1. GENDER STUDIES: A GENERAL BACKGROUND Philosophy of Law Libera Università Maria Ss. Assunta (LUMSA)

2. Course reference for final exam preparation: L.Palazzani, Gender in Philosophy and Law, Springer, Dordrecht 2012 Philosophy of Law

3. 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

4. 1. Defining our field of enquiry Preliminary remarks ʽ Gender ʼ 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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 ʽ gender revolution ʼ, 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 ʽ politics into sex ʼ -the second revolution transforms ʽ sex into politics ʼ, modifying sexual politics towards a transformation of the sexual relationship meant as a relationship of power/subordination Philosophy of Law

16. A conceptual shift from modern to post-modern lines of thought: In this context, gender already previously set free from sex, multiplies itself in ʽ differences ʼ, strictly and intentionally declined in the plural form. Philosophy of Law

17. ʽ Sexuality studies ʼ : 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

18. 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 ʽ normalisation ʼ / ʽ naturalisation ʼ, e.g. the restrictive imposition of assumed roles. To deconstruct means ʽ un-doing ʼ 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

19. 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

20. 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 ʽ without sex ʼ 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 inter- disciplinarity and non-systematic nature, alongside an underlying intention to not express the reasoning clearly. Philosophy of Law

21. 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

22. 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

23. 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 ʽ strangeness ʼ but ʽ normality ʼ, 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

24. 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

25. 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 ʽ gender agenda ʼ / ʽ gender mainstreaming ʼ. The term ʽ gender ideology ʼ 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

26. 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 ʽ sex-less ʼ 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

27. 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

28. 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

29. 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

30. 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.

31. 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.

32. 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.

33. 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.

34. 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, care- oriented 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).

35. 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.

36. 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.

37. 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.

38. 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.

39. 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

40. Philosophy of Law Subordination and oppression are “unnatural” inasmuch as they are not rooted in nature, but conveyed by society and culture.

41. 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).

42. 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.

43. 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.

44. 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 socio- historical 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

45. 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 maternal- domestic 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.

46. 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.

47. 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

48. 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.

49. 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.

50. 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.

51. 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.

52. 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.

53. 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

54. 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)

55. 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.

56. 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.

57. 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

58. Philosophy of Law Equality feminism is divided into two main trends: liberal socialist These orientation, despite their differences in argumentation, share the emancipationist ideal.

59. Philosophy of Law Liberal and socialist feminism on gender equality Liberal feminism: Harriet Taylor in the essay The Emancipation of Women (1851) and John Stuart Mill in The Subjection of Women (1869) reject the alleged natural inferiority of women, claiming that every human being is by nature rational and autonomous morally. There is an attempt to overcome the subjection of women due to education, history and culture so that women can regain their natural rights, denied and not recognised by society.

60. Philosophy of Law Harriet Taylor: She particularly insists on education, employment, political participation, believing that women can achieve freedom through liberation from care and family. John Stuart Mill: He states that women, although physically weaker than men, should not be subjugated to them.

61. Philosophy of Law Physical difference does not justify social subordination, that is a sort of slavery: The enslavement of women in the family, exercised not through strength, but with affection, which prevents collective rebellion. In this sense, women educated constantly to the duty of self-denial, must vindicate equality in political rights by appealing to rational capacities. It is the natural equality of the rights of every human being regardless of sex that calls for the obligation of equal treatment in education, economic management, employment and voting.

62. Philosophy of Law The Emancipation of Women (Harriet Taylor): It makes a case not merely for giving women the ballot but for “equality in all rights, political, civil, and social, with the male citizens of the community”. This essay contains many of the same lines of argument as The Subjection of Women, written by Mill and published in 1869, although it expresses a somewhat more radical view of gender roles than the later essay. It maintains that the denial of political rights to women tends to restrict their interests to matters that directly impact the family, with the result that the influence of wives on their husbands tends to diminish the latter's willingness to act from public- spirited reasons.

63. Philosophy of Law Furthermore, it contends that when women do not enjoy equal educational rights with men then wives will impede rather than encourage their husbands' moral and intellectual development. The major point of difference between the two is that while the Subjection rather notoriously suggests that the best arrangement for most married couples will be for the wife to concentrate on the care of the house and the children. Taylor’s essay instead argues for the desirability of married women's working outside the home.

64. Philosophy of Law According to H. Taylor: “Even if every woman, as matters now stand, had a claim on some man for support, how infinitely preferable is it that part of the income should be of the woman's earning, even if the aggregate sum were but little increased by it…. Even under the present laws respecting the property of women, a woman who contributes materially to the support of the family, cannot be treated in the same contemptuously tyrannical manner as one who, however she may toil as a domestic drudge, is a dependent on the man for subsistence”.

65. Philosophy of Law The Subjection of Women (J. Stuart Mill) His view on the problem of gender equality as expressed in this essay is commonly regarded as one of the core texts of liberal feminism of the 19th century. It is based on the principle of equality of women and men: J. Stuart Mill considered this to be one of the key principles for building a liberal and democratic society. His interest in the emancipation of women was systematic and continuous. He was a “public man”, an enthusiastic participant in public and political debates concerning various social problems of his time, and was especially interested in legal and social reform. Among the issues on which Mill campaigned most intensively were women’s rights, suffrage and women’s equal access to education.

66. Philosophy of Law From 1850 onwards, he actively supported the women’s movement as it developed during this period and participated in many forms of women’s political struggle against subjection and discrimination, advocating for civil and political rights, as well as social and political reforms aimed at improving their situation. Mill worked to influence legislation and public policy concerning issues affecting women: He was critical about the idea that husbands, through their right to vote, served as the protectors of their wives. For him, women’s emancipation meant the greater struggle for women’s equality.

67. Philosophy of Law In The Subjection of Women, Mill discusses the situation of an intelligent woman confined by patriarchal institutions and customs that deny her individuality: He reached the strong conviction that woman’s suffrage was an essential step towards the moral improvement of humankind, and that the relationship between husband and wife ought to be grounded in legal as well as real equality. “ Marital slavery ” should be replaced by “ marital friendship”.

68. Philosophy of Law Mill formulates the fundamental argument of The Subjection of Women in its first paragraph: “the principle which regulates the existing social relations between the two sexes – the legal subordination of one sex to the other – is wrong in itself and now one of the chief hindrances to human improvement; and […] ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other”.

69. Philosophy of Law Mill’s criticism of the social status of women is based on his analysis of the social injustice excluding women from public and civil life, from politics and decision- making. He stresses that this kind of social injustice is one of the main barriers to human progress and the moral improvement of humankind. Analysing the consequences of women’s subjugation, he points out that such conditions negatively affect not only the lives of women, but of men as well.

70. Philosophy of Law Men and women alike are harmed by such a situation, and consequently the subjection of women negatively affects the whole of society. As a liberal thinker, Mill expresses his strong conviction that the subordination of women, which deprives them of freedom, is an unjust violation of the principle of liberty. Moreover, it is a historical anachronism, “an isolated fact in modern social institutions”. Mill declares that this “relic of the past is discordant with the future, and must necessarily disappear”. He locates the origin of women’s oppression in men’s physical strength, assuming that the more influence reason has in a society, the less importance physical strength will have.

71. Philosophy of Law In such a state of affairs, women would no longer be disadvantaged, as physical strength becomes less important as civilisation progresses. This progress implies the development of reason which, according to Mill, is the same in either sex. Hence the subjection of women in an advanced society has no other basis than habit or custom, both of which are serious hindrances to the full development of reason. In this way, Mill conceptualises human life as progressing from the passionate and the natural to the rational and the cultural.

72. Philosophy of Law According to Mill, inequality represents a serious barrier to the advancement of an entire society, and is also an obstacle to progress on an individual level, that is, to individual improvement and prosperity. Precisely this is Mill’s point of departure in arguing for the need to dismantle social and legal relationships that subjugate women and establish perfect equality and partnership between the sexes, in both the public and private spheres. However, some of his views are more similar to certain radical feminist ideas developed within “second-wave feminism”.

73. Philosophy of Law When speaking about women’s status, especially in the family and marriage, he often uses the image of slavery: Mill considers marriage, or more precisely the marital law of his society, as the main factor in generating, perpetuating and enforcing women’s slavery. In his view, women are in a double bind: they are not free within marriage, and they are not free not to marry. This lack of freedom not to marry results from the fact that they cannot acquire education or earn money in the public sphere. Thus there is strong social and economic pressure to marry: law and custom dictate that a woman has scarcely any available means of gaining a livelihood, except as a wife and mother.

74. Philosophy of Law Mill’s reflections on women’s status within marriage contain not only this critical moment, but also some constructive ones. He outlines a vision of marital partnership based on the principles of equality, partnership, cooperation and reciprocity between woman and man, and stresses that only such a relationship between married persons is acceptable, not only in a political but also in a moral sense: “The equality of married persons before the law, is not only the sole mode in which that particular relation can be made consistent with justice to both sides, and conducive to the happiness of both, but it is the only means of rendering the daily life of mankind, in any high sense, a school of moral cultivation”.

75. Philosophy of Law Accordingly, he believes that marital relations based on partnership and equality would transform not only the domestic but also the public sphere. In compliance with his liberal political and philosophical convictions, he maintains that the very principle of justice requires that women possess the same rights as men, and that equality before the law will lead to justice in all spheres of social and political life. Mill’s analysis of the subjection of women in society clearly reveals his utilitarian position, as well as his participation in the English liberal tradition.

76. Philosophy of Law Mill justifies the necessity of women’s emancipation mainly by the need to create room for each individual (which means not only men, but also women) to develop their personal inclinations and talents, so as to realise the maximum of their personal happiness and, as a consequence, contribute to the development of the whole of society. It is not difficult to identify the utilitarian principle of maximum happiness in the background of such argumentation; for it is the well-being of the maximum number of people which Mill uses to demonstrate the disutility of women’s oppression and exclusion from public life. Other principles which are central to his argumentation are the liberal principle of equality and freedom, the principle of equal opportunities, and the principle of free individual choice. Accordingly, since human beings are equal, the fact that someone is born a woman should not determine her lifelong position and status in society, and neither philosophy nor customs should.

77. Philosophy of Law As for Mill’s strategy, it may be said that he, like Harriet Taylor, wanted to extend the ideology of liberal individualism to women; for both of them sought to secure an independent, autonomous identity for women as distinct individuals. In short, Mill’s argumentation is bound to two fundamental assumptions or theses, which permeate his thoughts throughout the whole essay: According to the first, the equality of women before the law is an imperative proceeding from the very principle of social justice. The second focuses on his thesis regarding the social utility of eliminating the oppression of women, not only for them but for society as a whole. These two assumptions are joined into one thesis of fundamental importance, according to which the inequality of women and men is unjust as well as harmful, both for individuals (individual women and men) and for society.

78. Philosophy of Law In accordance with his liberal social and political philosophy, Mill stresses the similarities between women and men, rather than their differences, emphasising that “any of the mental differences supposed to exist between women and men are but the natural effect of the differences in their education and circumstances, and indicate no radical difference, far less radical inferiority, of nature”. Mill argues that any gap in intellectual achievement between men and women can be explained by the better education and privileged social position which men enjoy. On the other hand, he endeavours to emphasise and positively evaluate the importance of those mental or behavioural traits of women which supposedly differ from men’s. For example, while arguing for women’s suffrage and their representation in public life, he suggests that “the general bent of their talents is towards the practical”, thus making them fit for a life of public action.

79. Philosophy of Law Mill stresses that “what is now called the nature of women is an eminently artificial thing, i.e., the result of forced repression in some directions, unnatural stimulation in others”. Here Mill not only calls attention to the impossibility of knowing the “nature” of women; for what we now call the nature or natural traits of women is the result of culturally determined factors such as socialisation and education and the effect of the social circumstances in which women live.

80. Philosophy of Law Objections and ambiguities in Mill’s philosophical thinking One of the main targets in current criticism of Mill’s liberal feminism is his universalist and, at the same time, biased view of human life and human nature. As already mentioned, Mill conceptualises human life as progressing from the passionate and the natural to the rational and the cultural. Although Mill criticises women’s status as wives and mothers and condemns the injustice of marital slavery, his views on marriage show certain limits to his liberal feminism. He does not fight traditional assumptions regarding women’s and men’s different responsibilities in a household, and accepts the notion that when women marry they should be responsible for taking care of the home and children, while men provide the family income.

81. Philosophy of Law It would seem that his emphasis on the importance of legal and political equality, on equality before the law, makes him less sensitive to other forms of inequality and discrimination. Mill considered the principle of equality to be a moral imperative, while the division of labour was an empirical matter, one which might be altered according to actual conditions and experience.

82. Philosophy of Law Socialist feminism Liberal feminism developed mainly in England and in the U.S., given the greater weight of political liberalism compared to Europe. However, after World War II, in European countries, following the development of welfare state systems, socialist feminists conveyed the vindications of women. Marxist and socialist thought, even though in a different theoretical perspective, share with liberal feminism, claims for the emancipation of women, through access to employment and the public sphere. This theory frames the issue of the problem of women’s status in the context of class inequalities arising from the capitalist economic system.

83. Philosophy of Law Even in this perspective, the reasons for the oppression of women are not identified in nature, but in society: The prospects for women status improvement are found in social change, specifically in the economic conditions of women, through their integration into the working class, fighting for recognition of equal access to employment.

84. Philosophy of Law Socialist feminism: It calls for State intervention in the field of social policies to ensure the conditions that enable women to participate in employment and public life (in opposition to liberal feminism, which relies on free market competition). This perspective believes that through the communist revolution, in a socialist society, all forms of subordination will disappear, along with those of the proletarians in relation to capitalists. The interests of women are, therefore, proposed as an ally of the proletarians for the socialist revolution.

85. Philosophy of Law The Origin of the Family, Private Property and the State (Friedrich Engels, 1884) He reconstructs anthropologically the original state of sexual promiscuity (in which all males had sexual relations with all females, regardless of age and kinship). This condition characterized society before the formation of the monogamous family. The author highlights that women in the prehistory of humanity were not placed in a subordinate position: indeed, they were venerated even religiously as a symbol of fertility. In the social transformation of work (from hunting to farming, agriculture and war), the male acquires a primary role as head of the family, owner of territory, livestock, slaves and also women.

86. Philosophy of Law According to Engels, the monogamous family was born in the Greek and Roman civilisations with the institution of private property. Consequently, in this context, sexual relationships were transformed: The first exclusion regarded the sexual relations of mothers-fathers with their sons-daughters, then between consanguineous (brothers-sisters) in the transition from “matriarchy” (a state of equality, if not of female superiority) to “patriarchy” (a state of male superiority).

87. Philosophy of Law In Engel’s view, the shift from prehistory to history marks the birth of “women’s enslavement”: Monogamous marriage is considered men’s dominion over women. The socialist revolution is put forward as a condition for the liberation of all women, through the change of social conditions (i.e. gender), the abolition of private property and the establishment of common property. The care and education of children becomes a public affair.

88. Philosophy of Law In striving for the pursuit of equality, liberal and socialist feminism encompass the thematisation of the idea that what should be changed is not nature, deemed equal in men and women, but society, the source of inequality. Therefore, the modification of social conditions, allowing access to education and employment for women, provides the guarantee of equal rights: Gender starts to be, although implicitly, a benchmark in the search for change of the female social role, regardless of natural condition.

89. Philosophy of Law Heterogeneous paths towards the sex/gender debate: feminist provocative attempts to overcome nature From equality/difference dualism to sex/gender debate: The feminist reflection (1918-1968) embraces various lines of rethinking the relationship between equality/difference, which is intertwined, on many levels, with the sex/gender issue. In this framework, common elements are perceived: the identification of sex (corresponding to nature) as the underlying reason for the inferiority of women seeking to modify “gender” in society and culture

90. Philosophy of Law Simone de Beauvoir, Le deuxième sex (1949) The author addresses the issue of women’s subordination condition, looking for the causes through a detailed analysis in biological, psychoanalytical and historical terms. This study is placed in a philosophical perspective stemming from a synthesis of existentialism and Hegelianism: The existentialist assumption taken up by Sartre’s philosophical thought, according to which existence precedes essence. It is a materialist view (as opposed to essentialism) that affirms the priority and exclusivity of existence, i.e. what man is in his concrete reality.

91. Philosophy of Law De Beauvoir states that “one is not born a woman, but becomes one”. Every human being (man or woman) is self-sufficient and makes himself/herself. Every individual is the result of free acts and is able to choose from two paths: The path of transcendence, i.e. the active transformation of the world The path of immanence, i.e. passive acceptance of things as they are

92. Philosophy of Law The author applies these categories to the understanding of the female condition: A woman exists as she becomes, she projects herself into the world, transcending her immanence through the exercise of conscience and liberty. However, women are incapable of transcending themselves, since they have been historically confined and “imprisoned” to remain “trapped” in the immanence of the body, meant for procreation, motherhood and domestic work, in the passivity and objectivity binding them to a state of subordination.

93. Philosophy of Law Women have found themselves in the condition of being “Other” in relation to man by nature. They have also chosen to be “Other” in the social context. Although influenced by their biological state, they have not been forced to accept this inferior status, for which they are also “accomplices”.

94. Philosophy of Law “No biological, psychological, economic destiny defines the face that the human female assumes in the heart of society”. The author locates in history the cause of the female condition. In a sense, in her view, sex and gender are the causes of the hierarchical order of the inferiority of women to men, from which they must break free to become equal to men.

95. Philosophy of Law A woman is not a “fixed reality”, but a “becoming”. She was not born as women, but she has become one, due to internal biological and psychological conditions, alongside external social and historical conditions. However, she can also cease to be one, placing herself in a position of equality to men. She must from “passive object” without freedom, become an “active subject”.

96. Philosophy of Law She must transcend herself, create culture beyond nature, free herself from the “slavery” of marriage, reproduction and motherhood. Women were historically excluded from the relational dynamics of recognition for which reciprocity is a requirement.

97. Philosophy of Law The phrase “one is not born a woman, but becomes one” is used by gender theories with a different meaning, but to some extent anticipated by De Beauvoir when deeming “womanity” socially constructed, transcending nature.

98. Philosophy of Law She explores the ways that cultural assumptions frame women’s experience of their bodies and alienate them from their body’s possibilities. For example, it is assumed that women are the weaker sex. What is the ground of this assumption? What criteria of strength are used? Average body size? Is there a reason not to consider longevity a sign of strength? Using this criterion, would women still be considered the weaker sex?

99. Philosophy of Law De Beauvoir opened the way for the consciousness- raising that characterized second wave feminism: it validated women’s experience of injustice. Her ethical-political question: “How can a human being in a woman’s situation attain fulfilment”? The author argues that women’s exploitation is historical, therefore, amenable to change. As an existential situation, however, women are responsible for changing it. Liberation must be woman’s work. It is not just a matter of appealing to men to give women their freedom, but a matter of women discovering their solidarity and the pleasures of freedom.

100. Philosophy of Law Without ignoring the importance of women’s gaining the right to vote and without dismissing the necessity of women achieving economic independence, she finds these liberal and Marxist solutions to women’s situation inadequate. The liberated woman must free herself from two shackles: 1) The idea that to be independent she must be like men 2) The socialization through which she becomes feminized. The first alienates her from her sexuality. The second makes her adverse to risking herself for her ideals.

101. Philosophy of Law Betty Friedan, The Feminine Mystique (1969) The author pursues the same orientation, albeit in a different philosophical context, deploring the condition of the feminine mystique, i.e. the idea and idealised condition in which women devoted to family are confined, finding fulfilment through domestic/reproductive family life, renouncing public life.

102. Philosophy of Law “Mona Lisa’s enigmatic smile” represents, in her opinion, the interior crisis of women apparently gratified by marriage and the family, they experience a sensation of emptiness, feeling robbed of their identity, defined socially by the function of being bride, mother, homemaker, and end up feeling “incomplete”. On such grounds, women call for a public space, with the same function and role as men in society, in education and employment as in the exercise of power. The “feminine mystique” entrenches women in nature which forces her into the “cage” of the family, reproduction, looking after children and the home, from which it is possible to escape only by rejecting this and changing their social role.

103. Philosophy of Law Friedan’s argument weaknesses: She saw domesticity as the main vehicle of gender oppression and called upon women in general to find jobs outside the home. Although, she failed to realize that women from less privileged backgrounds, often poor and non-white, already worked outside the home to support their families. Friedan’s suggestion, then, was applicable only to a particular sub-group of women (white middle-class western housewives). But it was mistakenly taken to apply to all women’s lives, a mistake generated by the author’s failure to take women’s racial and class differences into account.

104. Philosophy of Law Juliet Mitchell, Women: the Longest Revolution (1966) The author critically examines the limitations of the socialist vision in relation to women, focusing on the plight of working women, as well as those of the middle class, exploited inside and outside the domestic environment. She contends that the causes of the subordination of women lie in production, reproduction, sexuality and the socialization of children.

105. Philosophy of Law In order to attain the liberation of women, it is essential to transform all four elements: production – through the socialist revolution that would eliminate private property and class exploitation reproduction – separating sexuality from procreation (even with the use of birth control pills) sexuality – by dividing property and marriage (i.e. the liberalisation of prostitution and the normalising of homosexuality, alongside heterosexuality) the socialization of children – calling for the shared participation of fathers in the care of the domestic environment and the increase of social services. Hence, the reasons for the inferiority are identified with social conditions (gender) that must be changed, along with the separation of sexuality from procreation.

106. Philosophy of Law Second wave feminism (1968-1980) The sex/gender debate becomes explicit in this context. Radical feminism looks for a different solution to the female issue: at the root of the dominion of women by men, understood as the dominion of all men, over all women, there is not only social exclusion and economic exploitation, but also and above all, the sphere of sexuality. It is the biological and anatomical difference in sex as “immutable destiny” that has determined a difference in gender or in social roles.

107. Philosophy of Law In the past, women accepted men as allies (for instance, Mill and Engels), while new feminism excluded men from feminist theorising.

108. Philosophy of Law The sexual and reproductive condition of women forces them into the role of carer and the maternal domestic role that confines them to an inferior social status in relation to men. In this sense, feminism is opposed to biological and social determinism.

109. Philosophy of Law Radical feminism argues that women’s liberation is liberation from the body, extending as far as dissolution of female identity: the destruction of the female model (and therefore of motherhood, the domestic role, women’s attitude and behaviour) is considered the essential preliminary condition for the construction of a post-model that is not a mere male assimilation. The goal is not equality as assimilation (believed to be false equality) but equality as liberation from the exploitation of women through self-awareness of male oppression.

110. Philosophy of Law Liberation is meant as something different from emancipation: it is a movement spreading in theoretical and practical terms. In this perspective, consciousness-raising groups are established as a form of political activism. It is believed that the personal experiences of sexuality, family and motherhood are not only private, but also public issues, as they cause women’s oppression. In this theoretical framework, “gender consciousness” means conscious awareness of oppression owing to the sex/gender connection.

111. Philosophy of Law Liberation must happen through a revolution first in the domestic and, then, in the political environment. We must change not only the public sphere (education, labour, civil and political rights) but also the private one, expanding it to all areas of life. This orientation of thought is prevalent in the U.S. and has put forward requests for dissemination of methods of contraception, the legalisation of abortion, the establishment of women’s counselling centres for sexual problems.

112. Philosophy of Law Kate Millet, Sexual Politics (1970) The author identifies “politics” as a structured relationship of power of a group of people over another group of people and “sex” as the root of politics, perceived as a relationship of dominion/subordination. Sex becomes a category with political implications: Patriarchy/patriarchal system is defined as sexual politics, i.e. a series of sexist strategies to preserve a system of power and control, that of men over women. In this context, sexual intercourse is considered not an act of pleasure or of procreation, but a political fact/act whereby establishing and perpetuating male domination over women.

113. Philosophy of Law Only the destruction of patriarchy can determine a feminist revolution as a “sexual revolution”. Millet, referring explicitly to Stoller finds in the splitting of sex/gender the route to this revolution: the separation of sex and gender justifies the split between sexual condition and sexual role. Since those roles are simply learned, we can create more equal societies by “unlearning” social roles. In this context, feminists should aim to diminish the influence of socialisation. Therefore, sexual freedom is guaranteed in the strong sense, that is, women’s emancipation and liberation from sexuality.

114. Philosophy of Law Shulamith Firestone, The Dialectic of Sex (1970) The author identifies the oppression of women in biological condition (sex) that determines the difference in role as the “tyranny of the biological family”: women conceive, generate, nourish, give care, in a sort of “division of labour” in relation to men. The sexual condition of pregnancy, maternity and care place women in a dimension of weakness. Motherhood is a “reproductive servitude determined by biology”. If nature has determined the state of inferiority, it is culture (gender) that can provide release. “Culture” is meant as the transformation of society and roles, as well as the use of new technologies made available by science. Firestone foresees a society in which scientific and technological progress free women from the “slavery of sexuality and procreation”, as liberation from male sexual domination.

115. Philosophy of Law Firestone states that the main goal of the revolution is the family: Women’s revolution must come about through their taking control of their bodies, their fertility and the “ means of reproduction” (the pill, abortion, reproductive technologies), similar to the revolution of the proletariat that wanted to control the “means of production”. In her view, sexuality should not have a pro-creative purpose, but rather a re-creative one. A further step should be the abolition of the biological family, that is the cause of the existence of the incest taboos, the origin of sexual repression perceived from childhood. The abolition of the biological family would lead to liberation from the inhibition of pleasure instincts and impulses, establishing the “society of Eros”, with the principle of pleasure as its focal point.

116. Philosophy of Law Firestone argues that sexual revolution involves cancellation of the distinctions of sex in relation to age (extending sexual liberation beyond adults to children), number (increasing bonds to more than two people), marital status (married and unmarried), family ties (allowing even incest), gender (considering heterosexuality equivalent to homosexuality). Maternity and children would only be freely chosen by women, and the care of children will be socialized, shared by women and men in an undifferentiated way, through social services.

117. Philosophy of Law Lesbian Separatism The feminist criticism of sex as determining the inferiority of women in relation to men, develops parallel to the criticism of heterosexuality, as a social institution and norm, within the sphere of lesbian separatism, anticipating the sex/gender/sexuality debate. Lesbian separatism (as opposed to heterosexual feminism, considered patriarchal) leads to the formation of only women communities. In this framework, the gender category starts also to refer to sexual orientation, as a free sexual choice driven by desire and impulse.

118. Philosophy of Law Adrienne Rich theorises the existence of lesbian identities. Her stance focuses on the need for the categories of heterosexuality and homosexuality to disappear, in the fight against the patriarchal system that has institutionalised the heterosexual family as the norm. The author brought up the idea of hetero-normativity ( compulsory heterosexuality), as the series of institutional, cultural and social measures that normatively obligate sexual choice to be oriented to the opposite sex: Hetero-sexism becomes the main target to fight against, taking precedence over racism, classicism, imperialistic colonialism.

119. Philosophy of Law Rich investigates what is common to women, what is shared by women, what is different from men, in order to develop a political notion of “sisterhood”, placing itself in a critical relation to the theories emphasizing the special qualities of women, as they risk sliding into an essentialist conception on “womanhood”, i.e. inflexible and prescriptive.

120. Philosophy of Law Germaine Greer gets to the point of defining women as “eunuch”, denouncing the passive and dissatisfied behaviour of women. The author contends that revolution is brought about by breaking legitimate social relationships, such as marriage and affirming women’s self-sufficiency against all forms of dependence, while fighting against equality considered “ a poor substitute for liberation”.

121. Contact information: E-mail: l.persampieri@lumsa.it Philosophy of Law

122. Thank you for your attention Philosophy of Law