focus solely on reducing sexual violcnce may construct scx in a narrow fashion by failing to consider the multiple other ways that women and men may cxpcricnce sexual acts and their consequences. Similarly, cfforts that focus solely on crcating conditions undcr which women may enjoy sex free from cocrcion and rcproductivc consequences imply that sex may be freed from societal norms and other powcr dynamics, including gender dynamics. Postmodern feminist legal theory calls on fcminists to instead analyze sex acts in ali of their complexity and contradiction, cvcn if such analyses ultimately support only more local, contingent and nuanced legal intervcntions. Finally, once feminists are engagcd in this type of analysis, postmodcrn feminist legal theory also provides a foundation for examining the multiplc ways the legal regulation of sex acts constructs not just sex but also gender. 54 Othcr approaches to feminist legal theory, notably that of MacKinnon, also connect sex acts and gender55 but they tend to do so in ways that rely on narrow conceptions of both scx and gender. Postmoc;lcrn feminist legal theory, in contrast, seeks to explore connections that might foster increasingly diverse performances of both sex and gender. In arder to do so, feminist reformers must first acknowledge the complex and shifting ways that sex acts and gender already inform each other. Once that complexity is acknowledgcd, feminist reformers may then imagine new relationships between sex acts and gender and consider how feminist law reform might foster or thwart those possibilities. Returning to the focus on the male/female binary and the relational nature of meaning and identity, this type of analysis has great potential to blur what it means to be a sexual object or subject, which in turn may destabilize many traditional gender constructions and performances. This type of analysis also may de-stigmatize sex acts for some men and women while de-centering sex acts in the lives of others, both of which may lead to new constructions of gender. Such postmodern analysis may even make sex acts less exceptional or distinct from ali other aspects of life, requiring no greater meaning or regulation than other activities pursued in the course of a day, month or year. In these ways, postmodern interrogations of the status o f sex within both law and feminism may produce multiple new constructions of sexual harm, sexual pleasure and gender itself. Some feminists are criticai of such applications of postmodern feminist legal theory to law reform. Some are concerned that postmodern principies might frustrate attempts to end patriarchy by calling into question the reality of gender and gender oppression, thereby hindering the development of effective political interventions. For example, Regina Austin and Liz Schneider write that '[w]hile postmodernism opens up the possibility of appreciating variance and difference, there is a certain necessity for '"strategic essentialism" in order to facilitate political mobilization and coalition building.' 56 MacKinnon argues that 'we cannot have this postmodernism and still have

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a meaningful practice of womcn's human rights, far lcss a womcn's movement.' 57 Martha Minow has similarly fearcd that 'postmodernism risks a rclativism that conflicts with feminist commitments to political engagement, and with a continuing ability to name, authoritatively, and to fight, cffectively, what is oppressivc.' 5H Other feminists fear that postmodern feminist legal theory will make decision makers believe that gender is a function of individual choicc, and thus casily changed, thereby hindering feminist efforts to change legal and social structurcs that perpetuate gender hierarchy. For example, Robin Wcst denounces 'the seductivc postmodern claim that gcnder roles and attributes bear only an incidental, contingent, or socially constructed connection to sex, and that what we should therefore do is shakc things up and "play" with the disconnections so as ali the better to shatter the stereotypical pedesta1.' 59 Each of these concerns is alarming, but they are rooted in very different understandings of postmodern feminist legal theory than the one set forth in this chapter. Such (mis)understandings frequently arise when postmodern feminist legal theory is defined merely in the negative, as a theory that eschews the fixed meanings that underlie other conceptions of feminist legal theory. This chapter has instead set forth an affirmative conception of postmodern feminist legal theory, one that seeks to provide a more nuanced account of the theory's descriptive and normative insights and the ways those insights might further feminist law reform, not thwart it. This affirmative conception of postmodem feminist legal thcory has the potential to help feminists better understand law's role in constructing patriarchy. That understanding, in turn, may help feminists develop better tools - both legal and extralegal to deconstruct patriarchy. Gender will remain - it always will remain - but postmodern feminist legal theory provides a framework for developing new understandings of gender while simultaneously emphasizing that ali feminist law reform is contingeot and deeply contextual. Feminist law reform rooted in postmodern principies thus has the potential to do more than alleviate gender oppression. It also has the potential to expand the range of possible gender constructions and performances, thereby transforming gender itself.

54

See Rosenbury and Rothman, supra note 12, at 839-42, 852-54, 858. See MACKINNON, FEMlNlST THEORY OF THE STATE, supra note 27, at 195-214; MACKINNON, FEMINISM UNMODIFIED, supra note 27, at 37-45. 56 See, e.g., Regina Austin and Elizabeth M. Schneider, Mary Joe Frug's Postmodern Feminist Legal Manifesto Ten Years Later: Reflections on the State of Feminism Today, 36 NEW ENG. L. REV. I, 15 (2001). 55

57

Catharine A. MacKinnon, Points Against Postmodemism, 75 CHI.-KENT L. REV. 687, 710

(2000). 58 Martha Minow, Incomplete Correspondence: An Unsent Letter to Mary Joe Frug, 105 HARV. L. REV. 1096, 1104 (1992). 59 See, e.g., ROBIN WEST, CARING FOR JUSTICE 16 (1997).

Feminism, sexuality and the law

8.

Feminism, sexuality and the law Nan D. Hunter

c.·

The feminist theory wars over sexuality bring to mind battleships passing in the night. With enormous intellectual tirepower, the key combatants have blasted each other in periodic policy battles and exhaustive - and by now, exhausted - exchanges ovcr theory. Fresh voices have brought new insights and issues over which to struggle, shifting theory talk in one direction within the frame of feminis! politics and state actions in another. In the process, feminists have debated the construction of gender and sexuality, women's sexual safety and pleasure, the role of the state, comparativc harms, the nature and uses of power and much, much more. Despite the smoke, noise and vituperation, however, the underlying disputes remain unsettled.l Second wave feminism opened the space for these disputes to flourish. As civil rights liberalism began to incorporate women's rights claims, a parallel shift was occurring in left legal theory. Feminist socialists addressed the theoretical gap created by the left's failure to answer 'the woman question' - how leftist theory should analyze a class defined by gender who stood largely outside the means of production. They proposed an even more fundamental inquiry: if not economics, what are the social processes by which one 'becomes[, a] woman,' 2 and what would be necessary to dislodge that process in order to liberate those trapped within it. In two extraordinary articles published in the early 1980s, Catharine MacKinnon argued that the key to unlocking gender subordination lay in rooting out and reconstructing the dynamics of male sexuality, the ultimate cause of, and key to, male dominance and women's oppression. 3 The starkness of MacKinnon's argument was provocative, and the freshness of its bad girl anger - spitting in the face of liberal and left males - gave it enormous appeal for late second wave feminists, who both experienced and demanded the most agentic sexual lives of any cohort of women in history to that date. For the last 35 years, MacKinnon's theory that sexuality produces gender has withered under attacks first from sex radical feminists of her own generation and \ater from postmodem scholars of feminist theory. It is testament to its originality and power, however, that discussion of the relationship between feminist legal theory and sexuality begins with her work, even though it has long since ceased to end there. And while the parts of her theory that insist on understanding (hetero)sexuality itself as 1 This chapter does not attempt to describe the sexualíty and feminism debates outside the United States, where they have developed in different ways. 2

SIMONE DE BEAUVOIR, THE SECOND SEX

283 (2010).

Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 SIGNS 515 (1982); Catharine A. MacK.innon, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS 635 (1983). 3

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subordination have largely been abandoned, its programmatic repercussions continue tu resonate within legal systems and institutions. Feminism is a thcory (more accurately a cluster of theories) bom of consciousncss raising as well as abstraction, of lived experience as well as insight, of art as wcll as erudition. It is, in other words, a method as well as a theory. Variation in the multiplc voices of feminist thought has proven impervious to condensation or to resolution by theoretical fiat. Women's sexual subjectivity has been central to the theory-making enterprise. For feminists, sexuality is self-evidently a question of politics, meaning a question of power. Feminis! theory regarding sexuality has produced divergent conceptions of power as primarily statist and structural oras diffused throughout culture with tentaclcs extending into the realm of \aw. One's understanding of the nature of power shapcs one's understanding of the social ramifications of sexuality. Although orderly examination of these ideas requires a treatment in roughly chronological order, the reality of their development was neither neat nor sequential. As is often the case during a period when time seems to speed up, the experience was one of constant contestation among overlapping, more or Iess dialogic sources of intellectual and política! activism. The result has changed feminism and sexuality and law. This chapter offers a guide to the sexuality debates within feminism, specifically as they affected and were affected by the \aw. I begin by placing them in the context of analogy, the central logic of legal modes of reasoning. The second section focuses on two versions of the difference school of feminism - one centered on sexuality and the other on reproduction - and critiques the latent essentialism in each. Next I discuss how sex radical and intersectional feminism challenged the difference feminist arguments as hetero- and white-normed. Sex radical perspectives produced theories of and arguments for acceptance of sexual activity of many sorts. Finally, in Section IV, I focus on today's debates over the law of sexual harassment and rape.

L ANALOGY AND EQUALITY No set of ideas has had greater impact on feminist legal theory and feminist law reform than the internai movement debates over the meanings, causes and effects of sexuality and reproduction. At the heart of these debates has been the question of whether or to what extent the subordination of women has been uniquely determined by or intcrtwined with sexuality. The argument that sexuality is the linchpin of women's oppression and the correlative claim that feminism should provide the basis for theorizing sexuality are the archetypes of what I shall refer to as exceptionalist theorics of feminism and sexuality. The counter-argument is that feminism and sexuality are deeply but not uniquely constitutive of each other and that sexuality and gender are fluid rather than fixed, performative rather than prescribed. This second approach is manifest in theories that describe a multiplicity of hierarchies which implicate sexuality, including systems of stratification that leave some minorities defined by sexual practices at the bottom. The reason for using the spectrum from exceptionalism to multiplicity as the fulcrum for this chapter is the third leg of our topic: \aw. The relationship between sexuality and

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the major feminist schools of thought - radical/difference feminism, radical/sexual freedom feminism, equalitylliberal feminism, intersectional feminism and so forth - is importam but insufficient for a treatment that prioritizes also understanding how the practices, knowledges and institutions of law shape the meanings of our experiences. Law introduces its own set of paradigms and constraints with regard to social modes of regulating sexuality. When the twentieth century began, sexuality and law appeared to occupy different planets. Although governance of and through sexuality was well established even i f not recognized as such - through prohibitions, population surveillance, marital regimes and countless other mechanisms of the state 4 - the legal system rarely acknowledged sexuality (or women) except to articulate boundaries. 5 Gender was not yet a word outside the study of languages. 6 In law, virtually everything related to sexuality was an exceptional case. And the law has a difficult time with exceptional cases. Analogy is central to legal reasoning, especially in legal systems derived from the British model. Judges and lawyers identify Lhe ways a new case is most like or most distinguishable from established precedent and reason from that basis to conclude which principie of law should be applied. If Lhe government cannot censor newspapers based on their content, then it cannot censor magazines based on their content. But if sexuality is involved, one must add: except when it ean. In Lhe realm of sexuality, analogical reasoning has not functioned as it normally would. When graphic explicit speech or images involving sexual conduct are categorized as obscene, they lie outside the First Amendment, an exclusion historically justified by the immorality of the content.7 Obscenity, which exists in the world as speech, is not speech under the law. Even non-obscene speech that is sexually explicit may be classified as 'low value speech' and accorded only grudging protection.R Other issues related to sexuality have also repeatedly been treated differently under the law. Precisely the same anatomical maneuvers were lawful or felonies (until 2003) depending on whether partners were different-sex, same-sex or more than two in number, also because of state police power to regulate morality.9 As Noya Rimalt points out in her chapter in this volume, a duty to preserve a fetus can be imposed on 4

(1976).

I MICHEL FOUCAULT, THE HISTORY OF SEXUAL!TY 37 (Robert Hurley trans., 1978)

5 Catharine MacKinnon noted the problem with regard to women: 'Substantively considered, the situation of women is not really like anything else ... Doing something legal about something that is not really like anything else is hard enough in a legal system that prides itself methodologically on reasoning by analogy. Add to this the specific exclusion or absence of women and women's concems from the definition and design of this legal system since its founding, combined with its determined adherence to precedem, and you have a problem of systemic dirnension.' Catharine A. MacKinnon, Pomography, Civil Rights, and Speech, 20 HARV. C.R.-C.L. L. REV. I, 8-9 (1985) (emphasis in original). 6 JENNIFER GERMON, GENOER: A GENEALOGY OF AN lOEA I (2009). 7 Miller v. Califomia, 413 U.S. 15, 23-24 (1973). K See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992) (Stevens, J., concurring); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,49 (1986); Young v. Am. Mini Theaters, 427 U.S. 50, 70-71 (I976) (plurality opinion). 9 Bowers v. Hardwick, 478 U.S. 186, I88-89 (1986), overruled by Lawrence v. Texas, 539 u.s. 558 (2003).

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pregnant women even when there is no legal obligation to rescue a drowning child. 10 In rape law, unlike for other violent assaults, acquiescence (consent) constituted a dcfense, even when coercion was proven. 1 1 And within rape law, marriage h as been the exception: 'rape is terrible and violent, cxcept when it is not', which is within marriage, where it may be legal. 12 Criminal law was racialized as well, such that when a white man raped an African-American woman, both the presence of consent and the absence of coercion were assumed. 13 When an African-American man had sexual relations with a white woman, judicial assumptions llipped: it was the prcsumed absence of consent and presence of coercion that governed Lhe response o f the legal system. 14 The examples could go on, but the point is that law and the culture it retlected treated sexuality as sui generis. This discordaney between law as reason - posed in opposition to sexuality as immoral excess (until proven acceptablc, generally through the containment device of marriage) - drew opposition, but these counterarguments also often deployed exceptionalism. Episodie waves of free love advocates and civil libertarians in the US contested the norms of sexual respectability by arguing for the seemingly magical power of libido as a natural force. 15 One effect of the waves of feminism since then - including the birth, growth, mitosis and, to some, metastasis of feminist legal theory - has been to significantly shape the ways in which 'sexuality and law' has become legible as a coherent concept rather than a confounding internai contradiction. But even though the pairing of sexuality and law is no longer novel, the relationship remains deeply contested. The basic structure of law still fits uncomfortably with sexuality; ali the more awkward is inclusion of a legal theory of sexuality as a branch of jurisprudence. Brealàng through exceptionalism into analogy was a central project of second wave feminism. Against the backdrop of women being denied equality in almost every realm because of the belief in ineradicable and definitive differences between men and

1° Compare State v. McKnight, 576 S.E. 168, 171, I79 (S.C. 200I) (upholding a conviction of homicide when a mother delivered a stillborn child who subsequently tested positive for cocaine), with Curt Anderson, Experts: No Duty for Laughing Teens to Rescue Drowning Man, U.S. NEWS & WORLD REPORT (July 21, 2017), https://www.usnews.com/newslbest-stateslflorida/ articles/20 17-07-21/police-video-shows-teens-watching-laughing-as-man-drowns (indicating that severa! legal experts, including Justice Kennedy, have stated there is generally no duty to rescue a person in danger). 1 1 STEPHEN J. SCHULHOFER, UNWANTEO SEX: THE CULTURE OF lNTIMlDATION ANO THE FAILURE OF LAW 114 (I998). 12 See chapter by Ngaire Naffine, 'Some gentle violence': marital rape immunity as contradiction in criminal law, in this volume. 13 See Kim Diane Loewen, Reframing Hate Crimes: ldentifying and Combatting the Systems of Violent Oppression that Converge upon Queer Black Women, 36 WOMEN's RTS. L. REP. 137, 152 (20I5). 14 Jennifer Wriggins, Rape, Racism and the Law, 6 HARV. WOMEN's L. J. 105, I I I (I983). !5 JOHN D'EMIL!O & ESTELLE B. FREEOMAN, lNTIMATE MATTERS: A HISTORY OF SEXUAL!TY IN AMERICA 302-07 (1989); GEOFFREY R. STONE, SEX ANO THE CONSTITUTION: SEX, REL!GION ANO LAW FROM AMERICA'S ÜRIGINS TO THE TwENTY-FIRST CENTURY 13I-52 (2017).

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women, 16 the mainstream bulk o f second wave feminism staked its political claims on lhe principie of equality, defincd, for women as well as men, as governmental and inslitulional neutrality. Men and women, feminists argued, werc Lhe same in mental and most physical abilities and in Lhe righl of cach to claim thc social space needed to actualize their potential in every rcalm of life. . Thcories of law and feminism cmcrged in tandem with this on-the-ground equal nghts movement. Feminis! legal theories are the granddaughlers and oreatgranddaughters of legal realism, lhe tirst jurisprudential school to insist on unco:erino power, politics and indeterminacy in what had been the arid juridical plains of catcgories and deduction. Fcminism in law followed and drew upon two ínterim gcncrations of post-realist thought, including the legal process focus on institutional role and competency, the liberalism of civil rights litigation and the left-inspired criticai legal studies movement. · Of these, the ascendancy of liberal rights was most important in enabling the formation of a distinctively feminist analysis. Pauli Murray's 1964 memorandum arguing that Title VII should include a prohibition on sex discrimination not only ~elped c~ry the day in Congress for adding sex to legislation that originally had not m~luded 1t but_ also cemented the civil rights paradigm for legal feminism as it engaged w1th the pubbc realm.'7 Women who had worked in the labor movement initially balked at Title VII's equality mandate, fearful of losing what they saw as important and hard-won protective legislation for women.' 8 Murray's arguments were grounded in life lcssons that her identities as African-American and as a woman could not be respected, much less treated fairly, withoul the same legal architecture in place for both. This sex- race analogy became the fulcrum for a generation of feminists . Ruth Bader Ginsburg and others carried equality feminism into courl, winning elimination of de jure barriers directed againsl women in federal and state law.'9 Framed in liberal terms,



.........

16

Compare two Supreme Court decisions almost a hundred years apart: Bradwell v. Illinois

8~ U.S. 13_0, 141 (1873)_('Civil law, as wcll as nature herself, has always recognized a wid~

d1ffcrence m the respecuve spheres and destinies of man and woman') and Hoyt v. Florida, 368 U.S. 57, 6~ (1961) (upholding a la_w t~at automatically exempted women from jury duty bccause as the center of home and family hfe,' women should not be obliged to perform civic duties outside the home). 17 . A more thorough account of thc events surrounding the inclusion of 'because of sex' in T1tle VII of the 1964 Civil Rights Act can be found in SERENA MAYERI, REASONING FROM RACE: FEMINISM, LAW ANO THE CIVIL RIGHTS REVOLUTION 20-22 (2014). . '" See, e.g., Muller v. Oregon, 208 U.S. 412 (1908) (upholding a law limiting work hours for women, but not men, on account of physical and social differences); ALICE KESSLERHARRIS, ÜUT TO WORK: A HISTORY OF WAGE-EARNING WOMEN IN THE UNITED STATES 180-214 (1982). 19 • See, e.~., Fr?ntiero v. Richardson, 411 U.S. 677 (1973) (striking down a statute requiring d1~ferent quahficatwns for male and female military spouse dependency); Weinberger v. W1esenfeld, 420 U.S. 636 (1975) (striking down a provision in the Social Security Act granting d1fferent benefits to _wido:-vs and to widowers); Stanton v. Stanton, 421 U.S. 7 (1975) (striking down a statute ~~fimng d1fferent ages of majority for males and females); Orr v. Orr, 440 U.S. 268 (1979) (stnkmg down a statute that rcquired only husbands to pay alimony).

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their arguments produccd judicial recogmt1on that cqual protection under the law precluded reliance on 'archaic notions' and stereotypes. 20 In matters of sexuality and rcproduction, however, courts repealedly invoked (and slill do) natural differcnccs as justifiablc bases for distinction, secing them as 'real' rather than as stereotypcs. 21 The closer the context to motherhood, the more likcly (though only after inlcnsc slrugglc) feminists werc to win legal protection, as occurred whcn Congress enacted lhe Prcgnancy Discrimination Act, which effectively reversed a Supreme Court decision holding that the Title VII languagc of discrimination 'because of sex' did not includc discrimination based on pregnancy. 22 The closer the context to non-reproductive sexuality, on lhe other hand, Lhe more difticult the fight became to denaturalize differential lreatment of women. 23 A demand for gender equality in sexual expression, even framed in liberal rights talk, was radical in fact, if not in theory. 24 Clusters of new lheory regarding sexuality and power emerged beginning in the mid-1970s. Existing política) and social theory - especially Marxism and structuralism - provided a parallel body of thought from which the more radical branches of late twentieth-century feminism grew. During this extraordinarily fecund period, Michel Foucault, Catharine MacKinnon and Gayle Rubin published theories of sexuality that would turn the world of feminism upside down. Foucault published the first volume of A History of Sexuality in 1976; it was translated into English in 1978.25 Rubin met Foucault while a student in Paris in 1972. 26 She began work on Thinking Sex in 1977-78 and, while writing it, read MacKinnon's early Signs articles in draft.27 The Combahee River Collective2 H and the Barnard Conference on Women, 29 among many others, produced sophisticated analyses that reflected the growth of a radical politics of sexuality on the ground as well as in the academy. Flashpoints over pregnancy and pornography brought these debates among feminists into the chambers of law. By 1990, 20 See Frontiem, 411 U.S. 677. Nonetheless, many feminists and other progressives believed that sexuality and 'the sex drive' were biological forces grounded in the individual body or psyche. D'EMILIO & FREEDMAN, supra note 15, at 207; Wendy Webster Williams, The Equality Crisis: Some Rejlections on Culture, Courts, and Feminism, 7 WOMEN'S RTS. L. REP. 175, 185-86 (1982). 21 See Miller v. Albright, 523 U.S. 420, 442 (1998). 22 See Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978), which effectively overruled Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976). 2' See Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 264-65 (1992). 24 See Robin West, The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General's Commission on Pomography Report, 12 AM. B. FOUND. RES. J. 681 (1987). 25 1 MICHEL FOUCAULT, HISTOIRE DE LA SEXUALITÉ: LA VOLONTÉ DE SAVOIR (1976); FOUCAULT, supra note 4. 26 Gay1e Rubin and Judith Butler, Sexual Tra.ffic, Interview, in FEMINISM MEETS QUEER THEORY 68, 89-90 (Eiizabcth Weed and Naomi Schor eds., 1997). 21 Jd. at 77-78. 28 Combahee River Collective, https://combaheerivercollective.weebly.com/. 29 See PLEASURE ANO DANGER: EXPLORING FEMALE SEXUALITY (Carole S. Vance ed., 1984) (containing papers and talks prcsented at the Bamard Conference on Women). For 1982, Bamard College's annual Conference on Women and Scholarship was organized around the theme of sexuality.

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Judith Butler's Gender Trouble resonated as an cxcgcsis of anti-oppression theory nol dependcnt on scxuality-ccnlric concepls of malc dominancc and a cal! to arms for lhe feminisl movcment toward a reinvigoraled polilics of sexual freedom for women. Broader polilical forces contributcd to lhe ccnlralily of sexuality to convcntional political discourse during the 1980s, cspccially lhe right wing's approprialion of abortion as a rhelorical stand-in for women's sexual frcedom3° and the anti-gay panic associaled wilh, bul not limited to, AIDS. 31 Thcse developments spread talk of sexuality throughout US politics and culture, such lhal il bccame inescapable. Calls for policing of sexuality increased, especially for minorily populations, and the defensc of self-conscious communities and explicitly sexual frccdoms arose in rcsponse. It was a time of ncw urgency in exposing, idcnlifying, confronting and debaling sexuality. And feminists - not least thc lawycrs among us - had plenty to say.

II. THE NEW EXCEPTIONALISM



Thc origins of diffcrence theory lay in thc nagging persistence of subordination in women's lives and the failure of liberal equalily feminisls to break through embeddcd legal structures in the arenas involving sexualily. In response, more radical feminisl legal theorisls developed analyses that soughl to idenlify the root causes of women's oppression. The group that carne to be known as difference feminists rejected lhe premise of equality based on sameness. Treating men and women the same, they argued, simply reinscribed a male standard as universal while helping only a handful of women. Rather, building on various arguments thal women do differ from men, these theorists argued that the law must incorporate such differences into its standards and rules. In so doing, they skated up to and sometimes ovcr the fine into essentialist claims of broad natural differences between men and womcn that wcre inevitable. The description of a totalizing experience of sexualized oppression also fit too neatly with older exceptionalist modes of analyzing law and sexuality, which led into tropes of moralism. A theory that originated in radicalism, not least in its claim that sexuality was a social product rather than a biological essence, sailed into a cul-de-sac of reactionary cultural politics. An altemative version of the difference approach, grounded in the psychic and social structures of reproduction as well as heterosexuality, mitigated the essentialism of exceptionalist arguments but did not solve the underlying problem.

A. Sexual Subordination Catharine MacKinnon grounded a theory of difference-based feminism on a claim that the relentless subordination of women was spawned by a gender system with sexuality

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at the core. Her argument was lhat (helcro)~cxuality - meaning its fui! range of associated discursive practices, knowledges and inslitulions - was the primary cause of the oppression of women: Sexuality is to feminism what work is to Marxism: that which is most one's own, yet most taken away. Marxist theory argues that society is fundamentally constructed of thc relations people form as thcy do and makc things needed to survive humanly. Work is the social process of shaping and lransforming the material and social worlds, creating people as social bcings as they create value. It is that activity by which pcople become who they are. Class is its structure, production its consequence, capital its congealed form, and control its issuc. . .. As the organized cxpropriation of the work of some for the benefit of others defines a class - workers - the organized expropriation of the scxuality of some for the use of others defines the sex, woman. Heterosexuality is its structure, gender and family its congealed forms, sex roles its qualities generalized to social persona, reproduction a consequcnce, and control its issue ... Sexuality, then, is a form of power. Gender, as socially constructed, embodies it, not thc reverse. Women and men are divided by gender, made into the sexes as we know them, by lhe social requirements of heteroscxuality, which institutionalizes male sexual dominance and female sexual submission. If this is true, sexuality is the linchpin of gender inequality ... 32 MacKinnon's theory described a culture thoroughly gendered- which isto say, shaped and structured by male dominance specifically in the realm of sexuality. On this understanding, it is sexuality that provides lhe social meaning of gender and fuels lhe oppression of women. Sexuality, in a feminist light ... is a pervasive dimcnsion of social life, one that permeates the whole, a dimension along which gendcr occurs and through which gender is socially constituted ... This approach idenlifies not just a sexuality that is shaped under conditions o f gender inequality but reveals this sexuality itself to be the dynamic of the inequality of the sexes. 33 On the one hand, MacKinnon claimed the authenticity of women's experiences as the validation for this claim. 'Consciousness raising is the process through which the contemporary radical feminist analysis of the situation of women has been shaped and shared.'34 On the other hand, not ali experiences unearthed by consciousness raising were to be believed. Interpretations of sexual experience based on a different analysis should have been warnings of theoretical overreach. Instead, for sex-as-subordinalion feminists, life for women was based on a cultural system so deeply embedded that reports by women of experiencing desire for or pleasure in conventional heteroscxual relations, much less those lhat suggest aggressive actions by males, could nol be taken seriously.

30

Linda Greenhouse and Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 YALE L.J. 2028 (2011); Rosalind Pollack Petchesky, Antiabortion, Antifeminism, and the Rise ofthe New Right, 7 FEMINIST STUD. 206,211, 220, 221 (1981). 31 DAVID FRANCE, How TO SURVIVE A PLAGUE: THE lNSIDE STORY OF How CtTIZENS AND SCIENCE TAMED AIDS (2016).

32 33 34

MacKinnon, Feminism, Marxism, Method, and the State, supra note 3, at 516-17. CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 130 (1989). ld. at 84.

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!Ali! women live ali the time under lhe shadow of the threat of sexual abuse .... [M]uch of womcn's sexual lives will occur undcr post-traumatic stress. Being surrounded by pomography ... makes this a rclatively constam condition. Womcn scem to cape with sexual ahusc principally by denial or fear . . . Faced with no altematives, the strategy to acquire self-respect and pride is: I chose it.'·' MacKinnon's argument that sexuality is cxceptional, indeed unique, 111 its power to oppress women was meant to bc a fundamcntalist but not an csscntialist claim. Although dceply embedded, male sexual dominance was not a natural givcn. The general theory of sexuaÚty emerging from this feminist critique does not consider scxuality to be an inbom force inherent in individuais, nor cultural in the Frcudian sense, in which sexuality exists in a cultural contcxt but in universally invariant stagcs and psychic representations. It appears instead to be culturally specific, even if so far largely invariant hccause male supremacy is largely universal, if always in specific forrns.36 Although MacKinnon did not argue that male sexual dominance and rape culture were preordained or inevitable, her language returned again and again to invocations of the ubiquity and totality of an uninterrupted reign of male sexual terror over women. Implicit in this claim was a single, undifferentiated and universal version of women's lifc experiences and indeed a single dcfinition of woman. The convergence of sexuality with violence . . . is recognized by rape survivors with a difference: where the legal system has seen the intercourse in rape, victims see the rape in intercourse. The uncoerced context for sexual expression becomes as elusive as the physical acts come to feel indistinguishable.J?

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Rcaders could not be faulted for wondering if, in MacK.innon's theory, women were always already victims and heterosexuality was beyond redemption. Certainly it was challenging to imagine what, if not something about men's nature, lay behind such a totalized vision. MacK.innon's answer- that pornography was the engine and the enforcer of subordination, not merely a reflection of it38 - was probably 35

ld. at 149-50. Similarly, she argued that the decision in Roe v. Wade primarily served the interests of men who sought greater sexual freedom, that is, access to women. When the risk of pregnancy was eliminated, women lost the 'best excuse since the headache' for refusing to engage in sex. That women could relate to heterosexual relations as pleasure, exploration or adventure or that women could seek to contrai their bodies for those or other reasons was to ignore or simply not realize that 'women's bodies have not been theirs.' ld. at 189-90. 6 ' ld. at 151. See a/so CATHARINE A. MACKINNON, BUTTERFLY POLITICS 212 (2017) (' [G]ender is not sex, rather sex is gender ... [G]ender is not natural, it is social .. . [I]t is not immutable'). 37 MACKINNON, supra note 33, at 174. 8 ' Regarding the Indianapolis law that she co-wrote, MacKinnon noted that '[t]he definition [of pomography] does not include ali sexually explicit depictions ofthe subordination of women. That is not what it says. It says, this which does that: the sexually explicit which subordinates women.' MacKinnon, supra note 5, at 58-59 (emphasis in original). She has continued to argue this position. Power over women 'is even more sexualized than it was thirty years ago ... [P]rostitution and pornography [increasingly set] the terrns of popular culture.' MACKINNON, BUTTERFLY POLITICS, supra note 36, at 209.

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thc single greatest weakness of hcr theory of sexuality. Drawing on Andrea Dworkin's work,39 MacKinnon argued that the sexuality of dominance has bcen pcrpetuated by uniquely sexual conditioning, in thc form of pornography: Pomography stimulates and reinforces, it does not cathect or mirror, the connection bctween one-sided freely available sexual access to women and masculine sexual excitement and sexual satisfaction ... Pomography conditions male orgasm to female subordination. It tells men what sex means, what a real woman is, and codes them togcther in a way that is behaviorally reinforcing.40 Together with Dwork.in, MacKinnon wrote anti-pornography legislation that was enacted in Indianapolis and ruled unconstitutional by the Supreme Court. 41 The ordinance provided for a civil cause of action under which any woman could seek an injunction against sexually explicit materiais that she alleged constituted subordination.421ts civil rights justification was that it addressed the harm caused to women, as distinct from obscenity Iaw, which criminalizes expression considered to be immoral. 43 MacK.innon's account of 'obscenity' and of obscenity law was correct, but her defense of a legal mechanism to suppress pornography ignored the extent to which her logic resuscitated and reinscribed the most regressive scripts of women as (and as meant to be) victims of sex. 44 For cultural conservatives drawn to the seeming aversion to unconstrained male sexuality that was redolent in MacKinnon's work and who may have been relieved that exterminating pornography could satisfy feminist complaints, the anti-pornography campaign created a congenial form of feminist moralism. 45 Even though MacKinnon's unrelenting focus on the exceptionalism of sexuality was a profoundly narrow argument, her scholarship contributed to a broader theoretical base - as well as the formulation of new claims - for feminist legal work. As Robin West has pointed out,46 MacKinnon's work has given theoretical heft to the substitution of an anti-subordination discourse for the Iess powerful framework of formal equality. The

39 ANDREA OWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN (1st ed. 1981). •o MacKinnon, supra note 5, at 58-59. 41 Am. Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986). 42 See Indianapolis Code §§ l6-3(q), 16-l?(b), 16-27(c) (1984), reprinted in ANDREA DWORKIN & CATHARINE A. MACKINNON, PORNOGRAPHY & CIVIL RIGHTS: A NEW DAY FOR WOMEN'S EQUALITY 113, 123, 130 (1988) ('Pomography shall mean the graphic sexually explicit subordination of women ... [A]ny woman may file a complaint as a woman acting against the subordination o f women ... Upon the filing o f a complaint ... the chief officer ... may seek temporary orders for injunctions'). 43 MacKinnon, supra note 5, at 22-23. 44 Lisa Duggan et ai., False Promises: Feminist Anti-Pomography Legislation, 38 N.Y. _L. SCH. L. REV. 133, 152 (1993). In defending the Indianapolis ordinance, the brief filed by the c1ty argued that the existence of the sexual speech defined as pomography 'degrades and demeans ali women.' Jd. 45 Lisa Duggan, Censorship in the Name of Feminism, in SEX WARS: SEXUAL DJSSENT ANO POLITICAL CULTURE 29 (Lisa Duggan and Nan D. Hunter eds., 10th ed. 2006). 46 Robin L. West, IAw 's Nobility, 17 YALE J.L. & FEMINISM 385, 386 (2005).

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anti-pornography law was emblematic of the goal to capture and redirect state power.47 This move drew on and drove forward feminist insights from early in the second wave that the state fails in its duty to provide equal protection uf the law when it permits the physical, sexual and emotional violcnce against womcn that occurs in privatc (for cxample, in families) to continue. Today, MacKinnon's theory of sexuality as intrinsically subordinating has virtually disappeared from feminist lawyering and scholarship, but new iterations of the associated program have not, especially in the ficld of sexual harassment law.4B

B. Recuperating Desire and Centering Relationships Robin West, while an admirer of MacKinnon, was nonetheless also a trenchant critic. West's scholarship reframed and reshaped MacKinnon's key precepts in three important ways, in the process creating an alternative within the scope of difference feminism to MacKinnon's totalizing vision of male/female sexuality. First, West decentered sexuality. Rather than placing heterosexuality at the center of gender and of women's oppression, West argued that the relational joinder- both sexual and reproductive - that the majority of women experience defined the key difference between men's and women's lives. Second, West called out MacK.innon on the latter's refusal to credit women's accounts of sexual pleasure unless they aligned with the purportedly universal experience of male sexuality as subordination. Lastly, West proffered the most fully explicated framework for replacing the law's traditional zero/sum consent regime - not with MacK.innon's zero/sum power regime, but instead with a nuanced spectrum of agentic sexual acts. In a 1988 article, West characterized the cultural (childcare-focused) and radical (sexuality-focused) branches of difference feminism as Iinked by 'the connection thesis': 'Women are actually or potentially materially connected to other human life. Men aren't. This material fact h as existential consequences . . . The potential for material connection with the other defines women's subjective, phenomenological and existential state ... ' 49 West treated the argument that heterosexual intercourse oppressed women as a variation on the connection thesis. 'Both intercourse and pregnancy are literal, physical, material invasions and occupations of the body:so On West's theory, women's experiences were grounded in the centrality of relationships, rather than in sexuality: Women's lives are not autonomous, they are profoundly relational ... The experience of being human, for women, differentially from men, includes the counter-autonomous experience of a 47 MacKinnon's more successful effort to bake a subordination thesis into civil rights law was her work in both theorizing and arguing for a cause of action for sexual harassment as a violation o f Title VII's anti-discrimination mandate, accompanied by the articulation o f how it fit within her theory of feminism. See infra, text accompanying notes 128-31. 48 See infra, text accompanying notes 128-31. 49 Robin L. West, Jurisprudence and Gender, 55 U. CHI. L. REV. I, 14 (1988). West acknowledged that pregnancy and intercourse were not life experiences for ali women. Id. at 71. 50 Id. at 34-35.

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shared physical identity between woman and fetus, as well as the counter-autonomous experience of the emotional and psychological bond betwcen mother and infant. 51 West's reframing brought thc capacity for reproduction into focus as the center of thc branch of radical feminism most directly addressing male/female difference. MacKinnon's writings refcrrcd to pregnancy as well as rape, but pregnancy was clearly secondary to the foCLts on sexuality. 52 West had the opposite intuition. West also eschewed thc branch of cultural feminism that was built on a psychoanalytic framework of intrinsic female inclination toward caring rather than competition. West saw this as a failure to recognize the ways that women seek separation and independence.5 3 Instead, her connection thesis posited that the social meaning of sexuality and reproductivc capacity was the legitimation of political institutions that produce women's subordination. 54 Like MacKinnon, she rejected reasoning grounded in biology or nature; unlike MacK.innon, her claims for the connection thesis added notes of contingency to a seemingly universalist claim. In addition, West maintained that MacK.innon's 'critique of desire is deeply mistaken.'55 As a matter of feminist methodology, women's sexual feelings should not be selectively categorized as authentic or not based, in effect, on whether they contradicted MacKinnon's theory. ... [W]omen report ... that equality in sexuality is not what we find p1easurable or dcsirable. Rather, the experience of dominance and submission that go with the controlled, but fantastic, 'expropriation' of our sexuality is precisely what is sexually desirable, exciting, and pleasurable - in fantasy for many; in reality for some.s6 Instead, West argued, we should 'leave our unfathomable, and I believe politically inconsequential, sexual desires out of this project altogether.'5 7 Rather than question the sexual subjectivity (that MacK.innon saw as polluted) behind certain desires and consider whether to condemn the results, West took as given a legitimate pluralism of desire. In so doing, she redirected the aim of feminist thinking and organizing toward the target of the social harm of sex, in any variation, that was not desired. We need to keep our eye on the prize, and the prize, here, is to rid the world not of welcome sex of any description but, rather, of the unwelcome sex and of the subtly or not-so-subtly coercive institutions that have so thoroughly normalized this sex that we have a very hard time seeing (much less resisting) it ... 58 51 Robin L. West, The Di.fference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 Wts. WOMEN'S L.J. 149, 210 (1987) (emphasis in original). 52 Catharine A. MacKinnon, Roe v. Wade: A Study in Male ldeo/ogy, in ABORTION: MORAL AND LEGAL PERSPECTIVES (Jay L. Garfield and Patricia Hennessey eds., 1984). 53 West, supra note 49, at 30-35, 49. 54 Se e id. at 47. 55 Robin L. West, Law 's Nobility, 17 YALE J.L. & FEMINISM 385, 388 (2005). 56 West, supra note 51, at 185 (emphasis in original). 57 West, supra note 55, at 388. 5K Id. at 389 (emphasis in original).

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011

From this prescient focus on welcomeness, West analyzed consent with grcatcr scnsitivity to Lhe operation of different vectors of harm, a framework that olTers much-necded clarity in today's consent debatcs.5 9 Sexual relations can be consentcd to but nonetheless unwanted, that is, not desired, sought out or initiated.C~ 1 This might include situations in which the woman sces sex as less problematic than a confrontation with her partner or as necessary to maintain financiai security, or, more positively, as simply not her idea but nonetheless appealing. 61 By contrast, if sex is not only unwanted but also unwelcome, even though consensual, the result is more likely to be alienation of the woman from her own sense of self-sovereignty. 62 Feminism should not be concerned with the content of women's desires or the impossibility of consent under patriarchy, but with the extent to which women agree, even without force, to unwelcome sex.63 Like MacKinnon, West sought Lo re-gender Lhe state, to change the function of government apparatus from that of malign neglect of women's oppression in private spaces to a force that would intervene in private as well as public realms to interdict violence and subordination. West mistrusted state power, however, and argued for incorporation of her categories of sexual harm and value into feminist theory, but not into criminal or civil law.64

C. Difference Reconsidered

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lt may be that such a heavily naturalized theory as MacKinnon's dynamic of male domination and female subordination creates an inevitable pull toward conservative, anti-feminist arguments. Certainly the claim that speech alone, with no othcr mechanism of coercion, can produce subordination suggests a tendency toward paternalism and protection. 65 But even if one brackets that concern and considers her theory to be the empowering set of claims that she intended, it relies in troubling ways on the deep structure of binary sexuality. Difference feminism seemed to break the analogy mold: because women are not the same as men, the male norm/comparator itself must change. It made a more radical claim than equality and forged a more radical thought process than comparison. But difference feminism doubled down on the conceptual heart of analogy: the binary construction. If equality claims could lead one into the trap of strengthening reliance on practices and experiences that are gendered male as the presumed comparator, difference-based claims also led into a trap: that of strengthening heteronormativity as the presumed baseline for ali analysis of sexuality and gender. 59

Feminism, sexuality and the /aw

feminis! jurisprudence

See infra, text accompanying notes 140-46. 60 Robin West, Sex, Law and Consent, in THE ETHICS OF CONSENT: THEORY ANO PRACTICE 221, 235 (Franklin Miller and Alan Wertheimer eds., 2010). 61 ld. at 236. 62 ld. at 237- 38. 63 Jd. at 243, 245-46. 64 ld. at 245-46. 65 See Duggan et ai., supra note 44; Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 COLUM. L. REV. 304 (1995).

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Thc binary of dominance and submission aligns perfectly, as it is mcant to, with male/fcmale, masculine/feminine, top/bottom, force/submission. Thc result is a reinscription and instantiation of conventional gender stereotypes, which come to seem as fixed as anatomy. And culture tends to recapitulate as socially desirablc that which is perceived as inevitable. Because binary is at the core of analogy and analogy dominates legal thought, exceptionalist arguments in law pose special problems for feminist theory. Rather than denaturalizing and demystifying sexuality, sex-as-subordination feminism resolved the analogic crisis in the wrong direction, by crossing the line into an argumcnt built on essentializing gender.

III. THE MULTIPLICITIES OF HIERARCHY What would women's sexual freedom look like? Why, as Katherine Franke posed the question, does feminism focus so intently on theorizing 'no'?66 The attcmpt in the 1980s to expunge much of sexually explicit speech produced not only a liberal defense of the First Amendment but also a feminist defense of women's sexual freedom. Sex radical feminists argued that oppression could not be collapsed into male sexuality. Criticai race feminists pointed out that the harms of racialization cut as deeply as those of gender subordination. And surely one harm of the constraints on women's sexuality, however imposed, Iay in the social penalties that await the female sexual rebel, a concern that materialized from speculation into reality when MacKinnon's approach was applied in Canada.67 In response, feminist writers and artists defended the value of art and literature that included erotic sparks of transgressive sexuality, however that might be defined at a particular moment for a particular woman. 68 Scary is not necessarily bad, and regret is not necessarily harm nor should it entail shame. Ambiguity is real.

A. Sexual Dissent What is often described as 'sex radical feminism' is more closely associated with Gayle Rubin than with any other scholar. As was true for MacK.innon, Rubin's early work grew In part from Marx. Both women were attempting in the 1970s to build a feminist

66 Katherine Franke, Theorizing Yes: An Essay on Feminism, Law and Desire, 101 COLUM. L. REV. 181 (2001). 67 R. v. Butler [1992] S.C.R. 452 (Can.) (upholding seizure of lesbian sex magazine being imported from Boston). 6s The brief submitted by the Feminist Anti-Censorship Task Force in the lndianapolis litigation was signed by, inter alia, Adrienne Rich, Cheryl Clarke, Rita Mae Brown, Kate Millett, Barbara Smith, Alix Kates Schulman and Bette Gordon. Brief Amici Curiae of Feminist Anti-Censorship Task Force et ai., Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986), reprinted in Nan D. Hunter and Sylvia A. Law, 21 MICH. J.L. REFORM, 69, 89-98 (1988).

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political theory that combined thc radicalism and depth of Marx with de Beauvoir's structural analysis of women's placc in society. 69 By the Iate 1970s, Rubin's auention had turned to repressive policies that had been revived and strengthened by an ascendant cultural right wing and which were directed against stigmatized sexual practices and communities. At the same time, she was also troubled by what she saw as the political nai'veté, at best, or opportunism, at worst, of the feminist anti-pornography movement.7° Repulsed by the misogyny of most commercial pornography (and, indeed, of most commercial visual culture), women's groups had begun to use imagery of bondage and sado-masochistic, or SM, practices as examples of 'violent' pornography. 71 SM images were foreign and disturbing to those who were unfamiliar with the practice and thus susceptible to a Iiteralist visual reading of scenes as coercion even if thcy actually depicted mutually welcome activities. The resulting shock and disgust provided a new bridge between these anti-porn groups and the anti-feminist positions of conservative women Iike Phyllis Schlafley.72 Rubin, on the other hand, ... looked at 'sex deviants,' and frankly they didn't strike me as the apotheosis of patriarchy [or] as the avatars o f political and social power in this society ... It seemed to me that many feminists had simply assimilatcd thc usual stigmas and common hatreds of certain forms of non-normative sexual practicc which they then rearticulated in their own framework.73 11

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SM became a flashpoint and symbol of the collision among feminists over the politics of sexuality. Groups of radical feminists began to form SM groups and claim the practice as their own.7 4 Sexual frcedom radicais seized on the opportunity to defend the eroticism of explicitly using power and domination (but not coercion) in sex, aided by the fact that most different-sex SM imagery featured the woman as dominatrix. Defenders of SM carne to constitute, and most visibly represent, a new political constituency, a position of dissent from the sex-as-subordination philosophy. The radical feminist credentials of its adherents were essential to its power within feminism. As women, sex radical feminists had experienced rape and other instances of sexual coercion, and as SM advocates, they had experienced sexual repression, thereby giving them a perspective that MacKinnon's version of feminism could not account for or

69 An anthropologist, Rubin first emerged as an important feminist scholar with The Traffic in Women, an essay that drew on Levi-Strauss as well as Marx to argue that the psychic and social structures associated with kinship in tribal societies produced gender stratification that an analysis of economic structures alone could not explain. Gayle Rubin, The Traffic in Women, in TOWARD AN ANTHROPOLOGY OF WOMEN 157 (Rayna Rapp ed., 1975). 70 Rubin and Butler, supra note 26, at 73, 77, 84. 71 Gayle Rubin, Thinking Sex, in PLEASURE AND DANGER, supra note 29, at 298; Gayle S. Rubin, Blood Under the Bridge: Rejlections on 'Thinking Sex,' in DEVIATIONS: A GAYLE RUBIN READER 207-09 (Gayle S. Rubin ed., 2011). 72 See Duggan et ai., supra note 44, at 37-39. 73 Rubin and Butler, supra note 26, at 84. 74 The two best known were Samois in San Francisco and the Lesbian Sex Mafia in New York.

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extrapolate from. 75 The Dwurkin-MacKinnon anti-pornography lcgislation specified SM images as one of the catcgorics subject to suppression, making the threat of harm to SM activists vivid and immincnt. 7(• Rubin set out to develop a 'coherent and intelligent body of radical thought about sex.'77 In doing so, she was greatly int1uenced by Foucault, Jcffrey Weeks and Mary Mclntosh, who had publishcd analyses of the social construction of homosexuality. 78 She drew especially on Foucault's theory of sexuality as a set of ideas, norms, and individual and institutional practices that had developcd ovcr time, as political or economic structures develop, in rclationship to social and cultural forces. In Thinking Sex, the paper that Rubin delivered at the 1982 Barnard Conference, she identified a series of conceptual foundatiuns for repression based on sexuality: the altitude of presumed guilty until proven innoccnt associated with sexuality generally, except for practices that had achieved status as 'normal' in a hierarchic cultural ranking; the exceptionalism and excessive meaning of sexuality as compared to other human activities; the sense that broadening the scope of acceptable practices imperiled institutions such as the family; and the absence of widespread belief in benign sexual variation and a pluralist sexual ethics.79 Rubin argued that feminism was inadequate as a theory of sexuality. 80 'The system of sexual oppression cuts across other modes of social inequality, sorting out individuais and groups according to its own intrinsic dynamics.' 81 What Rubin called 'the political dimensions of erotic life' 82 included non-gendered, as well as gendered, power relations.s3 Unlike liberal defenders of 'free' expression, Rubin and the sexual freedom radical feminists saw systems of stratification that permeated a sexual, as well as a gender, hierarchy. Unlike conventional LGBT rights advocates, they eschewed what were then the first signs of a politics of respcctability that would offer assimilation to some and thereby render others who could never be respectable more vulnerable.

75 MacKinnon condemned same-sex SM practices, regardless of context, as inseparable from the subordination of women and 'rape culture.' MACKINNON, supra note 33, at 142. In one of the more bitter confrontations between groups of activists, anti-pomography advocates picketed the 1982 Bamard Conferencc on Women wearing T-shirts that read 'For a Feminist Sexuality' on one side and 'Against SIM' on the other. Rubin, Blood Under the Bridge, supra note 71, at 202. 76 See Appendix: The MacKinnon/Dworkin Pornography Ordinance, 11 WM. MITCHELL L. REv. 119, 121 (1985) (including, as part of the definition of pomography, 'women [who] are presenteei in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a contcxt that makes these conditions sexual.). 77 Rubin and Butler, supra note 26, at 144. 78 Jd. at 88, 92. 79 See Gayle Rubin, Thinking Sex, in PLEASURE AND DANGER, supra note 29, at 278-84. 8o See id. at 274-75. 81 Rubin and Butler, supra note 26, at 164. 82 Jd. at 181. 83 Rubin, supra note 79, at 307-08.

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B. Performativity and Sexuated Gender84

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Many feminist theorists other than Rubin have drawn on the work of Miche l Fo.ucault,K 5 whosc theoretical point of departure was thc concept of discoursc, an eptstemological systcm consisting of texts, practices, knowledges, norms, belicfs and representations.x 6 Discourse arises from (and alters, in a kind of cultural fecdback process) the multiple power systems that exist in society, which crcates a fundamental link betwcen, for cxample, law and culture.B7 Foucault's scholarship is quite complex; this chaptcr will highlight three aspects of it that are particularly important to feminist theory rclated lo sexuality. First, he gavc fullest elaboration to the argument that sexuality is a thoroughly social production . Rather than a natural endowment, sexuality is a complcx historical and social construct: ' a great surface nctwork in which the stimulation of bodies, the intensitication of pleasures, the incitement to discourse, the formation of special knowledges, thc strengthening of controls and resistances, are linked to one another, in accordancc with a few major strategies of knowledge and power.' RK Social forces, in other words, shape the meanings associated with sexual practices, how we understand our experiencc of them, and even the sexual choices we make. Foucault argued that the interlocking discourses of law and culture produced a proliferation of sexual identities. For example, criminal law specified and defined ~er~a~n sexual .conduct (anal intercourse), which created a correlative category of m?IVlduals subject to prosecution (sodomites, a term that became falsely synonymous wtth homosexuals), who as a group constituted and embodied a sexual status (homosexuality) that itself became a target for opprobrium, persecution, mobilization and counter-mobilization. In the same way, other sexual acts were criminalized and pathologized as perversions, thereby creating other categories of persons who carried the social identity of perverts. On this understanding, sexual identities could not be understood as simply natural or as a central component of one's being - of one's personhood, as liberal theory might sugg~st. Those same acts likely once carried a different social meaning, and this meanmg could (and likely will) change again in the future. The particularities of the cultural and historical eras in which we live and the pattems of socialization that we experience give rise to concepts such as 'LGBT rights.' Second, Foucault saw power systems as more complex than Iaw and rejected the underlying assumptions of a law-centered view of the world, what he called a jurídica] conception of power. Power is not simply the state, he wrote, but resides in a multiplicity ~f i~terconnecting (and sometimes contradictory) systems. For example, Foucault mamtamed that the educational, religious and medicai systems exercised 84

I borrow the terrn 'sexuated gender' from DRUCILLA CORNELL, AT THE HEART OF SEX, & EQUALI!Y 8 (1998). l use it to connote the primacy of gender and

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the mtnnstcally conungent nature of tts sexualized performance. 85 From a May 4, 2018 search solely in law reviews, Westlaw reports 3 010 articles in which the precise terrns ' Foucault' and 'gender' were used. ' 86 FOUCAULT, supra note 4. 87 88

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Jd. Id. at 105-06.

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greater power with respect to sexuality than ditl thc law. Where others might see a social/sexual structure dichotomized as freedom and repression or the individual versus the state, Foucault saw 'a veritable "technology of sex"' with multiple and conllicting players and effects.R9 The third key to Foucault's theory was the belief that the operation of power is not simply prohibitory or negative. Power systems, including repressive laws, produce sexuality as well as prohibit it.90 Thus, while laws and customs may have formally prohibited certain sexual behaviors and effectively limited sexual speech in many situations, ' at the levei o f discourses and their domains .. . the opposite phenomenon occurred[:] ... a proliferation o f discourses conccrncd with sex.' 91 In sum, Foucault interpreted the history of sexuality not as a simple story of the repression of sex but as a much more complicated process 'that spreads [sex] over the surface of things and bodies, arouses it, draws it out and bids it speak, implants it in reality and enjoins it to tell the truth.'92 Feminist theorists such as Judith Butler, whosc work emerged after Foucault's influence had reached its height, sought to fill the yawning gap in his theory - not so much the woman question as the gender question. 93 Butler's scholarship applied and extended Foucault's work on sexuality to build a theory of gender: '[G]ender is an historical category that works in multi pie ways and shifts through time and space .. . [Gender] is open to continuai remaking.' 94 Butlcr agreed with Rubin that gender was not reducible to sex and sex not reducible to heterosexual subordination. Gender ought not to be conceived merely as the cultural inscription of meaning on a pregiven sex (a juridical conception); gender must also designatc the very apparatus of production whereby the sexes themselves are established. As a result, gender is not to culture as sex is to nature; gender is also the discursive/cultural means by which 'sexed nature' or 'a natural sex' is produced and established as 'prediscursive,' prior to culture, a politically neutra] surface on which culture acts.95 Key to Butler's theory was the concept of performativity, and the insight that gender, as well as sexuality, was historical and synthetic. .. . [T]he substantive effect of gender is perforrnatively produced and compelled by lhe regulatory practices of gender coherence. Hence ... gender proves to be perforrnative - that 89 ld. at 90. 90 See, e.g., Jed Rubenfeld, The Right to Privacy, 102 HARV. L. REV. 737, 783-84 (1989) ('[P]rivacy analysis has begun with the question, "What is the state trying to forbid?" ... Suppose instead we began by asking not what is being prohibited, but what is being produced. Suppose we looked not to the negative aspect of the law - the interdiction by which it forrnally expresses itself- but at its positive aspect: the real effects that conforrnity with the law produces at the levei of everyday lives and social practices') (cmphasis in original). 9t FOUCAULT, supra note 4, at 18. 92

Jd. at 72.

93 VIKKI BELL, INTERROGATING INCEST: FEMINISM, FOUCAULT AND THE LAW 26-27 (1993). 9 4 JUDITH BUTLER, UNOOING GENDER 9-10 (2004). 95 JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF lDENTITY 22 (1999) (emphasis in original).

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is, constituting the identity it is purponed to bc ... There is no gender idcntity behind the expressions of gender; that identity is pcrl'onnatively constituted by the vcry 'exprcssions' that are said to be its results. 96 These theories became significant in l'cminist legal scholarship in the litcraturc on sexual harassment and LGBT rights. With rcgan.l to thc former, Kathryn Abrams97 and Katherine Franke9H drew on gender thcory in their attempts to theorize thc Iink between harassment and sex discrimination without rclying on MacKinnon's sex-as-subordination apparatus: 'Only by reversing the collapsc of maleness and masculinity can wc bcgin to understand the complexity of sexual harassmcnt as a regulatory practicc,'!!'J Quoting Butlcr, Franke argued that gender could bcst bc understood as a technology o r rcgulation enforced by Iaw: In terms of an explicitly feminist accoulll oi' gcnder as performative, it seems clear to me that an account of gender as ritualized, public performance must be combined with an analysis of the política! sanctions and taboos under which that performance may and may not occur within the public sphere free of puni tive consequence. 100

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By the time that legal arguments against discrimination based on sexual orientation began to gain traction, understanding of the social construction of sexuality had spread to Iawyers in the field. The classic model of identity politics and equal protection theory invoked sexual orientation and sex as stable identity categories. Arguments influenced by Foucault contributed to thc Supreme Court's rejection of reasoning in a 1986 case that had conceptualized the crime of sodomy as applicablc only to homosexuality, rather than to whoever engaged in the prohibited acts. 101 In Lawrence v. Texas , based on briefs that emphasized the shifting social meanings of non-procreative acts, the Supreme Court adopted the understanding that definitions of sodomy had varied over time.i02 Scholars who became known as queer theorists carried the Rubin-Foucault-Butler arguments forward. In this context, 'queer' was not a slangy synonym for gay, but denoted a politics that could be shared by anyone regardless of orientation.•m Central 96 97

ld. at 25. Kathryn Abrams, 1itle VI/ and the Complex Female Subject, 92 MICH. L. REV. 2479

(1994). 9M

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to the political project was Lhe validation and celebration of sexual openness and cxperimentation, rejccting as hcteronormativc lhe condemnation of gay male 'promiscuity' that became common during thc HIV-AIDS epidemic. Activists sought to prevent the closing of venues, such as strccts and parks, implicitly available for sexual adventure and to preserve zoncs in which sex clubs, porn shops and Icather bars could llourish."l4 'Gay male sexual promiscuity should be seen ... as a positivc model o f how sexual pleasures might bc pursucd by and granted to everyone.' 10'

C. Intersectionality Intersectional feminist legal thcory hcgan in part as a rejoinder to MacKinnon and West, but from a differenl dircction than Rubin and Butler. Feminist race scholars Anoela Harris and Kimbcrlé Crcnshaw argued that differcnce-based arguments o inscribed a unitary understanding of women's oppression in ways that, desptte the anti-racist commitments of MacKinnon and West themselves, end up portraying African-American women as 'white women, only more so' or 'white women with an additional burden.' 106 Harris critiqucd difference feminism for a form o f 'gender essentialism': 'the notion that thcre is a monolithic "women's experience" that can be dcscribed independent of other faccts of experience like race, class and sexual orientation.' 107 As developed by theorists such as Harris and Crenshaw, intersectionality conveyed more than the fact that women of calor were discriminated against based on two (or more) intersecting axes. Two decpcr meanings of intersectionality attach as well. First, intersectional subordination is not simply additive; it is compounded. The effects of · racism and sexism magnify each other and multiply the perceived distance that the subject (for example, a woman of calor) is seen to stand outside the norm. 108 Second, intersectionality is embedded not only in social practices and structures but also in consciousness. Women of color, argued Harris, embodied multiple selves; their social existence and subjectivity were always doubled.' 09 At the same time, they were marginalized; for example, courts generally have accepted that a white woman plaintiff may represent the class of women, but some courts have held that Black women were only their own class.•w The interaction of gender and sexuality does not produce the same results for ali women. Whereas MacKinnon described gender stereotypes of women as determined by o

(1997). 99

Jd. at 763. /d. at 766, quoting Judith Butler, Peiformative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40 THEATRE J. 519, 526 n.9 (1988). 10 1 Bowers v. Hardwiek, 478 U.S. 186 ( 1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). 102 Lawrence v. Texas, 539 U.S. 558, 567-71 (2003). The majority o f justices still apparently believe, however, that sexual orientation is an innate characteristic. See Obergcfell v. Hodges, 135 S. Ct. 2584, 2595-96 (2015) (discussing changing perceptions of sexual oricntation over time and noting that 'psychiatrists and others [have] recognized that sexual orientation is both a normal expression of human sexuality and immutable'). 103 Michael Wamer, lntroduction, in FEAR OF A QUEER PLANET: QUEER POLJTICS AND SOCIAL THEORY xxvi (Michael Wamer ed., 1993). IDO

104 Laurcn Berlant and Michael Warner, Sex in Public, 24 CRITICAL INQUIRY 547, 560-63 (1998). 105 Jd. at 561, quoting Douglas Crimp, How to Have Promiscuity in an Epidemic, 43 ÜCTOBER 253 (1987). 106 Angela Harris, Race and Essentialism in Feminis/ Legal Theory, 42 STAN. L. REV. 581, 592 (1990). 1o1 Jd. at 585. IOH Kimberlé Crenshaw, Demarginalizing the lntersection of Race and Sex: A 8/ack Feminis/ Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U. CHI. LEGAL F. 140, 150 (1989). 109 See Harris, supra note 106, at 603-05 . 1111 Crenshaw, supra note 108, at 141-49.

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belief in the fundamental health and intcgrity of central criminal law, both past and present, was left in place. This chapter has explaincd the role of the immunity, its structural role in the criminal legal order and the implicit dcnial of this role, as the immunity was taken out of the system, thereby maintaining faith with the system. And it has shown the richness and diversity of feminis! scholarship in response. It is true that the criminal justice system has been questioned in othcr ways, for other reasons - cspecially for its growth. But outside of feminist scholarship, lhe abolition of the immunity has not been seen as a catalyst or as an opportunily for change, for a health check of the overall system or for a review of the logic and inlcgrity of past thinking. Rather, lhe immunity has been treated as epiphenomenal or as a slowly growing anomaly or as a redundancy, a now useless part of the criminal legal body, perhaps like an appendix, which could be cut out leaving the rest of lhe body intact. There was nothing surprising about the immunity to the judges who eventually carne to examine and discard it; nor did it play a significant role in the thinking of criminal legal scholars, a numbcr of whom positively advocated for its retention, as Ryan reveals. It was taken to bc banal and intellectually uninteresting, and yet it was a fundamental feature of thc patriarchal order, as Pateman explained. It was not treated as a former human rights abuse which called for apology or which represented a change in the nature of law when it was abolished; there was nothing of the moral outrage of John Stuart Mil! or Michael Frccman in the modem judgments which disposed of it, as Heath and Larcombe make clcar. The change in law was not treated as a great moral rift. It is interesting to consider the various ways that the remova! of the Contradiction could have been conceived and represented. What a feminist might still be looking for is an explicit examination by criminal lawyers of their stated commitments to personal security and bodily integrity and their knowledge and acceptance or endorsement of the immunity. The criminal lawyers brought to awareness of the Contradiction might say, 'We thought that rape was an intrinsic and enduring wrong, and we still treat it this way, and this is very important to our belief in the internai morality of criminal law; but ali along there was this great hole in the offence so we were holding incompatible ideas. We were blind; we were incoherent.' Or perhaps in the feminist imagining, contained within the feminist judgment of Heath and Larcombe, the influential men of criminal law might call thcmselves to account and see the immunity as a form of venal male promotion and preservation of self-interest through criminal law, rather than as a natural and innocent maturing of women's rights. The enduring nature of such a powerful contradiction speaks of the importance o f the immunity to the criminal legal system as a whole; and yet in its quiet way it just chugged along doing its basic work for the patriarchy. Then very late in the day it was stealthily removed. Perhaps it is implicitly understood that wives will not really be armed with a new weapon against husbands, that the gender order will not be fundamentally changed - and it hasn't been. The husband's immunity from rape prosecution is not an antique legal curiosity, an anomaly, although the major abolition cases of the late twentieth century treated it as such. Rather it was part of the very fabric of criminal law and legal thinking. It was basic to criminal legal thinking about men, as the natural holders of power, and of

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women and their qualilicd rights to self-govemment. And as fcminists have shown, it tells us a grcat dcal aboul legal men and the contradictory criminal law they devised, explained and dcfcndcd.

PART 111

13. Reproductive rights and justice: a multiple feminist theories account* Lisa C. Ikemoto

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The list of ways the state and society can restrict, ban, impose on, interfere with, stigmatize, jeopardize, prevent, coerce, punish, de-fund, devalue and commodify human fertility, conception, pregnaney and birth is long and growing. Feminist thcorics enable examination of the role ideologies play in locating reproduction in the femalc body and the resulting impacts on individuais, the status of women and the formation or gcnder identities. This chapter focuses on the relationship between feminist jurisprudcnce and the law and politics of reproductive rights and justice in the United States. Because of the decades-long politicization of abortion, many equatc rcproductive rights with the right to decide whether or not to terminate a pregnancy. Yct, abortion is just one of many reproductive rights and justice issues. Nevertheless, the political and legal struggle over a woman 's right to abortion has been so hard fought, so fraught, that abortion is central or perceived as such in the constellation of issues. The rhetoric and tactics deployed in the abortion wars have often obscured the role feminist legal theory has played in the development of positions on ali sidcs. This has had at least two effects. Many people assume 'feminist' means 'a woman who supports Roe v. Wade.' 1 The struggle has become so reductive as to obscure feminist thcory's larger challenge to patriarchy. In addition, the ferocity of the abortion wars often blinds us to how particular feminist theories have framed the issues, provided analyses and informed strategies in the shifting, expanding struggle for reproductive rights and justice. Thus, the claim that women have a right to decide whether to have an abortion is not simply a feminist claim, but one shaped by specific feminist theories, primarily liberal feminism. Other feminist theories, including, prominently, criticai race theory, have framed the issue differently and have put additional issues like surrogacy, coerced sterilization, welfare family caps and criminal prosecution of pregnant women on the reproductive rights and justice agenda. The centrality of the abortion wars in US politics has had other effects. First, the focus of the mainstream reproductive rights movement on abortion has often situated other issues as secondary. Criticai race theory scholars have made the case that the law and politics of not only abortion but also coerced sterilization, welfare rules that punish childbearing, and prosecution of pregnant women primarily target low-income women of color. Reproductive rights and civil rights agendas should therefore prioritize these

* Parts of this chapter elaborate ideas first introduced in my essay Reproductive Rights and Feminist Legal Theory in the United States, included in the collection FEMtNtST JURISPRUDENCE IN THE UNJTED STATES AND ASIA: A TRANSPACIFIC DIALOGUE (Cynthia Grant Bowman and Yu Xingzhong eds., 2017), published in Chinese. I 410 U .S . 113 (1973). 249

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issues and not focus myopically on abortion rights. 2 In addition, the anti-abortion framework has not only pcrsistcd and evolved but also expanded. As a result, the rhetorics of personhood and of protecting women have intiltratcd other reproductive practices, beyond abortion. Two cxamples illustrate this point. While in vitro fertilization provoked controvcrsy at its outset, public discourse seldom considered the moral and legal status of in vitro embryos until abortion opponcnts responded to a breakthrough in human cmbryonic stem cell research with a claim of 'embryo pcrsonhood.' 3 The status of in vitro embryos is now contestcd. The second example ariscs from opposition Lo cmcrgency contraception. While one argument against cmergency contraception rests on an embryo personhood claim, another asserts the need to protect women's hcalth, rcgardless of significant evidence of the relative safety of emergency contraception proccdures. 4 The abortion wars' expansive reach has also brought issues not obviously rclatcd to reproduction into the sphere of reproductive politics. 5 Not only welfare rulcs, 6 but also health care reform 7 and immigration enforcement8 have become sites of the fight over reproductive rights and justice. The account that follows is not comprehensive but illustrativc. It discusses a short list of feminist legal theories and a slightly longer list of reproductive rights and justice issues. I have tried to capture the interaction between specific feminist theories and challenges to reproductive rights and justice. More specifically, the chapter shows how feminist jurisprudence provides the lenses necessary to see these issues as feminist issues. It also comments on the self-critical and dialectical nature of feminist jurisprudence.9 Feminist jurisprudence provides its own critique of various feminist

2 See, e.g., DOROTHY ROBERTS, K!LL!NG THE BLACK BOOY: RACE, REPROOUCTION ANO THE MEANING OF LIBERTY (I 997); Lisa C. Ikemoto, The Code of Perfect Pregnancy: At the Intersection of the Ideology of Motherhood, the Practice of Defaulting to Science, and the Interventionist Mindset of Law, 53 ÜHIO ST. L.J. (1992). 3 THE HUMAN EMBRYON!C STEM CELL DEBATE: SC!ENCE, ETH!CS, ANO PUBL!C POL!CY xv (Suzanne Holland, Karen Lebacqz and Laurie Zoloth eds., 2001). 4 Susan F. Wood, Perspective, Women's Health and the FDA, 353 N. ENG. J. MEO. 1650 (Oct. 20, 2005); Susan F. Wood, Op-Ed, lnappropriate Obstructions to Access: The FDA's Handling of Plan 8, 16 AMA J. ETH!CS 295 (Apr. 2014). 5 See general/y LAURA BRIGGS, HOW ALL POLITICS BECAME REPROOUCT!VE POL!T!CS: FROM WELFARE REFORM TO FORECLOSURE TO TRUMP (2017). 6 ld. 7 Lisa C. Ikemoto, Abortion, Contraception, and the ACA: The Realignment of Women 's Health, 55 HOWARO L.J. 731, 757-59 (2012). 8 See, e.g., Sarah McCammon, Undocumented Teen Held in Texas is at the Heart of an Abortion Fight, NPR, Oct. 13, 2017, https://www.npr.org/sections/thetwo-way/2017110/13/5576 21415/undocumented-teen-held-in-texas-is-at-the-heart-an-abortion-fight; Scan H. Wang, Fetal Citizens? Birthright Citizenship, Reproductive Futurism, and the 'Panic' over Chinese Birth Tourism in Southern California, 35 ENV'T & PLAN. D: Soc'y & SPACE 263 (2017). 9 See also Cynthia Grant Bowman and Elizabeth M. Schneider, Feminist Legal Theory, Feminist Lawmaking, and the Legal Profession, 67 FOROHAM L. REV. 249 (I 998) (revealing 'a spiral relationship in which feminist practice has generated feminist legal theory, theory has then reshaped practice, and practice has in tum reshaped theory').

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approaches to rcproductive rights and justice issucs. Finally, this chapter highlights how feminist jurisprudcncc has developed in response to ncw challenges to reproductive rights and justice. Thc general thesis is that a multi-theory account of reproductive rights and justice issues produces a more useful analysis and range of strategies than a single-theory approach can. Section I briefly revicws why patriarchy and other systems of subordination center female reproduction. This section identifies and describes concepts that feminist jurisprudence targets. Section li uses the legal fight for reproductive rights to illustrate the achievements and limitations of liberal feminism. Section III examines sterilization to discuss its importance in the understanding of reproductive rights and its simultaneous use as a form of reproductive control. Section III also examines the role of criticai race theory in explicating the ways in which fertility, pregnancy and birth regulation have primarily targeted women of color.

I. REPRODUCTION Reproduction is a major axis of patriarchy. Females bear children, and males do not. The obvious biological difference is often used to justify patriarchal practices that treat women and men differently in the workplace, in political spheres and in public space. When US Senator Tammy Duckworth announced her pregnancy in January 2018, headlines noted that she will be the first sitting Senate member to give birth. 10 That statistic reflects not only the dearth of women in the Senate, but also an underlying assumption that pregnancy and potential motherhood have effects that impede leadership capacity. Often, pregnancy or childbearing capacity translates into rules that create or maintain gender segregation. Recall UAW v. Johnson Controls. 11 In 1977, battery manufacturer Johnson Controls, Inc. shifted from a policy of waming workers about potential lead exposure in certain jobs to excluding women who were pregnant or capable of bearing children from those jobs in order to protect current and future fetuses from risk. The Supreme Court held that the policy violated Title VII, as amended by the Pregnancy Discrimination Act.l2 In doing so, the Court noted that '[c]oncem for a woman's existing or potential offspring historically has been the excuse for denying women equal employment opportunities.' 13 Patemalism premised on fetal protection also informs criminal law. States have responded to public health research

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to Give Birth in Office, CNN, Jan. 24, 2018, https://www.cnn.com/2018/01123/politics/tammy-

duckworth-pregnant-first-senator-congress/index.html; Heidi Stevens, Tammy Duckworth Expecting 2nd Child; Would be 1st to Give Birth while Serving in Senate, CHI. TRIB., Jan. 24, 20 18, http://www.chicagotri bune.com/1 ifes ty les/stevens/ct-1 ife-s tevens-tuesday-tam my-d uckworthpregnant-0 123-story.html. li 499 u.s. 187 (1991). 12 Jd. at 211. 13 Jd.

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showing that alcohol consumption during pregnancy can adversely affect fetal dcvclopment with laws that are supportive, disciplinary or both. 14 Some second wave feminists responded Lo the biological differences betwecn mcn and women bcing uscd to justify different Lreatmenl of women by using 'but for' arguments - but for Lhe biological difference, men and women are substantially thc same in ali ways that should matter to the state and should therefore be treatcd thc same. Yet, as women were hired into workplaces structured by patriarchal gender role assumptions, the fact that women became pregnant, gave birth and served as primary caretakers made them seem less capable or less willing to do the same work as men.1.~ Most feminist theorics probe dcepcr. Social constructionists move the point of contestation from actual biology to what our gendered social norms make of biological reproductive capacity. For example, anti-essentialist work challenges the patriarchal claim that ali women share certain emotional and character traits that arise from their capacity to bear and beget children. 16 The concept of gender essentialism enahles critique of claims that women are inherently self-sacrificing, nurturing and moral. 17 Feminist anti-essentialism also challenges practices that blame women who deviate from ascribed norms of womanhood justified by reference to reproductive biology. In addition, feminist legal theory explicates the role of reproductive and sexual regulation as a form of social control that pcrpetuates patriarchy. Feminist social control theory posits that processes of socialization discipline behavior in ways that maintain dominant gender norms and power structures. 18 Laws that express or are applied in ways that blame women for socially impermissible sex and describe men as naturally (and therefore blamelessly) sexual maintain the social rules. For example, states justified both contraceptive and abortion bans in the early and mid-twentieth century as necessary to deter extramarital sex. 19 The normative prohibition against extramarital sex applied to everyone. The contraceptive bans, however, placed responsibility on women by imposing the risk of pregnancy as punishment for violating women's duty to uphold society's mores. Thus, contraceptive laws both restricted access to birth control and policed woman's role as the standard bearer of sexual morality. 14 Sarah C.M. Roberts et ai., Forty Years of State Alcohol and Pregnancy Policies in the USA: Best Practices for Public Health o r Efforts to Restrict Women 's Reproductive Rights ?, 52 ALCOHOL & ALCOHOLISM 715, 719 (Aug. 2, 2017) ('Since 1985, the number of states with punitive alcohol and pregnancy environments remained steady ... while the number of states

with a supportive alcohol and pregnancy environment increased dramatically between 1985 and 1995 ... and then steadily decreased ... The number of states with a mixed alcohol and pregnancy policy environment has increased steadily over time, from 1 in 1988 to 25 in 20!3'). 15 Bowman and Schneider, supra note 9, at 257-58; Joan C. Williams, Deconstructing Gender, 87 MICH. L. REV. 797, 822-36 (1989). 16 Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 58! (1990). 17 ld. at 588. 18 S.D. and N.S., Editorial, 17 Soe. JUST. 1, I (1990). 19 Griswold v. Connecticut, 381 U.S. 479, 498 (Goldberg, J. concurring); Eisenstadt v. Baird, 405 U.S. 438, 448 (1972) (rejecting the claim that deterring premarital sex justifies the ban on distributing contraceptives to single persons).

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Reproductivc control is often imposed selectively, on particular communities or populations. Ideologies that implicate women of color, particularly low-income women of color, as the source of a social problem typically inform population-based reproductive control. Restrictions on family immigration rest on claims that immigrant women are too fertilc. 20 Rules that limit benefits for low-income women pathologize Black motherhood or claim that 'welfare mothers' have children to increase thcir income, despite evidence to the contrary. 21 The ultimate impact is not only to pcrpctuate stigmatization of women in those communities but also to maintain Lhe marginal status of the whole community.

II. LIBERAL FEMINISM A. Liberal Feminism and Reproduction The state and society have restricted women's reproductive health, fertility and pregnancy since thc founding of the US. 22 Early feminist activists in the late nineteenth and early twentieth centuries fought for access to contraception. While many supported birth control as a means of controlling fertility, early feminists split on contraceptive use as a means of enabling women's sexuality 23 and achieving eugenic goals. 24 Second wave feminism emerged in the aftermath of the Second World War. Historians usually identify the late 1950s as the start of the second wave and the 1980s as its end. 25 During those years, second wave feminism developed into a broad movement that challenged gender roles, household division of labor, sex discrimination in employment, social control of sexuality and restrictions on access to contraception and abortion.26 Two dominant ideological branches formed within the second wave: liberal feminism and radical feminism. Liberal feminism aimed for 'equality with men in political and social spheres,' 27 in part by emphasizing women's capacity for rational choice, and thus for autonomy. Radical feminists hoped to challenge the ways in which 2o See Lisa C. Ikemoto, Lessons from the Titanic: Start with the People in Steerage, Women and Chi/dren First, in MOTHER TROUBLES: RETHINKING CONTEMPORARY MATERNAL DILEMMAS

157 (Julia E. Hanigsberg and Sara Ruddick eds., 1999). 21 See GWENDOLYN MINK, WELFARE'S END 58 (rev. ed. 1998). 22 RICKIE SOLINGER, PREGNANCY AND POWER: A SHORT HJSTORY OF REPRODUCTIVE POLITICS IN AMERICA 28 (2005). 23 CAROLE R. MCCANN, BIRTH CONTROL POLJTICS IN THE UNJTED STATES, 1916-1945 24-38 (1994). 24 ELLEN CHESLER, WOMAN OF VALOR: MARGARET SANGER AND THE BIRTH CONTROL MOVEMENT IN AMERICA 195-96, 216-17 (1992); DoNALD K. PICKENS, EUGENICS AND THE PROGRESSJVES 80-85 (1968). 25 MARLENE LEGATES, IN THEIR TIME: A HISTORY OF FEMINISM IN WESTERN SOCIETY 327-62 (2001). 26 ld.; see also ABORTION WARS: A HALF CENTURY OF STRUGGLE, 1950-2000 (Rickie Solinger ed., 1998). 27 What was the Second Wave Feminis! Movement?, DAILY HISTORY.ORG (citing LEGATES, supra note 25, at 347), https://dailyhistory.org/What_was_the_Second_Wave_Feminist_Movement %3F#cite_note-12.

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patriarchy shaped society's basic norms and structures and thus callcd for more fundamental change.28 Radical or dominance feminist theorists such as Catharine MacKinnon ascribed the limitations on autonomy and self-determination to systemic sexual subordination of women by mcn.29 Whilc both radical feminism and liberal fcminism supported legalization of abortion, liberal fcminists saw law as a principal tool. For liberal feminists, individual autonomy is the mcans to achieve gender equality. Reproductive decisions are regarded as central to individual autonomy because they implicate the body, personal identity and ability to participatc in cconomic and political life. Radical feminism, on the other hand, situated reproductive decisions 'within the structural constraints on women's lives, raising the rclationship between socioeconomic freedom and women's reproductive health choices.' 1 u Liberal feminism in law uses a rights-based approach to assert autonomybascd claims. 31 Not surprisingly, liberal fcminists led the legal advocacy for reproductive rights. 12 Liberal feminists framed contraceptive and abortion access and use as rights ncccssary to woman's autonomy and equality, and they prioritized reproductive rights in ways other second wave feminists did not. During the twentieth century, criminal bans on contraception and abortion services proliferatcd. 33 The laws typically prohibited doctors and others from distributing contraception information and from providing abortions. While doctors bore the risk of criminal cnforccment, women bore the risk of unintended pregnancy and its social, economic and physical consequences at a time of heightened stigmatization of non-marital sex. Legislative justifications for strict regulation reflected majoritarian conccrns about sexuality. Ready access to contraception or abortion would enable people to fornicate without the risk of pregnancy, or so the thinking went.34 Some states began to modernize law, loosening bans. But modernized Jaws positioned medicai providers as gatekeepers, subject to stringent requirements. For example, prompted by a Model Penal Code update, some states modernized their abortion laws in the 1960s with exceptions for 'therapeutic' abortion. 35 The 'therapeutic' abortion provisions enabled some women to obtain legal abortion, but the law allocated decision-making authority to physicians and medicai panels rather than to pregnant women. 36 In a 1972 essay, Dr. Alan Guttmacher explained the consequences: 2

See lndira Gilbert and Vishanthie Sewpaul, Challenging Dominant Discourses on AborK tionfivm a Radical Feminis/ Standpoint, 30 J. WOMEN & Soe. WORK 83 (2015). 29 CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW

38-45 ( 1987). 30 ld. at 83. 31 ld. n SUZANNE STAGGENBORG, THE PRO-CHOICE MOVEMENT: ÜRGANIZATION AND ACTIVISM IN THE ABORTION CONFLICT 45-46 (1991). 33 LESLIE J. REAGAN, WHEN ABORTION WAS A CRIME: WOMEN, MEDICINE, AND LAW IN THE UNITED STATES, 1867-1973 (1996). 14 See supra note 19 and accompanying text. 35 MODEL PENAL CODE §230.3 (AM. LAW INST. 1962). 16 ld. at § 230.3(2)-(3). See also ABORTION WARS, supra note 26, at 6 (explaining the role the medicai approval requirement process played in the rising demand for abortion rights).

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ITJhc more I studied early results from thc five states which first liberalized thcir laws, the bcgan to veer toward remova! o f abortion from the criminal code . . . Although California is now performing well over 100,000 legal abortions a ycar, through liberal intcrprctation of its ALI law, 90 percem are done on psychiatric grounds. This places the psychiatrist in the untenable situation of bcing an authority in socioeconomicsY more I

Dcspitc the 'modernized' law, many states like Connecticut, Massachusetts, 38 Texas and Gcorgia19 retained bans on contraceptive and abortion services. Liberal feminism highlights autonomy over reproductive decision-making as essential to women's ability to participate in higher education, non-domestic work and politics. 40 Liberal feminists frame control over one's own fertility through contraception and abortion as a liberty issue. Reproductive liberty is thus both a means of achieving gender equality and an individual right. That right includes protection of bodily integrity against state control over individual reproductive capacity. During the second wave period, the fight for reproductive rights had two fronts. One directly challenged Iaws that banned or restricted access to abortion and contraception; the second targeted medicai paternalism. Women's health advocates, including, most notably, the Boston Women's Health Collective, provided basic health information, including reproductive health information, to women. 41 On this front, women sought to put the basic tools of reproductive health decision-making into women's hands. Our Bodies Ourselves, a compendium of women's health information, 42 exemplified the effort to empower women with knowledge. Advocates also fought for informed consent, thus challenging the medicai profession's doctor-knows-best approach to women's health care, and established women's health care clinics. The challenges to contraception and abortion bans took the form of constitutional litigation consistent with liberal feminism 's claim of reproductive liberty. In 1965 and 1972, the US Supreme Court considered arguments that contraception bans were important to detening impermissible sexual conduct but determined that laws banning distribution of contraception information and contraceptives vio1ated the right of privacy. 43 In the contraception cases, Griswold v. Connecticut and Eisenstadt v. Baird, the Court recognized a notion of privacy focused on decisions so personal that 37 Alan F. Guttmacher, Abonion: Odyssey of an Attitude, 4 FAMILY Pt.ANNING PERSPECTIVES 5, 7 (Oct. 1972), https://www.guttmacher.org/perspectives50/his-own-words-how-alan-guttmachercame-see-abortion-matter-rights. 3H Connecticut's and Massachusetts' laws were challenged and held invalid in Griswold v. Connecticut and Eisenstadt v. Baird, supra note 19. 39 The Texas and Georgia abortion bans were challenged and held invalid in Roe v. Wade, supra note I. 40 See Amy Kesselman, Women Versus Connecticut: Conducting a Statewide Hearing on Abortion, in ABORTION WARS, supra note 26; ROSALIND POLLACK PETCHESKY, ABORTION AND WOMAN'S CHOICE: THE STATE, SEXUALJTY, AND REPRODUCTIVE FREEDOM 126 (rev. ed. 1990). 4 1 STAGGENBORG, supra note 32, at 44. 42 The 2017 edition of OuR BODIES, ÜURSELVES has been published in 31 languages. A digital copy of the first publication, BOSTON WOMEN'S HEALTH COLLECTIVE, WOMEN AND THEIR BODIES, A COURSE (1970) is available at https://www.ourbodiesourselves.org/cms/assets/ uploads/20 14/04/Women-and-Their-Bodies-1970. pdf. 4 3 Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972).

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substantial govcrnmcntal rcgulation would detract from individual libcrty. In Eisenstadt, the Court statcd: 'lf lhe right of privacy mcans anylhing, it is lhe right of the individual, married or singlc, to be free from unwarranlcd govcrnmcntal intrusion into matlers so fundamenlally aiTccting a person as the decision whclhcr to bear or bcget a child.' 44 Thesc dccisions localcd contraceptive access wilhin a notion of individual autonomy groundcd in privale space and identity-dctining decisions. In 1973, in Roe v. Wade, the Supreme Court held thal Lhe righl of privacy also protectcd a woman's right to decide whether or not to tcrminatc a pregnancy. The Court characterized the right lo decide as a fundamental right, lhe highest levei of right, meriting the greatest proteclion under the Constilution. 45 To a large cxtent, the Court's opinion retlected the premises of liberal feminism . Justice Blackmun stated:

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The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specitic and direct harm medically diagnosable even in early pregnancy may be involved. Matemity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also lhe distress, for ali concerned, associated with the unwanted child, and there is the problem of bringing a child imo a family already unable, psychologically and otherwise, to care for it. In other cases, as in thís one, the addítional dífficultíes and continuíng stigma of unwed motherhood may be involved. Ali these are factors the woman and her responsíble physician necessarily will consider in consultation.46

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Liberal feminists hold that legal rights enabling self-determination are the pathway to gender equality. The Court's opinion in Roe v. Wade expanded the description of reproductive autonomy it began in Griswold and Eisenstadt. The language recognized that the right to decide whether or not to terminate a pregnancy affected at least three aspects of a woman's life: mental and physical health, social status and the consequences of stigma. Liberal feminists read Roe as a legal foundation for recognizing a woman's authority over her own body and health and her identity, as a parent or not. For many, Roe stands for the means sometimes necessary to achieve economic stability, to pursue education or to otherwise participate in public life. 47 Yet the Court's analysis treated the right of privacy as a stand-alone interesL It never mentioned liberal feminism's equality goals or suggested a link between autonomy and equality. The Court also rejeeted the argument that the woman's right was absolute. 4 8 1t used its famous trimester analysis to determine the scope of the right to decide. The analysis rested on two state interests: 'preserving and protecting the health of the pregnant woman ... and protecting the potentiality o f human life.' 49 The Court determined that restrictions to protect women's health were valid when the physical risks of abortion outweighed the risks of pregnancy and delivery and that bans to protect potential life were valid when the fetus had developed enough to be considered viable enough to 44

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possibly survive outside the womb. 50 Health data at lhat time supported a finding thal abortion risks began to outweigh delivery risks after lhe firsl lhrcc months of pregnancy (the first trimester), and medicai data showed that a felus could survive outside the womb afler the second lrimester.s 1 Tying the trimesler framcwork to biomedical knowledge made lhe framework's structure vulnerable not only to changes in biomedicine but also to interpretative contests over the mcanings of 'women's health' and 'viability.'

B. The Limits of Rights and Liberal Feminism The Court's decision in Roe v. Wade was a victory for reproductive rights activists and thus for liberal feminism. However, the aftermath showcd lhe limits both of Roe's analytical framework and of liberal feminism. One of the early post-Roe litigation defeats illustrated the strategic difficulties of relying on thc privacy doctrine. In Harris v. McRae, the eonstitutional plaintiff challenged the Hydc Amendment, which banned the use of federal Medicaid dollars for abortion services. 52 As a practical matter, it prevented many low-income women from obtaining abortions. 53 The plaintiff's brief challenging the constitutionality of the Hyde Amendment madc equal protection and privacy claims. 54 The Court, however, addressed only thc privacy claim. A majority of five determined that '[t]he principie recognized in Wade and later cases - protecting a woman's freedom of choice- did not translate into a constitutional obligation' to pay for abortions. 55 Rather, it only protected against governmental restrictions or actions that substantially interfered with the abortion decision. Despite the efforts of legal advocates and feminist legal scholars, the majority of the Court has consistently refused to link the right to choose with the goal of gender equality. In contrast, Justice Ginsburg's dissent in Gonzales v. Carhart captured liberal feminism's original hope for the right to decide: 'legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.' 56 During the last 40 years, abortion opponents have succeeded in eroding the constitutional status of the right to decide, the trimester analysis and the legal seope of the right to deeide.s 7 The Roe opinion described the two state interests - that in the life of the mother and that in the potential life of the fetus - in biomedical terms. Both 50

ld. at 163. ld. ~2 448 u.s. 297 (1980). ~ 3 See id. at 337 (Marshall, J., dissenting). 5 4 For a front-row account of the litigation and critique of Harris v. McRae, see Rhonda Copelon and Sylvia A. Law, Nearly Allied to Her Right 'To Be'- Medicaid Funding for Abonion: The Story of Harris v. McRae, in WOMEN AND THE LAW: STORIES 207 (Eiizabeth M. Schneider and Stephanie M. Wildman eds., 2011). 55 448 U.S. at 315. 56 550 U.S. 129, 171 (2007) (Ginsberg, J., dissenting). 57 See Casey v. Planned Parenthood of Southeastern Pennsylvania, 505 U.S. 833 (1992); Gonzales v. Carhart, 550 U.S. 129 (2007). 51

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highlightcd scx-hased biological diffcrencc. thus linking the framework to gcnder esscntialism.'iX Anti-rights activists used broadly cssentialist interpretations of potcntial life and womcn's health. The rhetoric of fetal rights and fetal personhood dominatcd abortion politics through the I 990s. Abortion rights opponents used the figure of the fetus to position women's rights in contlict with thcir own pregnancies as wcll as with societal norms concerning motherhood and family. In the twenty-first century, lcgislation asscrting thc need to protect womcn from their own decisions has surged.~9 In thc post-Roe period, abortion opponents proposed thousands of federal and state bílis to rcstrict or climinate access to abortion. Sincc 2010, when the Tea Party claimed victory in Congrcssional elections, thc numbcr of abortion restrictions passed and enactcd has incrcased substantially. 60 According to a 20 I 8 Guttmacher Institute report, laws that scvcrcly rcstrict access to abortion scrviccs and yet remain in place include: • bans on governmcnt funding of abortion scrvices for low-income women, govcrnmcnt cmployccs and members of thc military; • bans on governmcnt funding of any non-govcrnmental organization that provides family planning services abroad; • restrictions on abortion coverage in private insurance plans; • parenta! notitication and consent requirements for minors seeking abortion; • rcquiremcnts that providers give specific information, including scientifically incorrect information, intended to deter women from obtaining abortions; • rcquircmcnts that providers perform prcgnancy ultrasounds and offer the images to womcn seeking abortions; • bans on particular abortion procedures; • waiting periods bctwcen patient conscnt and the abortion procedure; • gestational limits, that is, bans on abortion after a specific point in pregnancy; • targetcd regulation of abortion providcr (TRAP) laws or regulations that impose medically unnecessary requirements on clinics and doctors intended to make it impossible to continue services because of cost ancllor inability to comply; and • refusal laws that authorize individuais, institutions, systems and plans to refuse to participatc in abortion services.6I Reproductive rights activists have successfully challenged bills bcfore and after enactment 62 and produced legislation that protects abortion access.63 But the erosion of both lhe right of privacy and the right to decide reflects, in part, the ineffectiveness of

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a rights-bascd approach in a battlc of cultural norms. In addition, thc insidious influcnce of neoliberalism has changed the meaning of choice, reducing it. in many contcxts, from autonomy to frec markct individualism. The shift wrought by neolibcralism has effectively unmoored choice from substantive equality, making Lhe abortion dccision more politically vulncrablc in the cultural battle over abortion.

111. REPRODUCTIVE RIGHTS ANO JUSTICE IN THE MARGINS A. Sterilization: Rights and Reproductive Control The history of sterilization in the US shows two faces of family planning methods. On the onc hand, a full scope of reproductive rights includes access to sterilization services for ali. Reproductive rights and women's health advocates have long supported surgical sterilization as an important family planning method. Advocates counted enactment of the I 970 Family Planning Services and Population Research Act and the creation o f the Office of Economic Opportunity (OEO) as victories. 64 The OEO served low-income families and women, in particular, by providing family planning education and contraception. In 1971, the OEO added sterilization to its services.65 In direct contrast with the Hyde Amendment, public funding of contraception services enabled many low-income people to decide whether or not to conceive. On the other hand, involuntary sterilization has been used as a tool to contrai the reproduction of many subordinated populations. In the early twentieth century, 32 states authorized involuntary sterilization on eugenic grounds. 66 Eugenic sterilization laws aimed to improve the gene pool by sterilizing 'undesirables.' The laws defined undesirables to include not only 'contirmed criminais' and the 'feeble-minded,' but also 'idiots,' 'imbeciles,' those afflicted with 'hereditary insanity or incurable chronic mania or dementia,' 'epileptics' and those who had abused drugs or alcoho\. 67 Bioethics and feminist scholars have shown that the laws were used in morally punitive ways. 68 Eugenic sterilization was discredited by the belated recognition of its pseudoscientific 64 See THOMAS M. SHAPIRO, POPULATION CONTROL POLITICS: WOMEN, STERILIZATION, AND REPRODUCTtVE CHOICE 87 (1985); Alexandra Minna Stem, Sterilized in the Name of Public Health: Race, Jmmigration, and Reproductive Control in Modem California, 95 AM. J. PUB. HEALTH I 128, 1133 (July 2005). 65

Reva Siegel, Reasoning from the Body: An Historical Perspective on Abortion Regularíon and Questions of Equal Protection, 44 STAN. L. REv. 261 (1992). 59 Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of WomanProtective Antiabortion Argument, 57 DUKE L.J. 1641 (2008). 60 Elizabcth Nash et ai., Policy Trends in the States, 2017, GUTTMACHER INST. PüL'Y ANALYSIS (Jan. 20 I 8), https://www.guttmacher.org/article/201 8/0 1/policy-trends-states-2017. 61 Guttmacher Institute, An Overview of Abortion Laws (Feb. I, 20 I8), https://www.guttmacher. org/state-policy/explore/overview-abortion-laws. 62 See, e.g., Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016). 63 Guttmacher Institute, Policy Trends in the States, 2017 (Jan. 2, 2018), https://www. guttmacher.org/article/20 18/0 1/policy-trends-states-20 I7. SM

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NANCY ÜRDOVER, AMERICAN EUGENICS: RACE, ANATOMY, AND THE SCIENCE OF NATIONALISM 134 (2003). For a detailed account of early twentieth-century eugenics, see DANIEL J. KEVLES, IN THE NAME OF EUGENICS: GENETICS AND THE USES OF HUMAN HEREDITY (1985). 67 Lisa C. Ikemoto, lnfertile by Force and Federal Complicity: The Story of Relf v. Weinberger, in WOMEN AND THE LAW: STORIES 179, 183-84 (Elizabeth M. Schneider and Stephanie M. Wildman eds., 2011). 68 PAUL A. LOMBARDO, THREE GENERATIONS, NO lMBECILES: EUGENICS, THE SUPREME COURT, AND BUCK V. BELL (2008); VICTORIA F. NOURSE, lN RECKLESS HANDS: SKINNER V. OKLAHOMA AND THE NEAR TRIUMPH OF AMERICAN EUGENICS (2008); ALEXANDRA MINNA STERN, EUGENIC NATION: FAULTS & FRONTIERS OF BETTER BREEDING IN MODERN AMERICA (2005). 66

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premiscs and its role in the Holocausl. In the mid-twentieth century, ~tcrilit:ation of the mentally disabled continued under a rationale that was only a half-stcp removed from cugenics. 69 'Preventing the birth of children who would prcsumably not receive adcquate parenting and who might become retarded themsclvcs was a primary considcration.' 70 In the 1960s and 1970s, the rationale for forccd and coerced stcrilit:ation turned on social fcars generated by the civil rights movement, concerns about the population 'bomb' and political opposition to public bcncfits. This put low-income communities of calor, including Latin Amcrican immigrants, in the cross-hairs. The target populations varied by region of the country: African Americans in thc South, Puerto Rican Americans in the Northeast, Mexican Amcricans in the West and Native women seemingly everywhere were subject to forced ~tcrilization.?t The history of feminist opposition to the misuse of these proccdures produced close rcgulation of voluntary sterilization, largely in the form of legal requirements to ensure informed consent. Nonetheless, procedural protections have provcn inadequate in some situations. At least 144 females in four Californian prisons werc coerced into tuba! ligations between 2006 and 2012.7 2 In response, the California legislature enacted a ban on stcrilization of incarcerated persons except when medically neccssary, no Jesser alternative was available, and correctional officials in charge authorized the procedurc.73 The irony is obvious. In arder to preserve reproductive freedom of incarcerated people, rights advocates have supported restrictions on sterilization that they have opposed for abortion. While this legal arrangement acknowledges the social-political forces that determine who is subject to reproductive contrai, it does not challenge those forces. And yet, the rights-based approach remains necessary and important to protecting not only the individual victims but also the populations thcy represent.

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Criticai race theory devclopcd during the third wave of fcminism. It uses postmodernist tools, including deconstruction, contextualization and storytelling, and directly contests Jaw's claim of neutrality and objectivity.7 4 Its central premise is that racial subordination is deeply embcdded in US culture and thus expressed in even apparently neutra! social norms and legal standards, as well as by key legal actors, including judges.75 Criticai race feminists explicate thc interscction of white supremacy, patriarchy, class structures and other forms of subordination.7 6 Taking intersectionality into account reveals how the interlocking matrices of those ideologies allocate or withhold power. The principie of 'looking to thc bottom' or taking into account the perspectives of those who are the most subordinated accompanies the focus on context.7 7

2. Criticai race theory and the expansion of the reproductive rights agenda By looking to the bottom and beyond abortion, criticai race theorists have mapped the expansion of reproductive politics and its disproportionate impacts on women of calor, especially those living in economic precarity.78 Critique has revealed the role of welfare mother stereotypes, other ideologies of motherhood and narratives deployed in campaigns against immigrants, drug use and crime in the punitive application of law. This criticai race feminist work helped expand the reproductive rights and civil rights agenda. It revea!ed how matrices of racial and gender subordination have produced the prosecutorial practice of targeting pregnant women of color for drug use.7 9 Criticai race scholars have a!so shown that racialized ideologies of motherhood underlie the use of state power to coerce use of Norplant80 and issue court orders for cesareans. 81

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Feminists using criticai race theory, described by Dorothy Roberts in her chapter in this volume, have made severa! contributions which expand the scope of the reproductive rights agenda. In doing so, criticai race theory has exposed the role that racism plays in reproductive contra! and the resulting impacts on women of colar. It has also provided a more robust account of how ideology and the social narratives it produces interact with law. The account, above, of coerced sterilization illustrates that point. 69

ld. at I 86. 70 SARAH F. HAAVtK & KARL A. MENNINGER Il, SEXUAUTY, LAW, AND THE DEVELOPMENTALLY DISABLED PERSON: LEGAL AND CL!NtCAL ASPECTS OF MARRIAGE, PARENTHOOD, AND STERILIZATION I07 (1981). 71 Ikemoto, supra note 67, at 187-88. 72 See Bill Chappell, California 's Prison SterilizatiollS Reportedly Echo Eugenics Era, NPR, 1uI y 9, 2013, https://www.npr.org/sections/thetwo-way/20 13/07/09/2004446 I 3/caiiforniasprison-sterilizations-reportediy-echoes-eugenics-era; see also Caiifornia State Auditor, Sterilization of Female lnmates, Repon 2013-120 (June 2014), https://www.auditor.ca.gov/pdfs/reports/ 2013-120.pdf. 73 S.B. I 135 (Cal. 20I4).

74 See, e.g., Neil Gotanda, A Critique of 'Our Constitution is Color-Blind', 44 STAN. L. REV . I (I 991).

75 See, e.g., DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Charles R. Lawrence III, The /d, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987). 76 Kimberlé Crenshaw, Demarginalizing the lntersection of Race and Sex: A 8/ack Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Amiracist Politics, U. CHI. LEG. F. I39, 139-40 (1989); Kimberlé Crenshaw, Mapping the Margins: lntersectionality, ldelltity Politics and Violence against Women of Colar, 43 STAN. L. REV. 1241, I242, I245-46 (1991); Angela P. Harris, Race and Esselltialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 585 (I990); PATRICIA J. WILLtAMS, THE ALCHEMY OF RACE AND RIGHTS (1992). 77 Mari J. Matsuda, Looking to the Bottom: Criticai Legal Studies and Reparations, 22 HARV. CIV. RTS.-CIV. LIB. L. REV. 323, 324-35 (1982). 78 See infra, notes 79-84; see also BRIGGS, supra note 5. 79 See Dorothy Roberts, Punishing Drug Addicts Who Have Babies: Women of Color; Equality, and the Right of Privacy, 104 HARV. L. REV. I410 (1991). 80 See Darci Elaine Burrell, The Norplant Solution: Norplant and the Contrai of AfricanAmerican Motherhood, 5 UCLA WOMEN'S L.J. 40I (1995). 81 See Lisa C. Ikemoto, The Code of Peifect Pregnancy: At the Intersection of the ldeology of Motherhood, the Practice of Defaulting to Science, and the lnterventionist Mindset at Law, 53 ÜHIO ST. L.J. 1205 (1992); Nancy Ehrenreich, The Colonization ofthe Womb, 43 DuKE L.J. 492, 497-502 (1993).

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Deconstruction and interscctional analysis has also cxplicatcd fertility control mcasures, including welfarc rulcs that punish procrcation, 82 immigration restrictionsH1 and medica! abuse of incarceratcd pregnant women 84 on thc reproductive rights and civil rights agendas. In short, critica! racc thcory has provided a more complete account of reproductivc control. Its insistent challenge to neutrality and objcctivity exposes how ideology shapes institutional structures, social norms and cultural knowledge production. lt has shown that law is part and parcel of culture. Thc complexity and nuance that critica! race theory rcvcals make it obvious that the role of law is only one factor in largcr, interactive and dynamic phenomena. As a result, critica! race analysis often fails to point to a prescriptive legal strategy. Instead, criticai race analysis is likely to point to the inadequacy of law as a solution and to the need for other levers of social change. Most of Lhe issues at thc intersection of gender, racc and class highlight the gap between the rights of privacy and equal protection. Thus, constitutional doctrine has proved too narrow a legal vehicle for challenging practices that constitute reproductivc control. As a matter of law, most of the practices have to be fought using the master's tools, within the master's house. 85 Very often, the legal battles take place in criminal courts, dependency courts, prison administrative hearings and even hospitais.

3. Reproductive justice Despite the limitations of criticai race theory and liberal feminism, both feminist legal theories have played a positive role in the formation of the reproductive justice framework and movement. 86 The reproductive justice framework draws on reproductivc rights and lhe methodologies of criticai race theory. Reproductive justice situates itself as complementary to reproductive rights and reproductive health frameworks and within the larger movement for social justice. 87 Its definition includes '(1) the right not to have a child; (2) the right to have a child ... [and] (3) the right to parent a child in safe and healthy environments,' accompanied by 'sexual autonomy and gender freedom for every human being.' 88 It centers a deeply contextualizing understanding that reproductive justice cannot be achieved without 'access to specific, community-based resources including high-quality health care, housing and education, a living wage, a healthy environment and a safety net for times when these resources faiJ.'89

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Reproductive justice activists have contributed in at least two important ways to thc reproductive rights and justice movement. They are using social movement and culturc change strategies, thus enabling change that law cannot achieve on its own . For example, Forward Togcther not only organizes around law and policy change to efTect reproductive justice but also collaborates with artists to revise images of motherhood in ways that counter oppression based on race, sexual orientation, gender identity. immigration status and wealth.90 The reproductive justice movement has also bcgun to realize the promise of intersectionality by consciously and affirmatively including communities of people like those with disabilities and LGBTQ communities.

IV. CONCLUSION This chapter has focused on access to traditional family planning methods and on punitive reproductive controls used to discipline people and the populations they are deemed to represent. I chose these issues to illustrate liberal feminist, criticai race theory and reproductive justice approaches to abortion, sterilization and family planning. The list of issues and theories discussed was selective, not comprehensive, and thus an incomplete account of the role of legal jurisprudence in addressing reproductive rights and justice concems. Rather, the chapter identifies strengths and limitations of liberal feminism and criticai race theory in this area of law. It does so largely to show how using a multi-theory approach can provide a more complete account of the interaction between feminis! legal theories, and between theory, law and the larger social forces at play.

82

See ROBERTS, supra note 2. See lkemoto, supra note 20. 84 See Priscilla A. Ocen, Punishing Pregnancy: Race, lncarceration, and the Shackling of Pregnant Prisoners, 100 CAL. L. REv. 1239 (2012). 85 AUDRE LORDE, The Master's Tools Will Never Dismantle the Master's House, in SISTER ÜUTSIDER: ESSAYS AND SPEECHES 110 (1984). K6 See JAEL SILLIMAN ET AL., UNDIVIDED RIGHTS: WOMEN OF COLOR ORGANIZE FOR REPRODUCTIVE JUSTICE (2004). 87 Forward Together (then Asian Communities for Reproductive Justice), A New Vision for Advancing Our Movement for Reproductive Health, Reproductive Rights and Reproductive Justice (2005), https://forwardtogether.org/tools/the-road-to-reproductive-justice/. KH LORETTA J. ROSS & RICKIE SOLINGER, REPRODUCTIVE JUSTICE: AN lNTRODUCTION 9 (2017). 83

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Against Roc exceptionalism: degendering abortion

14. Against Roe exceptionalism: degendering abortion Noya Rimalt

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Rcproductive freedom is, inescapably, lhe core issue of womcn's cqualily and libcrly. In 1973, whcn the United States Suprcme Courl announced its decision in Roe v. Wade lhal lhe right to privacy under the Due Process Clause of thc Fourteenlh Amendment exlended to a woman's decision to have an abortion, 1 it appeared to be a stunning victory for women's struggle for full citizcnship. At the time, Roe reprcsented a legal framcwork for abortion that most womcn worldwide could not obtain. lt was the lirst judicial ruling to employ a framework of constitutional rights to justify the right to abortion. It called into question ali state criminal abortion statutes in the US and inspired abortion reforms in other wcstem counlries. 2 However, almost half a century afler Roe v. Wade was decided, the issue of abortion remains extremely eontroversial in American politics. The constitutional right to abortion has bcen curtailed by severa! antiabortion measures that were upheld by the Court, 3 and ongoing legislative and política! decisions are making abortions less and less available. 4 The breadth of the political controversy prompted by Roe v. Wade, combined with the limits on the exercise of abortion rights, has stimulated debates among some feminists, progressive scholars and other pro-choice advocates regarding the wisdom of Roe v. Wade and its progeny. Most of this friendly critique has focused on the specific conccptualization of the right to abortion as a privacy right. The main argument put forward has been that an altemative or additional constitutional foundation for abortion rights such as equality, liberty or dignity could provide a more solid defense of a woman's right to terminate her pregnancy. This debate persists as women's constitutional entitlement to their bodies remains in a precarious position, especially in the post-2016 presidential election era. This chapter focuses on the normative dispute regarding the best constitutional defense of abortion rights. It argues that feminist scholars and pro-choice advocates considering the key shortcomings of abortion case law and searching for a stronger constitutional foundation have overlooked an important aspect of Roe. Roe did not simply conceptualize abortion as a privacy right; it also framed the abortion issue as raising a unique legal dilemma not comparable to any other constitutional issue Roc v. Wade, 410 U.S. 113 (1973). Two important examples are Germany and Canada. For a discussion of relevant legal developments in these countries, see Noya Rimalt, When Rights Don't Talk: Abortion Law and the Politics of Compromise, 28 YALE 1. L. FEM. 327, 370-72 (Canada), 373-76 (Germany) (2017). 1 See infra text accompanying notes 13-19. 4 For a comprehensive discussion of the substance of such decisions in recent decades as well as their roots and ramifications, see CAROL SANGER, ABOUT ABORTION: TERMINATING PREGNANCY IN TwENTY-FIRST-CENTURY AMERICA (20 17). 1

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previously resolved by the Court. In Roe's conception, abortion was bom as a unique feminine right. It was framed as slemming from thc general right to privacy, but was restrictcd to a limited interpretation based on the Court's understanding of the issue as a classic case of gender difference lhat required a legal standard of its own . Within this framework, the Court was not obligated to justify, in a broader context, the ultimate scope o f the right to abortion, thereby subjecting women to a standard of their own - a standard that imposes significant restrictions on their bodily integrity and autonomy. This framing of abortion as a special femalc right thus can explain the weakened form of judicial review that was developed in Roe and its limitations in establishing a solid defense of a woman's right to lerminate her pregnancy. This chapter supplements the intra-feminist and intra-progressive critique of Roe and the seareh for a stronger conceptualization of abortion rights with a challcnge to Roe's 'difference' approach to abortion. It elucidates the manner in which the legal terrain of abortion can and should be viewed as legally relevant for both sexes and suggests revisitinoe old feminist debates about the relevance and necessity of . a comparative analysis for securing women's rights in cases which involve women's umque reproductive capacity. Drawing a link between developments in the context of abortion law and broader feminist deliberations about the limits of women's claim to equality in a (still) male-dominated world can expose the ways in which the male standard continues to determine the scope of legal protections women can hope to achieve with regard to their bodily integrity and autonomy. Therefore, the chapter concludes, women's best bet for moving forward might well be a reconceptualization of abortion as an ungcndered, unisex right which measures abortion rights against well-established (male) legal protections.

I. ABORTION BETWEEN PRIVACY, LIBERTY, DIGNITY AND EQUALITY Abortion was conceived and bom as a privacy right in 1973. Roe v. Wade involved a challenge to a Texas law that prohibited ali abortions except those necessary to save the Jife of the mother.s Justice Blackmun, expressing the views of seven members of the Court, held that the constitutional right to privacy, grounded in the Fourteenth Amendment's concept of liberty, encampasses a woman's decision whether or not to terminate her pregnancy.6 The Court explained that, although the Constitution does not explicitly mention any right to privacy, a line of Court decisions going back as far as the end of the nineteenth century recognized a fundamental right to personal privacy as being implicit in the concept of liberty and as extending to activities related to s 410 U.S. 113 (1973). A companion case, Doe v. Bolton, presented a challenge to a Georgia law that outlawed abortions unless a doctor determined that continuing the pregnancy would endanger a woman's 1ife or health, it was likely that the fetus would be bom with 'a grave, permanent, and irremediable mental or physical defect,' or the pregnancy resulted from rape. 410 U.S. 179, 183 (1973). 6 Roe, 410 U.S. at 152.

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mar~iage, procreation, contraccption, family relationships, child rearing and education .7 Ju~t1ce Blackmun and the majority of the Court construed this penumbra! privacy right to mclude a woman's right to abortion. The Court further detcrmined that lhe fetus cannot bc considered a 'person' within the language and meaning of the Fourteenth Amendment and clarified that if personhood w~s established, thc appellant's case would indubitably collapse.s The implicd assumptlon was that the ncwly rccognized right of a woman to terminate her pregnancy stood or fell on the status of the fetus. Once the Court concluded that a fetus was not a person entitled to the constitutional right to life, the woman's right was then balanccd against state interests that thc Court identified as important and legitimate: protecting the health of the woman as wcll as the potential human life of the fetus. Based on thesc interests, the Court crcatcd a trimester framework for legalizing abortion. Abortions performed by a licensed physician were fully constitutionally protected prior to the end of the first trimester.9 Aftcr the end of the first trimester, when abortions become more dangerous than childbirth, the state was authorized to regulate abortion to the extent that such regulation related to the preservation and protection of maternal health.IO With respect to the statc interest in protecting prenatal life, the Court determined that t~e 'co~pelling' point was at viability, when the fetus had the capability for meaningful hfe outs1de the mother's womb. The state could then proscribe the performance of ali abortions except those necessary to preserve the life or health of the mother.ll . At the time it ~as decided and in its immediate aftermath, Roe seemed to be a great v1ctory for Amencan women. It gave constitutional protection to women's right to obtain abo~ions prior to fetal viability even in cases in which the pregnancy in question was a medically normal one, thereby calling into question the criminal abortion statutes of every state, including those with nominally less restrictive provisions than the Texas la~ that was challenged _in Roe. 12 However, it soon became clear that Roe perversely stlmulated rather than d1scouraged _antiabortion measures. It prompted both searing cnticism of the Court and a vanety of measures taken by Congress and state legislatures to contain and curtail the judicial decision. Subsequent Supreme Court decisions undermined women's ability to exercise the right granted in Roe by upholding congressional decisions to deny the use of public funding, facilities and personnel to perform abortions 13 and excluding even medically necessary abortions from Medicaid coverage. 14 The Court also determined that it wàs constitutional for the federal government and the states to protect the fetus by denying public funding for

7 ld. at 152-53. ld. at 156-57. 9 ld. at 163. 10 ld. 11 ld. at 163-64. 12 For an accou~t. o f ~bonion laws that were in effect in the various states prior to the Supreme Court decJsJOn m Roe v. Wade, see Erwin Chemerinsky and Michele Goodwin, Abortion: A Woman's Private Choice, 95 TEX. L. REV. I 189, 1210 (2017). n Webster v. Reproductive Health Services, 492 U.S. 490 (1989). 14 Harris v. McRae, 448 U.S. 297 (1980). 8

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abortions even though such funding is provided for childbirth. 15 It was also determincd that it is constitutional to prohibit the discussion of abortion as part of federally fundcd family planning programsY' In Planned Parenthood v. Casey, the Court further weakened the right to abortion by replacing the trimester approach to legalizing abortion with an 'unduc burdcn' test that made it constitutional for the state to regulatc abortions as long as such rcgulations did not constitute 'a substantial obstacle in thc path of a woman seeking an abortion of a nonviable fetus.' 17 As part of this rcdefined test, the Court affirmed as constitutional state regulations that compelled women seeking abortions to rcccive information about adoption options and about the exact state of fetal development involved in their pregnancy and required a 24-hour waiting period before a woman c ou ld obtain a requested abortion. 1H More recently, the Court has used the undue burden test to uphold a federal law prohibiting so-called 'partia! birth abortions' that involve second trimester pre-viability abortions. 19 Once the political controversy prompted by Roe became clear, and as the exercisc of abortion rights became progressively limited, feminist scholars and pro-choice advocates started to question Roe's constitutional justification for abortion rights and began searching for a stronger constitutional foundation. Over the years, an extensive body of criticai work has focused on the limitations of Roe and its progeny and has highlighted alternative constitutional values seen as providing a better justification for protecting a woman's right to terminate her pregnancy. The central critique put forward was that conceptualizing abortion as a privacy right fails to capture the significance of reproductive freedom for women either as individuais or as a group. 20 It _relega_tes the whole issue of reproductive conce~s to the personal_ realm and ~stabhshe~ It ~s a negative right.2I States are thus reqmred only to recogmze a woman s theoretical nght to choose an abortion; they are relieved of any responsibility to ensure that every woman can actually exercise this right. 22 Put differently, the right to privacy o?IY entitles women to be free from state interference when deciding to procure an abort10n and contains no guarantee of assistance from the state in arder to obtain the desired pregnancy termination. . . In their efforts to make a stronger case for abortwn nghts, some legal scholars stressed additional values that are implicit in the concept of liberty, such as dignity,2 3 15 Poelker v. Doe, 432 U.S. 519 (1977); Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 u.s. 438 (1977). 16 Rust v. Sullivan, 500 U.S. 173 (1991). 11 Planned Parenthood v. Casey, 505 U.S. 833, 876-77 (1992). 18 ld. 19 Gonzales v. Carhart, 550 U.S. 124 (2007). 20 DEBORAH L. RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 212 (1989). , 21 Lilian R. BeVier, What Privacy is Not, 12 HARV. J. L. & PUB. POL Y 99, 101-02 (1989). 22 See, e.g., Catharine A. MacKinnon, Privacy v. Equality: Beyond Roe v. ~ade, in FEMINISM UNMODIFIED 93 (1987); Catharine A. MacK.innon, Reflections on Sex Equaltty und~r the 100 YALE L.J. 1281, 1311 (1991); Robin West, From Choice to Reproductrve lusttce: De-Constitutionalizing Abortion Rights, 118 YALE L.J. 1394 (2009). . . . 23 Reva B. Siegel, Dignity and the Politics of Protection: Abortron Restrtctrons Under Casey/Carhart, 117 YALE L.J. 1694 (2008).

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bodily integrity 24 or private choice in mattcrs conccrning one's body.25 Most scholarship in this arca, however, highlighted the relevancc of cquality to the evaluation of state limitations on women's access to abortion. Some thcorists argued that equality is superior to privacy in defending the right to ahortion; 26 others argued that cqual protection arguments should be added to thc list of plausible constitutional argumcnts for abortion rights.27 Whatever the particulars of thc various arguments, a broad consensus has emerged among feminis! scholars rcgarding the potential benelits of conceptualizing abortion prohibitions as a form of scx-based discrimination.2H

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Four distinct explanations have been offered as to why restrictions on abortion violatc constitutional principies of equality. First, some scholars pointed to the impact of such restrictions on women's ability to stand in relation to men as equal citizens.29 Highlighting the various unequal social structures that subject men and women to different standards and demands based on thcir diiTerent reproductive capacities, the argument here was that abortion prohibitions have specific negative consequenccs for women's position in society and their ability to take full charge of their life's course, as compared to men. More broadly, commentators have stressed in this context that the ability of women to have control over their reproductive capacities is a precondition for first-class citizenship and full participation in society. 10 A second explanation as to why restrictions on abortion violate constitutional principies of equality has focused on the manner in which abortion restrictions enforce suspect judgments about the maternal role of women. The argument here was that constitutional principies of equality are inconsistent with abortion restrictions that 24 EILEEN MCOONAGH, BREAKING THE ABORTION DEADLOCK: FROM CHOICE TO CONSENT 6 (1996). 25 Chemerinsky and Goodwin, supra note 12. 26 See, e.g., Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA L. REV. 955 (1984); Cass R. Sunstein, Neutrality in Constitutional Law, 92 COLUM. L. REV. I, 29-44 (1992). 27 Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender and the Constitution, 18 HARV. J.L. & Pus. PoL'Y 419 (1994-1995). 28 For a thought-provoking attempt to rewrite the Court decision in Roe v. Wade by adding equal protection as well as due process-liberty arguments to its central justification of abortion rights, see Robin West, Concurring in the Judgment, in WHAT ROE V. WADE SHOULD HAVE SAID 121 (Jack Balkin, ed., 2005). 29 See, e.g., Kenneth L. Karst, Foreword: Equal Citizenship Under the Fourteenth Amendmellt, 91 HARV. L. REV. 1, 53-59 (1977); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375 (1985); GUIDO CALABRESI, lDEALS, BELIEFS, ATTITUDES, AND THE LAW (1985); Law, supra note 26; Reva B. Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992); Deborah L. Rhode, Reproductive Freedom, in

FEMINIST JURISPRUDENCE 313, 305-21 (Patricia Smith ed., 1993); Neil S. Siegel and Reva B. Siegel, Equality Arguments for Abortion Rights, 60 UCLA L. REv. 160 (2012). 30 Ginsburg, supra note 29; Rhode, Reproductive Freedom, supra note 29; Law, supra note 26; Siegel, supra note 29, at 265, 377-79.

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reflect or cnforce traditional sex-role stercotypcs. Sue h rcstrictions are therefore suspcct and violate the US Constitution. 31 A third line of equality reasoning for abortion law referred to the discrimination between well-off and poor womcn that is simultaneously masked and legitimized by the conceptualization of abortion as a privatc choice. 32 Proponents of this line of reasoning have argued that privacy-based rcstrictions on abortion funding contributc to a reality in which only well-off women can make the choice whether or not to terminate their pregnancy, while poorer womcn are cffectively denied any rcproductive freedom. Whilc making this important argument, scholars have acknowledged its current limits in the American constitutional context in light of past Court decisions holding that the poor are not a suspect class and that discrimination on the basis of wealth does not trigger heightened scrutiny. 11 Finally, the fourth proposed equality-based justification for abortion rights has relicd on a comparative approach. Following the lead of philosopher Judith Jarvis Thomson, 34 severa! scholars have suggested analyzing ahortion rights in terms of Good or Bad Samaritan principies, arguing that a key point of comparison between pregnant women and other individuais is their right to be Bad Samaritans by refusing to donate their body to others. 35 In the early 1970s, Thomson argued that even if the fetus is a person, a woman's right to terminate her pregnancy should prevail since it is a well-established principie that the state cannot compel a person to use her body in order to keep another person alive.36 Likewise, Donald Regan contended that a corollary principie that further sustains the primacy of a woman's right to abort the fetus is that a parent cannot be forced to donate a kidney or even blood in ordcr to keep a child alive. 37 Just as the law does not require people to be Good Samaritans and to donate their bodily organs to save other people's lives, so too the state should not require a woman to donatc her body against her will to house a fetus. Others have pointed to common principies of self-defense as similarly justifying the termination of an undesired pregnancy. 38 Eileen McDonagh took this argument one step further.39 She added that the issue is not simply that the woman has a right to be a Bad Samaritan, but rather that, in cases of undesired pregnancy, the fetus intrudes on the woman's body and liberty against her will. In such cases, a woman must therefore not only have a right to self-defense comparable to others in our society - which includes the right to use deadly force on 31 Siegel and Siegel, supra note 29. 32 West, supra note 28, at 1412; Ginsburg, supra note 29, at 383-85; Chemerinsky and Goodwin, supra note 12, at 1213. 33 Ginsburg, supra note 29, at 384; Chemerinsky and Goodwin, supra note 12, at 1213. Both refer to San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). 34 Judith Jarvis Thomson, A Defense of Abortion, I PHILOSOPHY & PUBLIC AFFAIRS 47 (1971 ). 35 See, e.g., Donald H. Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1569 (1978-1979); Rhode, supra note 29; MCDONAGH, supra note 24; West, supra note 28. 36 Thomson, supra note 34. 37 Regan, supra note 35, at 1569. 38 Ellen Willis, Abonion: ls a Woman a Person?, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 474 (Ann Snitow et ai. eds., 1983); MCDONAGH, supra note 24. 39 MCOONAGH, supra note 24.

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hcr own behalf to stop the fetus from taking over her body, but shc must also have a right to equal access to the resourccs of Lhe state to provide for that sclf-dcfense, by mcans of abortion funding. 40 According to this view, the key right involved in abortion is not just a woman's right to choosc whether or not to terminatc her pregnancy, but also hcr right to consent to what anothcr party, the fetus, does to her body. Once the focus shifts from choice to consent, it becomes clear that well-established legal principies in the arca of self-defense justify not only her right to abort the fctus but also her right to expect state assistance in defense of her bodily integrity and liberty.4t Curiously, not ali scholars who discussed or endorsed the Good Samaritan or self-defense analogies regarding abortion conceptualized these as scx-based antidiscrimination arguments. 42 Rather, Lhe argument was typically characterized as resting on a comparison of pregnant womcn to other 'individuais' who are not compelled to serve as Good Samaritans. 43 As part of this gender-neutral analysis, advocates of this argument highlighted constitutional values such as liberty and bodily integrity as the sole values that demand the expansion of Good and Bad Samaritan standards to women. The insight that denying pregnant women the ability to make autonomous decisions with regard to their bodies - a legal protection that is commonly available to men in ali other comparable contexts - amounts to sex-based discrimination was not cmphasized, or in many cases even noted. Despite the fact that the comparative approach to abortion pointed to a sex-based discriminatory system of uneven application of general principies of law, this important implication of the analysis was not always specifically articulated as such. Further, the comparative approach to abortion provides a solid defense of abortion rights that does not depend on the personhood status of the fetus. As explained earlier, lhe conclusion that the fetus is not a person entitled to constitutional protection under the Fourteenth Amendment was central to the Roe decision. The underlying assumption was that if the constitutional right to life of the fetus were to become relevant to the analysis of abortion, this right would unquestionably outweigh and negate the pregnant woman's right to terminate her pregnancy. The comparative analysis approach to abortion rights chaiienges the assumption regarding the primacy of the humanity of the fetus in a way that other equality approaches to abortion fail to do. Other equality justifications of Roe that identify abortion laws as discriminatory only because they have a disparate impact on women or retlect suspect judgments about women do not address Roe's central piiiar that abortion rights stand or fali on the human status of the fetus. They also fail to explain why the government's interest in protecting fetal life is not sufficient to justify abortion restrictions. In contrast, the comparative approach

ld. For an argument that further develops the idea of shifting the focus of abortion rights from choice to consent and explains its potential contribution to the liberal justification of abortion rights, see Robin West, Liberalism and Abortion, 87 GEO. L. J. 2117 (1999). 42 See, e.g., Law, supra note 26 at 1021-22 n. 239 (referring to Donald Regan's work and noting that his argument is not about sex-based discrimination; rather it is about the exclusion of pregnant women from the protection of deeply rooted legal principies regarding aid requirements to others); Rhode, supra note 29, at 313 (presenting the Good Samaritan analogy to abortion as distinct from arguments of equal protection). 43 Rhode, supra note 29. 40

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tackles the humanity issue dircctly by showing that the proposcd legal protections for abortion rights are consistcnt with those offered to others in our socicty in comparable situations. The comparative argument, again, is that a fetus's imposition, even in a medicaiiy normal pregnancy, exceeds the latitude recognized by the law for one person to intrude on the bodily integrity and liberty of another. Since thc Constitution prohibits the protection of some already-born people by means of requiring other already-born people to donate their bodies to them, even if the people in question are related by kinship ties, the same should hold for the pregnant woman seeking to abort a fetus. In essence, then, the state must protect people from injuries caused hy prc-birth human Iife because '[t]o do otherwise violates the Equal Protection Clause.' 44 Hence, the comparative analysis approach to abortion provides a stronger equality defense of abortion rights through its ability to confront directly the personhood issue in a manner that is grounded in well-established legal principies. Over the years, some of these equality justifications for abortion rights have been graduaiiy embraced by a few Supreme Court justices. For instancc, almost two decades after Roe was decided, Justice Blackmun, the author of the Roe decision, added in Casey that 'State's restrictions on a woman's right to terminate her pregnancy also implicate constitutional guarantees of gender equality.' 45 Focusing spccifically on the impact of abortion restrictions on the lives of women as well as the suspect views of women that these restrictions express, he explained: By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course. This assumption- that women can simply be forced to accept the 'natural' status and incidents of motherhood - appears to rest upon a conception of women's role that has triggered the protection of the Equal Protection Clause. The joint opinion recognizes that these assumptions about women's place in society 'are no longer consistent with our understanding of the family, the individual, or the Constitution.' 46 Along the same Iine of reasoning and based on quotations from the plurality opinion in Casey, Justice Ginsburg added in Gonzales v. Carhart: Women, it is now acknowledged, have the talent, capacity and right 'to participate equally in the economic and social life of the nation.' Their ability to realize their full potential, the Court recognized, is intimately connected to 'their ability to control their reproductive lives.' Thus legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature. 47

MCDONAGH, supra note 24, at 145. Casey, 505 U.S. at 928 (Biackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). 46 Jd. at 928-29 (citations omitted). 47 Carhart, 550 U.S. at 171 (Ginsburg, J., dissenting) (citations omitted). 44

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Following these statements, some scholars contended that thc Court had now come to pcrceivc the right to abortion as an cquality right as wcll as a liberty right. 4B While this conclusion appears to overstate lhe role of equality in shaping contemporary abortion case law, 49 anti-stcreotype and impact-based equality arguments for abortion rights have clearly added to modern judicial undcrstanding of thc conscquences of abortion restrictions. Yet the equality arguments thus far embraccd by the Court and most commcntators do not simultaneously challenge thc assumption regarding the primacy of the humanity of thc fetus. Nor do they provide wcll-grounded legal explanations as to why the government's interest in protecting fetal life is not sufficient to justify abortion restrictions. Only thc comparative approach to abortion does what other equality approaches to abortion fail to do: it directly confronts the personhood issue in a manner that is grounded in well-established legal principies. It thereby provides a stronger equality defense of abortion rights. Interestingly, the comparative analysis approacli to abortion was presented to the Court as early as Roe. A few pro-choice organizations involved in the Iitigation presented an analogy-based argument to the Court in support of the appellant Jane Roe.so Specifically they argued:

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The law does not givc a pcrson whose kidncys or other body parts are not functioning the right to demand another pcrson's kidneys or body parts ... Abortion laws alone compcl the contribution of one individual's organs, blood, breath and life support system for another individual, either fully or partially formed. Unless ... the state finds the freedom and bodily integrity of pregnant womcn to be less valuable than that of other potential donors, the statc must be assumed to maintain in the abortion conflict at least the same position as it does in any similar conflict between two living persons ... s1 Indeed, comparative arguments have always been at the margin of abortion litigation. Most of the pro-choice litigators in the Roe Iitigation, including the appellant Jane Roe herself, relied on privacy-liberty-based arguments in defending a woman 's right to terminate her pregnancy. 52 Nonetheless, the Roe Court was clearly presented with a comprehensive articulation of an analogy-based framework for the criticai evaluation of restrictions on abortions. Almost 20 years !ater, in Casey, a comparative argument was raised again by one of the pro-choice Iawyers involved in this case.53 However, neither 48

Siegel and Siegel, supra note 29. A telling example is the latest Supreme Court decision on abortion, Hellerstedt, in which the Court invalidated on undue burden grounds two provisions of a Texas law that imposed restrictions on abortion clinics and on doctors performing abortion without a single reference to equality arguments. See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016). 50 Brief for the Califomia Committee to Legalize Abortion et ai. as Amici Curiae Supporting Appcllants, Roe v. Wade, 410 U.S. 113 (1973) (No. 70-18) and Doe v. Bolton, 410 U.S. 179 (1973) (No. 70-40), available at 1972 WL 126045. 5 1 /d. at 15. 5 2 Law, supra note 26, at 981. 53 Eileen McDonagh notes that attomey Kathryn Kolbert argued in oral argument: 'Surely, if the govemment cannot require individuais to sacrifice their lives or health for human beings who are bom for other compclling purposes, they cannot do so for purposes of protecting potential fetal life.' McDONAGH, supra note 24, at 130-31. 49

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the Roe decision nor the Casey decision acknowledged the relevance of this argument to the legal resolution of thc abortion debate. In fact, thc written opinions in thcse two iconic cases do not even reveal that such an argument was made before the Court. Why did the Court fail to see or address Lhe argument that abortion can be compared to other situations already recognized by law in which people have the right to be protected from wrongful injuries imposed by third parties? While other equality approaches to abortion had some impact in shaping judicial reasoning in this context, proponents of the comparative approach 'have run into a brick wall.' 54 Eileen McDonagh argues that to understand this omission in the Court's analysis, we must turn to the culture that law retlects and recognize its bias against the Ieast powerful in society.s5 With regard to women, that bias (against the least powerful) is retlected in the manner in which the law still fails to completely protect their right to bodily integrity and Iiberty in a range of areas. 56 Law's failure to redress or even address the subordinated status of women is an important starting point for exploring the failure of the comparative approach in the Court, but it is not sufficient. To fully understand why the Court completely ignored the comparative analysis, we should also turn to the language of Roe itself, and specifically the manner in which the Court conceptualized pregnancy and abortion. Such analysis reveals that abortion was not only born as a privacy right. It was also born as a unique female right that cannot be analogized to any other privacy right previously recognized as implicit to the concept of constitutional liberty.

TIL ABORTION IS BORN AS A UNIQUE FEMININE RlGHT While the Roe Court determined that a fundamental right to personal privacy - implicit in the concept of liberty - can be extended to a woman's right to terminate her pregnancy, it nevertheless emphasized that the woman's right to terminate her pregnancy is inherently different from all other fundamental rights previously recognized as an extension of personal privacy and Iiberty. Specifically, Justice Blackmun explained: The pregnant woman cannot be isolated in her pregnancy. She carnes an embryo and, later a fetus, if one accepts the medicai definitions of the developing young in the human uterus ... The situation therefore is inherently different from marital intimacy or bedroom possession of obscene material, or procreation or education with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respcctively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.57

54 55 56

57

Id. at 131. Id. at 155. Jd. at 155-62. Roe, 410 U.S. at 159 (citations omitted) (emphasis added).

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For the Roe Court, abortion was without parallel to any other situation prcviously recognized as deserving constitutional protection. The right of evcry woman to terminate her pregnancy was conceived as a unique female right; the situation of pregnancy was perceived as 'inherently different' from other legal dilemmas prcviously resolved by the Court. This framing of the abortion dilemma as entirely distinct from other issues relating to a person's rights over his or her own body relievcd thc Court of the burden of addressing the issue of abortion in the larger relevant context of available precedent. Moreover, once abortion was conceptualized as a clear case of gendcr differencc and a distinction was drawn between a woman's right to choose to tcnninate her pregnancy and other rights in the domain of constitutionalliberty and privacy. equal treatment analysis became irrelevant to the discussion. The search for an explanation as to why comparative and equal protection arguments failed to impact abortion jurisprudence should therefore start by acknowledging the rhetoric o f difference that shapcd the judicial evolution of abortion rights. An immediate implication of this difference approach to abortion is the manner in which the Court balanced a woman's right to terminate her pregnancy against other conflicting rights and interests. As discussed above, the Court explicitly assumcd that the right to life of the fetus (if the fetus is a human being) unquestionably outweighs and negates a pregnant woman's right to terminate her pregnancy. 58 In support of this proposition. the Court merely noted that the appellant 'conceded as much.'59 But does this conclusion withstand the test of previous Court rulings relating to potential clashes between one person's fundamental rights over his or her body and another's right to life? Does the right to life always outweigh other constitutional rights? The Court did not feel the need to answer any of these questions in Roe. It assumed, to the contrary, that abortion and the legal questions to which it gives rise are without parallel to any other constitutional dilemma. Their embrace of this difference-based understanding of pregnancy and abortion precluded any consideration of the comparison or analogical equality argument. Similarly, the logic of difference guided the Court when establishing the trimester framework for legalizing abortion. That framework was based on a set of state interests that served to limit and constrain the newly recognized right of every woman to terminate her pregnancy. While the declared non-personhood status o f the fetus enabled the birth of the abortion right, the Court still subjected this right to the limits imposed by the compelling state interest in safeguarding potential human life (as the fetus develops). Hence, the right to abortion as originally framed by the Roe Court was bom not only as a special female right, without parallel to any other right, but also as a right limited in scope, due primarily to unique third-party considerations relating to the fetus. Almost 20 years after Roe was decided, Justice O'Connor, writing the plurality opinion in Casey, articulated this difference approach to abortion once again:

Against Roe exceptionalism: degendering {1/Jortion

Abortion is a unique act. It is an act fraught with consequences for othcr~: for a woman who must livc with thc implications of her decision; for the persons who perform and assist in the procedurc; for the spouse, family and society which must confront thc knowlcdgc that these proccdures exist, procedures some deem nothing short of an act of violcncc against innocent human lifc ... [T]he liberty of the woman at stake is in a sense unique to the hwnan condition and so unique to the law. 61 '

Thus, a woman's right to terminate her pregnancy was bom not only as a privacy right. It was simultaneously conceptualized as a special female right, one that is limited in scope and without parallel or potential comparison to any other right. Within this framework, the Court was not obliged to justify the scope of the right in a broader context or the numerous limitations it ultimately applied to it: first, Rue's trimester framework and, !ater, Casey's undue burden test. Put differently, the rhetoric of difference and uniqueness that dominated early abortion case law spared the Court from the obligation to apply comparative principies of equal treatmcnt and to consider how it compared to men's access to similar rights. This conceptual failurc led to the formation of a narrower, more vulnerable and less stable 'female' right than the right which could have been established on the more solid constitutional foundation of comparative analysis. Unconstrained by principies of equal trcatmcnt, the Court deemed it legitimate to subject women's reproductive autonomy and bodily integrity to a special - and more diluted - standard of judicial review. In this way, the Court held women's bodies to a stricter legal standard than that which is applied to men seeking to realize similar rights. This conclusion revisits old feminist debates about the relevance and necessity of a comparative analysis for securing women's rights when issues regarding women's unique biological capacity - such as pregnancy - are involved. The next section tums to those debates.

IV. REVISITING THE SAMENESS/DIFFERENCE DEBATE Roe was decided in an era in which liberal feminism, also known as equal rights feminism, dominated the legal struggles of the women's movement. In their efforts to secure the equal protection of the laws for women, feminist scholars and litigators of the 1970s highlighted the ways in which women and men share relevant and comparable characteristics.6t In light of the historical role of assumptions about the significance of sex-based biological differences providing the prime justification for creating a separate and inferior legal status for women, these scholars and activists sought to challenge assertions of fundamental differences between the sexes. 62 Some of Casey, 505 U.S. at 852 (emphasis added). Nadine Taub and Wendy W. Williams, Will Equality Require More than Assimilation, Accommodation, or Separation from the Existing Social Structure, 37 RUTGERS L. REV. 825 (1985). 62 Law, supra note 26, at 957-62. For an earlier discussion of the damage that protective legislation does to women, see BARBARA BABCOCK ET AL., SEX DISCRIMINATION AND THE LAW: CAUSES AND REMEDIES 26-53 (1975). 60 6J

See supra text accompanying note 8. lndeed, when asked by the Coun in oral argument about her posttton if 'it were established that the unbom fetus is a person' protected by the Fourteenth Amendment, Sara Weddington, the appellant's attomey, replied: 'I would have a very difficult case here.' W.B. LOCKHART, CONSTITUTIONAL LAW 428 (7th ed. 1991). sa 59

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these seholars insisted on promoting 'sameness' arguments, even concerning laws which directly governed reproductive hiology.63 They were wary of any and ali legal l'llles that subjected women to a unique legal standard based on their different reproductive capacities; thcy hclievcd that 'a dual system of rights inevitably produces hierarchy.'64 Their assumptions were that even laws concerning a reproductive eapacity unique to women (such as prcgnancy) should be challenged with an equality doctrine of similar treatment that lhe Court might be persuaded to employ. Wendy Williams was a prominent advocate of the sameness position in the 1970s and 1980s. Williams argued that pregnancy can and should be conceptualized simply as a human experience, which. in rnany contexts, creates needs and problerns fundamentally similar to those arising from other human experiences unrelated to pregnancy.65 Focusing on the appropriatc treatrnent of pregnancy at work, Williams argued that drawing analogies betwcen pregnancy and other disabling physical conditions, such as illness or temporary disability, serves to highlight the rnanner in which ali such conditions might be handled adequately on the same legal basis in the ernployment context. According to this view, analogizing between pregnancy and other human conditions would guarantee that pregnant workers were not subjected to special and less favorable treatrnent based on assertions of unique physical difference. The equal treatment model was thus the basis for insisting on the incorporation of pregnancy into existing benefits schemes. lt focused on the employment context and sought to guarantee that pregnant employees were treated in the same manner as other sick or disabled employees for ali employmcnt-related purposes. Proponents of the sameness approach to pregnancy undertook two major efforts in the 1970s to convince the Court to bring pregnancy within the equal treatment model: first in 1974, through the Equal Protection Clause, and then in 1976, through Title VII. 66 In both cases, the Court was asked to view pregnancy as comparable to other physical conditions that affect workplace participation for men and women and therefore to equate an employer's treatment of pregnancy to its treatment of other physical conditions such as disability or illness. After the Court rejected the analogy between pregnancy and other disabling conditions at work, the sarneness approach was integrated into Title VII with the passage of the Pregnancy Discrimination Aet (PDA) in 1978, which determined that pregnant workers should be treated in the same manner as other disabled workers for ali employment-related purposes.67 These legal developments triggered debates among feminists about the limits of the sameness approach to pregnancy. Opponents of the sarneness approach argued that pregnancy cannot be compared to any other condition or experience. Therefore they 63

Wendy W. Williams, Tlze Equality Crisis: Some Reflections on Culture, Courts and Feminism, 14 WOMEN'S RTS. L. REP. 151 (1981) (hereinafter, The Equality Crisis]; Wendy W. Williams, Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U REV. L. & Soe. CHANGE 325 (1984-1985) [hereinafter, Equality's Riddle]; Taub and Williams, supra note 61. 64 Williams, Equality's Riddle, supra note 63, at 329. 65 ld. 66 Geduldig v. Aiello, 417 U.S. 484 (1974); Gen. Elec. v. Gilbert, 429 U.S. 125 (1976). 67 Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. § 2000e (2012)).

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claimed that the equal treatmcnt of the sexes, when issues involving sex-specific physical characteristics are at stakc, results in inequality for women in that it ignores the unique quality of the reproductive experiences of women and scts the male standard as the norm.6R Rather than cqual treatment, proponents of the difference approach to pregnancy endorsed special accommodations for pregnant workcrs. These debates intensified in the 1980s. whcn legislation granting pregnant workers speeial benefits was challenged in court.Y In a deeper sense, and bcyond its specific applieation to the qucstion of workplace treatment of pregnant workers, thc sameness/difference debate centercd on the nature of the promise of gender equality that courts can or cannot delivcr. The question became whether wornen can expcct more than assimilation into a preexisting male world. The question posed by this debate was ultimately about the seope and limits of women's claim to equality and whcthcr (white) male interests and values should necessarily shape this claim. Proponents of the equal treatment model insisted that even when issues involving sex-based reproductive differences were directly at stake, women could not hope for more than obtaining existing male privileges that they were previously denied. They cautioned that history provides too many illustrations of the way in whieh the conceptualization of prcgnancy as unique legitimized 'special' treatment of women that was in fact unfavorable treatment. 70 'Uniqueness,' according to this view, had always served as a trap, informing the ideology of 'separate spheres' and allowing the Court to view men and women as inherently different, thus foreclosing the possibility of applying an equality model to the sexes. 71 Proponents of the difference approach, on the other hand, argued that women could escape the uniqueness trap by foeusing on the effects of the very real sex difference of pregnaney on the relative positions of men and women in society. 72 Rathcr than aceepting maleness as the norm, these proponents added, women should strive for 'equality of opportunity and effect within a heterogeneous "society of equals".'73 Despite the fact that the sameness/difference debate touched upon a central concern of feminist jurisprudence regarding the reconciliation of gender equality with a reality of reproductive differences between men and women, it was relatively limited in scope and substance. While the debate implicitly raised a set of fundamental questions relating to the scope and limits of women's claims to equality in a masculine world, the explicit focus was on the appropriate treatment of pregnancy at work and on the propriety of analogizing pregnaney to temporary disability. This restrieted framework of the debate might explain why abortion case law that developed in the 1970s and 68 Linda 1. Krieger and Patricia Cooney, The Miller-Whole Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality, 13 GOLDEN GATE U. L. REv. 513 (1983); Herma Hill Kay, Equality and Difference: The Case of Pregnancy, I BERKELEY WOMEN'S L.J. I (1985). 69 Cal. Fed. Sav. and Loan Ass'n v. Guerra, 479 U.S. 272 ( 1987); Miller-Whole Co. Inc. v. Cornmissioner of Labor and Industry, 479 U.S. 1050 (1987). 1o Taub and Williams, supra note 61, at 834-35. 11 Williams, The Equality Crisis, supra note 63, at 170. n Krieger and Cooney, supra note 68; Ann Scales, Towards a Feminist Jurisprudence, 56 lND. L.J. 375 (1981). 73 Krieger and Cooney, supra note 68, at 542.

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1980s, in parallel to the sameness/difference debate, was not perceived as re levant to this debate. Proponents of the equal treatment model focused their efforts soleiy on applying the equal treatment model to the legal regulation of pregnancy at work; abortion was not mentioned as an additional relevant domain in which argumcnts or equal treatment could and should be applied.7 4 Opponents of this model, on the other hand, referred to abortion only as an example that dcmonstrated the inherent Iimits of the liberal equal trcatment model that analogizcd pregnancy to temporary disability. For example, Linda Krieger and Patricia Cooney argued:

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The capacity to become pregnant is unique to womcn; it is an inherent, not a normative scx difference. Therefore in order to apply the liberal view's essential principie of like treatment of similarly situated individuais, the proponent [o f cqual treatment] would have to rely ... on analogizing pregnancy to some condition unique to men . . . Thus the principie o f cqual treatment requires that women be able to choose to have an abortion on the same basis that men can choosc to have a vasectomy, a hair transplant, or any medicai procedure .. . To condition a woman's right to abortion on the acceptability of such an analogy would be a grave tactical error.75 Hence, both proponents of the equal treatment model for pregnancy and its opponcnts had a very limited understanding of what a comparative approach to pregnancy could mean. Proponents focused solely on analogizing pregnancy to disability in the employment context. Opponents discredited the equal treatment model for pregnancy, in part by characterizing the model as analogizing women seeking abortions to men seeking hair transplants.7 6 Indeed, restricting the comparative analysis in the sameness/ difference debate to the physical analogy drawn between pregnancy and disability carried the implication that abortion was completely irrelevant to the comparative analysis. Thus, the Iimited interpretation of a comparative analysis in the context of workplace rights surrounding pregnancy and disability failed to acknowledge the existence of a parallel comparative approach that was beginning to develop with regard to abortion, one which might have offered a more sophisticated analogy to pregnancy an analogy that focused not on the physical characteristics of pregnancy but rather on its function. That is, a pregnancy involves requiring a person to donate her body to the aid of others. In other words, comparative analysis of reproductive differences was not restricted at the time to the treatment of pregnancy at work or to the analogy of pregnancy to disability. Abortion was another domain in which legal scholars had sought to establish and promote arguments of equal treatment by highlighting the ways in which pregnancy and abortion are not unique human experiences. As opposed to the sameness position in the debates over the treatment of pregnancy at work, the comparative analysis approach that was developed in the context of abortion offered a much more expansive understanding of the meaning of 'similarly situated.' The more sophisticated analysis of sameness in the abortion context enabled drawing a comparison between abortion and other lived experiences that went well beyond the analogy of a woman's 74 See, e.g., Williams, Equality's Riddle, supra note 63. Krieger and Cooney, supra note 68, at 541.

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decision to havc an abortion and a man's dccision to have a hair transplant. This comparative analysis focused on comparing women sccking abortion to men who are fully protectcd from demands for involuntary bodily sacritices to others . Neverthclcss, despi te the · fact that the samencss argument in the pregnancy-asdisability context and the comparative argument in the abortion debates produccd strikingly differcnt analogies, they still restcd on a shared premise. 8oth positions sought to promote and apply a standard of comparative equality to issues involving reproductivc differences between the sexes. In addition, in both contexts, thc ultimate goal was lhe incorporation of pregnancy (and abortion) into existing legal rulcs. Yct, despite these shared aims, it is clear that thc sameness/difference debate about lhe appropriate treatment of pregnant workers was perceived by scholars and activists engaged in this debate as doctrinally distinct from parallel scholarly arguments about the possibility and necessity of equating the treatment of abortion with the treatment of other comparable human conditions. Each discourse therefore developed in isolation, without any attempts to build a doctrinal bridge between the two bodies of scholarship . In retrospect, this lack of convergence between thc two doctrinal efforts to develop comparative arguments in the context of laws directly governing reproductive biology was unfortunate. It prevented feminist scholars and activists engaged in these efforts from seeing the broader picture in which both legal developments raised similar concerns and exemplified the inherent limits of courts and legislatures in delivering a full promise of gender equality. In fact, the evolution of abortion case Iaw and the legal developments in the context of the treatment of pregnancy at work supplemented each other by providing opposite sides of the same complex story about the limitations on women's ability to obtain equality in a legal world, in which the male standard still sets the norm. In the years that followed the sameness/difference debate, equal treatment feminism continued to shape the legal treatment of pregnancy at work. In 1993, the principie of providing similar treatment to pregnant workers and other disabled employees that was originally embedded in the PDA was supplemented with the passage of the Family and Medicai Leave Act (FMLA).77 At its core, the FMLA requires the employer to render employees a limited amount of unpaid leave when necessary to accommodate personal illness, childbearing or family caregiving responsibilities. The strategic linkage betwcen pregnancy and disability that was originally proposed by sameness feminism in the 1970s had thus become the guiding legal standard for the protection of pregnant employees, as well as for the allocation of employment-related benefits.78 This process was hardly beneficiai for working women, in that it rested on a stringent analogy comparing pregnant women to other disabled workers and ignored the more substantive aspects of pregnancy that involve the exercise of basic rights, such as the right to procreate and become a parent. Women's reproductive concerns were thus addressed only insofar as they were correlated to the concerns of other (male) disabled workers. 77 Family and Medicai Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 9 (codified as amended at 29 U.S.C. § 2601 (2012)). 1~ For a comprehensive analysis of these legal developments and their problematic implications for working women, see Noya Rimalt, The Maternal Dilemma, 103 CORNELL L. REV. 101 (2018).

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In thc sphcrc of abortion, on thc nthcr hand, the more sophisticated comparative approach to abortion rights had no impm:t whatsoever on the developmcnt of abortion case law. As discussed above, rathcr than acknowledging the ways in which pregnancy is not unique, thc Court did thc oppnsitc. Roe conceptualizcd pregnancy and abortion as wholly incomparable to any othcr human condition, and subscquent cases further strcssed this concept of uniquencss. Hcncc, while in the employmcnt contcxt lawmakers were willing to grant prcgnant workcrs a limited set of rights based on a very narrow comparative approach to prcgnancy, in the abortion context, thc more sophisticatcd comparative approach to prcgnancy was rejected from the outset. Rather than granting womcn similar treatment bcfore the law, the Court subjectcd women to unique and unfavorable legal treatment bascd on their inherent difference from men. When measured against each othcr, thcse two legal developments tell a nuanced story about the current prospects of and constraints on women's quest for equality. These developments also take us back to thc basic foundations of the samcness/difference debate. We must recall that liberal fcminism's insistence on equal treatment was grounded in deep skepticism toward legal rules that singled out women for special treatment. It rightly pointed out that throughout history the conceptualization of pregnancy as unique had allowed courts and legislatures to subject women to different rules that perpetuated their inferior position in society. Indeed, liberal feminism's solution to the problem - analogizing pregnancy to temporary disability - was simplistic and deficient, but its skepticism toward legal rules that singled out women for different treatment was just and substantiated. Liberal feminists feared that subjecting men and women to separate systems of rights 'inevitably produces gender hierarchy.' 79 At the same time, opponcnts of equal treatment argued with similar force that an equality doctrine that implicitly dictated that women could claim equality only insofar as they were similar to men was inherently deficient. 80 The manner in which abortion case law evolved may suggest that these mutual concerns are still relevant for a criticai evaluation of judicial standards that were developed and enforced in this context. Abortion case law indicates that the Court's failure to acknowledge the ways in which pregnancy and abortion are not unique human experiences is yet another manifestation of the same antiquated process, in which real or assumed differences between men and women provide the primary justification for legal structures that produce gender hierarchy. It highlights once again the dangers of singling women out for special treatment based on assertions of gender difference and, consequently, the significance of developing and applying a standard of comparative equality to situations whcrein biological reproductive differences are directly involved. At the same time, contemporary abortion jurisprudence might also imply that the male standard persists in setting the norm and determining the scope of protection women can hope to obtain in regard to their reproductive needs and concerns. This final conclusion is troubling, but it also carries some hope for change in regard to abortion law. It reaffirms the contention that women can claim equality only insofar as their needs and concerns correlate to the needs and concerns of men. Nonetheless, it 79

80

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Williams, Equality's Riddle, supra note 63. Law, supra note 26.

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can be argued that, in the abonion context, an application of the male standard carries some promisc of progress. Such an application could rescue women from the current 'uniqueness' trap and guarantcc a more comprehensive protcction of thcir bodily integrity. With ali its limits, a comparative approach to abortion that rclies on the male standard may yet provide womcn with what they currently lack - thc ability to make autonomous decisions about thcir bodies.

V. CONCLUSION In her classic essay Difference wul Dominance, radical feminist Catharine MacKinnon criticized the sameness/difference theory to sex equality and explained: Whatthe sameness standard fails to notice is that men's differences from women are equal to wornen's differences from mcn ... Thc difference approach misses the fact that hierarchy o f powcr produces real as well as fantasied differences, differences that are inequalities .. . Why should you have to be thc samc as man to get what a man gets simply because he is one? Why does maleness provide an original entitlcment, not questioned on the basis of its gender, so that it is women - women who want to make a case of unequal treatmcnt in a world men havc made in their image ... - who have to show in effect that they are mcn in every relevam respect .. . ?81 Rather than grounding women's claims to equality in samencss arguments and demanding equal treatment, McKinnon suggested diverting the focus to granting women 'equal power in social life.' 82 Her proposed constitutional standard for evaluating the inequality of legal rules was an impact-based tcst that would ask 'whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status.' 83 She added that to require that one be the same as those who set the standard - those which one is already socially defined as different from - simply means that sex equality is conceptually designed neve r to be achieved ... Doctrinally speaking, the deepest problems of sex inequality will not find women 'similarly situated' to men.84 The lack of reproductive freedom for women is indeed one of the deepest problems of sex inequality disguised by legal narratives of gender difference. As this chapter has argued, contemporary abortion law is grounded in perceptions that conceptualize abortion as unique and incomparable to any other human condition, thereby justifying women's subjection to a standard of their own - a standard that legitimizes and enforces the adverse treatment of women and their inferior status in society. This adverse treatment is a clear byproduct of a male-dominated world. MacKinnon and numerous other feminists argued that, in a just legal system, the male standard should 81

CATHARINE A. MACKINNON, FEMINISM UNMODIFIED 37 (1987).

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CATHARINE A. MACKlNNON, SEXUAL HARASSMENT OF WORKING WOMEN : A CASE OF

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not set the norm for rights and privileges, womcn's nceds and concerns should be protected based on their own entitlement, and a propcr cquality doctrine should measure the status of women in society in terms of thcir rclative share of power and opportunities. In other words, in a just world we would dismiss a comparative approach to abortion rights as unjust. However, because the exaggeration of the significancc of biological difference has historically been central to the oppression of womcn, cspccially in the reproductivc context, a comparative approach to abortion might bc thc first necessary stcp for moving forward and rescuing abortion law from thc currcnt 'uniqucness' trap. Indeed, the comparative approach to abortion uses the malc standard as providing the original entitlement for abortion rights. At the same time, it uncovers the double standard of the law by highlighting how women are subjected to legal standards that are perceived as unacceptable in comparable contexts that involve men's bodily integrity and autonomy. To destabilize masculine struetures that still guide thc allocation of rights and legal protections might first require the exposure, once again, of the dominance of these biased structures. Exposing the mate norm for thc protection of one's bodily integrity and autonomy reveals that respect for human life at all cost is not absolute in the eyes of the law. Rather, the unwelcome intrusion on onc's body is always prohibited; individuais are never required to donate their bodies to the aid of others, even if doing so might be the morally desirable thing. In other legal contexts, the right to life of third parties does not justify requiring bodily sacrifices from others, even from one's own kin. In theory, an equality approach to abortion rights that acknowledges the distinct reproductive needs and concems of women and protects them on their own terms is clearly the end to which we should aspire. But in practice, a comparative approach might be more useful in actually moving us forward. At this point in time, it appears that women's best bet for reproductive justice is the conceptualization of abortion as a unisex right that is grounded in well-established (male) legal protections.

PART IV FEMINIST LEGAL THEORY, SEX DISCRIMINATION AND SEXUAL HARASSMENT

Sexual harassment law

15. Sexual harassment law: an evolution in theory, scope and impact Kimberly A. Yuracko

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This chaptcr explores and seeks to explain this path of evolution in both legal and practical terms . The first section examines the early formulations of sexual harassment theory and courts' initial recognition oi' it. The second section explores Lhe ways in which l'eminists worked to strengthen and enrich the theory and the ways in which courts over thc years have clarified the doctrine. The third section considcrs the impact that sexual harassment theory has had on the American workplace.

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In a real and concrete way, legal recognition of sexual harassment as a form of sex discrimination was the direct result of feminist activism and scholarship. 1 Soon after Title VII was passed prohibiting sex discrimination in employment, feminists recognized that protccting women from sex discrimination only at the discrete moments that hiring or firing decisions were made missed the realities of women's work lives and much of the mechanism of workplace gender oppression. Specifically, such a narrow interpretation of Title VII missed the ways in which day-to-day insults, assaults and indignities on the job affected women's psyches and success in ways that were more pervasive, and perhaps even more debilitating, than the discrete discriminatory decisions made at the moment of hiring or termination. It was for this reason that feminist scholars and activists set out to first name sexual harassment as a social phenomenon and then to explain why it should be viewed as a form of sex discrimination. Courts' recognition of the cause of action was a tremendous victory. Sexual harassment law has empowered women, altered the climate of the workplace and fundamentally changed social norms of acceptable workplace behavior. Moreover, its impact has carried over to other contexts - most importantly education. Indeed, in recent years sexual harassment doctrine, enforced through Title IX's prohibition on sex discrimination in education, has transformed the way that colleges and universities respond to sexual abuse on campus. 2 Yet societal conceptions of what constitutes sexual harassment, and why, have changed over time and are likely to continue to evolve, as will the scope and impact of the doctrine.

1 See, e.g., CATHARINE A. MACKINNON, FEMINISM UNMOOIFIEO: DISCOURSES ON LIFE ANO LAW 105 (1987) (stating that the law of sexual harassment represents 'the first time in history ... that women have defined women's injuries in a law'). 2 See Letter from Russlynn Ali, Assistant Sec'y for Civil Rights, U.S. Dep't of Educ., Office for Civil Rights, to Colleagues (Apr. 4, 20 li), https://www2.ed.gov/about/offices/list/ocrlletters/ colleague-201104.html (calling on schools to take 'immediate and effective steps to end sexual harassment and sexual violence'); Erica L. Green and Sheryl Gay Stolberg, Campus Rape Policies Get a New Look as the Accused Get DeVos's Ear, N.Y. TIMES, Jul. 12, 2017, https://www. nytimes.corn/20 17/07112/us/politics/campus-rape-betsy-devos-title-iv-education-trump-candicejackson.html?mcubz=l&_r=O (noting that 'under pressure from the Obama administration, many universities overhauled their procedures for investigating sexual assault'). But see Sophie Taum, De Vos Amwunces Review of Obama-era Sexual Assault Guidance, CNN.COM, Sept. 7, 2017, http://www.cnn.com/20 17/09/07/pol itics/betsy-devos-education-department-ti tle-ix/index. html (describing concems that Department of Education plan to review and likely rescind the 201 I Guidance would weaken protections for victims of sexual violence on campus).

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When the Civil Rights Act of I 964 was passed prohibiting sex discrimination in employment, its target, as expressed in the very limited legislative record preceding its enactment, was discriminatory barriers to entry faced by women in the labor market. 3 In the years that followed, feminists realized that the barriers to women's success in the work world carne not only on the day they sought to enter a new position, but every day, as they faced anger, aggression and sexual advances on the job. To feminists it was clear that this kind of day-to-day abuse and belittlement was also a form of discrimination because of sex, but they needed to both explain why and convince courts. Catharine MacKinnon laid the theoretical foundations for a sexual harassment cause of action in her book Sexual Harassment of Working Women. 4 For MacKinnon, sexual harassmcnt at its core was about sex and subordination. More specifically, it was about the ways in which men used sexual advances and sexual abuse to reinforce their domination of women in the workplace. In other words, for MacKinnon, sexual harassment consisted of conduct, conditions and coercion that was sexual in nature. As MacKinnon explained: 'Sexual harassment, most broadly defined, refers to the unwanted imposition o f sexual requirements ... ' 5 Sexual harassment constituted sex discrimination, rather than just individual harm, because sexual use and abuse of women by men was systemic and structural and was used to maintain women's subordinate place in the workplace. 6 She went on to distinguish two types of sexual harassment: quid pro quo harassment - in which submission to sexual advances was made a condition of a tangible employment action 7 - and what she called 'conditions of work' harassment - 'in which sexual harassment simply makes the work environmenl unbearable.' 8 ' See li 0 CONG. REC. 2577-84 (I 964), reprinted in EEOC, LEGISLATIVE HISTORY OF TITLES VII ANO XI OF CIVIL RIGHTS ACT OF 1964 3213-19 (1968). 4 CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKJNG WOMEN: A CASE OF SEX OISCRIMINATION (1979). 5 ld. at I. 6 ld. at 27 ('That sexual harassment does occur to a large and diverse population of women supports an analysis that it occurs because of their group characteristic, that is, sex. Such a showing supports an analysis of the abuse as structural, and, as such, worth legal attention as sexual discrimination, not just unfaimess between two individuais, which might better be approached through private law'). 1 Id. at 32-33. s Id. at 40.

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At first, courts were dubious of this new cause of action. Judgcs vicwcd the conduct complained of as too personal and too distinct from the ofTicial goals of the workplace to look like an actionable form of sex discrimination in employmcnt. Thcy also worried ahout a slippery slope by which cmployers would be hcld liahlc for ali sexual conduct in the workplace. In other words, in thc early cases, sexual harassment claims failed hoth because the conduct at issue secmed too narrow or pcrsonal and because the implications of recognizing such a claim seemed too broad in tcnns of employer liability. In Come v. Bausch & Lomb, for example, the two plaintifTs allcgcd thal a supervisor subjected them to repeated 'verbal and physical sexual advances.' 9 They also alleged that the supervisor subjected other fcmale employees to thc samc treatment, making such treatment · effectively a discriminatory condition of employment for female employees. 10 Nonetheless, the Court held that the plaintiffs could not state a cause of action because the conduct alicged 'appears to be nothing more than a personal proclivity, peculiarity or mannerism.' 11 Title VII liability could auach, the Court explained, only where discriminatory practices were 'employer designed and oricnted.' 12 In ali prior Title VII cases, '[t]here was apparently some advantage to, or gain by, the employer from such discriminatory practices.' 13 It simply could not be the case, according to the Court, that the 'personal proclivity' expressed hcrc could establish Title VII liability, for that would mean, the Court feared, that every sexual advance at work could form the basis for a federal lawsuit. 14 The District Court in Barnes v. Train, another early case, expressed similar concems. 15 In Barnes, the plaintiff alieged that she was reassigned when she refused to have sex with her supervisor. In explaining its grant of summary judgment for the defendant, the Court noted dismissively the personal nature of the dispute explaining that '[t]his is a controversy underpinned by the subtleties of an inharmonious personal relationship.' 16 Both the allegations and District Court reasoning were similar in Miller v. Bank of America. 11 The plaintiff alleged that her supervisor promised her a better job if she would be 'sexually cooperative' and then had her fired when she refused. 18 The District Court granted summary judgment for the defendant. As in Come and Barnes, the

District Court in Miller framcd thc issue as 'whether Title VII was intended to hold an cmployer liable for what is csscntialiy thc isolated and unauthorized sex ·misconduct of one employee to another.' 1Y For the Miller Court, recognizing sue h 'isolated' conduct as actionable would lead to a dangerous slippery slopc exposing employers to vast liability for conduct the Courl vicwcd as both pervasivc and natural. 'lt is conceivable, undcr plaintiff's theory,' thc Court cxplaincd, 'that tlirtations of the smallest order would give rise to liability. Thc attraction of males to fcmales and females to males is a natural sex phenomenon and it is probable that this attraction plays at least a subtle part in most personnel decisions.' 20 ll was wiser, the Court cxplained, to reserve Title VII liability for conduct that rellccted explicit or implicit company policy approving of sex-based discrimination.2 1 Yet, even early on, not ali courts were so dismissivc. Indccd, both Barnes and Miller were overruled on appeal. In Bames, 22 the D.C. Circuit made clear that the fact that sexual advances were 'personal,' in the sense that they were aimed at particular women rather than ali women in a workplace, did not exempt the conduct from Title VII coverage.23 Instead, the Court explained that when a female employee's job retention was conditioned on submission to a supervisor's requests, the conduct was actionable sex discrimination because '[b]ul for her womanhood ... her participation in sexual activity would never have been solicited.' 24 Sexual harassment was sex discrimination, in other words, because had the female employee been mate, she would not have been propositioned. In Miller, thc Ninth Circuit made clear that an employer could be held liable under Title VII for the conduct of its supervisors even if the employer had a policy in place prohibiting the conduct alleged. 25 The defining moment for sexual harassment doctrine carne with the Supreme Court's decision in Meritor Savings Bank v Vinson. 26 Michelle Vinson alleged that while employed at the bank she was subjected to four years of sexual demands and sexual assault by her supervisor. In affirming the Circuit Court's rcversal o f the District Court's grant o f summary judgment to the employer, the Supreme Court not only made clear that sexual harassment was an actionable form of sex discrimination under Title VII, it also explicitly recognized the two distinct forms of sexual harassment identified by MacKinnon. The Court, in other words, recognized both quid pro quo sexual harassment

° Come v. Bausch and Lomb, Inc., 390 F. Supp. 161, 162 (D. Ariz. 1975), vacated, 562 F.2d 55 (9th Cir. 1977). 10 !d. at 162. 11 ld. at 163. 12 /d. 13 ld. 14 ld. Indeed, in the Court's view, '[i]t would be ludicrous to hold that the sort of activity involved here was contemplated by the Act because ... an outgrowth of holding such activity to bc actionable under Title VII would be a potential federal lawsuit every time an employer made amorous or sexually oriented advances toward another.' ld. 15 Barnes v. Train, No. 1828-73, 1974 WL 10628 (D.D.C. Aug. 9, 1974). 16 ld. at *1. 17 Miller v. Bank of Am., 418 F. Supp. 233 (N.D. Cal..l976), rev'd, 600 F.2d 211 (9th Cir. 1979). I B fd. at 234.

ld. Jd. at 236. 21 ld. 22 See Bames v. Costle, 561 F.2d 983 (D.C. Cir. 1977). zJ !d. at 993-94. 24 ld. at 990. 2s Miller v. Bank of Am., 600 F.2d 211, 213 (9th Cir. 1979). See also Tomkins v. Pub. Service Elec. and Gas Co., 568 F.2d I 044 (3d Cir. 1977) (recognizing a cause of action for sexual harassment but defining it narrowly: 'we conclude that Title VII is violated when a supervisor, with the actual or constructive knowledge of the employer, makes sexual advances or demands toward a subordinate employee and conditions that employee's job status evaluation, continued employment, promotion, or other aspects of career developrnent on a favorable response to those advances or demands, and the employer does not take prompt and appropriate remedial action after acquiring such knowledge'). 26 Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). 19

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and 'condition or work' or ' hostile environment' sexual harassment as actionablc.27 With regard to the latter. mure controversial, form of harassmcnt, thc Court explained that for hostilc environmcnt sexual harassment to be actionablc, the conduct 'must be sullíciently severe or pcrvasivc "to alter the conditions uf lthc victim's] employmcnt and create an abusivc working environment."' 2H Severa! years !ater. in Harris v. Forklift Systems Inc., the Supreme Court again addressed a claim ur hostile environment sexual harassment and further refined the doctrine. 29 Teresa Harris worked as a manager at Forklift Systems. After two years on the job, Han·is quit and 111ed a claim for sexual harassment alleging that she was repeatedly subjccted to sexual innuendos and insults by Charles Hardy, the company's piesident. 30 The narrow issue bcfore the Court was whcther 'conduct, to be actionable as "abusive work environment" harassment ... , must "seriously affect [an employee's] psychological well-being" or lead the plaintiff to "suffe[r] injury."'31 The Court answered in Lhe ncgative, holding that 'tangible psychological injury' was not necessary to state an actionable claim of sexual harassment.3 2 'Title VII comes into play,' the Court said, 'before the harassing conduct leads to a nervous breakdown.'33 The Court went on to explain that the 'severe or pervasive' requirement set forth in Meritor had both an objective and a subjective component. That is, in order to be actionable, it must be the case that a reasonable person would have found the conduct to be hostile or abusive and that the victim herself perceived it to be such.3 4

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II. ENRICHING THE THEORY AND CLARIFYING THE DOCTRINE

Sexual harassment law A. Theory

In her seminal articlc, What's Wrong With Sexual Harassment?, Katherinc Franke sought to proviúc a more nuanced theory or thc wrong of sexual harassment. 1 ó Shc began by cataloguing the various conceptions oi' sexual harassment that had emcrgcd from feminist theory and had already taken hold in the courts, and then critiquing them . Under one view, the desire-based approach, harassment was motivated by sexual attraction and simply would not have occurred had the plaintiff been of the other sex .37 Franke criticized this view of sexual harassment for 'inappropriately red1,1c[ing] the harm of sexual harassment to the simple expression of sexual desire.' 3H What was lost under this view, shc explained, was not only attention to the substantive social harm or sexual harassment but also the means with which to find actionable the bulk oi' same-sex sexual harassment.39 Under a second view, the 'anti-sex' approach, 40 sexual harassment was sex discrimination simply because it was sexual in nature. 41 Franke criticized this theory of sexual harassment for mistaking the harm o f sexual harassment as the expression o f sexual desire rather than the expression of 'power, privilege or dominance' 42 and, relatedly, for unnecessarily shutting down ali sexual behavior in the workplace as illegitimate. 43 Under a third view, the subordination approach, sexual harassment was sex discrimination because it 'subordinates women to men.' 44 While finding the subordination view of sexual harassment much closer to the mark, Franke criticized it for 'relying too heavily on the premise that [sexual harassment] is something that men, as a biological category, do to women, as a biological category.' 4 5 36

The Supreme Court's recognition of sexual harassment as a form of sex discrimination was a tremendous victory for feminist theorists and activists. Yet even after Meritor, and the doetrine's refinement in Harris, much remained uncertain about the theory behind sexual harassment law and the scope of its coverage. In other words, while sexual harassment existed as a cause of action under Title VII, the why, what and how of sexual harassment theory still required elaboration and clarification.Js Feminist legal scholars played a criticai role in this process by articulating different possible justifications and rationales for the cause of action and arguing for somewhat different scopes of coverage. 27 28 29

30 31 32

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Jd. at 64-66. Id. at 67.

Harris v. Forklift Sys., 510 U .S. 17 ( 1993). Jd. at 19. ld. at 20. Id. at 21. ld. at 22. ld. at 22. See Kathryn Abrams, The New Jurisprudence of Sexual Harassment, 83 CORNELL L.

REV. 1169, 1170-71 (1998) (dcscribing the evolution of sexual harassment scholarship to focus on the 'why,' 'what,' and 'how' of sexual harassment).

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Katherinc M . Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691

(1997). 37 Id. at 705-14. The Court of Appeals in Barnes v. Cost/e adopted this view of sexual harassment when it explained that '[b]ut for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited.' Barnes v. Costle, 561 F.2d 983, 990 (D.C. Cir. 1977). 38 Franke, supra note 36, at 730. The main problems with this view, according to Franke, were twofold - first, the focus on whether the harassing conduct would have occurred 'but for' the victim's sex places the focus of the claim on nonncutrality and distracts from the truc harm of the challcnged conduct; second, the focus on sexual attraction inappropriately limits cross-sex harassmcnt cases to those in which the harasser is heterosexua1 and same-sex harassment cases to those in which Lhe harasser is gay. ld. at 733. 39 As Franke cxplains: 'Against background assumptions that assume heterosexuality and conflate "becausc of sex" with "because of sexual desire," the sexism and heterosexism underlying lhe harassmcnt of nonmasculine mcn by hyper-masculine men is rendered invisible to the courts.' !d. at 737. 40 ld. at 759. 41 ld. at 714-25. Franke explains that for both Susan Estrich and Catharine MacKinnon 'the fact that the conduct is sexual in nature is not merely an accidental aspect of the harm, but rather, lies at the core of what makes the conduct sex discrimination.' Jd. at 715. 42 /d. at 745. 4l ld. at 746. 44 Id. at 725-26. 4 5 ld. at 760.

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Aftcr distancing herself fram thcsc standard views of sexual harassment, Franke argucd that the best way to understand sexual harassmcnt was as a 'technology of scxism' 46 - 'a mechanism by which an orthodoxy rcgarding masculinity and femininity is cnforccd, policed, and perpetuatcd in thc workplace.' 47 Under this vicw, the harm of sexual harassment was indeed one of subordination, 4 x but it was thc subordination of thc fcminine to the masculine and thc cnforccmcnt of these traditional gendcr norms on both women and men that was thc harm. 4 ~ For Frankc, thc advantages of this undcrstanding of sexual harassment were that it more prcciscly rccognized thc harm of crass-sex sexual harassment while also cxplaining why same-sex harassment should be actionable without regard to the sexual oricntation of the harasser. Kathryn Abrams also sought to decpen scholars' and courts' thinking about sexual harassment in her influential article The New Jurisprudence of Sexual Harassmem.so Abrams sought to 'recenter' the theory of sexual harassment on women's subordination but in a way that avoided the 'biologism and esscntialism' of earlier accounts. 51 Like MacKinnon, Abrams viewed sexual harassment as a form of contrai and mechanism of subordination of men over women. Harassment was not personal or particular to a target but was a form of contrai ovcr ali women. 52 Yet, unlike MacKinnon, and more similar to Franke, Abrams viewed sexual harassment as retlecting an effort 'to entrench masculine norms in the workplace.' 53 In othcr words, for Abrams, the answer to 'why' sexual harassment is sex discrimination was because it preserved women's subordination, and the answer to 'how' sexual harassment operates was by entrenching masculine norms in the workplace.s4 In Reconceptualizing Sexual Harassment, Vicki Schultz sought to cxpand the scope of sexual harassment Jaw still more by shifting away fram its original focus on sexuality. 55 It was a mistake, Schultz argued, for feminists to have identified 'malefemale sexual advances' as the central problem of sexual harassment because this focus ended up missing 'much of the gender-based hostility and abuse that women (and some men) endure at work [that] is neither driven by the desire for sexual relations nor even sexual in content.' 56 Schultz argued that thcre was a range of conduct - including withholding training, sabotaging work, isolating women fram social networks - that

mcn used to maintain their workplaccs as 'bastions of male competence and authority.'57 Hostile work environment harassment, Schultz argued, should be understood as a strategy for preserving favored lines of work exclusively for men by undermining women's competence- thraugh either sexual or nonsexual means. 5H

B. Doctrine The idea, retlected in the writings of feminis! scholars, that sexual harassment could take different forms and could in fact constitute sex discrimination for different reasons, took hold in the Supreme Court's next major sexual harassment case, Oncale v. Sundowner Offshore Services, lnc.w Joseph Oncale worked as a raustabout on an eight-man crew on an oil platform in the Gulf of Mexico. He filed a claim of sexual harassment alleging that on multiple occasions he was taunted, threatened or assaulted in a sexual manner.60 The District Court granted summary judgment for the defendant, and the Fifth Circuit affirmed on the graunds that same-sex sexual harassment was not actionable. 61 The Supreme Court granted certiorari in Oncale to resolve a circuit split on the question of whether Title VII's prahibition on sexual harassment encompassed samesex harassment.62 Critically, the Supreme Court held that same-sex harassment could be actionable under Title VU. 6 3 Perhaps even more importantly, however, the Court elaborated upon when and why harassment, whether cross-sex or same-sex, would be actionable. Title VII was not, the Court emphasized, a 'general civility code.' 64 It was directed only at discrimination 'because of sex,' and, the Court emphasized, the fact that conduct was sexual in nature was not, in and of itself, enough to make this showing.6s Instead, the Court offered three examples or approaches by which a plaintiff could show that the harassment she or he suffered was because of sex. First, following the desire-based approach criticized by Franke but common in the early cross-sex sexual harassment cases, the Court said that a plaintiff could prove that harassment was because of sex if it was motivated by the harasser's sexual desire for the plaintiff, such that it would not have occurred but for the victim's sex. As the Court 57

46 Id. at 761. 47 Jd. at 760. 48 Id. ('The anti-subordination principie could be greatly improved by conceptualizing the problem as one of gender subordination defined in hetero-patriarchal terms.') 49 Jd. at 771 (explaining that 'sexual harassment, as a regulatory practice, inscribes, enforces, and polices a particular view of who women and men should be. As such, it is a technology of gender discrimination, feminizing women and masculinizing men'). 5° Abrams, supra note 35. 5t Id. at 1172. 52 Jd. at 1208. 53 Jd. at 1215. Abrams also noted that her theory of sexual harassment was distinct from Franke's account 'in that it begins by analyzing the subordination of women to develop a theory that reaches the harassment of both women and men.' Id. 54 Id. at 1170-72. 55 See Vicki Schultz, Reconceptualizing Sexual Harassment, 107 YALE L.J. 1683 (1998). 56 Id. at 1686-87.

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59 Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998); see a/so Abrams, supra note 35, at 1217 (noting that '[b]ecause sexual harassment has captured public attention to perhaps a greater degree than any other gender based injury, an understanding of sexual harassment that is explicitly, paradigmatically plural will be a tremendous resource in this effort'). 60 Onca/e, 523 U.S. at 77. 61 Jd. 62 ld. at 76. 63 Jd. at 79 ('we hold today that nothing in Tttle VII necessarily bars a claim of discrimination "because o f ... sex" merely because the plaintiff and the defendam ... are o f the same sex'). 64 ld. at 80. 65 Jd. ('We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations').

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explained, it was 'rcasonable' to assume 'in most malc-fcmale sexual harassmcnt situations, because the challenged conduct typically involve[d] explicit or implicit proposals o f sexual activity ... [that] those pro posais would not h ave becn made to somcone of the samc scx.' 66 'The samc chain of infercnce,' the Court explained, 'would be available to a plaintitT allcging same-sex harassmcnt if thcre were credible evidcnce that Lhe harasser was homosexuaJ.'67 Second, the Court offercd a subordination-oriented approach. A plaintiff could prove that harassment was bccause of sex if the nature of the harassment was such as to show that the harasser's intent was to denigrate, burden or exclude ali individuais of a particular sex. As the Court explained, '[a] trier of fact might reasonably tind' discrimination because of sex 'if a female victim is harassed in such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.' 68 Finally, the Court oftered a formal equality approach to proving that harassment was because of sex. A plaintiff could show that harassment was bccause of sex by simply showing that the harasscr treated women and men differently in the workplace.69 The Court's ruling in Oncale was critically important not only because it made clear that same-sex harassment could be actionable under Title VII but also bccause it explicitly recognized that there was a plurality of approaches by which a plaintiff could show that harassment was because of sex. As compared to the interpretations previously used by lower courts, the Oncale Court narrowed the scope of sexual harassment doctrine by making clear that the fact that workplace conduct was sexual in nature was not itself enough to render the conduct actionable sexual harassment. Yet the Court broadened the scope of sexual harassment doctrine by both explicitly recognizing that harassment could bc between individuais of the same sex and implicitly recognizing that harassment need not be sexual in nature at ali. Interestingly, although Oncale won in the Supreme Court, it is highly uncertain whether he would have won on the merits of his claim. On remand, Oncale needed to prove that the harassment he suffered was because of sex. However, given that his harassers were ali nominally heterosexual, it would have bcen difficult for him to prove that the harassment was motivated by sexual desire and would not have occurred but for his sex. Given the targeted nature of the harassment he suffered, it would also have bcen difficult for him to prove that his harassers were hostile to men in the workplace generally. Finally, given that he worked on an all-male crew, it would have been difficult for him to present comparative evidence showing that his harassers treated him differently than similarly situated female workers. Oncale did not even try; instead he settled the case after the Supreme Court's ruling. 7o 66 67 68

Id. at 80. Jd.

ld. ld. at 80-81 ('A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace'). 70 See Mary Judice, LA Offshore Worker Settles Sex Suit: Harassment Case Made History in Supreme Court, NEW ÜRLEANS T!MES-PICAYUNE, Oct. 24, 1998, at C I. 69

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Perhaps not surprisingly, after Oncale, plaintiffs in same-sex cases in particular sought other ways to prove that harassment was because of sex. Most importantly, thcy looked back nearly ten years to the Supreme Court's ruling in Price Waterhouse v. Hopkins.1 1 Price Waterhouse was neither a case of same-sex discrimination nor even a case of harassment. Yet the case was criticai bccausc in it the Supreme Court had articulated another way in which to show that discrimination was because of sex namely, sex stereotyping. Ann Hopkins had worked in the Washington, D.C. ofticc of Price Waterhouse for fivc years when the partners in that office proposcd hcr for partnership in 1982. Hopkins was one of 88 employces proposed for partnership that year and the only woman.7 2 Thc District Court judge who initially heard Hopkins's case found that '[n]one of the othcr partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership.'73 Nevertheless, Hopkins was passed over for partnership and held for reconsideration the following year.7 4 The man who was assigned by Price Waterhouse to tell Hopkins why her candidacy had bcen held over provided her with severa! suggestions for improving her chances the following year. He told her she should 'walk more fcmininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry.' 75 After the partners in her office refused to re-propose her for the partnership the following year, Hopkins sued, alleging that she had been discriminated against because of her sex in violation of Title VIP 6 In deciding the case, the Supreme Court made clear that sex stereotyping constituted an actionable form of discrimination because of sex under Title VII. '[W]e are bcyond the day,' the Court stated boldly, 'when an employer could evaluate employees by assuming or insisting that they matched the stereotypes associated with their group.' 77 The Court explained: '[a]n employer who acts on the basis of a belief that a woman cannot bc aggressive, or that she must not be, has acted on the basis of gender.' 78

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ld. at 234 (quoting Hopkins v. Price Waterhouse, 618 F. Supp. 1109, 1112 (D.D.C.

1985)). ld. at 233. ld. (quoting Hopkins, 618 F. Supp. at 1117). As part of the partnership consideration process, severa! partners at Price Waterhouse submitted comments regarding Hopkins's candidacy. Severa) of these comments also touched on Hopkins's apparent gender inappropriateness: 'One partner described her as "macho"; another suggested that she "overcompensated for being a woman"; a third advised her to take "a course at charm school." Severa) partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only "because it's a lady using foul language." Another supporter explained that Hopkins "ha[d) matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing Jady ptr candidate."' Jd. (citations omitted). 76 ld. at 231-32. 11 ld. at 251. 7R /d. at 250. 74

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The Supreme Court in Oncale did not rely on lhe scx stereotyping theory outlined in Price Waterhouse, but nor did the Court refute it. 79 The result was that after Oncale

sex stereotyping beeame the dominanl apprnach by which plaintiffs in samc-se~ harassment cases sought to prove that the harassmcnt was because of sex. In Nichols v. Azteca Restauram Enterprises, Inc., for cxamplc, the Ninth Cireuit applied the sex stereotyping approach to conclude that the abuse the plaintiff suffered constitutcd actionable sex discrimination under Titlc VJJ.X" Antonio Sanchez worked as a host and then a food server at Azteca restaurants in Wa~hington state.si During bis four-year tenure at Azteca, Sanchez was subjected to a stcady stream of taunts and insults focusing on his perceived effeminacy. 82 Following a bench trial, the District Court judge held that the harassment Sanchez suiTcrcd had not been 'beeause of' sex within the meaning of Title VIL 83 The Court of Appcals disagreed. Aecording to the appellate court: 'At its essence, the systematic abuse dircctcd at Sanchez reflected a belief that Sanchez did not act as a man should act.' 84 Rclying on Price Waterhouse, the Court concluded that such abuse - based on the perccption that Sanehez possessed traits and attributes that while acceptable for a woman wcrc inappropriate for a man - constituted harassment 'because of' sex.ss

•...... J

. 19 Th~ reconciling of D_ncale and Price Waterlwuse by the Third Circuit in Bibby v. Ph1ladelphm Coca Cola Botthng Co., 260 F.3d 257 (3d Cir. 2001) is fairly standard. According to the Third Circuit, '[a]bsent an explicit statement from the Supreme Court that it is turning its back on Price Waterhouse, there is no reason to believe' that the Onca/e decision was meant to call the sex stereotyping theory o f sex discrimination in to qucstion. Jd. at 263 n.5. But see David S. Schwartz, When ls Sex Because of Sex? The Causation Problem in Sexual Harassment Law 150 U. PA. L. REV. 1697, 1743 (2002) ('In light of ali the ways that a sex-stereotyping theor; should have come to the Court's attention, the complete failure of the Onca/e opinion to address the sex-stereotyping theory of harassment, along with its failure to identify sex-stereotyping as an "evidentiary route" for proving "because of sex," is notable and disturbing'). 80 Nichols v. Azteca Rest. Enter. Inc., 256 F.3d 864, 875 (9th Cir. 2001). 81

82 83 84

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ld. ld. Id. ld. ld.

at 870.

at 870-71. at 874.

85 at 875; see also Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1068 (9th Cir. 2002) (en bane) (Pregerson, J., concurring) ('[T]his is a case of actionable gender stereotyping harassment'); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 262-63 (3d Cir. 2001) (noting that 'a plaintiff may be able to prove that same-sex harassment was discrimination because o f sex by presenting evidence that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender'); Simonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000) (stating that '[t]he Court in Price Waterhouse implied that a suit alleging harassment or disparate treatment based upon nonconformity with sexual stereotypes is cognizable under Title Vll as discrimination because of sex'); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999) (explaining that 'justas a woman can ground an actio~ on a clai~ .th.at men discriminated against her because she did not meet stereotyped expectat10ns of femtmmty, a man can ground a claim on evidence that other men discriminated against him because he did not mect stereotyped expectations of masculinity') (citation omitted); Martin v. New York State Dep't of Corr. Serv., 224 F. Supp. 2d 434, 446--47 (N.D.N. Y. 2~2) (recognizing sex stereotyping as a form of sex discrimination but finding that the plaintiff d1d not present any evidence showing that he was, or was perceived by his coworkers to be,

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At least initially, the sex stereotyping thcory provided a kind of back door approach for holding sexual orientation discrimination actionable. 86 Rather than arguing that they were harassed because of sexual orientation per se, plaintiffs argued that they were 7 harassed beeause of their failure to conform 10 gender norms more generally.x More recently, however, the sex stereotyping theory has provided a front door for sexual orientation protection as well. In 2017, thc Seventh Circuit in Hively v fvy Tech Community College followed the Equal Employment Opportunity Commission (EEOC) in holding. that sexual orientation discrimination was a form of sex discrimination under In explaining its ruling, the Court noted that '[v]iewed through the lens of Title the oender-non-conforming line of cases, Hively represents the ultimate case of failure to e~nform to the female stereotype (at least as understood in a plaee such as modem America, which views heterosexuality as lhe norm and other forms of sexuality as

vn.ss

exceptional).' 89

III. IMPACT Certainly, the naming of sexual harassment as a real world phenomenon and .the ereation of a legal cause of action to redress it have marked a tremendous accomphshment for eontemporary feminist scholars and activists. Yet the type and degree of impact that the claim has had on the workplace has depended to a. significant degree on employers' real and perceived exposure to liability from such cl~tms. J~st as the scope and proof structure of sexual harassment claims was Ieft unclear tn Mentor, so too was effeminate); Heller v. Columbia Edgewater Country Club.' 195 F. Sup~. 2d 1212, 1~17-18, 1222-25 (D. Or. 2002) (denying defendant's summary JUdgment motton and h?ldmg th~t discrimination because of female plaintiff's masculine traits and appearance constuuted vahd Title Vll sexual harassment c1aim); Ianetta v. Putnam Inv., Inc., ~42 F. Supp: 2d 131, 134 (D. Mass. 2001) (finding that the plaintiff had stated a cause of actton under Tttle VII where he alleged that he was discriminated against because he did not conform to the male gender stereotype), dismissed, !83 F. Supp. 2d. 415 (D. Mas~. 2~~) (?ranting post-discovery summary judgment after finding insufficient evidence of sex dtscnmmauon). H6 See Devon Carbado, Mitu Gulati and Gowri Ramachandran, Makeup and "':omen. at Work, 42 HARV. C.R.-C.L. L. REV. (2007) ('Because sexual orientation qua sexua! one~tauon cannot be employed to support a claim of discrimination, the ~ou~s grounded thetr findmg of discrimination on the Price Waterhouse theory of sex stereotypmg ). . . 87 See, e.g., Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2~2) (plamuff who suffered harassment seemingly due to perccived ~ffeminacy and homos~xua!IlY ha~ presented sufficient evidence of sex discrimination by showmg that hts coworkers pumshed htm because they perceived him to be impermissibly feminine for a man'). 88 Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en bane). 89 Jd. at 346· see also Ba1dwin v. Foxx, EEOC Appeal No. 0120233080, 2015 WL 4~97641 at *5 (EEOC, Ju,ly 15, 2015) (ho1ding that sexual ori~ntation discrim_inati~n is. necessa~ly sex ctiscrimination because '[d]iscrimination on the basts of sexual onentatton ts premtsed on sex-based preferences, assumptions, expectations, stereotypes, or no~s'): ~ut ~ee Evans v. Georgia Reg'! Hosp., 850 F.3d 1248 (11th Cir. 2017) (ho1di.ng .th~t d~scnmmatwn b~sed on sexual orientation is not actionable under Title VII, though dtscnmmauon based on fatlure to conform to a gender stereotype is).

296

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thc qucstion of whcn cmployers would bc held liablc for sexual harassment occurring in thcir workplaces. In Meritor, thc Supreme Court's only instruction to lower courts wa~ to 'look to agency principies for guidance in this area.'9° The rcsult was diverging opinions by thc lower courts about whcn cmployers would be hcld liable for the harassing conduct of their employccs.9 1 In a pai r of cases decided in 1998, Faragher v. City of Boca Raton92 and Burlington lndttstries, Inc. v. Ellerth, 93 thc Suprcme Court granted certiorari to clarify the question oi' whcn employers would be liablc for workplace sexual harassment. Faragher involvcd a lawsuit filed by a former lifcguard with the city of Boca Raton, Florida who allcgcd that her supervisors had crcatcd a 'sexually hostile atmosphere' through their unwantcd touching and Iewd commcnts. 94 The District Court held that the supervisors' conduct did constitute actionablc harassment and held the city liable on thc grounds that thc city had 'knowledge, or constructive knowledge' of it. 95 The Elcventh Circuit sitting en bane reversed the lower court regarding liability, holding that the city could not be held liable because the supervisors were not acting within the scope of their cmployment when they engaged in harassmcnt, they were not assisted by their agency relationship with the city in perpetrating the harassment, and the city had no actual or constructive knowledge of the harassmcnt.96 Ellerth involved allegations by a salesperson of unwanted sexual comments and advances by a supervisor. The District Court granted summary judgment to Burlington. Although it found the harassing conduct to be severe and pervasive enough to be

i

I' 90

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986).

91

See, e.g., Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th Cir. 1997) (holding that an

c?"'ployer may be held liable for sexual harassment by a supervisor 'where the supervisor uses h1s actual or apparent authority to aid or facilitate his perpetration of the harassment'; however, ~he fact that the employment relationship provided the supervisor with proximity to the plaintiff 1s not enough), vacated, 524 U.S. 947 ( 1998); Faragher v. City o f Boca Raton, 111 F. 3d 1530, 1536 (li th Cir. 1997) (holding that an employer is liable for sexual harassment by a supervisor when a harasser is acting within the scope of his employment or when the harasser has been aided in accomplishing the harassment by the existence of the agency relationship), rev'd, 524 U.S. 775 (1998); Gary v. Long, 59 F.3d 1391, 1398 (D.C. Cir. 1995) (holding that where 'an cmployer has taken energetic measures to discourage sexual harassment in the workplace and has established, advertised, and enforced effective procedures to deal with it when it does occur it must be absolved of Title VII liability under a hostile work environment theory of sexuaÍ harassment'), cert. denied, 516 U.S. 1011 (1995); Andrews v, City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990) (holding in case involving alleged harassment by supervisors and co-workers that 'i f a plaintiff proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action, the employer will be Iiable'). 92 Faragher v. City of Boca Raton, 524 U.S. 775 (I 998). 93 Burlington lndus., Inc. v. Ellerth, 524 U.S. 742 (1998). 94 Faragher, 524 U.S. at 780. 95 96

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actiunable, the District Court held that Burlington was not Iiable because it 'neither kncw nor should have known about the conduct.' 9 ? The Sevcnth Circuit sitting en bane rcversed, but did so in a decision with 'eight separare opinions and no consensus' rcgarding the standard that should be used to determine employcr liability for such a claim.