Transcript Gender in Philosophy and Law

Philosophy of Law
GENDER STUDIES:
A GENERAL BACKGROUND
Libera Università Maria Ss. Assunta (LUMSA)
Philosophy of Law
Course reference for final exam preparation:
L.Palazzani, Gender in Philosophy and Law, Springer, Dordrecht
2012
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 1. defining our field of enquiry
 2. the role of “Gender” in philosophy and law
 3. the interdisciplinary nature of the sex/gender debate
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1. Defining our field of enquiry
 Preliminary remarks
ʽGenderʼ denotes:
a conceptual category referring to things or persons that
share essential properties (e.g. kind, species, class, type). It
refers to human kind.
the grammatical category distinguishing between masculine
and feminine (male/female distinction).
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At a linguistic and semantic level the structural
ambiguity of the term is manifest, as it can be
used both to indicate individuals belonging to
the human species (including males and
females) and to point out the male/female
distinction.
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Conceptual definitions:
Sex indicates the biological condition of man and woman, of the
male or female being (how one is born). Our genetic, gonadal,
hormonal, genital, morphological condition. It denotes how we are,
our natural condition.
Gender refers to the interior psychological perception of one’s
own identity (how we feel), but also the exterior social, historical
and cultural condition (how we appear to others) in behaviour,
habits and roles that are given and assumed by masculinity and
femininity. It designates how we become, our acquired condition.
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The use of Gender in feminist thought:
It indicates women, privileging the peculiarity of the female condition in
employing the term, based on the assumption of their historical, social
and cultural disadvantage with respect to men, therefore, requiring
special consideration.
Simone de Beauvoir in Le deuxième sex (1949) addresses the issue of
the subordination of women, investigating the underlying reasons for this
condition through a detailed analysis carried out in biological,
psychoanalytical and historical terms. The author argues that «one is not
born a woman, but becomes one» (due to internal biological and
psychological conditions, alongside external social and historical
conditions. A woman is not a “fixed reality”, but a “becoming”.
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As a consequence, Gender covers several meanings:
human gender
male/female gender
female gender
What is the relationship between sex and gender?
One naïve answer is to consider that the meanings of the two terms
overlap indifferently, arguing that gender is only a preferable
expression compared to sex, since it is more polite.
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Sex/gender theories
We must take into account the structured theoretical debate
between:
- biological determinism (pre-modern theory), reducing gender to
sex;
- social constructionism (modern theory), separating gender from
sex;
- deconstructionism (post-modern theory), thematizing a priority
of gender over sex.
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In other words, a debate among those arguing that:
- there must be a correspondence between sex and gender (biological
determinism), i.e. between how we are and how we become
- there may be no correspondence between sex and gender, i.e. we can
become different from how we were born (social constructionism)
- only what we become really matters (deconstructionism)
A debate between those on the side of nature (claiming a priority of sex
over gender) and those on the side of culture (in favour of a priority of
gender over sex).
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Critical issues
The question becomes increasingly complex whenever considering
that, following the broadening of scientific knowledge, sex
determination is not only directly connected with what appears at
the moment of birth:
The cases of children born with genital ambiguities/sexual
indeterminacy;
Adults discovering the incongruity between acquired identity and
genetic sexual belonging
These two cases are empirical proof of this.
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Possible outcomes
In this context, gender is separated from sex to designate an identity
being shaped by a feminine/ masculine-oriented education, following a
medical transformation of the body, in an attempt to achieve a difficult
sex/gender correspondence.
It is no coincidence that the distinction between sex and gender was born
in the field of psycho-sexology, with the purpose of looking for a
theoretical and practical answer in such difficult cases:
- gender variability made it possible to explain sexual identification even in
cases of sex reassignment
- psychoanalysis expounds sexual identification as the gradual process of
gender identity acquisition in correspondence or opposition to sex (i.e.
transsexualism) or in cases of non-correspondence between the sex
embodied and the gender experienced psychologically.
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2) the role of Gender in philosophy and law
Gender in philosophy and law takes on two ambitious
tasks: disambiguating the confusing ways in which the
language of “sex” and “gender” have been used and
explaining how law ought to address issues of sex and
gender, in light of the recent treatment of sex and
gender in international and European law.
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3) the interdisciplinary nature of the sex/gender debate
The debate by psycho-sexology and psychoanalysis was taken up by a set
of feminist orientations with different modalities and arguments at many
levels:
- sociological
- cultural-anthropological
- philosophical
Main goal:
investigating reasons for the disadvantaged condition of women in history,
society and culture.
According to a number of feminist theories, the way in which gender was
constructed, or the cultural and social expectations towards women,
alongside the assigning of roles to them, linked to their biological
condition, led to the subordination of women with respect to men.
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Feminism and social constructionism
A new construction of gender at a social and cultural level which sets aside
sex is viewed as a chance to achieve a position, if not of advantage, at
least of equality and symmetry with respect to men.
In this perspective, the use of reproductive technologies is seen as a way
for women to have children without a partner, without pregnancy and
without childbirth (i.e. heterologous assisted fertilization techniques or
surrogate motherhood). It is called ʽgender revolutionʼ, like a sort of
second sexual revolution:
- the first one was aimed at the sexual liberation from inhibitions and
repressions of moral norms for the affirmation of free love transforming
ʽpolitics into sexʼ
- the second revolution transforms ʽsex into politicsʼ, modifying sexual
politics towards a transformation of the sexual relationship meant as a
relationship of power/subordination
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A conceptual shift from modern to post-modern lines of
thought:
 In this context, gender already previously set free
from sex, multiplies itself in ʽdifferencesʼ, strictly and
intentionally declined in the plural form.
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ʽSexuality studiesʼ:
 Gender denotes not only individual psychological, social
and cultural identity acquired regardless of sex, but also
sexual orientation or the choice and preference with regard
to the relationship with the other person of the same sex,
opposite sex, as well as of both sexes.
 The debate on heterosexuality, homosexuality and
bisexuality arises from this assumption.
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Post-gender theorisations
In post-modern thought, post-gender theories are drawn up:
Post-gender means beyond gender, de-constructing both sex and
gender, moving away from nature which is considered irrelevant, but also
from culture, perceived as the cause of ʽnormalisationʼ/ʽnaturalisationʼ, e.g.
the restrictive imposition of assumed roles.
To deconstruct means ʽun-doingʼ sex and gender, in favour of transitory
instinctive pulsionality of multiple and plural identities( both male and
female or neither male nor female identities, i.e. trans-gender), deeming
any homo/hetero/bisexuality equivalent.
This perspective rises against every paradigm that may claim complying
with a hetero-sexual social model (standardisation)
The exaltation of in-difference, neutrality, which ends up denying identity
itself.
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 Post-modern
theories get to the point of
challenging sexual binarism (e.g. the sexes
are two and opposite) and heterosexism
(which declares the privilege of unions
between two opposite sexes).
 These
theories exalt sexual polymorphism and
pansexualism, which admits any tie between
sexes.
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Practical examples:
For the first time, in Australia, a man/woman asked for the
registration of a neuter sex.
In Canada, two parents have not revealed the sex of their
son/daughter with the intention of raising him/her ʽwithout sexʼ so
that he/she can decide freely.
Post-modern theories are extremely provocative. It is not easy to
foresee the developments of the gender debate, due to its interdisciplinarity and non-systematic nature, alongside an underlying
intention to not express the reasoning clearly.
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Problematic scenarios
-
the cases of sexual ambiguities at birth show that even the
determination of biological sex is not univocal
-
the cases of psychological non-recognition of one’s identity in the
body (transsexualism)
-
the provocative cases of trans-gender claims of neutral identity
are increasing (in the sense of accepting/exalting ambiguity
identified with the co-existence of both female and male features,
or perhaps neither male nor female ones.
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The concept of neutrality and relationships
Neutrality also affects the relationship between
individuals, outlining a comparability between
hetero/homo/bisexuals. The relationships of men with
men, women with women (also more than two), of
transsexual and transgender persons with each other
are placed on an equal footing. Everything becomes
indistinct and indistinguishable.
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The queer theory
 The post-modern fragmentation of the concept of
gender is exemplified by the queer theory.
 The gender category is replaced with queer to denote
how the diversity must not be considered ʽstrangenessʼ
but ʽnormalityʼ, eliminating any distinction between
normal and abnormal, by the very denial of every
diversity. Individuals create their own identities,
unconstrained by the strictures of biology, social
constructions, or cultural constructs.
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This raises many questions:
Are males and females really different? To what extent
and how?
Can we be neutral, i.e. neither men nor women or men
and women?
 Is the fact that a certain identity is given to males and
females and a role according to their anatomy a natural
fact or convention? What is the source of individual and
relational diversity, biology, culture or individual will?
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Gender studies are often ignored by public opinion. However, they have already
begun to produce effects at different levels:
juridical
social
political
This is maybe caused by the very ambiguity and the non-immediate understanding
of the language. A real silent paradigmatic subversion is even suggested, through
educational, cultural and political institutions, with the aim of transforming society:
the so-called ʽgender agendaʼ/ʽgender mainstreamingʼ.
The term ʽgender ideologyʼ is also used to indicate the studies that have debated
this issue in connection with gender identity, but also to the ideology underpinning it.
Ideology means a structured system of ideas formulated and theorised at a
philosophical level, which is proposed as a total interpretation of the social and
historical reality, in order to reach the above-mentioned transformation of society,
according to the suggested social model.
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The gender ideology proposes the following theorisation:
 the irrelevance of nature for sexual identity
 the irrelevance of sexual difference for setting up a family,
exalting freedom as a result of individual desire
 a ʽsex-lessʼ society, without sexual identity and sexual
difference.
 It is important to reconstruct the debate to understand if it still
makes sense to ground sexual identity in nature, whether sexual
difference in the relationship still matters.
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Our goal is to:

analyse the different theories that have dealt with
the gender category, highlighting the theoretical and
philosophical aspects, while devoting particular
attention to the sex/gender dichotomy.

We will mainly refer to the Anglo-Saxon literature in
which the debate is considerably developed,
alongside the international one.
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Setting our focus:
The sex/gender debate is structurally interdisciplinary, relating to
the scientific areas of genetics, biology, endocrinology, anatomy,
physiology, neurology and the field of human sciences (i.e. history,
sociology, cultural anthropology, psychology, psycho-sexology,
psychoanalysis, etc.). Particular reference will be made to the
common applicative issues:
intersexuality
transsexualism
transgender
homosexuality
bisexuality
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A roadmap through theories in order to achieve a critical
stance:
 From a juridical point of view, the introduction of the term
gender without providing any explanation is evident. It is
possible to grasp its meaning by analysing the philosophical
debate.
 Our focus will shift from the de-construction of gender to a
possible philosophical-juridical re-construction of the
importance of nature in sexual identity and of sexual
difference within the family relationship.
 We will disclose the dangers of an in-different law, the
contradictions and ambiguities that arise behind the appeals
to equality and non-discrimination, in order to call for a
central role of the fundamental rights of the person before
gender claims.
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 Theoretical connections between social constructionism
and feminist perspectives
Gender and sociological approaches:
 Gender thematisations in the psychosexological and
psychoanalytical field share the critique of biological
determinism
 Other theories in the sphere of social psychology and sociology
elaborate criticism of the naturalistic paradigm, thematising the
priority of the social assumption of gender role for the perception
of gender identity in relation to sex.
 Society has a decisive influence on the perception of subjective
identity. It is the theory of “gender socialisation” bringing
together the perspectives that explain the acquisition of gender
as identity through a dynamic process of socialisation/social
learning, leading to a certain way of feeling inwardly and acting
outwardly.
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 Gender performance
 Gender coincides with the acting and carrying out of
behaviour that expresses and represents identity in
role, with regard to body changes, interaction and
conversation
 The theory of gender performance argues that
gender falls into the dimension of “doing”: it is not the
reflection of traits inherent to individuals, but the
product of social interaction
 Sexual identity of assignment of sex (male/female)
depends on acting, i.e. acting determines gender,
both as role and as identity.
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 According to functionalists, diversity in the
evolution of men and women is caused by the
different need to achieve the complementary
functions essential for survival.
 Sociobiologists explain different behaviours of
men and women as linked to different
reproductive strategies that have evolved to
ensure survival.
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 Doing gender theories:
 They interpret socialisation as an active process that is not reduced to
mere passive internalization of external expectations, but implies and
involves negotiation and modification
 The “agents” of gender socialisation are identified as family,
communication and social expectations. The family is the primary
source of socialisation (the first institution children enter into). From
birth onwards, parents start to treat children in different ways,
addressing them with specific language, dressing them in certain
colours, entailing a symbolic value that helps others to interact with
them.
 Family communication is a further source of socialisation: it
encompasses a particular way of communicating, more emotionally for
females and more rationally and action-directed for males.
 Different social expectations strengthen gender identification, guided by
the family. The agents of socialisation encourage the development of
traits and behaviour directly or indirectly.
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 The theory of social role:
 It explains the development of gender in relation to society,
detecting social stereotypes as the root of role production.
 Features of gender stereotyping:
 the common beliefs about people based on belonging to social
categories
 they vary according to physical characteristics, psychological
traits (aggressive and competitive in men, cooperative in
women), behaviour (justice-oriented in men, subordinate, careoriented in women), alongside task/functions (participation in
public life for men with regard to the economy and political
power, the private realm of domestic life for women).
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Social Constructionism
 A theory developed in the field of sociology, having a major
impact in the philosophical debate on gender.

“Constructionism” refers to “constructivism”. Constructivism
is a philosophical and epistemological theory according to which
it is not possible to objectively represent reality, given that the
sphere of our experience is the result of our constructive activity.
Nothing exists in itself, regardless of the person who brings it
into being.

Therefore, constructionism is a sociological theory that
applies the constructivist theory to society, believing that society
is the building process through which people create not by
means of their being, but through action and interaction, a
common reality, experienced as objective.
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Main lines of thought:
 This theory does not investigate what people “are”, but what
they “do” together as part of the social relations in specific
historical and cultural contexts. It has contributed to the social
elaboration of gender.

Starting from the undisputed fact that there are two sexes
(man and woman)/sexed identities, the gender category refers
to socialisation (gendering process) and the result of this
process (male/female division in society).

As a consequence, social constructionism states that the
source of gender is not nature, but history, along with human
action/interactions. Gender becomes the construction of
femininity and masculinity: it is an external creation, influenced
by society and determined by culture.
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Socialisation process:
 It is constituted by the widespread association
repeated in time between one sex
(male/female) and specific social
actions/practices (roles, responsibilities,
expectations).
 In this framework, there is a regular
association of female with the reproductive
and domestic role and male with the
economic and political role.
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 The male/female distinction becomes social opposition of the
sexes/genders. The opposition means that belonging to one sex
implies (at the historical-social level) the possession of
conflicting characteristics:
 to be a man means not being a woman/not assuming the role of
women and vice versa
 hierarchy does not come from natural distinction, but from the
social construction associated with it, insofar as society
privileges one category, placing it in a position of
superiority/exclusivity, while devaluing the other.
 Constructionism argues that people are not marginalised
because different with respect to sex, but different owing to
marginalisation in relation to gender.
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A turning point for theorisation
 Social constructionism does not stop at the description of the
social emergence of gender, but devotes attention to power
relations between gender roles.
 The theories of this perspective point out the emergence of
models of gender identity/difference that devalue women and
the female role. However, it focuses on a preliminary
assumption:
 men and women can take over both spaces or life styles (i.e.,
women can participate in public life and man in private life, it
being an issue of gender or social role, not of biological sex)
 Social constructionism suggests new models that revalue
women with respect to men, believing that social status is
changeable, de-constructable and re-constructable
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Subordination and oppression are “unnatural”
inasmuch as they are not rooted in nature,
but conveyed by society and culture.
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 This theory does not oppose, in principle,
sex/gender dualism
 It rather detects the contrast, highlight the
strong interaction between nature and
society. On such grounds, constructionism
considers that ignoring this interaction leads
to a distorted way of understanding our body
(as inert matter) and society (as not influential
on nature).
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 This theoretical orientation is not opposed to
identity categories (as in post-modern
constructionism):
 Sexual identities (men and women) do not
have predetermined essence. Although,
neither are they elusive due to their instability.
 They have variable content changing in
society and history, as part of a material
process.
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the cultural construction of gender
 The theorisation of gender as cultural construction is
along the same lines:
 An innate and unchanging character of sex
“uncontaminated by cultural influences” is deemed
inexistent and unknowable.
 Ann Oakley (a British sociologist and feminist) points
out that gender is a “matter of culture”, as it refers to
the cultural classification of masculine and feminine
in opposition to sex, that biologically distinguishes
male from female. Therefore, biology has a minimal
role in the development of gender identity, while
gender is not a direct, mechanical and automatic
product of sex.
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Gayle Rubin ( American cultural anthropologist):
 the author identifies in the sex/gender distinction the most
effective conceptual pair to express the male/female relationship
 sex indicates the natural difference that in itself does not
produce different social roles
 gender refers to the roles produced by culture and the sociohistorical context
 The sex/gender system encompasses the set of measures
related to the organisation of human sexual relations or
“institutional forms of sexuality” (for instance, through the
structure of marriage)
 She believes that the difference in roles is shaped by culture,
regardless of sexual difference
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The sex/gender system according to Rubin
 In Western societies, it has mainly led to the
dominion of men:
 heterosexual marriage and the division of labour
based on sex caused the attribution of the maternaldomestic role to women and of the public role to men
 Sexual asymmetry has determined social asymmetry
from which the oppression of women and, at the
same time, the perception of “compulsory
heterosexuality” are contingent.
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 According to Rubin, gender is not only the
identification with one sex, but also the obligation to
direct sexual desire toward the opposite sex.
 In this sense, there should be a denaturalisation of
the subordination of women/men, as well as the
heterosexual choice.
The sex/gender system is a series of ways dealing
with gender identity and sexuality and identifies with
the cultural and social organisation of gender, as a
structure subject to transformation and development
in space and time. It represents the series of
strategies through which the biological material of
sexuality and procreation is shaped by human
intervention.
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 The author emphasizes that what feminism
has to fight, so that women can achieve a
position of equality to men, is not the
difference of sex, but the difference of
gender:
 gender needs to be eliminated, sex liberated
from roles imposed by gender
 one method to reach an equal position should
be through the expansion of care to the father
alongside the mother
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Feminist theories: equality/difference
 The theory of social constructionism is elaborated within the
field of sociological and cultural anthropology, closely connected
with some feminist orientations.
 Starting from the 70s, Feminist philosophy frequently relies on
the use of the gender category, in relation to the debate
involving the relationship between men/women.
 The core concept of feminism is the search for the origin of the
phenomenon of sexual discrimination, generally referred to as
“sexism”, in the sense of patriarchal androcentrism. It is in this
context that some theories fit into the sex/gender debate,
applying the conceptual distinction specifically to the feminist
issue.
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Feminism thematises the gender category as
distinct from sex in the analysis of the
man/woman relationship (only marginally in
relation to sexuality). The idea that develops
with increasing conviction is that gender does
not coincide with sex.
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 On the basis of the thematisation of the
distinction of sex/gender, a part of feminism
envisages the possibility that the male/female
hierarchy is overturnable:
 The conceptual pair sex/gender is theorized
first implicitly, then explicitly in the various
liberal, socialist and radical stances.
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Early feminism
 It focuses on the categories of equality/difference and only
implicitly on gender:
 the sexual difference of men/women is considered irrelevant, in
a prospective of egalitarian assimilation of man
 The reason for the oppression of women is found in society
(therefore in gender) and not in the sexual condition.
 Equality becomes an absolute paradigm
 Subsequent explicit shift to the categories of sex/gender. It is
outlined in gender feminism as opposed to the equality
feminism. The sexual condition of women, understood as the
anatomy of the female body and reproductive function in the
gestational sense (pregnancy, childbirth, breastfeeding) is
considered to be the root of women’s inferiority in relation to
men, and their condition of subjection.
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Women have acquired a private, domestic and
caring role, because of their biological
condition. This hinders their participation in
public, social, political and economic life to
which men have access.
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Feminism and sex/gender separation
 Through this distinction feminism intends to liberate
women from marginalization and make them regain a
position of equality, in accordance with a number of
philosophical lines:
 showing the irrelevance of sex for gender and the
consideration of gender as a social construction
 the use of new technologies (contraception,
sterilisation, abortion and reproductive technologies)
separating sex from procreation, allow women to
overcome this “disadvantage” determined by their
biological condition
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Objections:
 hierarchy is not caused by sexual difference
 reproductive technologies lead to forms of
manipulation of the body (for women and
embryos)
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Problematic conceptual distinctions:
 the gender category is sometimes used as a
synonym for sex, other times as a meta-biological
category that allows the theorising of a path for
women’s liberation.
 There are not only linguistic reasons for the choice of
the term, but also a precise political and social
theory. Gender gives weight to the social construction
of sexual inequality. In this direction, even in
feminism, a critique of biological determinism
emerges gradually and in an extensive manner.
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First wave feminism (1848-1918)
 The birth of feminist thought in the late eighteenth
and early nineteenth century:
 Publication of A vindication of the rights of women by
Mary Wollstonecraft (1792)
 The Déclaration des droits de la femme et de la
citoyenne by Olympe de Gouges (1791)
 Wollstonecraft can be considered an anticipator of
the sex/gender debate. The author is aware that the
oppression of women is not a fact of nature but a
social fact, i.e., it does not depend on internal factors,
such as biological condition, but on external factors,
such as education and social organisation. In other
words, it is a matter of gender, not sex.
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 De Gouge aims to combat sexist oppression,
in order to reaffirm the “sacred and
inalienable rights of women”. She argues that
“woman is born free and lives equal to man in
her right”, appealing to the concept of “equal
dignity”
 This is the conceptual approach within which
the first wave of feminism is structured:
 It focuses on emancipation, in the sense of
freeing nature from the oppression of society
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Equality feminism is divided into two main
trends:
 liberal
 socialist
 These orientation, despite their differences in
argumentation, share the emancipationist
ideal.
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