The Enforcement of Gender Separatism in US Courts

Abi Risser

SOCY 337.50A
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The Enforcement of Gender Separatism in US Courts

Whether it is acknowledged or not, gender plays a significant role in the function of

society. Feminist scholars have noted for decades the separation of women and men, the

feminine and masculine, in various institutions such as the workplace, education, medicine, and

even familial settings. The criminal justice system is not exempt. Men and women, while there

are not always inherent distinctions made in laws, are not viewed nor treated in equal manner by

law officials. In her text, The Gender Line: Men, Women, and the Law (1998), Nancy Levit not

only analyzes and explains the existence of gender separatism as a whole but also its presence in

the United States court system. Men and women are separated and stereotyped when they stand

trial or their cases are reviewed, which Levit argues to be intrinsically unequal and problematic

(Levit 1998).

This topic is interesting to me because I am currently doing research regarding how

gender is communicated. I think that the concept of performative gender and gender as a method

of communication is definitely evident when it comes to how courts view men and women

because of how society views and accepts masculinity and femininity.

Critiques of Past Research on Gender Differences

The validation of gender separatism has historically been enforced through past research

including the notion of feedback loops in physiological, neurophysiological, and psychological

aspects.

“In a second feedback loop, these findings and attention amplify existing stereotypes
about gender differences. The empirical research, filtered back to popular audiences
through the media, helps construct the ways people think about gender. People begin with
preexisting suppositions that sex differences abound and are innate. When new
information is received, those perceptions of gendered behavior are exaggerated in ways
consistent with sex role stereotypes. The combination of research that is politicized
toward finding gender differences and media presentations skewed toward head-lining
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any differences that are found tends to magnify gender differences in popular
consciousness” (Levit 1998:16).

Past research that supports major differences tends to be misleading, especially when it

comes to physiological, neurophysiological, and psychological aspects. While some variations

between males and females cannot be denied, the extent to which had been previously accepted

leans more towards bias than it does empirical evidence.

In terms of physical differences between men and women, there are differences that are

evident such as reproductive characteristics, average “size, strength, cardiovascular and lung

capacity, hemoglobin concentration, balance, flexibility, and percentage of body fat” (Levit

1998:16-17), however these characteristics are also varying dependent on the individual and

don’t always align with the average for males and females. Levit notes that the physical gap

between males and females is narrowing with progressing research and explains how a study in

1992 by exercise physiologists Brian J. Whipp and Susan A. War found that women’s running

speeds were improving and matching that of men.

Past evidence claimed significant differences between male and female brains. These

differences have been found in location of brain activity, differing size of parts of the brain, and

overall function. Levit exemplifies contrast to these previous findings from a study by the

Washington University School of Medicine. Their research found that, while there may be slight

variation correlating with past research, there are actually more similarities than differences with

brain function and activity between males and females (Levit 1998). Additionally, claims

regarding differences between sexes in academics are notoriously misleading in the presented

differences. In a 1995 study conducted by Larry Hedges and Amy Nowell, “(27%) of the 165

studies found females to perform significantly better than males, 109 (66%) found no significant
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gender difference, and 12 (7%) found males performing significantly better than females” (Levit

1998:19).

Finally, Levit critiques past research that supports significant psychological differences

between males and females and question the immeasurability of many observed psychological

differences. While it has been believed that boys are “hardwired” to be more aggressive and risk

takers while girls are naturally cooperative and nurturing, Levit’s main critique in this is that

social-learning and stereotypes are the primary contributors to these beliefs. Rather than natural

and biological differences, what determines the social characteristics of males and females is

how they were raised by their parents/society. “Cross-cultural studies suggest that both boys and

girls who are given caregiving roles as young children develop stronger nurturant abilities”

(Levit 1998:21).

Levit’s Research on Gender Separatism in Courts

With Levit’s analysis of gender separatism in mind, she claims that gender separatism is

evident in the court system. Biological differences between men and women have been deciding

factors for decades in the outcomes of court cases despite efforts for gender revolution in the

1970s (Levit 1998). Levit identifies two forms of gender stereotyping that have a remaining

presences in courts despite efforts of gender equality. “First, the Court has made obvious steps

toward occupational gender equity for women but has ignored men’s pleas for equality in the

realms of parenthood and reproduction. Second, the Court has tacitly accepted the very idea of

gender separatism” (Levit 1998:65). Courts have embraced the ideology of separate but equal

when it comes to rulings over men and women.

Historically, when women were acknowledged by courts, there was a strong belief that

biological factors we significant in how women should be viewed and treated by the law in
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addition to the notion of “a woman’s purpose/place”. In 1908, Muller v. Oregon restricted

women’s working hours because of the belief that working too much could negatively affect a

woman’s reproductive health. While gender stereotypes began to phase out of courts in following

decades, Rostker v. Goldberg (1981) ruled in favor of male-only drafts with the notion that

women weren’t capable to participate in combat (Levit 1998). Moreover, a woman’s ability to

become pregnant was a major factor in court leanings.

While women have faced the brunt of discrimination on the basis of gender separatism in

court cases, men are also affected by this issue. In Caban v. Mohammad (1979), “the dissents by

Justices Stewart and Stevens (the latter joined by then Chief Justice Burger and Justice Rehn-

quist) emphasized the unique physical bond between mother and child— “[o]nly the mother

carries the child”—which, they thought, should confer exclusive rights on the mother to

determine who could engage in the social relationship of fathering the child for the remainder of

the child’s life” (Levit 1998:74). With women being stereotyped by the law as caregivers and

nurturers, men struggled against the court not only in instances of custody, but paternity leave as

well.

Additionally, courts have also enforced gender separatism with gender expression. In

Harper v. Edgewood Board of Education, a brother and sister cross-dressed for their school prom

and lost the court battle when it was ruled that they needed to follow dress policy, thus enforcing

gender appearance that is deemed appropriate for each sex (Levit 1998). More recently, a similar

case was brought to court in 1991 when a fourth-grader began wearing earrings to school and the

parents attempted to sue when the school deemed his wearing gold earrings a violation of school

policy. The Indiana Court of Appeals ruled that the earring ban was not gender discrimination,

and accepted the Caston School Corporation’s argument that “the policy creates discipline, a
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sense of pride, and positive attitudes among students because it discourages rebellion against

local community standards of dress, under which earrings are considered female attire”” (Levit

1998:101).

Suggestions for the Future

In Levit’s final chapter of The Gender Line: Women, Men, and the Law, “Remaking

Gender in Practice”, she states that “while what is legal and illegal affects public opinion, much

if not most sex discrimination cannot be remedied legally” (Levit 1998:216). Instead, she

proposes a reformation of feminist theory. Interestingly enough, the word “feminism” is losing

popularity. Levit notes that there is an exclusive edge to the word and even in the history of

feminism, suggesting that “relational justice”, or something similar, might instead replace the

term (Levit 1998).

The concept of inclusive feminism would include broader demographics than what had

been emphasized and included in earlier feminist movements, thus bringing together more

people to stand together and fight for equal rights in all institutions. Levit also emphasizes the

need to bring men into feminism, especially since men have dominated law for so long.

But a distinction exists between maleness as “a normative referent” and masculinity as an

ideological construct.10 Traditional scholarship in the sciences, social sciences,
humanities, and law has committed the androcentric fallacy, treating “generic man as the
human norm,” which, as Harry Brod has pointed out, “in fact systematically excludes
from consideration what is unique to men qua men.”11 Missing from all the disciplines
until recently has been inquiry into the varieties of masculinity, the concrete experiences
and emotional needs of men, and the ideological construction of maleness over time and
cultures (Levit 1998:221).

In addition to reforming feminism, Levit suggests pushing courts to not only consider

biological differences between men and women but also acknowledge the social differences as

well. “The feminist technique of using personal experiences as political tools could open courts
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to alternate visions of gender roles for both women and men” (Levit 1998:230). She suggests that

individuals in law bring up the past discrimination that courts have been guilty of and use that as

a means to reduce gender representation in courts and take away their eagerness to turn towards

separate but equal.

Connections to Liberal Feminism

Ideas and concepts from liberal feminists are evident in court-based gender separatism.

Liberal feminists believe that legal and social obstacles are barriers against a woman’s ability to

participate equally in society. Especially evident in earlier court cases, social barriers often

impacted how women were seen and treated in the eyes of the law. The law alone has also been a

significant issue for women from courts. For example, women’s reproductive laws are an

example of an issue that feminist jurisprudence would cover. Furthermore, liberal feminists

understand that law is not gender neutral, this supporting the notion that Levit stresses, which is

that separate is not equal.

Reflection

This topic is part of the course because it is important to understand that women and men

aren’t viewed equally by the law despite there not being tangible separate laws designated to use

on men versus women when they are in court. Scholars in criminology need to have this

knowledge so that they are able to adequately support citizens when they stand trial against the

law. Having an insight as to how the court will view people, depending on gender, will be

helpful in preparing and defending an individual. Additionally, as Levit explained, using past

court discrimination to create a narrative and provoke change is very important in making legal

progress regarding gender.

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I think that neither Levit nor liberal feminist critique outweighs each other on the topic of

gender separatism in courts. They seem to go very hand-in-hand with each other’s claims and

theories. Additionally, I do think that Levit’s critique does go into more depth and creates a more

significant understanding of the topic. That being said, her work is a little aged, so I think it

would be really interesting if she updated her work to be up to date with modern times and see

how her critique and ideas might have evolved over time.
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Reference

Levit, Nancy. 1998. The Gender Line: Men, Women, and the Law. New York: NYU Press.