Sex-Discrimination Law and Equivalent Rights
Cornell, Drucilla
I want to suggest that we should understand the wrong in sex discrimination as the imposing of a law of gender identity on lived possibilities— whether those oppressed are women who seek to be...
...We can see more clearly the validity of Justice Blackmun's conclusion in his dissent...
...We continually have to analogize our experience to men's if we want it recognized...
...2 42 U.S.C.A...
...SUMMER • 1991 • 405...
...We still need to question a conception of the relationship between sex, sexuality, and gender that denies a gay man the right to seek redress under Title VII...
...2 Jurisdiction allows a person to sue...
...Section 2000e-2) 3 It should be noted that this question is crucial not only in cases of sex discrimination but also in the area of reproductive rights, whether it be a matter of pregnancy leave or the right of abortion...
...As we have seen, the argument is that the complaint is not based on "sex" or gender but on a division within the group of men themselves due to sexual preference...
...Therefore, the division between normal and abnormal "sexual identity" —as long as that identity is based on consent between adults—is taken to be a cultural construction, not a natural necessity, so that the appeal to what is natural cannot justify the state's right to outlaw homosexuality...
...But, of course, to point to the established definition of discrimination only pushes the problem one step further back...
...If we can show that a pregnancy is like a hernia, we can legitimately claim that we are discriminated against as women when our insurance program covers hernias and not pregnancies...
...It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past...
...Unfortunately, in terms of career goals, this accommodation serves only to relegate these women to positions where they have no hope of reaching senior management or achieving partnership...
...Ultimately, however, this reading misunderstands the ethical and political significance of Derrida's deconstruction of the structures of gender identity...
...I want to suggest that we should understand the wrong in sex discrimination as the imposing of a law of gender identity on lived possibilities— whether those oppressed are women who seek to be truck drivers or prison guards or homosexual men who want to be fathers or to have access to desperately needed medical treatment such as AZT...
...As a result, the deconstruction of rigid gender identities can give us a new approach to the two problems I have just described, as well as help us see more clearly the wrong of "sex" discrimination...
...How are we to solve these problems...
...As a result, we can never discover the "true," authentic ground of female identity.' For Derrida, this linguistic code cannot be frozen because there is always a slippage of meaning in the actual employment of language, which, in turn, cannot be separated from the metaphorical basis of language...
...First, however, let us take the problem of whether or not denial of jurisdiction to gay men under the statute can be justified, because the discrimination of which they complain is supposedly not based on sex...
...I advocate equivalent rather than equal rights so as to recognize the difference of homosexuality, which should not have to match itself to heterosexual arrangements in order to justify itself...
...The "mommy track" is one way of allowing women to have limited rights within the job market, given the imposed truth of the stereotypes...
...The best vision of equality by which to justify equivalent rights is Amartya Sen's equality of welfare and capability...
...This reasoning represents the mistake of deriving an "ought" from an "is...
...11 It should be noted that this purpose is consistent with Title VII's intervention into a world of rigid race and sex stereotypes...
...As such, it is normatively suspect for limiting possibilities when this limit is not only unjustifiable by reference to a pregiven nature or gender identity but also "causes the misery" i° by denying a fulfilling sexual life to gay men and women...
...This new choreography challenges heterosexuality as the norm...
...Here we are returned to the second category of equivalent rights, now understood to cover those aspects of life and lived sexuality that allow women to live full lives...
...Thus, this condemnation should be understood as sex discrimination...
...Let me take note of two aspects of Jacques Lacan's analysis of the division of human beings into two "sexes...
...How can we take this actual difference into account...
...Without this distinction, the opinion rests on a tautology...
...But there is also the implied assumption that heterosexuality is "normal...
...Because the Supreme Court found no unconstitutional violation in Georgia's criminal statute and because criminal law is governed by the state unless a particular law does not pass constitutional muster, the state was found to have the "right" to outlaw homosexuality...
...Here we see how implicit conceptions of human nature and, more specifically, sexual identity, affect a concrete decision...
...Under the Court's doctrine, the wrong of sex discrimination is seen not as the imposition of stereotypes per se but the imposition of stereotypes that are not "true" —that is, when the stereotypes are not an adequate description of the actual life of the person...
...Some judges at least have appealed to the past when heterosexuality was established as normal, and made this their justification for the right of states to make it a crime...
...5 For Blackmun, this right could not legitimately be withheld without some justification, other than SUMMER • 1991 • 401 Women and Rights it had always been withheld...
...Denida, on this reading, is accused of the restoration of feminine stereotypes through his very deconstruction of gender identity and, more particularly, of a graspable female identity that could provide us with a basis for a specifically feminist politics...
...Second, because Lacan recognizes the role of fantasy in the assumption of gender identity, he also understands that there can be no complete identification of oneself with one's gender...
...Even if we can interpret Title VII to challenge conventional gender stereotypes, we still have to face those circumstances in which the differences between men and women, masculine and feminine, cannot be reduced to imposed convention, even the imposed convention that women are primary caretakers of children...
...1° Wilhelm Reich, Reich Speaks of Freud: Conversations with Kurt Eissler, ed...
...As of now, women and men must still have a different relationship to reproduction because it is women who physically bear children...
...Homosexual activity is outlawed by the state statutes because it is "unnatural," "abnormal," or "perverted...
...But Justice White returns us to the state statutes and to the explicit appeal to what is "natural" and, therefore, "right" in terms of sexual identity...
...There, White concluded that the "privacy right" established in the line of cases from Griswold through Roe and Carey did not cover homosexual activity...
...Discrimination, so defined, is based on a comparative evaluation between the genders...
...If there is a vision of equality that justifies equivalent rights, it is equality of welfare...
...But that does not mean that women should not have such a right guaranteed if they are to have equality of welfare...
...It is a mistake, then, to think that Derrida reduces Woman to the definition of lack or fundamental nonidentity...
...Her worry—and it is a worry frequently articulated in feminist political critiques of deconstruction and postmodern philosophy more generally— is that Jacques Derrida's deconstruction of gender identity reinstates the patriarchal view of Woman as the mysterious Other, without a knowable essence, substance, or identity...
...Because he understands that language cannot be cleansed of metaphor, Derrida can show us that what shifts in language, including the definition of gender identity and the designation of the feminine as 402 • DISSENT Women and Rights the lack of the phallus, can always be interpreted...
...Title VII prohibits the use of discriminatory employment practices on the part of an employer...
...The best example of the logic of this particular circle is in Justice White's majority opinion in Bowers v. Hardwick...
...Derrida would also remind us that heterosexuality and homosexuality are given their current meaning only as they divide the human race sexually into two genders, male and female...
...These rights are equivalent because they allow difference to be recognized without women having to show that they are like men for legal purposes or having to make sacrifices because our "sex" is "unlike" men's...
...In spite of his recognition that gender as a cultural structure determines sex and sexuality and not the other way around, Lacan's analysis emphasizes the way the law of this division is self-replicating...
...Thus, against the backdrop of a new choreography of sexual SUMMER • 1991 • 403 Women and Rights difference, the very reinforcement of stereotypes can be understood as discrimination...
...We need a vision of equality if we are to protect equivalent rights from degenerating into a new defense of "separate but equal...
...As a result, such "rights" are not "equivalent...
...Can Justice White's blindness to this obvious reality be separated from his own implied acceptance of heterosexuality as the "natural" and, therefore, right way to live...
...Mary Higgins and C.M...
...This assumption is necessary to justify the appeal to the reality that homosexuality has been historically and legally condemned...
...In the space of that separation we can open up further transformative possibilities...
...and Amartya Sen, Choice, Welfare and Measurement (Cambridge: The MIT Press, 1982...
...We can now return to why both Lacan's and Derrida's interventions into the Lacanian analysis of the gender divide can help us rethink the wrong in discrimination and, more specifically, help us solve the two problems in discrimination law I indicated earlier...
...Second, it allows for affirmative measures on the part of the state to restructure current work arrangements to guarantee equality of welfare and capability...
...The very idea of gender is itself always shifting, because there can never be any end to the divergent interpretations of the meaning of gender in an "accurate" description of sex or sexuality...
...But if we accept that the wrong in discrimination is the imposition of gender identity when it cannot be adequate to enjoyed sexuality or lived individuality, we can begin to rethink whether or not discrimination should be limited to the imposition of a false stereotype...
...Derrida reinterprets Lacan's insight into what is perceived as the inability to separate the theories about the truth of Woman from the fictions in which she is represented and in and through which she portrays herself...
...Sen defines equality of welfare and capability as follows: "[Clapability reflects a person's freedom to choose between different ways of living...
...Derrida avoids this pessimism and instead emphasizes the political and ethical significance of the way in which lived sexuality never perfectly matches the imposition of gender identity...
...What this means concretely under our current law is that if a stereotype can be shown to be true—true here understood as an accurate description of reality—for example, that women cannot meet the long hours required by law firms when they have children and therefore fall short of the requirements for partnership, then there is no legal discrimination...
...Now, I want to propose a first sense of equivalent rights...
...Paper prepared for a conference on the Quality of Life, organized by the World Institute of Development Economics Research [WIDER] held at Helsinki, Finland, July, 1988...
...q Notes I say conventionally interpreted because there are dissident circuits and judges who not only do not make this mistake but who also strive to expose the dangers inherent in the imposition of these kinds of stereotypes in the area of sex discrimination law...
...The imposition of rigid gender structures may well mean that women have been forced to define their lives within those structures...
...Under this reading, the "mommy track'"` would be wrong because it reinforces the very gender divide in which "mommies" mother...
...The first is that Lacan's recognition of the way in which language constructs meaning rejects any attempt to root sex, sexuality, and gender identity in a fixed or pregiven nature or set of libidinal drives...
...See, for example, Felice Schwartz, "Management Women and the New Facts of Life," Harvard Business Review (January–February 1989), p. 65...
...For Lacan, there is no outside referent in which the process of interpretation of sexuality comes to an end, such as nature or biology, or even conventional gender structures...
...For example, to challenge the devaluation of childbearing we must insist on the recognition of feminine difference, and this difference must not be interpreted so as to devalue us...
...Under current sex-discrimination law, as conventionally interpreted,' the wrong of discrimination is that a universal standard is imposed on an individual who does not match that universal...
...The political struggle against the suffering of women that goes unnoticed by the law involves a recognition of feminine difference in those circumstances when we are different, as in our relationship to pregnancy, while simultaneously not reinforcing the stereotypes through which patriarchy has attempted to make sense of that difference and has limited our power because of it...
...For example, if a job requires that the employee lift two hundred pounds, and a woman can lift two hundred pounds, she should be able to take on the job even if women generally could not meet the job requirements...
...at 199 (Blackmun, J. dissenting...
...Derrida, especially through his intervention into the psychoanalytic theory of Jacques Lacan, can help us challenge the categories of the person, sexual difference, and gender identity that have blocked our thinking about what legally constitutes sex discrimination...
...This supposedly follows from the comparative analysis that contrasts the status of men and women rather than the competing status within the class of men...
...Feminists, on the other hand, have militantly rejected the so-called nonidentity of Woman as one more mystification that justifies the subordination of actual women...
...Raphael (New York: Farrar, Straus & Giroux, 1967), pp...
...On this definition of discrimination, equality depends on the demonstration that a woman is like her male counterparts...
...The obvious examples are, of course, those that seem inevitably to characterize sexual difference as anatomical difference, not just role difference...
...Second, I will advocate a program of equivalent rights that allows us to respect diversity and different lifestyles and, by so doing, will challenge the reigning doctrine of discrimination employed by the Supreme Court...
...Lacan thereby undermines the claim that patriarchy is in any way mandated by the nature of biological sex...
...I want to suggest that the prevailing definition of discrimination rests on the identification of gender, sex, and sexuality and on a certain distinction between normalcy and perversion...
...But before doing so, let us turn to our second problem in discrimination law: the difficulty of finding discrimination under Title VII when women, because they seem actually to be different, are "accurately" stereotyped...
...Clearly suspicious of the basis of the privacy right itself, White further concludes: Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case...
...Reinterpretation of the gender hierarchy, in other words, makes possible the transformation of current structures of gender identity...
...5 See id...
...For 404 • DISSENT Women and Rights our purposes here, we need only a very thin theory of the good to fill in what constitutes well-being...
...But, of course, women are still expected to make sacrifices in their lives because they mother...
...The very process of stereotyping could then be understood as itself a wrong, because it forecloses individual possibilities in the name of "gender," which in turn rests on the implied identification of gender and "sex...
...As a result, Justice White rejects the Eleventh Circuit's holding that the Georgia statute violated the respondent's fundamental rights "because his homosexual right is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment...
...42 U.S.C.A...
...I distinguish between sexuality, sex, and gender in the following way: sexuality is meant to indicate that we are all creatures of the flesh with physical desires...
...The statute states, in relevant part, that: (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because such individual's race, color, religion, sex, or national origin...
...To show discrimination under the statute, one must compare the class of women to the class of men...
...First, homosexuals should be given the equivalent right to be left alone in their intimate associations, whether or not they choose to mimic the life patterns of traditional heterosexuals...
...First, the psychoanalytic perspective I have developed here can help us think differently about sex discrimination against gay men...
...or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin...
...Sex is used to indicate genital difference between men and women, 400 • DISSENT Women and Rights which has often been taken to be the basis of gender identity...
...3 Men clearly do not need the right of abortion...
...Thus, there is no biologically based gender identity and, correspondingly, no normal, mature sexuality that can be understood as the culmination of the proper development of the libidinal drives...
...We will return shortly to why a psychoanalytic perspective, and more specifically to the analysis of sexuality, sex, and gender in the works of Jacques Lacan and Jacques Derrida, can help us dismantle the legitimation of heterosexuality as "natural...
...The right of abortion is a classic example of equivalent rights for women...
...Amartya Sen, "Inequality Reexamined: Capability and Well-Being...
...at 190-91 (1986...
...Under this conception of discrimination, heterosexual white men can sue because of the imposition of an inaccurate stereotype according to which they are judged exclusively on the basis of their gender...
...This would imply that neither women nor men can be identified with their biological sex...
...Thus, white heterosexual men have been granted jurisdiction under Title VII of the Civil Rights Act of 1964...
...Thus, for Title VII purposes their complaints as gay men have not been understood as sex discrimination...
...As for the question of jurisdiction under Title VII: if gay men are discriminated against because they do not fit into the traditionally defined properties of the masculine, then they are being discriminated against because of their supposedly "aberrant" sexuality...
...The state's right to outlaw homosexuality was what was at stake in Bowers...
...If mothering is a valued social activity, then there should be no sacrifice of either status or pay, and, of course, in the name of collapsing the gender divide and imposed stereotypes, we should encourage men to take up this activity...
...Derrida shows us not only that such a rigid designation of human being is arbitrary but that it also curtails possibilities of a sexuality lived differently...
...Without such an implicit appeal, Justice White can only rely on the "fact" that most states—and this remains true today—impose sanctions on homosexual activity...
...12 Some women have taken the view that corporations ought to recognize two different groups of women managers: those who put career first and those who need a flexible schedule for personal reasons...
...From this point of view, gay men suffer "sex" discrimination precisely because the reality of their "sex" and sexuality is denied in the name of a gender identity imposed upon them...
...Difference, in the sense of being unable to meet the norm, must be shown, not just assumed on the basis of generalizations about gender...
...Title VII should disrupt the status quo of gender hierarchy rather than establish its reinforcement...
...Under this reasoning, the differentiation would be between two groups of men, heterosexual and homosexual, and not between men and women...
...The possibility of reinterpretation of the meaning of the gender hierarchy itself is what keeps open the space for Derrida's "new choreography of sexual difference...
...Under the current standards, the only way feminine difference can gain legal status is, ironically, to obliterate itself or to define itself in already-accepted conventions like the "mommy track," an arrangement whereby women who need a flexible schedule to meet the needs of their families are given the "opportunity" to work part-time...
...Gender is the meaning given by conventional structures to the reality of genital difference...
...Sections 2000e-2000e-17...
...13 The economist Amartya Sen is the leading proponent of the concept of the vision of equality referred to in the economics literature as the equality of welfare...
...14 Such a view of equality is important for two reasons: First, it allows for the respect and recognition of diversity and different life-styles...
...8 This phrase is the keynote of Derrida's "Choreographies," supra note 2. 9 In the Summer 1989 Dissent, Seyla Benhabib argued that the alliance between feminism and so-called postmodern philosophy is, at best, uneasy...
...4 478 U.S...
...See, for example, Judy Mann, "The Demeaning 'Mommy Track': Separate and Unequal," the Washington Post, March 15, 1989, p. C3...
...6 If, however, we go one step further and say that there is no normal gender identity based in our "sex" that makes homosexuality "unnatural," then there can be no such justification for "outlawing" such homosexual activity...
...The irony, however, is that gay men have been denied jurisdiction under the same statute because their complaints have been found to involve discrimination on the basis of sexual orientation...
...It must only include the need to have the value of one's sex and sexuality recognized as of equivalent worth to the life-style of white heterosexual men...
...This was the project of some earlier feminist Freudians and post-Freudians who wanted to salvage the truth of femininity so as to understand our unique identity...
...I will argue that this interpretation is insufficiently inclusive of what should be considered sex discrimination...
...For Blackmun, the right involved in Bowers is the right of consenting adults to be left alone in their intimate associations...
...As we have seen, Lacan's own denial that there is a pregiven sexual nature that determines gender rejects the validity of the concept of perversion or even the concept of a normal, mature social identity...
...9 Rather, he argues that "sex" and "gender" are not identical...
...We also have to question why, when women are "truly" different, they cannot claim that they have been discriminated against or treated unequally...
...If you are granted jurisdiction, you may proceed with your case...
...Against the possibility of a "new choreography of sexual difference" that can never be foreclosed, we can then redefine the wrong in discrimination...
...No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent.' Of course, if one is a homosexual, the right to engage in homosexual activity has everything to do with "family, marriage, or procreation," even if the standard rights of heterosexual engagement have been denied to gay and lesbian couples, and even if gay and lesbian couples seek other forms of intimate association...
...Thus, even if Lacan understands the situation of women within patriarchal culture and society as an unnecessary subjugation—if by unnecessary we mean not by nature—he still sees change in the gender structure as well nigh impossible...
...Others take a stronger stance, demanding equal pay and an equal sense of entitlement for women...
...See, for example, Amartya Sen, Resources, Values and Development (Cambridge: Harvard University Press, 1984...
...In other words, women are imprisoned by stereotypes that limit their options...
...It is the imposition of rigid gender identities on sexual beings who can never be adequately captured by any definition...
...This recognition of the equivalent rights of homosexuals is, to my mind, the best interpretation of Blackmun's dissent in Bowers...
...He also argued that there was nothing in the Constitution or the Bill of Rights, in spite of the interpretation of precedent, that guaranteed any fundamental right to homosexual activity...
...Quoting Justice Holmes, Blackmun reminds us that It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV...
...42-43...
...This issue is not merely a question of why women should have to meet an already established male norm, which, of course, assumes that in a patriarchal society what appear as neutral standards will often implicitly assume the male to be the norm...
...6 See id...
...I have already discussed how the standard definitions of discrimination specify the illegal harm to be the imposition of a "false" stereotype...
...Without such a right, women cannot aspire to achieve the most basic sense of well-being, some limited control over reproductive capacity...
...In this sense, Lacanianism refutes the traditional Freudian conception of sexual perversion, which turns on an account of the "normal" maturation of sexuality into heterosexuality...
...The question is how difference can be taken into account even when that difference is an "accurate" stereotype.' This problem has been central to the feminist debates as to how the issue of maternity, including maternity leave, prenatal care, and abortion should be legally addressed...
Vol. 38 • July 1991 • No. 3
