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McClain on Sex Equality

By Lawrence Solum

Linda C. McClain (Boston University - School of Law) has posted What's so Hard About Sex Equality?: Nature, Culture, and Social Engineering (TRANSCENDING THE BOUNDARIES OF LAW: GENERATIONS OF FEMINISM AND LEGAL THEORY, Martha Albertson Fineman, ed., Routledge, Chapter 5, pp. 66-82, 2010) on SSRN. Here is the 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.?

Highly recommended.

Full post as published by Legal Theory Blog on September 24, 2010 (boomark / email).