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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 Philosophy of Law 1. defining our field of enquiry 2. the role of “Gender” in philosophy and law 3. the interdisciplinary nature of the sex/gender debate Philosophy of Law 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). Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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”. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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). Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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 Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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? Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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 Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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). Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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 Philosophy of Law Subordination and oppression are “unnatural” inasmuch as they are not rooted in nature, but conveyed by society and culture. Philosophy of Law 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). Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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 Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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 Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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 Philosophy of Law Objections: hierarchy is not caused by sexual difference reproductive technologies lead to forms of manipulation of the body (for women and embryos) Philosophy of Law 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. Philosophy of Law 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. Philosophy of Law 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 Philosophy of Law Equality feminism is divided into two main trends: liberal socialist These orientation, despite their differences in argumentation, share the emancipationist ideal. Philosophy of Law Contact information: E-mail: [email protected] Philosophy of Law Thank you for your attention