Why Gender Still Matters

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Gender still matters, judging by events of recent months, such as President Obama establishing a White House Council on Women and Girls, to make sure that all federal agencies”take into account the particular needs and concerns of women and girls”and that they”are treated fairly in all matters of public policy.”To some, this may be surprising: If we are in what some call a post-identity age, in which one’s sex, race, or ethnicity does not – or should not – matter, then why still speak about gender?   One fundamental reason to do so – as the establishment of   the White House Council suggests — is that there is still a gap between ideals of sex equality and of equal citizenship and the reality of many women’s lives. This is the central premise of   a new book that I co-edited with Joanna Grossman,   Gender Equality: Dimensions of Women’s Equal Citizenship, (Cambridge University Press), in which eminent feminist law professors, political scientists, and women’s studies scholars take stock of the progress made toward the goals of securing gender equality and the equal citizenship of women and men, and also of impediments that remain. Our book develops strategies for better securing such goals and identifies new questions, theories, and perspectives to help shape further inquiries about both gender equality and equal citizenship. As such, we hope that it will be a resource to feminist law professors and to other legal scholars teaching and writing about sex equality and issues of gender, law, and policy.

The relatively high   profile of gender issues provides a propitious teaching moment for those in the legal academy. We can explore with our students questions of gender equality and equal citizenship, whether we do so in courses on gender and law and  feminist legal theory, or in other parts of the curriculum. If, for example, political citizenship is a dimension of equal citizenship, then one area of unfinished  business is the worldwide gender gap between men and women in their representation in high office (both elected and appointed). The most recent Global Gender Gap report finds a”political empowerment gap”between men and women, measured in terms of”political decision-making at the highest levels.”   Here in the U.S., women are underrepresented on the U.S. Supreme Court, to which only three women have ever been appointed, and no more than two have ever served concurrently.  As Joanna Grossman and I argue in a recent Findlaw column (here), the nomination and confirmation of Justice Sonia Sotomayor to the Supreme Court – and her endlessly-quoted statement in a speech (“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white man who hasn’t lived that life”) — illustrated the tension between the sense of our being in a post-identity age and the sense that identity may matter deeply.

For educators, this confirmation process provides an opportunity to engage students with questions like:   Why is it important that there be more than one woman on a nation’s highest court?  Why is it important that a Latino sit on the bench, when the Court has never before included a Hispanic justice? What difference does difference – including   different life experience — make? I commend to anyone who has not yet see it the recent interview (in the New York Times magazine) that Justice Ruth Bader Ginsburg, the second woman appointed to the High Court, gave to Emily Bazelon. In it, she addressed such questions. With respect to Sotomayor’s above-quoted statement, Ginsburg commented:”I’m sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table. All of our differences make the [judicial] conferences better.”  Students may find of considerable interest not only comments by Ginsburg but by other justices and various scholars of the Supreme Court about the relevance of experience and of the important ways that the justices can – and should – influence each other, as she seems to have influenced her male colleagues in some gender discrimination cases. To be sure, in her confirmation hearings, Justice Sotomayor distanced herself from her famous”wise Latina”remark, clarifying that”every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.”But the issue of   the relevance of experience to judging still warrants study. Justice Sotomayor’s life experiences will no doubt inform her own experience as a justice and also enrich the experiences of her colleagues on the bench.

Legal educators may also find this a propitious moment to teach about gender equality and equal citizenship on a more global scale. Global citizenship is an increasingly relevant dimension of citizenship in an era of globalization, as Joanna Grossman and I  â€“ and our contributors — elaborate in Gender Equality. Numerous human rights documents espouse norms of sex equality and antidiscrimination. Again, however, there is a gap between these ideals and many women’s lives. Thus, in an astonishing special issue of the New York Times magazine, published August 23, 2009, journalist Nicholas Kristof and former journalist Sheryl WuDunn propose to show “Why Women’s Rights are the Cause of Our Time.”

Their cover story and the other stories in the Magazine chronicle – as evidence of persistent sex inequality around the world — barriers girls face as they seek education, household inequality, violence, and slavery (including sex trafficking). These accounts are illustrated with vivid   and often harrowing life stories of particular girls and women. Kristof and WuDunn   declare women’s rights a”moral challenge”for this century.   They invoke Nobel Prize winner Amartya Sen’s earlier conclusion that 100 million women are missing around the world due to discriminatory practices, such as sex-selective abortion, infanticide, and unequal provision to girls of nutrition, health care, and the like.   They coin the provocative term”gendercide”to capture the human cost of sex inequality.

Surely, these claims (which they elaborate in a forthcoming book) could provide a provocative opportunity for legal educators to consider the salience of gender as a category. So too, might questions about whether U.S. foreign policy should direct special attention to women and girls. Thus, as we elaborate in another recent Findlaw column (here),   in the Magazine, Secretary of State Hillary Clinton states, in an interview, that the Obama Administration has”as a signature issue the fact that women and girls are a core factor in the foreign policy.”She further asserts:”I happen to believe that the transformation of women’s roles is the last great impediment to universal progress . . . .[I]n too many places and too many ways, the oppression of women stands as a stark reminder of how difficult it is to realize people’s full potential.”For feminist scholars, this may bring to mind a conception of equal citizenship invoked by Justice Ruth Bader Ginsburg in the landmark sex equality case, U.S. v. Virginia, in 1993:”neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature – equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”

Of course, there are reasons to be cautious about a campaign of”saving the world’s women”(the phrase the Magazine uses to introduce the special issue).   For example, both in this title and in some of the rhetoric of victimization, gender scholars may recognize resemblances to earlier colonial campaigns that sought to save foreign women while ignoring sex inequality at home and worry that contemporary campaigns may do the same. In an important article (one I often use in my Feminist Legal Theory class), Do Muslim Women Really Need Saving?, Lila Abu-Lughod, for example, draws parallels between these earlier campaigns and the Bush Administration’s rhetoric about saving”women of cover.”In our Gender Equality volume, for example, Deborah Weissman warns about the risks of using women’s rights and the goal of saving women in foreign countries as a rationale for military intervention, particularly where the appeal to women’s rights is disingenuous and may mask other military objectives.

Drawing attention to these reasons for caution, however, could in itself enrich a classroom discussion of human rights. To give another example: thoughtful feminist legal scholars such as Leti Volpp and Madhavi Sunder, as well as numerous participants in the ongoing conversation about evident tensions between multiculturalism and sex equality, caution about categorical statements about culture and religion as the causes of sex inequality. Such statements ignore that culture is often in flux, and that women struggle to transform cultural practices and to engage in religious interpretation.   Also, arguments about gender-specific injuries in poor and war-torn countries, while vitally important, should not turn attention away from the injuries suffered by men and boys.  All of these concerns could inform rich classroom discussions about the continuing salience of gender, the persistence of gender inequality,  and the unfinished business of”women’s rights.”As the Obama Administration declares a commitment to focus on gender equality both at home and in its foreign policy, this is a propitious time to have those discussions.

-Linda C. McClain

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