“The attempt to confine women to the domestic sphere has been not only a spatial control, but also a social control on identity.” – Lisa Pruitt, Gender, Geography & Rural Justice, 23 Berkeley J. Gender L. & Just. 338, 363 (2008).
"Women who step out of women's traditional relations with men and become abstract persons—exceptional to women's condition rather than receiving the protections of it—are seen as seeking to be like men. They are served equality with a vengeance." – Catharine A. MacKinnon, Toward A Feminist Theory of the State 226 (1989).
The association of American masculinity with the ethic of justice has detrimentally affected our international human rights policy. In 1976, two landmark instruments of international human rights law came into force: 1) the International Covenant on Civil and Political Rights (ICCPR), and 2) the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR protects rights that are typically categorized as negative rights, which are rights that only prohibit government interferes. The ICESCR is normally associated with positive rights, which are those that cannot be realized without positive government action, such as legislation.
The ICCPR recognizes human rights that are normally classified as fundamental constitutional rights in American jurisprudence. The ICCPR guarantees the right to life and due process of law; freedom from torture, slavery and interference with the enjoyment of minority cultures, religions and languages; freedom from arbitrary detention, arrest, searches and seizures; and freedom of association, expression, religion, and movement within one’s country.
On the other hand, the rights guaranteed under the ICESCR are not explicitly protected by the Constitution of the United States. The ICESCR protects the right to work at fair wages and under safe working conditions; the right to form and join trade unions; the right to social security, an adequate standard of living, and continuous improvement of living conditions; the right to physical and mental health; and the right to education, and cultural life.
Because they are positive rights, the ICESCR rights are more closely associated with socialism, which has been ideologically antagonized in political and popular discourse. While the United States has signed both covenants, it has yet to ratify the ICESCR. Arguably, it is the American distaste for socialism that drove United States to distance itself from economic, social and cultural rights.
I assert, however, that there is more to the American aversion to economic, social and political rights than a mere ideological disagreement about the supremacy (or inferiority) of socialist state models. I propose, instead, that since the political sphere of the United States has been male-coded, the aversion to economic, social and cultural rights can also be characterized as an aversion to substantial feminine participation in a traditionally masculine-dominated space. When it came to the ICESCR, the United States signed the treaty, put up a “no girls allowed” sign, and then shut the door on the human rights conversation.
A comparative review of the ICESCR and ICCPR rights through the lenses of the ethics of care and justice will help illuminate the masculinities and femininities at play here.
The ethic of care is associated with femininities. The ethic of care is informed by the spaces of the home and the family; and it is often linked to wilderness, nature and instinctual impulses. See Pruitt, supra at 362. Under the ethic of care, responsibilities are executed with a nuanced and empathetic approach that incorporates instinct and emotions.
The ethic of justice, on the other hand, is aligned with manhood and masculinity. In the ethic of justice, one’s duty is more cut and dry, or more black and white. Rights are hierarchical, and therefore divisible. Under this framework, one’s responsibilities are carried out with rationality. Through the ethic of justice, masculinity values rationality over the emotional and empathetic self. The ethic of justice is informed by the workplace, marketplace, and political sphere, which encourage shrewd, competitive and sometimes combative behavior. Pruitt, supra at 362.
The ethic of justice is more closely aligned with the negative, political and civil rights of the ICCPR because those rights are more rigid in their application. For instance, the right to life, liberty and freedom of expression are easier to deliver (because they mostly require that the government refrain from unlawful or arbitrary intervention) than the right to education or social security (which requires that the government act in order to realize those rights).
In accordance with the ethic of care, the economic, social and cultural rights require the government to care for its people by ensuring positive rights. The rights to continuous improvement of living conditions, and to mental and physical health cannot be realized without positive government action designed to care for the welfare of the people. This is reminiscent of the ways in which a mother cares for her sick child, or works to improve the living conditions of her family and home. Moreover, like the feminine ethic of care, the ICESCR is more negotiable with and empathetic to the limits of the government’s resources. While the ICCPR requires states parties to “undertake to respect and to ensure” the rights therein, the ICESCR more leniently directs each states party to “undertake to take steps, … [with] the maximum of its available resources, [and] with the view of achieving progressively the full realization of the rights,” to recognize those rights in the ICESCR. ICCPR, art. 2; ICESCR, art. 2 (emphasis added).
The social construction of gender roles is informed by the ethics of care and justice. As a result, femininities that ‘encroach’ upon the masculine public sphere may fall victim to discriminatory efforts to put them ‘back in their place.’ For instance, the “street harassment” of women in urban metropolitan spaces may be understood within the ethics framework as retaliation against women for defying their gender assignment rural and wild spaces. See Pruitt, supra at 368, 371. The presence of women in highly urbanized places is akin to the seemingly invasive presence of femininity in the masculine spaces of commerce, politics, and labor. Id. Similarly, the ICESCR represents a feminine collection of rights that impose an ethic of care upon a male-coded institution – the institution of the American government.
A domestic example of the hostility towards the presence of femininities in traditionally masculine spaces is the division of the labor force along gender lines. Women are overwhelmingly represented in care-giving industries while they are virtually invisible in male-coded industries. In the health and social services industry, women make up 79 percent of the total workforce. They make up 68 percent of education industry’s workforce. From an ethic of care framework, it is unsurprising that many women can be found in these care-giving industries. The education sector is closely associated with child-rearing, and the health and social services industries are closely associated with caring for the sick and the needy. Women, the embodiment of the ethic of care, are overwhelmingly delegated to care-giving industries.
On the other hand, women only make up only 8.9 percent of the construction industry. Unlike the feminine qualities of the education, health and social services industries, the construction industry is heavily masculinized. The construction industry is reliant upon the precision of science and engineer that is associated with the rigid ethic of justice. Moreover, construction work is often linked to intense physical labor, which is associated masculine strength, physique and general manliness.
Similar to the way in which the United States’ decision not to ratify the ICESCR put femininity ‘in its place’ by relegating femininity outside the legal sphere, the domestic labor market retaliates against women who enter the masculine space of the marketplace by diminishing women’s ability to become breadwinners. In 2010, women were more than twice as likely to work part-time than men, partly because they could not find full-time work. Moreover, while more women today are educated than men (with 37.1 percent of employed women over age 25 having earned a bachelor’s degree), male graduate students still outnumber their female counterparts in the workforce. Finally, while women’s unemployment rate has dropped during the recession to an average of 8.6% in 2010, women still earn 81.2% of what men earn. This means that the recession has created more lower-paying, part-time (and less-favorable) jobs for women to occupy. There’s that sign again: ‘no girls allowed’.
There is, however, a glimmer of hope. Women are most competitive in the labor market vis-à-vis men when women have earned at least a bachelor’s degree. In 2010, the gap in unemployment rates between women and men were greater among those had not earned at least a Bachelor’s degree. This suggests that access to education is likely pivotal to the successful integration of women into the male-coded labor market. Unfortunately, uneducated women outside the market place already have the deck stacked against them because “[b]y relegating women to a sphere that is both conceptually and spatially private, society limits [women’s] access to knowledge and power.” Pruitt, supra at 363. Since the American Constitution explicitly recognize neither a positive right to post-secondary education nor a right to fair wages, it would have been awfully convenient for women if the United States had just ratified the ICESCR in the first place.
In case you are still unconvinced that the United States has conspired against women’s rights and the inclusion of femininity and the ethic of care into the masculine-dominated legal and public spheres, consider these last two pieces of our peculiar puzzle: 1) the United States has yet to ratify the international Convention on the Elimination of All Forms of Discrimination against Women, to which almost every other nation in the world is a signed and ratified party; and 2) only three UN Member states have yet to ratify the international Convention on the Rights of the Child, and they are Somalia (which has not had a fully functional central government in over two decades), South Sudan (which only became an independent state in 2011), and the United States of America.
Women who venture beyond the socially reproductive domestic spaces to which they are relegated will likely encounter hostility in traditionally masculine spaces, such as the labor market. Hostilities may appear in the form of discriminatory practices that aim to put women ‘in their place’ by retaliating against women for breaking gender barriers. Similarly, the feminine ethic of care will not be imposed upon a male-coded political agent (i.e., the government) without resistance, as is evident in the American government’s rejection of its positive duty to give effect to the economic, social and cultural rights of the American people. However, such hostilities should not deter our efforts for gender equity under the law. We can’t just wait politely until the boys decide to take down their ‘no girls allowed’ sign. The longer we wait for them to invite us into the deliberation room, they longer they’ll have to design the world in which we live.