Citation:
McClain, Linda C., What's so Hard About Sex Equality?: Nature, Culture, and Social Engineering (September 21, 2010). Boston Univ. School of Law Working Paper No. 10-30. Available at SSRN: http://ssrn.com/abstract=1680496
As far as I am concerned, this article is a fine example of why lawyers should not be involved in psychology, brain science or anything else that does not involve actual case law.
Linda C. McClain
Boston University - School of Law
September 21, 2010
Boston Univ. School of Law Working Paper No. 10-30
TRANSCENDING THE BOUNDARIES OF LAW: GENERATIONS OF FEMINISM AND LEGAL THEORY, Martha Albertson Fineman, ed., Routledge, Chapter 5, pp. 66-82, 2010
Abstract:
Why is sex equality so hard to achieve? Social cooperation between women and men in various domains of life is assumed to be a fundamental and necessary building block of society, but proves hard to secure on terms of equality. One answer is that feminist quests for equality in private and public life are a form of misguided social engineering that ignores natural sex difference. This chapter examines arguments that nature and culture constrain feminist law reform. Appeals to nature argue that brain science and evolutionary psychology find salient differences between women and men, limiting what social engineering can achieve in fostering sex equality or reforming family law. Appeals to culture argue that constructions of masculinity and femininity are tenacious; challenging them threatens women’s and men’s sense of identity and causes resistance to equality. Contemporary society may espouse a commitment to a “gender neutral society,” but men’s and women’s “unofficial desire” (as Harvey Mansfield puts it) stands in the way. ” I discuss three examples of cultural resistance: the debate about egalitarian marriage, work/life conflict, and popular novels and films about heterosexual romance. Often at work in discussions about sex inequality is the notion of a proper equilibrium between the sexes that is upset when sex roles change or differences are minimized. However, even as critiques of feminist social engineering invoke nature and culture, problems posed by nature feature as a reason to embrace social engineering in the form of the social institution of marriage: Marriage is fundamental, yet fragile. I illustrate this by examining arguments (in case law and the marriage movement) against allowing same-sex couples to marry. The chapter then considers how feminist or female-centered work in evolutionary science challenges the presentation of nature and evolution in popularizing accounts and in public policy arguments. This work cautions about the politics of prehistory, or how certain gender biases or stereotypes may shape the study of human origins and impose a “paleolithic glass ceiling.”
As proof of this, here is her perspective in the paper on the neuropsychological differences between men and women - quoting false statistics.
Male and female brains and evolutionary psychologyThe problem with using Brizendine as her primary source is that she is often wrong - at least according to Dr. Fine, who dismantles most of her arguments with convincing studies. And we have long known that the statistics she cites at the beginning of this section are false (particularly the differences in word usage and thoughts about sex).
The appeal to nature as a constraint on equality enlists brain science and evolutionary psychology, which reportedly find salient differences between women and men, linked to different reproductive biology and reproductive strategies. These differences limit what social engineering can achieve.
In the 1990s, a flurry of books, including Robert Wright’s The Moral Animal (1995) and David Buss’s The Evolution of Desire (1994) introduced basic concepts of evolutionary psychology and sociobiology, proposing that science shed light on sex difference, why men and women had different views about the harm of rape and sexual harassment, and why they made different choices about work–family balance (Wright 1994). Wright criticized feminist legal theorists for avoiding science. He argued that:[M]any of the differences between men and women are more stubborn than most feminists would like, and complicate the quest for—even the definition of—social equality between the sexes. (Wright 1994: 34)In the early twenty‐first century, brain science rivets popular attention. Once again, evolution presents limits to social engineering and affirms sex difference. Enthusing about neuropsychiatrist Louann Brizendine’s work in popular science, The Female Brain (2006), journalist David Brooks opines, “Once radicals dreamed of new ways of living, but now happiness seems to consist of living in harmony with the patterns that nature and evolution laid down long, long ago” (2006: 14).
What are these differences and what patterns do they prescribe? Brizendine (2006: 1) declares, “more than 99 percent of male and female genetic coding is exactly the same,” but the one percent difference “influences every single cell in our bodies.” The inside flap of the book cover promises neurological explanations for such sex differences as:Brizendine turns to evolutionary theory to explain the roots of brain differences. However she is not quietist about human nature. Biology need not be destiny if we understand how evolutionary, biological, and cultural forces shape us (2006). Social engineering informed by biology holds promise:
- “A woman uses about 20,000 words per day, while a man uses about 7,000.”
- “A woman knows what people are feeling, while a man can’t spot an emotion unless somebodycries or threatens bodily harm.”
- “Thoughts about sex enter a woman’s brain once every couple of days but enter a man’s brain about once every minute.”
Biology powerfully affects us but does not lock in our reality. We can alter that reality and use our intelligence and determination both to celebrate and, when necessary, to change the effects of sex hormones on brain structure, behavior, reality, creativity—and destiny. (Brizendine 2006: 6)What does this interplay of biology and human will suggest about social cooperation on terms of equality? I focus on Brizendine’s use of evolutionary theory to interpret brain difference and its implications for intimate and family life. I do not assess whether Brizendine gets the science of brain difference right, though some scientists argue she does not (Liberman 2006; Rivers and Barnett 2007). Scientists caution against letting “dubious science” give credibility to stereotypes and ignore “decades of legitimate findings” about male and female similarity (Rivers and Barnett 2007). “Inflated claims of gender differences,” they warn, have costs to children, adults, and society, as they “reify stereotypes,” limit opportunity, and ignore that “males and females are similar on most, but not all, psychological variables” (Hyde 2005: 581–89). These concerns echo questions about sameness, difference, and stereotypes long posed by feminist legal theory (Mississippi University for Women v. Hogan 1982; Littleton 1987).
“STONE AGE” BRAINS
Contemporary females, Brizendine (2006: 42) asserts, inherit the “ancient circuitry” of “our most successful foremothers.” Teenage girls’ drive for social connection with each other has biological and hormonal reasons. Intimacy “activates the pleasure centers in a girl’s brain,” triggering a near‐orgasmic “major dopamine and oxytocin rush” (37). Girls are motivated “on a molecular and a neurological level” to “ease and even prevent social conflict” and to “maintaining the relationship at all costs” (40). These findings sound similar to those made by Carol Gilligan and her colleagues (1990) on how girls work to maintain connection.
Connection among females has evolutionary roots as a strategy of protection against aggressive males, evident in studies of female mammals that develop stress responses to “tend and befriend” and to form social groups “that promote safety and reduce distress for the self and offspring” (Brizendine 2006: 42). “These female networks” also share infant care, “information about where to find food,” and model “maternal behavior for younger females” (42–43). Social connectedness, thus, contributes to reproductive success (43). Today’s teen females, as they “reach” optimal fertility, undertake similar strategies (43).
Competition is as hardwired as cooperation. Brizendine (2006: 54) attributes the “biology of mean girls”—the harsh tactics of teen‐girl cliques—to a “survival” strategy of “sexual competition” for the best male mates, a “biological imperative to compete for sexual attractiveness.” Success, for both sexes, requires “some aggression,” and relevant hormone levels rise during puberty (55).
Our “Stone Age brain” also shapes mate selection, sex, and motherhood (60). Brizendine repeats evolutionary psychology’s familiar story of the male who chases and the female who chooses, claiming that it is “not sex stereotyping,” but “the brain architecture of love, engineered by the reproductive winners in evolution” (59–60). Contemporary couples proceed “down an ancient pair‐bonding path,” over which they have “little control” (60).
Brizendine draws on David Buss’s influential work (1994) on the different qualities women and men seek in mates. Women are “less concerned with a potential husband’s visual appeal and more interested in his material resources and social status” and prefer a slightly older partner (Brizendine 2006: 61). “Scientists conclude” that these “universal” mate preferences are part of the “inherited architecture of the female brain’s mate‐choice system” and are “presumed to serve a purpose” (62).
What purpose? Brizendine turns to evolutionary biology scholar Robert Trivers, who explains female mate selection as a sound investment strategy stemming from their limited number of eggs and greater investment than men in bearing and raising children. A man “can impregnate a woman with one act of intercourse and walk away;” a woman is “left with nine months of pregnancy, the perils of childbirth, months of breast feeding,” and “trying to ensure that child’s survival” (Brizendine 2006: 62). Ancient necessities led females to seek long‐term male partners to ensure reproductive success; those who “faced these challenges alone were less likely to have been successful in propagating their genes” (62). Brizendine is skeptical about whether contemporary “single motherhood...will succeed,” noting that, even today, “in some primitive cultures,” a father’s presence enhances a child’s survival rates, making a female’s “safest bet” a long‐term male partner to offer protection and improved access to “food, shelter and other resources” (62). In effect, women’s need for protection and provision explains the so‐called sex contract posited by evolutionary theorists.
Men’s ancient brain circuitry, according to Buss, leads them to seek wives who are “physically attractive, between ages twenty and forty,” and with “clear skin, bright eyes, full lips, shiny hair, and curvy, hourglass figures” (Brizendine 2008: 63). These traits are “strong visual markers of [female] fertility,” which offers men “the biggest reproductive payoff for their investment” (63, emphasis in original). But “the most reproductively successful males also need to pick women who will mate only with them,” ensuring their paternity (64).
Men’s concern with paternity supposedly explains their concern with women’s social reputation. Brizendine explains that if a woman had sex with a man on a first date or “showed off” about former bed partners, “his Stone Age brain might have judged that she would be unfaithful or had a bad reputation” (64). But male “seduction and abandonment” is an old problem (64–65). Thus, male and female reproductive strategies put them at odds. Evolution, in effect, explains the sexual double standard. High paternal investment requires men’s certainty of paternity.
However, this model suggests that men have little to lose in random and casual sexual encounters. Why wouldn’t they care about any potential offspring they father, if their strategy is to maximize their reproductive success? The premise implies that if men spread around enough genes, even if they do not personally invest in parental care for all offspring, some may survive due to the mother’s efforts.
Male sexual jealousy, thus, has evolutionary roots and “adaptive functions”—preventing infidelity and ensuring paternity (Buss 1994: 125–29; Posner 1992: 97; Wright 2005: 66–72); it also has enormous costs, evident in domestic violence (Buss 1994). Drawing on evolutionary science, Judge Richard Posner (1992: 97, 112) argues the “biology of sex” explains men’s mate‐guarding behaviors such as “physical sequestration of wives, disparagement of female sexuality,” and female genital mutilation. The sexes are in conflict rather than in cooperation; these male behaviors subvert female choice (Batten 1994).
We need to basing law decisions on more accurate and integral science - a perspective that recognizes stages of development, lines of development, and perspectives, including typologies. What she presents here is from the often dismissed and frequently over-reaching field of evolutionary psychology.
Later in the article, she makes some points about culture and its impact on marriage:
Egalitarian or “peer” marriage is a more just form of marriage, from a feminist or liberal perspective, than traditional marriage and more likely to be happy and stable (Schwartz 1994). Marriage equality is a factor contributing to marriage quality, particularly for women (McClain 2006). However, other scholars point out that marriages with a traditional gendered division of labor may also be quite stable so long as spouses’ expectations do not change (Hetherington and Kelly 2002). Spouses may also accept an unequal division of labor even if they think it is unfair (Brinig and Nock 2002). Thus, considerable disagreement exists about whether social cooperation best takes place on terms of equality or inequality.I don't necessarily disagree with her positions and citations here - what bothers me is that there is a clear lack of developmental clarity. Egalitarian marriages work best when couples are equally matched at that stage, while traditional power structures work best in couples who are equally matched at that stage. Trouble arises when two people at different stages are involved - if she is egalitarian and he is traditional, eventually there will be issues.
It seems as though few people ever consider these issues - especially not lawyers it appears.
Where this paper totally derails in my opinion is when she begins citing Laura Schlesinger (I refuse to call her "doctor" since her degree is in literature, not religious studies, gender studies, or psychology), who is a complete and total moron on her best days. An example:
Stunning her host on the Today show, Schlesinger laid the problem of men’s cheating at the door of any wife who failed to make her husband feel “like a man...like a success...like her hero,” so that he was “very susceptible to the charm of some other woman.” Schlessinger holds women “accountable” for not giving “perfectly good men” the love, kindness, respect, and attention they need, charging that “these days, women don’t spend a lot of time thinking about how they can give their men what they need...” (Armstrong 2008).Even after quoting something as partial and patriarchal as that, McClain goes on to site more from Schlesinger (the women’s movement is a “core destructive influence” - wives should treat their husbands with respect, reinforce them as head of the household, and celebrate difference). I can only assume that McClain must also hold a very traditional (and limited) view of gender roles.
You can read the whole article yourself (download the PDF from the link above) - but I want to offer one more section related to same sex marriage.
In Kerrigan v. Commissioner of Public Health (2008), the Supreme Court of Connecticut concluded that civil unions did not afford same‐sex couples equal protection and that their exclusion from civil marriage lacked constitutional justification. The court determined that same‐sex couples “share the same interest in a committed and loving relationship” and “in having a family and raising their children in a loving and supportive environment” as opposite‐sex couples (Kerrigan 2008: 424). The legislature recognized these “overriding similarities” when it enacted the civil union law (424), and even though same‐sex couples “cannot engage in procreative sexual conduct,” the method of conceiving children is an insufficient difference to negate “fundamental and overriding similarities” (424, note 19). Notably, the state did not appeal to procreation or optimal childrearing as rationales. However, the court noted that the procreation rationale raised by several amici did not satisfy an “exceedingly persuasive justification requirement”: allowing same sex couples to marry “in no way undermines any interest that the state may have in regulating procreative conduct between opposite sex couples” (477, note 79). The court also argued that expanding marriage will not “diminish the validity or dignity of opposite‐sex marriage,” but instead reinforce “the importance of marriage to individuals and communities” (474). Citing to these amici’s procreative purpose argument, dissenting Justice Zarella disagrees: “The ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry” (Kerrigan 2008: 515–16).Connecticut got it right in their ruling - and it makes perfect legal and cultural sense, so then why suggest that rulings such as this make marriage a "fragile institution"?
This examination of case law and of marriage movement writings illustrates how biology, sex difference, and evolution are used to argue against expanding the definition of marriage. Because marriage is a form of social engineering that addresses problems posed by nature, it is a fundamental and fragile institution.
Anyway - we need to get lawyers out of these issues. We need real science and clear thinking - and a little higher order perspective would be useful.
Tags:
No comments:
Post a Comment