Up Against the Nation-States of Feminist Legal Theory

Up Against the Nation-States of Feminist Legal Theory

The AHRC Research Centre for Law, Gender and Sexuality

University of Kent

30th June – 1st July 2006

EqualityStream Abstracts

The Feminist Legal Theory Project and Keele Law SchoolEquality Stream sponsored by the British Academy and Emory University Network on Key Concepts in Feminist Legal Theory

1. A Race and Gender Tale of Two Programs: Social Security and Welfare Benefits

Dorothy A. Brown, Washington & Lee University, USA ()

This paper looks at two government funded programs: social security and welfare. In 1935, the Social Security Act created both social security and welfare - Aid to Dependent Children. The paper examines the historical underpinnings of the two programs and how the government created both programs to benefit white men and discriminate against women and minorities. Social security as originally enacted did not include spousal benefits (excluding women) and did not cover farmers and domestic workers (effectively excluding most blacks). As a result, social security was designed for white men who worked and welfare was originally enacted for their wives or widows and their children - all accomplished largely through the statute. Welfare, on the other hand, was technically available to blacks and whites equally under the statute, however, because it was administered at the local level, it permitted state and local governments to discriminate and pay blacks less than similarly situated whites.

Subsequent amendments to social security and welfare resulted in expanded access to social security and welfare for women and minorities.

However, here the story diverges. After the changes, social security was still seen as benefitting whites, while welfare was seen as disproportionately benefitting blacks. During the 1990s, the government was working to "end welfare as we know it" and during the start of the twenty-first century, we are seeing not a push to "end social security as we know it" but a push to privatize social security which I argue will "end social security as we know it" for certain women and minorities - the very groups excluded from social security when the 1935 act was originally passed.

2. Does Feminist Theory Speak to International Income Redistribution by the State?

Kim Brooks, University of British Columbia, Canada()

One of the most urgent questions being debated among legal and other scholars in many areas of law and political economy over the past decade is whether nation states will be able to maintain the capacity to impose regulatory frameworks on the economic lives of their citizens in the face of the pressures created by “globalization”. Scholars have raised concerns that, left unchecked, globalization will lead to a “race to the bottom.” The predicted result is that the allocation and distribution of economic resources will be determined only by the free play of market forces.

This prediction has enormous implications for the redistributive project undertaken by feminist scholars and critical race theorists. On a domestic level, it means that redistributive schemes, like public pensions, corporate income taxes, and social assistance regimes have been left vulnerable to challenges that the imposition of redistributive regulation is no longer viable in the face of increased international competition. In Canada, feminists have witnessed the state’s abandonment of its redistributive commitments on a number of levels – the state has eroded or eradicated altogether national standards in social assistance provision, reduced universal access to health care, and abandoned its commitment to close-to-free secondary education. The state justified these changes on the perceived need for smaller, more competitive states, with less need for revenue, in the face of international pressures to cut costs. The courts have similarly failed to safeguard a dignified level of assistance for low-income Canadians under our constitutional guarantees, and have used pressures on government fiscal resources as a justification for failing to provide basic redistributive programs to women and other economically vulnerable groups.

Internationally, the problem is perhaps even more significant. It must be obvious that one of the most urgent problems facing the world is the huge divide in living standards and every other indicia of human development that exists between developed and developing countries. As an indication of how seriously this problem is now being taken in at least some quarters, in his 2001 Report of the Secretary-General, Kofi Annan, reported on the decision to focus the UN’s Millennium Declaration goals on development and poverty eradication. When the UN member states met in New York from September 14 – 16 2005, they confirmed what was suspected - little progress has been made in the last five years toward the Millennium goals, and significant new avenues for achieving the Millennium goals will need to be explored if they are to be met.

I am currently engaged in a large project exploring the question of whether tax treaties might provide one avenue for governments to engage in the redistribution of income internationally. In that research, I have been struck by how little feminist research has been done on the use of tax mechanisms as an international redistributive tool. (In fact, to date I have found nothing from that perspective.) Instead, some international law scholars have theorized about the problem of income and wealth inequality for women, and tax scholars have theorized about domestic redistributive goals that would promote women’s equality.

In this paper, I propose to explore what feminist and critical race theory has to say about the changing role of the state in the international redistribution of income in the face of increased internationalization and globalization. Does a feminist and/or anti-colonial approach suggest that some methods of redistribution are more just than others? Can the international tax treaty network provide a method to promote greater distributional equality between nations and the “citizens” of those nations? How does a feminist, anti-colonial approach confront difficult questions of nation-actors in the design of international redistributive mechanisms?

3. Re-imagining Equality: Dancing with Dichotomies

Gillian Calder,University of Victoria, Canada () and

Sharon Cowan, University of Edinburgh, UK ()

This collaborative project attempts to address the equality theory/practice divide by grounding a radically reflexive concept of equality in a close reading of what equality means for specific women where the state is directly involved in the provision of benefits and services. The project focuses on work in two feminist fields: firstly, equality jurisprudence about the delivery in Canada of state social programs (here, maternity and parental leave) in a way that substantively enhances equality; secondly, the field of transgender jurisprudence, and the ways in which the state is involved in defining what it means to be a woman, primarily in the U.K. In both, discourses of equality have been employed to different effect. This paper represents a dynamic conversation about the (dis)junctions between the two projects, the challenges such (dis)junctions pose for contemporary feminist debates, and opportunities they provide for a re-imagining of equality.

4. What stake do heterosexual women have in the same-sex marriage/civil union/domestic partnership debates?A feminist fundamentalist view.

Mary Anne Case,University of Chicago, USA ()

Debates about the nature and extent of state recognition of same-sex couples in both the US and the UK have focused, understandably, on what the choice of civil or domestic partnership or marriage implies for the equality rights of gay men and lesbians. This paper argues that there are also important implications for sex equality more generally. It urges the need on the part of straight women and other feminists to be particularly attentive to the ways arguments from the history and tradition of marriage have been mobilized by both conservative heterosexual and radical gay and lesbian opponents of same-sex marriage in ways that may impede the future development of flexible egalitarian legal frameworks for couples to organize their lives.

5. Feminist allergies to sex equality: how theory-driven itches hurt women and why avoiding the subject isn’t the right cure.

Jane Maslow Cohen,University of Texas, USA ()

The central aim of this paper is to demonstrate—in truth, largely by assertion—that, while egalitarianism as both a democratic ideal and a political fulcrum has been an enduring subject of critique at the hands of male philosophers and other theorists, it has been a special source of misfortune for the women who suffer on account of gender subordination outside academic walls that many of U.S. feminism’s (and anti-feminism’s) most ambitious contemporary architects have devoted substantial energy to the development of independent attacks on and dismissive rationales for the sex-egalitarian ideal.

6. Hobbes on equality: the dominion of the female

Eleanor Curran,Keele University,UK()

Hobbes’s radical views on equality apply to equality between men and women as well as to equality between men. Just as he famously argues that the differences between men are “not so considerable, as that one man can thereupon claim to himselfe any benefit, to which another may not pretend, as well as he” (Hobbes, Leviathan Ch. 13) so he also says “there is not always that difference of strength or prudence between the man and the woman, as that the right can be determined without war” (Ibid. Ch. 20).

In this paper; which is very much a work in progress, I want to explore Hobbes’s radical notion of equality and in doing so I wish to pose two questions. First, how does his understanding of equality fit into the political context of the civil war period in England in the sixteen forties? How does his view of equality compare to that of the royalists, with whom he is so often and so uncritically, associated and how does it compare to that of the Parliamentarians and the radical Parliamentarians? And second, how does Hobbes’s notion of equality differ from more conventional liberal notions of formal equality in the period that followed and again, that he is so often (and often uncritically) associated with. I have in mind here, a Lockean conception of equality and equal natural rights, which are justified by arguments that they are bestowed by God, as well as those of more recent theorists such as Rawls or Dworkin.

7. Working Title: What Does International Law do for Equality?

Margaret Denike, Carleton University, Canada ()

My paper concerns the political and philosophical discourse of international human rights, and its implications for promoting equality in domestic contexts. Of particular interest to me is the role that the language of human rights coventions and resolutions have played in advancing and/or undermining sex, gender and racial equality rights, and the challenges and obstanles that remain to enabling a progressive application of human rights instruments.

This entails an examination of how courts and legislatures in different states (for the purpose of this project: Canada, the US, and the UK) have employed the language of international treaties and conventions for developing and implementing laws and policies, and to what effect.

In the context of Canadian equality jurisprudence, at least, neither the practice of integrating references to human rights treaties, nor of invoking their animating principles, has lent support to the recognition or redress of/for group- based discrimination in the domestic context. While Canada is often touted as a leader in advancing human rights, legal scholars have documented that, despite the occasion and opportunity to do so, and despite the arguments made by interveners, the Supreme of Canada has not only been reticent to draw on international law or to incorporate the language of international human rights law into their decisions (which occurs in less than 15% of such cases), but, if and when they do, references to international treaties, conventions or resolutions are typically used to narrow —rather than broaden— the scope of the equality provisions, and/or to lend support to a finding that the impugned provision is not discriminatory. International human rights law is typically treated as articulating but utopian aspirations, rather than concrete obligations, especially when it comes to social and economic (rather than civil and political) rights, or more generally, to the distribution of resources by the state.

Moreover, in the broader context of Canadian, US and British humanitarian or national security policy, an expressed concern about human rights violations, and particularly against women and children in certain foreign countries, has emerged as one of the leading justifications for armed interventions that contravene international law, that is, as a way to occlude the grave and systemic human rights crises that result from armed conflict and/or from domestic policies promoting the profiling, detention and deportation of racial minorities.

While such usage of the language of human rights does not necessarily imply that we should be wary of international norms per se, or that there is anything inherently problematic about the ideals that inform them, there is good reason to be concerned about how such norms, given their abstraction, can be —and are— made to operate in domestic contexts, and what strategies we need to devise to reverse this trend.

My preliminary questions are thus: How do we give precise content to such principles, to articulate them in concrete terms related to the material and physical conditions of systemic inequalities? What is it about the way we construe and define human rights (and their violation), generally and specifically, that impedes their practical realization in terms of substantively altering the lives of those subjected to sex and gender discrimination? How might we alternatively understand and represent human rights violations such that they are less easily coopted as a justification for the use of force? How does the way that we think of rights undermine the possibility of achieving the (normative) goals and aspirations that inform international human rights principles?

8. The State and Access to Contraception: How Equal is the Adolescent Woman?

Mary Ewert,Keele University,UK()

This paper is part of a research project examining the refusal of federal family planning funding by the McHenry County, Illinois (U.S.) board of health in 1997. Academic articles analysing the refusal have generally taken a quantitative approach to assess whether the teen pregnancy rate in the county increased in the wake of the board’s refusal. This project approaches the case study qualitatively in a sociolegal context, with attention to both children’s rights discourse and feminist critiques of citizenship, which allows for consideration of the way a local political body invoked the traditional family norm to skirt a federal requirement that recognises the reproductive agency of adolescent women.

In 2005 the U.S. Food and Drug Administration (FDA) delayed approval of over-the-counter sales of emergency contraception citing concern that access for women younger than 17 should be by prescription only. In the UK, Sue Axon challenged the Gillick rule that protects the confidentiality of underage women who access contraception. These moves reflect little concern with the ways the individual adolescent might deal with her emerging sexuality. At the same time, abstinence-only rhetoric reinforces the couple-based romantic ideal of heterosexual marriage.

Conflicts in law evidenced on the one hand by strong parental-rights arguments in the Meyer[1], Pierce[2] and Yoder[3]decisions, and on the other by the health needs of adolescent women addressed in Bellotti[4] and Carey[5], expose the unequal status of young women in the U.S. legal context. Guggenheim[6] recognizes that any move by the U.S. Supreme Court to recognize a constitutional right to reproduce for minors would be both bold and controversial. So the status of the adolescent woman as citizen in a society that relies heavily on the rhetoric of equality remains opaque, obscured in the passage from dependent childhood to legal adulthood. Law constructs the adolescent woman’s sexuality as passive and in need of protection, resulting in proscriptions based on fine gradations of “consent”, and shows a preferred placement of the young woman in a position akin to property within the family. This paper argues that confidential access to contraception is essential if young women are to avoid the “condition of sexual coercion women never outgrow” described by MacKinnon[7]. It focuses particularly on the potential application of Jean Cohen’s[8] constructivist paradigm of reflexivity to the position of adolescent women.

9. Fighting Fair: Purported “Equality” Norms in Family Law as an Attack onWomen’s Personhood, and the Need to Protect Women’s Rights to Engage in Relationship Disputes

Ann E. Freedman,RutgersLawSchool – Camden,USA()

Formal equality norms can interact with deeply rooted gender disparities in complex and problematic ways. This paper examines the consequences of evenly divided parenting time (and concommitant division of child support responsibilities) as an emerging family law norm for the resolution of child custody disputes. While in high functioning families with resilient children, money and favorable geography, this may be a good choice, most families are better served by different arrangements. Especially if there is serious parental dysfunction or intractable disputes, people need the community to focus on restoring safety and simultaneously providing a context that will best support the parents to work out an arrangement appropriate for their own circumstances.