An Introduction to the Feminist Legal Theory
The feminism fight is one that has been laboured throughout the years as women push forward to attain equality and liberate themselves from the patriarchal oppression that has continuously disadvantaged them. The fight began the development of the feminist legal theory on the credence that the law has been instrumental in the historical subordination of women. The theory is meant to firstly explicate the significant effects that the law had on the anterior subordination status of women and secondly to positively modify the status of women through the alteration of this law and its overall approach to gender. The creation of the feminist legal theory is meant to benefit and represent women from variant backgrounds to simultaneously work on lifting their oppressions. The legal theory cannot be expedited should only a group of women be taken into consideration as is being threatened through by mindset of essentialism. The active use of this frame of thinking promotes the danger of a single story shaping the momentum of the feminist legal theory and its activism and breaking “the promise to listen to women’s stories, the promise of [the] feminist method.”
The Threat of Essentialism
The danger of feminist essentialism is that it purports the narrative of a singular, monolithic, non-existent woman whose struggles are often representative of a portion of womanhood. The aim of the feminist legal theory is not to fight for the liberation of this false conception of female struggles, but rather to tackle the inequalities and oppression faced by all women of unalike positions.
As explained by Angela Harris, essentialism is the view that the experiences of women can be segregated and explained autonomously from their circumstances [race, class and sexual orientation amongst others]. It appears that there is a belief amongst many that people, and in this case women, exist in a singular form when this notion could not be farther from the truth. Women co-exist within themselves amongst separate personalities, a multi-dimensionality that encompasses a singular being. This complexity is best described by Teresa de Lauretis who pushed forward rhetoric that individuals are born with selves that often contradict; the consciousness of a mind is never stagnant and is continually evolving in its form. This diversity in consciousness can open jurisprudential discourse and produce “genius” as detailed by Mari Matsuda to disrupt the system. These aspirations of a more inclusive legal theory and activist movements will only be actualised should essentialism derail its prominent place amongst the feminist legal theory.
Historically, essentialism has been present since the inception of the feminist movement. During the first wave of feminism, black women actualised that white women who were at the forefront of the movement had no intention of representing the issues of racial oppression they endured, nor did they have the intention of perceiving black women with any sense of seriousness. This lack of acknowledgement succeeded in implementing a fragmentation of alliances between black and white women that grew as the insouciance towards racial oppression persisted. Feminist activism cannot successfully succeed if there are intolerances that breed disrespect. It impedes the progress of the movement and minimises its effectiveness when not presented as a collective crackdown. As said by Christine Littleton, the development for a better mode of feminist legal theory and activism begins with the simple action of approaching women from all sectors with seriousness and acknowledging the importance and validity of their experience even though it may seem disconnected from the narrative that engulfs them.
Essentialism attempts to empower and wrongly simplify the context of the feminist movement by endeavouring to establish a definitive feminist viewpoint; in order for this singular view to be propagandised, other voices [those of women of colour] are kept in the distance or not at all for this “consolidated” standpoint to thrive. It elucidates the impression that for the universality of feminist legal theory to spread and be heard coherently, voices unlike those of the “norm” (the voices of white women) must be kept reticent. Elizabeth Spelman describes the handling of this as a “paradox” within the centre of the feminist movement as when women are discussed as a collective, taking into account their commonalities, it debilitates the sense of difference that exists amongst them. Vice versa when the differences become the centre of focus, it creates complications in delivering a clear, unified representation of women and the feminist legal theory — the crux on which essentialism stands on. However, the focus on commonalities of the norm has been denominated as “white solipsism” that Adrienne Rich defines as the propensity to “think, imagine and speak as if whiteness described the world”.
Amidst the complications and threat that exist to the prosperity of feminist legal theory, there has to be reasoning as to why the essentialist state of mind is itself so highly withheld. In a nutshell — it is the result of ease, comfort and control. Harris better expands by breaking down the unhealthy reliance into four points. She firstly explains essentialism to be intellectual convenient as a matter of it being representative of the leading culture; material on women of colour was [previously] not readily available and white feminist tended to follow the leading trend. The task to push forward experiences outside this white solipsism bubble was not well received and often perceived as an “extra burden” that had to be supplemented in addition to the weight of carrying the [white] feminist movement. Harris then continues to her second point — the one she deemed crucial — of essentialism taking the form of an “emotional safety” space where its greatest strength is harmony that can only be kept should there be no real difference. She cites the reasoning for this emotional anchor as a result of white women who had formerly been rejected from their original homes and hoped for the essentialist movement to be a place in which they can re-settle. In Harris’ third point, she explains that not only is essentialism an emotional sanctum, but it offers the opportunity to establish echelons based off oppression for white women to place themselves in the primary position to determine the collective experiences of women. She concludes the reasoning for the use of essentialism with the aid of Martha Minow who established that there is a cognitive need to have simple categories and the attempt to unify women’s experience will allegedly aid in its organised understanding at the expense of denying the experiences of others.
As women are extracted from colour and individual circumstance and continuously regarded as “different”, white women become regarded as the norm and the embodiment of women and their struggles with the feminist legal theory. The normalisation leaves women of colour perpetually contained within confines set by white women as their attempt to liberate themselves from the oppression can only be attained through a complexion alteration. Take the analysis by Toni Morrison on the repercussions white standards of beauty have had on people of colour. Individuals of colour likened to “high yellow” are those closest to beauty while those who have a darker complexion remain lesser. In The Bluest Eyes, the main character of black descendants spends the novel praying for blue eyes only for despair to settle in, in the realisation that beauty itself is white. The feminist legal theory is in much peril if as in the novel, the battle for liberation (rather than attainment of beauty) is set by the standards of white women — this fight for liberation then becomes unattainable as all activism will be driven towards the ideals of solely white women. The question then becomes of what can be done to counteract this prospect — the answer is the infusion of variant perspectives and experiences through the framework of intersectionality.
The Reconstructive Framework of Intersectionality
If the singular essentialist philosophy is hampering the feminist legal theory and its activist causes, the counteraction would be the immersion of thoughts, viewpoints and involvement of a diverse group of women through the concept of intersectionality.
Intersectionality, initially coined by American civil rights activist Kimberlé Williams Crenshaw in 1989, is an analytical framework that endeavours to analyse how interdigitated power systems burden individuals that are significantly marginalised in society. Intersectionality attempts to deconstruct the “structural and dynamic” ramifications of multiple forms of subordination systems. As explained by the Gender and Racial Discrimination Group, the framework specifically analyses the impacts of racism, patriarchy and economic disadvantages that generate layers of inequality. Such analysis involves examining how specific acts and policies construct burdens that conduce to establishing a “dynamic of disempowerment”. The conceptual basis of intersectionality links back to the notion that individuals are fluid, not fixed identities, resulting in multiple positions that one person can hold. The multiple positions create the proposition for instances of multiple discrimination to take place.
Consider the case of DeGraffenried v General Motors. Five black women were suing General Motors alleging that the company perpetuated a system of discrimination against black women. Looking at the facts of the case, it inclined towards the proposed claim as no women of colour were hired before 1964 and all those hired after 1970 were discharged. However, this unthinkable claim of double discrimination was disregarded because General Motors still employed [white] women and still employed black [men] people. The retention of white women and black men unfounded the claim and increased the courts’ reluctance to establish a “super remedy” that would be deemed as preferential treatment. The outcome and reasoning provided by the judges in the case effectively propagated the inability for multiple discriminatory factors to overlap and compound in a singular form and confined the boundaries of sex and racial experiences to that of white women and black men respectively.
An example from Crenshaw herself illustrated the instance of a woman that was refused from entering a domestic shelter due to her standard of English being perceived as too low to attain admission. Within the circumstances of that case, the woman’s gender and her race created the position she found herself in, and no one aspect could be solved without the other persisting.
The challenge intersectionality attempts to remedy in the feminist legal theory is in its failure to actualise the difference of race or gender discrimination as opposed to the race-and-gender discrimination that is often endured by women of colour. The discrimination women of colour face as racially disadvantaged women cannot be discerned by isolating the factors of race and gender.
Take the personal anecdote from Crenshaw as an illustration of when the elements compound together. A member of Crenshaw’s study group at Harvard became the first African-American to be part of a formerly exclusive white club. Crenshaw was invited by her colleague and duly accepted the invitation. When they arrived at the destination, although the ban on black men had been alleviated, the women had to enter the premises through the use of a back door to which her colleague had no complaints. She uses the anecdote to illustrate a false sense of solidarity carried in the belief that there is a mutual effect of discrimination, however, as soon as differences begin to unearth themselves is when this fabricated solidarity collapses.
In the same breath, she provides a supplementary anecdote to illustrate the need for intersectional integration. Crenshaw recalls to a period when Harvard was aiming to mobilise a higher number of women and ethnic minorities. Tackling this issue through the lens of intersectionality would potentially result in the creation of a committee that looks at women and ethnic minorities within the same scope. However, Harvard established two separate committees — one dedicated to reviewing the female applicants and the other dedicated to applicants of colour. The separate committees resulted in women of colour being omitted from the selection process. It is not hard to see why intersectional frameworks need to be better integrated into the feminist legal theory as women of colour face being cast aside on the perception that the struggles of white women apply to all.
In order for intersectionality to materialise and begin reshaping the feminist legal theory, it must begin by making racial privilege visible as explained by the Australian Human Rights Commission. The failure of the theory to take into the account the experiences of other women was mostly because of the visibility of whiteness and its prominence. Henceforward, when the discussion of race takes places within the feminist legal theory — this is to include that of Black, Asian, Indigenous or non-white women. Whiteness has had the opulence of retaining the “view from nowhere”; never having to specify their racial identity and centring any discussion that took place about women.
Theoretically, based on its proposed aims and framework, intersectionality is the perfect tool needed to alter the threat of essentialism to the identity of the feminist legal theory. However, even though the framework is grounded on a firm conceptual basis, practically, there is a sense that the framework needs more years of implementation to deduce how it will overcome the essentialist outlook.
The Simple Complexity of Intersectionality
Intersectionality, because of its recent induction into the edges of the feminist legal theory, is difficult to implement correctly. Inclusively, the enactment of the frameworks does not equate to the immediate application of its concepts.
Toni Williams highlights this in her analysis of the sentencing of aboriginal women in Canada. Findings deduced that it is often the combination of race, gender and class that establish a form of “gender entrapment” which propels women of colour towards crime at a higher frequency. Canada had an inordinate rate of incarceration for Aboriginals that became undisputed by the 1990s. A study displayed that Aboriginal women accounted for one in ten federally incarcerated women despite being only three per cent of the national population at the time; they also accounted for nearly half of the women admitted to provisional prisons. Therefore, a new sentencing reform was instigated in an attempt to curtail the over-incarceration of Aboriginals with an intersectional approach in mind. The reform was conducted through a change in the Canadian sentencing law that implored the court to examine factors that are “reasonable in the circumstances…with particular attention to the circumstances of aboriginal offenders”.
The newly made reform was tested in the case of R v Gladue that concerned the appeal of the three-year imprisonment of a young aboriginal woman convicted of manslaughter killing her emotionally and physically abusive spouse. The change in law had no impact on the case, and the sentencing remains unchanged. Moreover, the reform had little to no impact on the lowering of sentencing for Aboriginals and saw the trend worsen for ten years ensuing its creation. The outcomes display that despite its “critical edge” as described by Williams, sentencing courts may still view the framework of intersectionality brusquely and prevent it from being utilised to alleviate overlapping forms of oppression. Equally worrying is the issue of how the framework will be put (if at all) into varying sectors, especially those controlled by white feminists. The predicament lies in the hopes of the white women in decision-making roles recognising their race and the part that it plays in inequalities.
Many prominent [white] feminist may not take on board this intersectional integration with open arms. Such refusal is most flagrantly reflected by Julie Burchill who published a condemning account of the concept in response backlash received from the transgender community. Burchill understands the movement as a deviation from the attempt to dismantle the patriarchal system that lay before all women and attack the “perceived privilege” that white women possess. She sees an irony in the concept as she believes it laments “traditional” feminists from overlooking the diverse experiences while simultaneously berating them for attempting to involve themselves in matters “beyond their understanding”. Burchill goes on to describe intersectionality as the belief that society is fictitious and all that exists are individual special interests. She surmises her disbelief on intersectionality through an attack on the transgender community that lives in a cloud of privilege that allows them to choose their gender when certain cisgender women do not possess the freedom to choose “who they marry, what they eat or whether or not their genitals are cut off. The article seems to express fear of a shift to a broader focus; threatening the emotional safe space and hierarchical structure that once stood unchallenged. It drew parallels to the inception of the feminist movement when fragmentations were formed because of the lack of acknowledgement towards oppressions outside the white solipsist bubble.
Intersectionality is being pushed back as the practical aspect has hardly yet to be explored and is perceived as challenging to do so. Perhaps this apprehension is best expressed by Helen Lewis. Lewis tells a tale of a group of feminist that accumulate and immediately pose a significant threat of excluding other experiences — the foundation of what intersectionality aims to bring to the feminist legal theory. Her fictional example entails an all non-disabled group of feminist that meet and result in the exclusion of the deaf, blind and disabled. The exclusion will persist until a woman who possesses one of the disabilities mentioned comes across the movement, then steps would be to embrace them into the group so their stories and experiences can also be represented. However, the likelihood of this scenario has to be analysed appropriately. Psychologically, there is a higher probability of a group of deaf/blind feminists to start a group that caters to their specific needs because of the tendency for individuals to find comfort in like-minded people. There is also the threat that non-disabled women cannot adequately receive the thoughts, opinions and experiences as they could be secondary to the majority group. The process is not thoroughly tested, hence, not perfect; many unknown factors and outcomes will continue to arise.
The Imminent Paradigm Shift
Essentialism has been the dominant mentality since the commencement of the feminist movement. It is evident that this mode of approaching feminist legal theory is not one that benefits women as a whole, and only fighting the oppression battles of white women leaves women of colour confined to the freedoms set by the unattainable characteristic of fairer skin. Rhetoric was pushed forward involving the ‘normal’, white, feminist movement and left women who faced coinciding forms of discrimination without any platform to communicate this with the world and hence no platform to attain remediation. There is a need for a method that takes into account the diverse experiences of women and facilitates these accounts into the feminist legal theory to establish a broader understanding of women and alleviate the multi-layers of oppression that exists across various overlapping structures. The implementation of such a system would disrupt the closed outlook on what the ideal feminist movement should be, but the loss of this is the gain of voices and stories that need to be heard and told to shed light on the injustices faced amongst multiple platforms. The framework is new and will encounter issues, specifically in regards to how to suitably include women of diverse backgrounds in all conversations and how to link the implementation of the framework with its utilisation. As the framework grows and develops in its use, these are issues it hopes to overcome.
“I am not free while any woman is unfree, even when her shackles are very different from my own”.
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Note: Issues with intersectional feminism persist as it continues to unfold.
