Is the Law a Salvageable Tool for Advancing the Feminist Agenda?
A History of Feminism and Law: What does it Mean to be Interested in Law and Identify as a Feminist?
To begin, it is essential to understand the chronology of the law's relationship to feminism. The term feminism encompasses a range of movements and ideologies – liberal feminism, radical feminism, Marxist feminism, eco-feminism, cultural feminism, to name a few. What all these fractures have in common is the aim to establish freedom from sexist oppression. The law has long been seen as a tool to achieve this freedom and liberation from women since it is a measurable system that reveals the state's sexist power structures.
Feminist legal scholars Catherine MacKinnon, Zillah Eisenstein, and Carol Smart, discuss the law’s relevancy as a site for feminist reform. MacKinnon argues that the law and the state are inextricably linked since it is through laws that the state legitimises male viewpoints and implements male dominance. As Eisenstein describes, the law is the "authorised language of the state". Smart adds that the law contributes to the construction of hegemonic masculinity since it "embodies a claim to a superior and unified field of knowledge" and has the ability "to impose its definition of events on everyday life".
The law has played a critical role in maintaining the subordination of women, which is precisely why it has always been fertile ground for feminist reform. Materially, the impact of the law’s patriarchy is visible in how it has "defined and regulated women's sexuality through the law of marriage and paternal rights and through the criminalisation of fornication, adultery, abortion, and prostitution".
First-wave feminist legal reform in the late 19th century focused on equal contract and property rights for women in order to secure their sovereignty outside the confines of marriage. In the United States, this wave ended with the successful passage of the 19th Amendment to the Constitution in 1920 which granted women the right to vote.
In the 1960s and 1970s, second-wave feminism focused on linking cultural and political manifestations of gender-based discrimination. This is aptly encapsulated by feminists' motto "the personal is political". Until the 1970s, the Supreme Court held differential treatment of women as constitutionally defensible. However, through landmark cases – Reed v. Reed, Frontiero v. Richardson, and Craig v. Boren – the Court justified applying an "intermediate scrutiny" framework to the equal protection clause. This ruled against gender-based discrimination and protected gender equality under the Constitution. Furthermore, the introduction of Title VII to the Civil Rights Act of 1964 helped further secure gender equality and opened up significant employment opportunities to women. Additionally, the Courts' famous decision in Roe v. Wade was vital for improving the livelihoods and economic trajectories of women. These gains, coupled with the flood of women who entered into the legal profession during this time, provided hope to many feminists that liberation through legal reform was possible.
Unfortunately, some of these feminist gains were ironically used against women, working to subjugate women further. The Supreme Court's decisions in General Electricity Co. v. Gilbert and Geduldig v. Aiello, provides an example of how anti-discriminatory language was appropriated to justify neglecting gender-specific support for women. This was played out in the absence of pregnancy disability protection.
Scholar Eisenstein asserts that the 1980s, due to the popularity of social conservatism and the "Reagan revolution", jeopardised the feminist legal accomplishments of the previous era and threatened equality under the law. Smart and MacKinnon argue, however, that the law before this period did little to improve the situation of women, stating that the "law's patriarchy had made most accomplishments ephemeral at best". These scholars cite the inability to pass any meaningful rape reform, the negative consequences of divorce reform for women, and the weaponisation of foetal rights against women's rights. Smart concludes that "it seems as if feminist 'legal theory' is immobilised in the face of the failure of feminism to affect law and the failure of law to transform the quality of women's lives".
The slow advances made by feminist legal reform from previous decades inform contemporary debates within the feminist movement which question the law's potency to challenge and alter the status quo of gender relations when traditional frameworks for justice are saturated with patriarchal norms.
Radical Feminism vs Neoliberal Feminism
One of the most notable contemporary divergences in the movement is observed in the difference between radical feminism and neoliberal feminism, with each side placing different levels of faith in legal reform. On one side of the debate is neoliberal feminism, whose primary goal is to integrate women into pre-existing social structures found within mainstream society and the state. In opposition to this is radical feminism which seeks to fundamentally reorder society.
Neoliberal feminism is often described as the "adding women and stirring" method for its focus on gender equality through gender representation. While representation in the legal profession and beyond is undeniably important, this method should not be the feminist movement's primary goal, as argued by radical feminists.
Today, neoliberal feminism is criticised for being a "weakened feminism" for its subordination to neoliberal economics, which neglects intersectional considerations. Neoliberal feminism, it has been argued, is unable to seriously consider structural barriers that stop some women from accessing the benefits of capitalism and democracy to liberate themselves from internalised sexism. From this perspective, neoliberal feminism is seen as a tool for individual liberation rather than a way to seriously consider shared experiences, criticise external barriers to access, and ultimately renegotiate capitalism.
The "add women and stir" method is weak in that achieving status in the legal corporate world does not necessarily mean that that world will "give voice to women's needs and concern" since one "answers to corporate boards, not to a feminist movement". Consequently, radical feminists are skeptical that equal representation will lead to actual liberation from structures forged in patriarchy's crucible and under the influence of capitalism.
Inversely, radical feminism goes beyond gender representation, recognising the need to challenge institutional patriarchal structures and transform their norms rather than conform to their standards. The approach of radical feminists is influenced by an intersectional framework that transcends dominant, limited, understandings of what feminism can and should do by instead questioning the premise of exploitation and male domination. For some – such as aforementioned legal scholar MacKinnon as well as other mainstream radical feminists such as Audre Lorde and Bell Hooks – radical feminism is the only true feminism since all “other feminisms are dependent on and determined by masculine visions of politics and reality".
Similar to Marxist feminism, radical feminism focuses its critique on capitalism and the value system it produces which equates individual value with one’s capacity to work and produce commodities for an open market. In part, this is because radical feminism recognises that in reality, there are structures in place such as inheritance, politics, education, and gender which make it difficult for those outside structures of power to produce sufficient amounts on the same playing field. In effect, capitalism then becomes a self-referring figure of language in the oppression of some is justified due to their inability to produce – as is the case for many women whose domestic work is not recognised under this system. This is not perceived as oppression inflicted upon them. Thus, the idea of capitalism becomes a violence which validates patriarchal arrangements, making it a key site for feminist exploration.
For feminists and supporters of the feminist agenda who work in or seek to enter the legal field, radical feminism informs us that it is vital to recognise that merely existing in the legal area is not enough to fix women's unequal statuses. Judge Amy Coney Barrett demonstrates this point.
Diverse Reactions to Amy Coney Barrett Beg the Question: What is Feminism and Who Qualifies as a Feminist?
Conservatives purport that feminists must support Barrett in her nomination to the Supreme Court. For instance, a headline from The Hill asked, "What happened to Democrats supporting women?" Additionally, at a female Republican conference marketed as "Speak[ing] on Democrats' double-standard when it comes to covering women in public service", Martha McSally – a Republican Senator from Arizona – said, "You would normally have the feminists on the left lining up to defend her… So we're asking, where are those women?" This conflict of understanding is rooted in the diversity of interpretations of what feminism is and what feminism should achieve.
From a conservative perspective, if feminists claim to stand for women's empowerment, then they should unequivocally support all pioneering women. As The Washington Post explained, however, "Feminism doesn't mean, 'I'm a woman, Amy Coney Barrett is a woman, no further questions.' Rather it means, 'As a woman, I want to support people who reliably support anti-sexist laws, and while Barrett is a woman, I don't know that she can be trusted to do that.'" This viewpoint, in contrast to statements made in conservative media and by right-wing politicians, best exemplifies the differences between neoliberal and radical feminism.
A nuanced account of identity politics moves past Barrett's gender and her potential for increasing women’s representation. Instead, it explores whether Barrett as the Supreme Court Judge will interpret the law in a way that provides female liberation and allows women to support themselves. Based on her religious track record as a “handmaid”, her admiration for pro-life conservative Justice Scalia, and her support for anti-abortion groups, it seems unlikely, from a radical feminist perspective, that Barret's presence on the Court will provide a more equitable future for women.
To identify as a radical feminist and a lawyer then requires intentionally leveraging the resources provided by the law to achieve women's liberation and gender justice, while communicating with grassroots feminist organising.
In “Women, Money, and Power”, Jane Goodman explains how for feminists, the "basic dilemma is how women can gain enough money and power to change the world, without being corrupted, co-opted, and incorporated on the way by the very value systems we must change". Goodman points to a vital conflict that young feminist lawyers are well-positioned to consider: how does one enter into a professional field which has played and continues to play a significant role in subordinating women without passively absorbing sexism and conforming to patriarchal standards?
With a consciously driven political awareness, women in positions of power can advance the feminist agenda, but this requires the goal remain forefront in their efforts. Radical feminism informs us that individual female achievement alone cannot lessen sexist oppression and eliminate male domination because ultimately, conforming to masculine standards does not make us equal. It makes us subservient.