A lot of people think gender is really cool. They might celebrate gender “diversity.” Or they might believe that legal protection for “gender identity” and “gender expression” is a fundamental human right because it is a shortcut for deconstructing sex stereotypes–it’s not. But at the very least, most people view gender as neutral. Harmless, really. They might say, hey, gender is just a categorical system to organize people along a natural binary! You know, it’s like yin and yang. Complimentary. Two sides of the same harmonious coin. It’s kind of romantic, isn’t it? I mean, there’s no conspiracy! The global crisis of women’s oppression is just an unfortunate mistake. Gender has been misinterpreted. Because really, there is nothing wrong with men being men and women being women; that’s just how the world is. Deal with it. Stop judging.
Maybe you’ve heard this one before? Or some variation of it. At a party, maybe a family dinner, or even at work last week. I’ve know I’ve heard it a million times before. They tell me that gender is just natural; and gender inequality is like a big misunderstanding.
At this point, I’d like to introduce a legal theory of liability known as disparate impact.* To be clear, this is an American legal principle most commonly applied in the contexts of employment and housing. But it has relevance to my “results” analysis. Disparate impact has been defined as:
A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.
Applying disparate impact theory to gender would mean that even if one does not believe gender is discriminatory against women on its face, the disparate impact that gender creates for women renders “gender” fundamentally unjust in practice, and therefore indefensible.
Gender is harmful to women because women are limited, damaged, and literally shortchanged by sex-based social roles in every context imaginable. As I explained in “A feminist critique of cisgender,”
Notwithstanding variations caused by intersecting factors such as economic class, national jurisdiction, and cultural differences; the collective female social location is consistently less than similarly situated males in terms of: (i) material resources received as an infant and child, (ii) respect, attention, and intellectual encouragement received as an infant and child, (iii) risk of being sexually exploited or victimized, (iv) role within the hetero family unit, (v) representation and power in government, (vi) access to education, jobs, and promotions in the workforce, (vii) property ownership and dominion over space.[vi]
This is just a high level overview of the disparate impact of compulsory gender roles at the expense of girls and women. It gets worse, too. But the central point is that these sex-based gender roles persistently undervalue half of the human race just for being born, just for being female. It isn’t rational or necessary and the results aren’t neutral. We are talking about the world’s oldest prejudice. Gender isn’t cause for celebration or lazy dismissal.
Women cannot insulate ourselves from sex discrimination and gendered oppression by being “good girls” and conforming to our gender role. Feminine behavioral virtues (deference, openness) and appearance mandates (hairless, skinny) are used as tools of oppression against women to keep us docile, distracted, and under control. Femininity is demanded of women (see Jespersen), and yet we must be aggressive and competitive (see Hopkins) in order to thrive in the marketplace of labor. Even a professionally feminine appearance can elicit unwanted sexual attention up to and including sexual aggression from men. And still, internalized feminine socialization makes it difficult for women to set boundaries because saying no is ungracious. Gender hurts women regardless of whether we comply or resist. It is a catch-22. It is a double standard, ladies. We can’t win. Because the gender game is rigged against us.
Gender is not a neutral phenomenon. The logic of a disparate impact analysis demands an immediate “cease and desist” of the sex-based social roles that are at the root women’s oppression. Gender can and should be liable for the objective and persistent inequality it has created on the backs of women. Legally, this would require strict enforcement of prohibitions on irrational sex-based treatment and a moratorium on (or overturning of) laws that support the naturalization of gender by prioritizing gender-identity over sex. Socially, this would require everyone to stop celebrating gender as a cool thing and as an important way of “knowing” oneself, and to stop confusing sex with gender. Gender is a dangerous ideology. It hurts women.
*Disparate impact theory has been used to protect women in other situations, such as when faced with domestic violence related evictions in publicly funded housing. See link for details. The Violence Against Women Act (VAWA) was reauthorized in 2013 and is theoretically notable for its implicit acknowledgement of gender’s disparate impact on violence: an alarming number of women are victims of violent crimes and a disproportionate number of these violent criminals are men. Facts are facts; and facts prove disparate impact. VAWA does not explicitly name sex-based social roles (aka gender) as the source of this well-documented disparity in violence, of course, but I’d argue that the result presumes a cause–whether the source is social or biological is always a contentious discussion. Ultimately, though, we must always remain mindful that: “…the criminal justice system is a limited tool in addressing what is a social, political, and economic problem.” [quoting Kimberley D. Bailey, “Lost in Translation: Domestic Violence, “the Personal is Political,” and the Criminal Justice System.,” Journal of Criminal Law & Criminology, vol. 100, no. 4 (Fall 2010), pp. 1255-1300.]