Decompiling Oppression #32
Sam McVeety
I want to begin with an acknowledgement of the terrible events in Atlanta. Violence like this doesn't happen in a vacuum; it is a seed that grows through countless incremental events. We know how we got here and how this happened, and we must demand better.
I've been thinking about what kind of topic would be interesting to focus on for International Women's Day, and realized that one of the things that has really stuck with me from feminist legal studies is the technique of unmasking implicit male norms that are masquerading as as a neutral standard. Today, we're going to examine a number of examples of this technique, but for a quick example, think about a clothing company that has only ever made shirts for male-presenting individuals. If they suddenly started marketing those shirts as "unisex", the shirts themselves obviously wouldn't change, and they still wouldn't fit for a bunch of people.
I was reminded of this concept during an adventure in the snow a few weeks ago, where my husband and I happened upon a snowperson (after we caught ourselves starting with "snowman"). I've taken mostly for granted that removing unnecessary or inaccurate gender markers from language is the decent thing to do, but I hadn't connected it to the idea of implicit male norms in contexts with weightier consequences, like the legal realm.
An infamous example of an implicit male norm comes from a Supreme Court case called Geduldig v. Aiello, where the court found that Title VII did not protect pregnant people from discrimination. In this case, California offered insurance benefits that protected nearly all other forms of medical disability (including, critically, all of those typically related to men's health care needs), but singled out pregnancy as an exception. The court accepted California's cost-based justification for doing so, with the reasoning that this policy was not discrimination based on sex, but rather just discrimination against pregnant people. As Maya Manian points out in a commentary on the case, this enshrines male biology as the norm across all genders.
At this point, some readers might note that there is an odd resonance between the Court's reasoning and more contemporary ideas around transgender visibility, where "pregant people" can encompass more than just those who identify as women. Ultimately, this points to a deeper need for a more inclusive view of protected status under the law (likely some kind of anti-subordination approach would be appropriate). While we won't spend more time on that here, it's important to note the tension between historical legal arguments that assert pregnancy as an essential female characteristic and our evolving notions of gender.
Another place where implicit male norms show up is around pay equity. The 40 hour work week exists as an implicitly male standard, having been established when relatively few women were in the corporate workforce (and even fewer in management). It anchors the conversation around the false neutrality of the idea that full time work is normal, and that part-time work is somehow inherently exceptional. For a deeper treatment of this topic, Martha Chamallas's Women and Part-Time Work is a foundational text. Of course, on top of different amounts of hours worked, there is the additional male standard that non-domestic work is somehow more worthy of more recognition and value than domestic work. Work that happens in the home is still labor, but a male-centric framing of work distorts this reality.
In the legal realm, many of the implicit male norms that exist center the idea of a generic or "reasonable person", against which actions should be judged. Rather than acknowledge the complexities of individual situations and contexts, this legal doctrine asks that we imagine how a completely generic individual might act in a given situation. This very idea conveys the false possibility of a neutral standard, which often defaults to a male perspective.
In the case of self defense, this has had drastically unequal consequences, as women have been found guilty of committing violence because of the use of unequal force against a male aggressor. In Equal Rights to Trial for Women: Sex-Bias in the Law of Self-Defense, Elizabeth Schneider examines how the law often applies a gender-blind view of domestic violence incidents, labeling actions taken in self-defense as homicide because they might have been excessive for an acontextual "reasonable person".
Ultimately, there are two failings here. One is in the existence of implicit male standards, and the other is in the idea that a neutral standard can exist at all. While the Ninth Circuit's adoption of a "reasonable woman" standard in the 1990s might be viewed as a victory, it still erases a huge spectrum of difference across experiences. To truly be equitable, society (both the workplace away from home and the workplace at home) and law need to evolve to become ever more contextual and responsive to individualized circumstances.
Here are this week's invitations:
Personal: Reflect on which societal norms have aligned or misaligned with your conduct over time. Which have been easiest or hardest to cope with?
Communal: Spend some time taking an inventory of the standards and norms that are implicit or explicit in your community. How might some of these behave in a non-neutral fashion, depending on identity and context?
Solidarity: Support Ada Developers Academy and their tuition-free coding school for women and gender diverse adults.
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