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Category: Feminism and Gender

18

More Thoughts on the Dangerous Fragility of Men

First, I want to thank my hosts here at Concurring Opinions for asking me to stay on for another month. One of the things this extended invitation allows me to do is to respond at some length to issues raised in the comments on my last post, “The Dangerous Fragility of Men.” In that post, I highlighted a troubling phenomenon: men with privilege and power characterizing their insecurities and lack of self-control as vulnerability, and using that alleged vulnerability as an excuse or justification for murder, rape, and discrimination (and I would add, though I didn’t discuss it in the post, harassment and intimidation). To demonstrate this phenomenon, I offered a sample of quotations from recent, high-profile cases including Oscar Pistorius‘ shooting of his girlfriend and the gang rape of an 11-year-old girl in Texas. The post suggested that our society should make a greater effort both to marginalize this cowardice and become more attentive to actual vulnerability. In this post, I’d like to elaborate on these ideas and address some of the objections raised in the responses to my post.

I first want to spend a bit more time on the question of perceived v. actual vulnerability. I noted in my original post that one of the perplexing aspects of this form of male vulnerability is that it seems to increase, rather than decrease, with power or privilege. Frequently, the men using weakness as an excuse or justification (or others offering such explanations on their behalf) for harm are people who are objectively less vulnerable than most. They include famous athletes, soldiers, and wealthy businessmen. I think it is worth spelling this out more explicitly: there is a tendency on the part of privileged individuals to overstate their vulnerability. This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination. Feeling vulnerable is not the same thing as being vulnerable, and even actual vulnerability might need to yield before (or at least take into consideration) the greater vulnerability of other people.

We are all vulnerable in certain ways. Figuring out the what and why of our vulnerabilities is an important part of psychological awareness and well-being. What is of most interest to me here, however, is determining the conditions under which it is permissible for us to impose our vulnerabilities on other people, especially when that imposition takes the form of violence or discrimination. In determining those conditions, I would suggest we should ask ourselves at least three questions. One, we should question whether our vulnerability is objectively reasonable. Vulnerability that results from personal insecurity or prejudice is not vulnerability that we may rightfully impose on others. It is our own responsibility to correct vulnerabilities of our own creation. Second, we should question the magnitude of our vulnerability, especially when put in perspective with the vulnerabilities of others. Third, even if our vulnerability is both reasonable and of serious magnitude, we should question whether we are imposing it on appropriate parties in a just and proportional way. Read More

39

The Dangerous Fragility of Men

“I have also been a victim of violence and of burglaries before… I felt a sense of terror rushing over me … I was too scared to switch a light on.” Oscar Pistorius relating his state of mind before shooting his girlfriend Reeva Steenkamp four times through a bathroom door.

She “knew exactly how to press his buttons and make him angry.” Jovan Belcher complaining to his mistress about his girlfriend, Kassandra Perkins, before shooting Perkins nine times in front of their baby daughter.

“Like the spider and the fly. Wasn’t she saying, ‘Come into my parlor, said the spider to the fly?” Defense attorney Steve Taylor describing the 11-year old girl gang-raped by more than a dozen men in Cleveland, Texas.

“And it’s – all he sees are heavily tinted windows, which are up and the back windows which are down, and the car has at least four black men in it…” Defense attorney Robin Lemonidis explaining why her client, Michael Dunn, shot into a vehicle of unarmed teenagers eight times, killing 17-year-old Jordan Davis.

“Hurricanes. Tornadoes. Riots. Terrorists. Gangs. Lone criminals… These are perils we are sure to face — not just maybe. It’s not paranoia to buy a gun. It’s survival.” Wayne LaPierre, Executive Vice President of the National Rifle Association, objecting to the Obama Administration’s consideration of gun regulation.

“It’s a fear of the unknown… I’ve never seen a woman get killed or wounded. In my mind they may resemble my wife and I don’t know how I would react. It’s one thing to see a man injured or killed but a woman, now that’s a different story,” Staff Sergeant Alex Reyes, voicing his objection to lifting the formal ban on women in combat.

According to traditional gender stereotypes, men are supposedly stronger, braver, and less emotional than women. However unfair or inaccurate, this belief, along with the association of vulnerability, anxiety, and fear with women, has persisted throughout most of Western history. Once one scratches the surface of this myth, however, it becomes apparent that stereotypical “masculinity” (and “hyper-masculinity” even more so) is in fact defined by fragility. This fragility, moreover, is of a truly perplexing nature: it actually increases, rather than decreases, with power and privilege. Why did a world-renowned athlete who lives in a “fortified mansion surrounded by barbed wire” not even stop to turn on a light before shooting his girlfriend four times (if one takes seriously Pistorius’ claim that the shooting was an accident)? Because he was so intensely afraid of being victimized by burglars. Why did a popular NFL linebacker shoot the mother of their infant daughter nine times at close range? Because she did things that made him angry and scared, like staying out late at a concert. Why did more than a dozen men take turns raping an 11-year-old girl, one of them recording the rapes on his cellphone? Because they were so overwhelmed by her seductive clothes and makeup that they couldn’t control themselves. Why did a middle-aged white man with a gun in his glove compartment shoot eight times into a vehicle with four teenagers in it? Because he was so scared of the teenagers’ loud music and attitude that he imagined they must be pointing a gun at him. Why do American citizens – even those who live in gated, high-security enclaves complete with security guards, alarm systems, and identification checkpoints – need an infinite number of virtually unregulated, high-capacity weapons? Because hurricanes and terrorists threaten their very survival. Why should qualified women be denied the opportunity to be recognized and promoted for combat activity? Because some male soldiers – supposedly well-trained, experienced male soldiers – might become paralyzed by the sight of a woman in distress.

This is not the “New Age sensitive male” mocked by comedians and pundits. These men don’t ask questions or cry when they feel vulnerable: they kill, rape, and discriminate. And society largely allows, even encourages, them to do so. Instead of demanding that these men take responsibility for their own weaknesses, our society accommodates and excuses them. This is the flip side of blaming the victim: excusing (or justifying) the perpetrator. The time and energy spent criticizing a girlfriend’s supposed greediness, or an 11 year-old girl’s supposedly provocative clothing, or teenagers’ supposedly loud music could be spent challenging and marginalizing the inability of certain men to control themselves.

To acknowledge and reflect on one’s vulnerability is a good thing; to hold the world in thrall to it is not. Feeling vulnerable is often different from actually being vulnerable, and even actual vulnerabilities should not be used as a license for malicious or reckless behavior. With the supposed vulnerability of famous athletes, soldiers, and gun owners everywhere on display, perhaps we can also appreciate the vulnerability of those far more at risk.

5

Does Blind Review See Race?*

In a comment to my earlier post suggesting that law review editors should seek out work from underrepresented demographic groups, my co-blogger Dave Hoffman asked an excellent question: Would blind review remedy these concerns? It seems to me that the answer here is complicated. Blind review would probably be an improvement on balance, but could still suffer from — err, blind spots. Here are a few reasons why.

The paradigmatic case for the merits of blind review comes from a well-known study of musician hiring, published about a decade ago by Claudia Goldin and Cecilia Rouse in the American Economic Review. Goldin and Rouse gathered data on symphony auditions, and found that blind auditions — that is, ones which concealed the gender of the auditioning musician — resulted in a significantly higher proportion of women musicians auditioning successfully. As Rouse commented,

“This country’s top symphony orchestras have long been alleged to discriminate against women, and others, in hiring. Our research suggests both that there has been differential treatment of women and that blind auditions go a long way towards resolving the problem.”

The Goldin-Rouse study shows that blind review can be a useful tool in combating bias. Would a similar review system work in the law review context?

Well, maybe. Read More

43

In Defense of Law Review Affirmative Action

As you may have seen, the new Scholastica submission service allows law reviews to collect demographic information from authors. A flurry of blog posts has recently cropped up in response (including some in this space); as far as I can tell, they range from negative to negative to kinda-maybe-negative to negative to still negative. The most positive post I’ve seen comes from Michelle Meyer at the Faculty Lounge, who discusses whether Scholastica’s norms are like symposium selection norms, and in the process implies that Scholastica’s model might be okay. Michael Mannheimer at Prawfs also makes a sort of lukewarm defense that editors were probably doing this anyway.

But is it really the case that law review affirmative action would be a bad thing? Read More

0

Justice Ruth Bader Ginsburg headlines Thomas Jefferson Law School Women and Law Conference

Last Friday, Justice Ruth Bader Ginsburg spoke at the 13th Annual Women and Law Conference at Thomas Jefferson Law School. A packed house listened as panelists discussed a variety of issues relating to women in the judiciary, and the highlight of the day was an extended and candid Q&A with Justice Ginsburg herself. Read More

2

Blaming the Victim: Been There Before

Let me build on Professor Franks’s incisive post on the blaming-the-victim response in the revenge porn context.  As Franks rightly notes, a recurring response to women’s suffering is to blame the victims.  As I discussed here, cyber harassment victims are often told that they provoked the abuse by blogging in their own names, sending pictures to boyfriends, or writing about sex.  The public said the same about domestic violence and sexual harassment.  Society minimized the culpability of the abusers and maximized the responsibility of victims to justify those practices.  Law certainly was not necessary to address them.  Then, as now, the public refused help to blameworthy women.

Before the 1970s, society tolerated abuse of so-called “recalcitrant” wives.  The public’s attitude was that the battering was justified by the wife’s provocations.  The notion was that if the woman had been a neater housekeeper, a more submissive helpmate, or a more compliant sexual partner, “her nose would not have been broken, her eye would still be uncut, [and] bruises would never have marked her thighs.”  Judges and caseworkers asked battered wives to accept responsibility for provoking violence, rather than assessing their abusers’ conduct. The solution was to “fix” battered women.  Social workers advised them to clean their homes and have dinner ready for their husbands when they arrived home from work.  Consider a judge’s response to a man’s beating of his wife.  While before the judge, the man said he hit his wife because of her unkempt hair, unsatisfactory cooking, and nagging because he refused to take her out.  He told the judge: “Look at her.  I wouldn’t take her to a dog fight.”  The judge agreed.  He determined that “straightening out the situation” required the wife to improve her appearance.  Elizabeth Pleck, Domestic Tyranny: The Making of American Social Policy Against Family Violence From Colonial Times to the Present (Urbana IL: University of Illinois Press, 2004), 136.  Psychiatrists supplied a medical diagnosis for the experience of battered wives.  In esteemed medical journals, researchers claimed that wives suffered from “feminine masochism” that drove them to goad their husbands into beating them because they derived sexual and psychic pleasure from abuse.  In other words, women enjoyed the humiliation.  Police officers refused to arrest batterers because their wives brought on the abuse.  In the mid-1970s, police training guides tended to portray battered women as nagging or domineering and instructed officers that removal of the abusive husband would be unreasonable if that were the case.  The public also ignored domestic abuse because women failed to leave their abusers.  Judge Richard D. Huttner, the administrative judge of New York City Family Court, recalled a colleague’s reaction to domestic violence victims: “Why don’t they just get up and leave?  They have been taking these beatings all these years and now they want me to intercede.  All they have to do is get out of the house.  What do they want from me?”

The “blame the victim” sentiment pervaded the response to sexual harassment.  The traditional view was that women belonged in the private sphere, the home.  Women entered the public sphere, the workplace, at their own risk.  Society insisted that women invited their supervisors’ sexual advances by dressing provocatively and flirting.  Employers said that female employees were “responsible for at least some of what happened.”  In the 1970s, a broadcasting executive justified sexual harassment in his workplace: “You know, some women dress so that people look at their breasts.”  Courts legitimated this view by permitting employers to argue that women invited employer’s sexual advances.  Society refused to take sexual harassment seriously because female employees had the chance, but refused, to change supervisors or jobs.  Female employees were told that they bore responsibility for their predicament because they stayed and risked more harassment.  Their failure to leave was proof that supervisors’ sexual advances were not unwelcome.  In a Redbook story about Congressman who hired female staffers because they agreed to provide sex to them, reporter Sally Quinn criticized the women as failing to stand up for them selves.  She described the women as “choosing to compromise [their] bodies.”  Sally Quinn, “The Myth of the Sexy Congressmen,” Redbook, October 1976: 96.

 

0

Volume 60, Issue 2 (December 2012)

Volume 60, Issue 2 (December 2012)


Articles

The Battle Over Taxing Offshore Accounts Itai Grinberg 304
The Structural Exceptionalism of Bankruptcy Administration Rafael I. Pardo & Kathryn A. Watts 384
Patients’ Racial Preferences and the Medical Culture of Accommodation Kimani Paul-Emile 462


Comments

“Not Susceptible to the Logic of Turner”: Johnson v. California and the Future of Gender Equal Protection Claims From Prisons Grace DiLaura 506
6

Why Did Egg Freezing Wait So Long?

Thank you to the permanent bloggers of Concurring Opinions for having me back. It is great to be here.

Egg freezing has become the new hot trend in the infertility industry. Although infertility practitioners first used  egg freezing in the mid 1980s,  it was only recently that success rates have significantly risen making this an attractive option for women.  A woman can now freeze her eggs at any age and use it a few years later or much later with the sperm of her then chosen partner or a donor to have a baby through IVF. Using egg freezing technology, a woman can today have a baby at a time that best suits her career and family situation.

There is no doubt that egg freezing as a viable option is a huge revolution for women’s autonomy. But the big question is why only now? Why has egg freezing become a really viable option only during the first decade of the Twenty-First Century. We have known how to freeze sperm since the 1950s. And, embryo freezing was first tried out around the same time as egg freezing, during the mid-1980s. Yet, unlike egg freezing, embryo freezing became common practice soon thereafter. So why did we have to wait so long for effective egg freezing technology?

The answer usually given to this question is that it was just too complicated technologically and took a long time to develop. But were technological complications the only cause for delay?  Is it really much harder to freeze and thaw eggs for later IVF use than to freeze and thaw embryos for later use? We tend to be taken by the illusion that science is value neutral — that scientific progress is not affected by choices directed by social values. But even if technological diffiuclties played a role in the delay, could egg freezing technology have been held back because resources were invested elsewhere? Unlike other forms of reproductive technology that promote the reproductive interests of both men and women, egg freezing promotes mainly the autonomy interests of women.  Egg freezing’s impact on women autonomy can be compared only to the revolutionary effect of the birth control pill. At the same time, the infertility industry is comprised overwhelmingly by male practitioners. And while some have no doubt worked relentlessly to promote egg freezing technology, it may be time to stop assuming that technological complications held back this important women emancipating technology. It may be time to begin asking whether  the advancement of egg freezing was placed on the back burner for years because of the type of interests it promotes?

5

The Contraception Mandate Part II

In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.

The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA  as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.

Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.

Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.

Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.

20

The Contraception Mandate Part I

The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.

It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.

While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.

What about the Religious Freedom Restoration Act? Stay tuned.