“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.
A very thoughtful piece Jihan. I couldn't agree more, the patience is a virtue school of civil rights has not helped anyone. Ever. I propose that the first thing we can do, individually and collectively, and right now, and with little effort, is merely to support our sisters in their own expression of their identity and dominance. The more we back each other up, the more we create a safe space that lies parallel to the one that threatens and intimidates us, the more we will gain allies and voice. Thanks for sharing.
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