Читать книгу The Invisible Woman - Joanne Belknap - Страница 19

Differences between men/boys and women/girls have been divided into two categories: sex differences and gender differences. Sex differences are biological differences, including differences in reproductive organs, body size, muscle development, and hormones. Even biologically it is not always clear what sex someone is; 1 in 2,000 births are intersex individuals, and the pattern has been to have the doctor decide the sex at birth in these “questionable” cases (Kessler, 1990). Gender differences are those that are ascribed by society and that relate to expected social roles. Examples of gender differences include clothing, wages, child-care responsibilities, and professions. Not only are most differences between males and females gender (as compared to sex) differences, but gender-based differences are rooted largely in inequality (MacKinnon, 1990). Because society creates these inequalities, society must also be the solution to restructuring the images and opportunities of women and men (and girls and boys) to achieve equality.

Sex and gender differences are further complicated by the recognition that sex is not a female–male binary and that people are born with unclear biological sex markers, including “ambiguous” genitalia (not clearly distinguishable whether the body part is a penis or a clitoris) and ranges of hormones and chromosomes (Sanz, 2017). Sanz (2017) points to Global North scientists’ devotion to a sex binary since the 18th century and their commitment to disavowing the extensive biological distributions among the “sex” continuum. The acceptance of sex as nonbinary makes the social construction of gender as peculiar as it should be considered. Forbes’s (2014) definition of trans (an abbreviation of the word transgender) is simply people who “live as the gender that is not associated with their birth sex” (p. 388). Thus, a proposed way of moving feminist criminology forward is to trans framework, that is, to move beyond a gender binary (male–female binary), to help address the multitude of ways that gender privileges and oppresses (Musto, 2019, p. 50).

Court cases on sex discrimination have historically confused sex and gender differences, often ruling to the disadvantage of women on the basis that cultural/societal (or gender) differences are “immutable” (Rhode, 1989, p. 3). That is, legal discourse has historically failed to distinguish sex differences from gender differences, viewing both as inherent and not recognizing the role society plays in perpetuating gender inequalities. Inherent in this distinction between sex and gender are the concepts of sexism and patriarchy. Sexism refers to oppressive attitudes and behaviors directed at any gender; that is, sexism is discrimination or prejudice based on gender. In practice, the discrimination, prejudice, and negative attitudes and behaviors based on sex and gender are directed primarily at women (e.g., women are not as “good” as men, women exist for the sexual pleasure of men, women are defined by their beauty, etc.). Sexism can be further divided as it is in Chapter 6, distinguishing between benign and benevolent sexism, and include structural sexism, described in Chapter 7. Homan (2019) defines structural sexism as “systematic gender inequality in power and resources” and distinguishes between its enactment at the state (macro), marital dyad (meso), and individual (micro) levels (p. 487). Although Homan applies structural sexism to health inequality, it applies also to the criminal legal system and justice inequality. Marital status as a gendered/sexist phenomenon is raised frequently in this book, as is macro structural inequality in terms of how laws, policies, police, courts, prisons/jails/youth detention institutions perpetuate gender inequality for women/girls as victims, offenders, and workers in the criminal legal system. Homan stresses that structural sexism must be studied “across a variety of status characteristics, including race, education, marital status, sexual orientation, and parental status” (p. 509).

Patriarchy, on the other hand, refers to a social, legal, and political climate that values male dominance and hierarchy. Central to the patriarchal ideology is the belief that women’s nature is biologically, not culturally, determined (Edwards, 1987) and that laws are from men’s standpoint, consistent with men’s experiences (MacKinnon, 1989). What feminists identify as (socialized/constructed) gender differences (e.g., the ability to nurture children), therefore, are often defined as sex differences by the patriarchy. Patriarchy and its privileges, then, remain as part of the defining quality of the culture and thus of criminology and the criminal legal system. Starting in the 1970s, some feminists have advocated for “feminist or woman’s law” in order to “describe, explain and understand women’s legal position, especially for the purpose of improving women’s position in the law and society” (Dahl, 1986, p. 240). Jurisprudence is the philosophy or science of law. Feminist legal scholars developed feminist jurisprudence to understand the law “as an institution of male dominance” (Haney, 2000, p. 644). Yet feminist legal scholar Smart (2002) questions whether even feminist jurisprudence can “de-center” the legal system when patriarchy is so ingrained in it.

In sum, understanding the distinction between sex and gender informs us that most differences between men and women and boys and girls are societally based (gender), not biologically determined (sex). Although this is encouraging in that we are more likely to be able to change society than we are to alter biology (and the ethics of biological changes are daunting), this book examines how gender differences are strongly entrenched in tradition and have negatively affected the lives of women and girls, including in the criminal legal system. Furthermore, sex differences, such as the ability to become pregnant, have also worked to women’s disadvantage in employment and many law cases.

Importantly, then, gender is a social (not biological) construct, but in some sense so, too, is “sex” when it has historically, and often currently, been decided by doctors whether intersex newborns are “boys” or “girls” when they do not clearly fit into one or the other of the female-or-male gender/sex binary. In trying to view gender as beyond a binary, I use the terms female and male reluctantly in this book given the biologically heavy associations with those words. But it is also very cumbersome to use phrases such as “girls and women” and “boys and men” so I still sometimes use female and male, if reluctantly, also recognizing that sex and gender are nonbinary. It is also necessary to stress that similar to sex, race, too, is socially constructed. A large body of research documents the phenomenon that biological racial categories do not exist (Delgado & Stefancic, 2017; Haney-López, 2006; Mendez & Spriggs, 2008; Wing, 2003; Zuberi, 2001). This is not to deny the very real practices and experiences of sexism and racism, but rather to understand that sex and race are socially constructed, and the social construction has been used to deny rights to Indigenous, African American, Latinx, and Asian American people (Hernández, 2017).