About Women and Rights
Cohen, Jean L.
That rights are controversial for women is neither a new nor an obvious idea. Although some of us would be quick to attribute only to men the view that women do not need equal rights, this would...
...Such an assumption, however, is the key presupposition of this special section in Dissent devoted to "Women and Rights...
...q Notes For an excellent discussion of the suffrage fight, the battles over the ERA, and the dispute over protective labor legislation, see Carl Degler, At Odds: Women and the Family in America from the Revolution to the Present (New York: Oxford University Press, 1980), pp...
...She thus attempts to formulate a conception of equivalent rights from within the "difference" perspective...
...The feminist version of the communitarian critique of rights draws not upon women's biology but on their experience as nurturers...
...They all seem to be saying that whatever the deficiencies in existing rights analyses, whatever the limits to rights-oriented politics, a modern society that does not take rights seriously cannot be considered a free society...
...They argue that instead of struggling for equal rights in the public sphere or to apply the principles of justice to the private sphere, women should defend the experience of nurturance and care in the private sphere and seek to generalize concrete duties of loyalty and membership from the private to the public...
...Indeed, some feminists allege that thinking in terms of rights is part of a male style of identity that threatens what is most valuable in women's experience...
...42 U.S.C...
...Recently, women (need I mention Phyllis Schlafly...
...The first wave of feminism is usually associated with the struggle for the vote, which began toward the end of the nineteenth century...
...However, this happy consciousness soon became undermined, in part because of women's successes in gaining formal equality and in part because of the issues raised by the younger generation of "second-wave" feminists in the late 1960s and 1970s...
...Drawing variously on Marxist, communitarian, and postmodern theory, contemporary feminist claims that rights are inimical to women reject the conception of the self and the model of society that is allegedly attached to the idea of rights...
...Our purpose is twofold: to bring to Dissent readers an awareness of the discussion among feminists and to get us to think about the fundamental issues underlying the apparent strategic questions of how to get equality and how to empower women...
...One wonders if this supposedly advanced version of feminist ideology has not in the end converged with its erstwhile opponent, traditionalism...
...The possibility that there can be postmetaphysical justifications for universal rights seems to escape the advocates of this position...
...Individual rights for women define women as individuals, outside a family frame of reference...
...Indeed, although each of these arguments against rights is, when pushed too hard, erroneous, the issues they raise cannot be dismissed out of hand...
...difference" —the specific legal problem it poses is whether women ought to seek equal rights or "special" treatment from the law...
...6 At first, however, these feminists also ignored the difficulties involved in trying to include women in the public spheres of work and politics on the same terms as men...
...4 As the dispute over pregnancy benefits shows, the issue cannot be dissolved into the problem of affirmative action aimed at rectifying past discrimination, since certain "differences" between women and men are not the result of discrimination or domination and will not disappear...
...second, that the rights-bearing person enshrined by the various declarations of the Rights of Man is modeled on the bourgeois proprietor...
...Rather, they take rights seriously while seeking to accommodate or confront whatever kernels of truth there are in the three criticisms of rights...
...In short, the debates within the feminist legal community should force serious rethinking not only about sex, gender, and the Constitution, but also the meaning of rights in general and of equality, privacy, autonomy, and neutrality, in particular...
...Those who champion the first position are called equality advocates...
...On the contrary, it has become one of the most hotly debated topics within feminist legal and political theory...
...Should women fight for truly gender-neutral laws and rights, or should they insist upon rights and benefits that reflect the gender-specific experiences of their lives...
...Drucilla Cornell demonstrates that sex-discrimination jurisprudence is plagued by the tensions between identity and difference...
...5 The exception is Charlotte Perkins Gilman with her book Women and Economics (Boston: Small, Maynard), 1898...
...There are several ways to respond to this conflict...
...Postmoderns insist that there is no abstract subject or human essence that can be invoked to justify basic rights...
...The struggle for the right to abortion and the counter "right-to-life" movement (peopled mainly by women) is just the most recent example...
...3 Title VII of the 1964 Civil Rights Act prohibited discrimination on the basis of race and sex in places of public accommodation, in federally assisted programs, and in employment...
...Small wonder that the battle concerning gender is now drawn over who gets to interpret its meaning and who controls the practical implications of such interpretations...
...Snitow convincingly argued that there is no theoretical high ground of neutrality and no obvious strategy that can offer a clear way out of this divide...
...Since, on this view, there can be no justice without taking difference into account, rights and justice turn out to be antithetical...
...And the metaphysical assumption that there is a real, unitary human nature open to discovery and representation by philosophy, which in turn can ground fundamental rights, is here dismissed as a misguided effort to find ultimate foundations...
...As Susan Moller Okin's essay shows, feminists can ignore the gap between formal and substantive equality only at great cost to women...
...9-32...
...What is behind this controversy...
...2000e(k) 1983...
...From this perspective, the liberal ideals of moral autonomy and individual self-development that underlie claims for basic rights presuppose an abstract and ultimately incoherent concept of the self as the subject of rights...
...Frances Olsen and Alida Brill reveal the dilemmas on both sides of the privacy/equality controversy and attempt to address the concerns of each side in the abortion debate...
...Some have argued, however, that underlying the controversy over which kinds of rights women should seek is a more fundamental issue: namely, whether the language of rights in either form is appropriate to empowering women at all...
...As the examples of divorce law reform and sex discrimination jurisprudence show (see Okin's and Cornell's essays), formal equality and gender-neutral laws do not on their own undermine male privilege and power or seriously threaten substantive gender inequality in the labor market or the family...
...The central issue for communitarians is of course not class, but community...
...The problem is that each approach involves double binds and seemingly intractable dilemmas...
...If the bearers of rights are seen as individuals, the heart of the feminist struggle for equal rights lies in the recognition of a woman's selfhood— of her existence as a unique person, different from other women, and with particular interests that might conflict with those of her husband, or even her children, at work, in politics, and in the home...
...The reasoning by women who define themselves primarily as wives and mothers is simple: equal rights seem a threat to the doctrine of separate spheres and to the traditional concept of the family, by bringing women into a direct relation with the state, independent of their mates or brood...
...All that is solid has indeed melted into air...
...However, if a company does not grant disability benefits to anyone, the logic of this position is that pregnant women then have no claim to benefits...
...To be sure, almost none of the equal-rights feminists prior to the 1960s sought to challenge women's traditional roles in the family...
...As I've said, women's resistance to rights is as old as the women's rights movement...
...Thus, the ideal of individual rights is neither an appropriate ethical category for healthy personal relations (whoever said it was...
...As the communitarians see it, the bearers of equal rights are individuals whose relations are purely instrumental or self-regarding...
...The reason for this is the new sense of indeterminacy regarding gender identity...
...Although the debate over rights in general is often couched in strategic terms, there are important underlying theoretical and normative issues that point far beyond the doctrinal matters raised in law journals...
...Two new catchphrases capture the difficulties that women face under these circumstances: the "double burden of the working mother" and the "feminization of poverty...
...Let me cite as an example the controversy that recently emerged within the feminist community over the legal treatment of pregnancyrelated disabilities at work.'- Invoking the 1978 congressional amendment to the 1964 Civil Rights Act,' equal rights feminists argue that women affected by pregnancy, childbirth, and related medical conditions should be treated the same as all other persons in their ability or inability to work, that is, by gender-neutral laws...
...This debate takes place within feminist legal theory under the general rubric of SUMMER • 1991 • 371 Women and Rights "equality" vs...
...Thus, when we criticize the limited or biased form that rights have taken until now, we must not abandon the terrain to the powers that be...
...By the 1970s both "radical" and "equalrights" feminists raised issues that opened the private sphere to public scrutiny...
...Accordingly, the discourse of the sovereign self-identical subject is seen as the dis374 • DISSENT Women and Rights course of the male subject of reason...
...How many of us realize that the main activists against women's rights in the past century have been women...
...For feminists resorting to the Marxist critique it was not a big step to add that the person presupposed by the idea of rights is not only a bourgeois but also a male...
...the second insists on the positive aspects of women's "difference...
...But is the good life in a modern society conceivable without rights...
...on the other, those who want to keep the category while changing its meaning and value in order to challenge existing gender hierarchies and to empower women...
...As such it shores up the class hierarchies typical of capitalist society...
...The concept of universality is a myth that illegitimately privileges the values of unity, totality, homogeneity, and closure over multiplicity, fragmentation, and diversity...
...The challenge that SUMMER • 1991 • 375 Woman and Bights feminist theory poses to those of us who recognize the connection between rights and freedom is the following: For women (and one hopes for men) to continue to take the idea of rights seriously, the core values underlying that idea must be reworked so that women can come to be considered both as individuals, persons, citizens, and as historically situated and embodied women who merit equal concern, respect, recognition, and solidarity...
...But in modern civil societies, which are supposed to be regulated by egalitarian values, it is inegalitarian gender relations that are the real threat to family life...
...Since the 1960s, however, the second wave of equal-rights feminists did and still does seek to undermine the doctrine of separate spheres...
...Still, the challenge to the public/private dichotomy and the doctrine of separate spheres initiated by radical feminists with their slogan that "the personal is political" revealed that women could not gain inclusion in economic or political life on equal terms unless there were fundamental changes in gender relations outside these spheres...
...This is why supporters of 372 • DISSENT Women and Rights the traditional family and of separate spheres mobilize against equal rights for women...
...In many parts of the country, traditional forms of life survive and so do efforts at strengthening them, often initiated by women understandably disenchanted with what the labor market or the world of politics has to offer them...
...The first group embraces an androgynous ideal focusing on what women and men have in common...
...those embracing the second are labeled positive-action theorists...
...None of the articles included in this section adheres to an antirights perspective...
...For the equal-rights position, see Wendy Williams, "Equality's Riddle: Pregnancy and the Equal Treatment/Special Protection Debate," New York University Review of Law and Social Change 13:2 (1984-5), pp...
...If all individuals are moral equals entitled to equal autonomy and respect as subjects capable of pursuing their own life plans, then abortion rights raise fundamental issues of equality despite the fact that they apply only to women...
...This is also a source of the ideology that insists on a natural, biologically based (and morally superior) female identity rooted in the maternal role that requires recognition and protection of women as a group...
...4 The problem is how to discern when truly gender-neutral laws can achieve this goal on their own and when the acknowledgment of difference and special treatment (without stigma) is necessary...
...Debates over whether one should argue for abortion by invoking the right to privacy or the equality provision of the Fourteenth Amendment force one to rethink the meaning of privacy, autonomy, personhood, and identity with reference to the moral postulate of equality...
...5 They saw no conflict between these roles and equal rights or the full inclusion of women in all spheres of life on formally equal terms with men...
...Snitow identified a divide that in one form or another permeates all feminist theory: on one side those who want to undermine the category "woman" so as to minimize the legal impact of sex difference and gender...
...Nor has the issue been resolved...
...In fact, the women's rights movement is the only one I know that has occasioned countermovements by its intended beneficiaries— by women and at times even by feminists...
...Debates over whether equal or special treatment will help women most raise questions about the meaning of equality and its relation to sameness or difference...
...Recently, many feminists have taken up postmodern arguments from the standpoint of gender relations...
...Thus, a society in which individual rights are paramount cannot be a solidaristic community but is alienated, anomic, privatized, and without moral substance...
...6 The term "second wave" refers to the feminist movement that began in the 1960s...
...The arguments of the "third wave" are no longer based on traditionalist or biological conceptions of either women's difference or woman's place...
...2 For an analysis of this controversy, see Lise Vogel, "Debating Difference: Feminism, Pregnancy and the Workplace," Feminist Studies 16:1 (Spring 1990), pp...
...We have come to recognize that the meanings of sex, gender, and the body are not given but are socially constructed...
...In short, the idea of basic rights SUMMER • 1991 • 373 Woman and Rights rests on the ideology of possessive individualism: it presupposes a competitive, atomistic, egoistic conception of the individual that has been generalized from market relations...
...rather, the subject is merely another position in language...
...Like the Marxists, communitarians argue that the type of society presupposed by the theory of individual rights is a competitive market society...
...We asked feminist legal and political theorists to address the controversies within feminist theory over rights in light of the divide between equality and difference and the fluctuating gender identities described above...
...This resistance, more than anything else, has led many feminists to conclude that apparently gender-neutral laws and rights regarding paid work and politics are often based on a male standard, backed up by hierarchical relations within the private sphere...
...I agree...
...New breakthroughs in biotechnology have contributed to this development...
...But what the communitarians fail to consider, in my judgment, is that rights have never been defended as the sole source of morality, and that they come into play in conflict situations when community is already rent asunder...
...They thus appear as a serious threat to those women who define themselves within that frame of reference, as wives and mothers...
...For the positive-action position, see Linda J. Krieger and Patricia N. Cooney, "The Miller-Wohl Controversy: Equal Treatment, Positive Action and the Meaning of Women's Equality," Golden Gate University Law Review 13 (Summer 1983), pp...
...The old Marxist critique of rights drew upon two arguments: First, that formal equality (equal rights) in a society based on substantive economic inequalities is an ideology that conceals and reinforces class hierarchies...
...The contemporary debate over which kinds of rights women should demand reflects the continued force of the divide pinpointed by Snitow...
...In spring 1989 Dissent carried an article by Ann Snitow, "Pages from a Gender Diary: Basic Divisions in Feminism...
...Although none of the pieces succeeds in providing a solution to the divide identified by Snitow, they do advance the discussion by trying to rethink rights in light of gender issues...
...One might conclude that only the extension of women's rights from the political and economic into the private sphere could make rights operate in a genuinely egalitarian manner for women...
...Indeed, by mere virtue of the fact that all of these authors try to address the question of what kinds of rights women ought to claim, they implicitly reject the ideology that places property, possessive individualism, or the male at the core of the concept of rights...
...325-380...
...376 • DISSENT...
...In short, postmodern feminist theory challenges the idea of basic moral or human rights as a dangerous Western, male myth that levels difference while constituting otherness (woman) as inferior...
...The vast majority of women's organizations in the first third of this century fought against passage of an Equal Rights Amendment, insisting that women in the workplace needed protection more than equality...
...And arguments over the need for and against gender-specific divorce laws and the overall meaning of sex discrimination raise questions as to whether the law can ever be both gender-neutral and just...
...As a result, we have to learn to live with the following complexity: women (like men) lead gendered lives and yet are not and refuse to be overdetermined by gender or gender stereotypes...
...Wendy Kaminer proceeds from the opposite starting point, attempting to develop a model of legal neutrality that can accommodate concerns for women's welfare and incorporate a multiplicity of perspectives...
...The communitarian critique of rights-oriented liberalism is a variation on these themes...
...nor an acceptable ideal for the good life...
...298-417...
...The second approach, in opposition to the first one, involves new types of arguments against rights and has led to a "third wave" of feminist theory...
...mobilized against the ERA, on the grounds that it would undermine women's status and prestige in our society...
...In any case, its advocates leave few instruments in the hands of women encountering traditional forms of oppression in the family...
...According to this view, rights thinking, especially if applied to the private sphere, devalues and threatens intimacy, care, relational responsibility, love, friendship, marriage, and the family...
...Still, it is easy to notice that the communitarian critics continue to dream of a society without division, without conflict, and without the risk of the tyranny of majoritarian consensus...
...It was primarily women who organized and ran the antisuffrage movement at the turn of the century.' Many women oppose the use and legalized availability of contraceptives...
...In 1978 Congress passed the Pregnancy Discrimination Amendment to Title VII requiring that women affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment related purposes as other persons not so affected but similar in their ability or inability to work...
...Positive-action theorists, on the other hand, insist that since only women can bear children and the vast majority of women do become pregnant, formally equal rights or genderneutral laws would deny women needed benefits and unfairly disadvantage women workers...
...But as the unresolved controversies over abortion rights (Olsen), the treatment of rape and domestic battery victims, pornography, child care, surrogacy contracts, and so on show, attempts to apply the principles of justice to the "private" sphere (Brill, Okin) have encountered intense resistance...
...We should not underestimate the continued strength of this view...
...The model of rights cannot stop at the threshold of the family any more than at the doors of the workplace...
...Let me briefly explain...
...Although some of us would be quick to attribute only to men the view that women do not need equal rights, this would be misleading...
...Thus, one could easily grant that when the principles of justice are applied to the private sphere they tend to undermine the family —that is, the patriarchal family and the power of the paterfamilias...
...I know of no similar movements by blacks, workers, or ethnic groups in the United States against their own enfranchisement or against the acquisition of equal rights in the polity, the workplace, or civil society...
...That the rights model can incorporate difference on the basis of a wider, more pluralistic, procedural notion of universality is hardly considered by advocates of this approach...
...Finally, the postmodern argument against basic rights involves a challenge to the very conceptions of subjectivity, universality, and human nature that the idea of rights seems to entail...
...Rather, they challenge what are taken to be the conceptual presuppositions of liberal-rights theory...
...On this view, women can be treated equally in the workplace only by being treated differently, . Thus special rights for women as a class seem to be indispensable in this case and probably in some others, if we are to have equality of opportunity...
...I would argue that these approaches confuse history with conceptual structure, for while it is true that property and gender have been invoked to restrict rights, it does not follow that rights are conceptually bourgeois or male...
...513-572...
...the universalistic ideal that has informed philosophies of history since the Enlightenment is taken to be based on the suppression of women's difference, history, and temporality, while the ahistorical and unitary conception of human nature enshrined in the idea of rights obliterates the hierarchical reality of gender relations...
Vol. 38 • July 1991 • No. 3
