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it is fundamental to her argument that women are knowable only in terms of the condition of
powerlessness that they share with blacks and the poor. Her theory is not so much inattentive
to the condition of black women, therefore, as inattentive to and undistracted by any and all
shadings in the character of powerlessness: see her criticism of Carol Gilligan.
56 equality

as more degraded than that even of blacks, since anything that black men suffer
black women suffer more. “If bottom is bottom, look across time and space,
and women are who you will ¬nd there”:72

To argue that sex oppression is a pale sister of racial oppression, so that even to compare
them mocks the degradation of blacks and minimizes the violence of racism, strongly
underestimates the degradation and systematic brutality, physical as well as emotional,
that women sustain every day at the hands of men.73

MacKinnon maintains that sexual subordination is comparable to racial subor-
dination because both involve “the stigmatization and exploitation and denigra-
tion of a group of people on the basis of a condition of birth”.74 When whiteness
and maleness de¬ne the meaning of humanity for a society, by establishing the
standards of human behaviour there, to be black or to be a woman is literally
to be less than human.75
On the basis of this kind of argument, MacKinnon might plausibly be inter-
preted as contending that dominance means conferring the status of a norm upon
the set of characteristics that describes white males as different from women
and blacks, a status achieved by means of the social construction of sex and
of race.76 Ending dominance, on that analysis, would be a matter of ending
the present degradation of women and blacks by reconstructing the meaning
of sex and race so as to ensure that in the future social norms are no longer
de¬ned exclusively in terms of white male characteristics: “Once no amount
of difference justi¬es treating women as subhuman, eliminating that is what
equality law is for.”77
This reading of dominance and subordination seems to come much closer
to the heart of what MacKinnon understands hierarchy to mean. To appreciate
her position fully, however, it is necessary to go one step further, and not to
be misled by her use of terms such as degradation, oppression, brutality, and
subhuman treatment, or by her references to the status of a group of people
who once were enslaved and who have never fully escaped the consequences
of that fact. MacKinnon emphasizes throughout her work that dominance and
subordination, as she understands them, are present in any social practice that

72 Id.
73 Sexual Harassment of Working Women, supra n. 1, at 129. See also id.: the history of sexual
distinctions in society is “no less vicious, wasteful, or unwarranted, than the history of racial
distinction”.
74 Feminism Unmodi¬ed, supra n. 1, at 167.
75 It is dif¬cult to reconcile this argument and other examples of the devaluation of women with
MacKinnon™s thesis that the male and female sexes are entirely de¬ned by their roles of domi-
nance and subordination. See notes 93 to 104 and accompanying text.
See, for example, id. at 65: “The white man™s meaning of equality . . . has not valued any cultural
76
or sexual distinctiveness except his own.”
77 Id. at 43.
II. Difference and Dominance 57

treats a group of people as inferior in any respect.78 That is true whether or not
the practice is based on functional differences,79 whether or not the differences,
if functional, are conditions of birth,80 and whether or not the treatment reaches
the level of brutality.81 In short, dominance is present in any difference that
implies the inferiority of those de¬ned by it. As MacKinnon puts it in the
context of sexual dominance:

If sex inequalities are approached as matters of imposed status, which are in need of
change if a legal mandate of equality means anything at all, the question whether women
should be treated unequally means simply whether women should be treated as less.82

On MacKinnon™s analysis, therefore, the ending of dominance and hierarchy
is a matter of recognizing that

. . . discrimination consists in the systematic disadvantagement of social groups. This
approach to inequality is marked by the understanding that sex discrimination is a
system that de¬nes women as inferior from men, as well as ignores their similarities.83

Understood in this way, however, dominance and hierarchy have implications
well beyond the issues of sex and race and their treatment in antidiscrimination
law. Indeed, MacKinnon makes it clear that in her view unequal power relations
are as present in the social practices that distribute wealth as they are in the social
practices that de¬ne sex and race.84 Just as the social construction of sex de¬nes
women in terms that ensure their inferior status, so the social construction and
valuation of other human characteristics de¬ne the poor, most of them female
but many male, in terms that ensure their poverty.85 If the basic reality of the
subordination of women to men is that “[w]omen are seen as not worth much”,86

78 See, for example, her assertion that a speaker addressing an audience is engaging in an exercise
of male power, at note 46 and accompanying text.
79 Sexual Harassment of Working Women, supra n. 1, at 140.
80 Id. at 117, 121.
81 Id. at 105: “Under an inequality approach, detrimental differentiations based on sex are
discriminatory. . . . ”
82 Feminism Unmodi¬ed, supra n. 1, at 43. My emphasis. See also Toward a Feminist Theory of the
State, supra n. 1, at 248: speaking of what sex equality law would look like under the dominance
approach, MacKinnon writes: “Statistical proofs of disparity would be conclusive.”
83 Sexual Harassment of Working Women, supra n. 1, at 116. My emphasis.
84 Feminism Unmodi¬ed, supra n. 1, at 61: “My second urgent question [for explanation and for
organizing] has to do with class and with race. I would like to see some consideration of the
connections between the theory of sexuality I have outlined and the forms of property possession
and ownership and the erotization [sic] of racial degradation and money. A third urgent issue is
the relation between everything I™ve said and all forms of inequality. Am I describing only one
form within a larger system, or is this the system, or is this too abstract a question?”
85 Id. at 4, n. 9: Speaking critically of Owen Fiss™s theory of group disadvantage, MacKinnon
writes: “Treatment of the poor, a group that is, after all, totally socially created, is grudging to
the point of exclusion.”
86 Feminism Unmodi¬ed, supra n. 1, at 171.
58 equality

then clearly the poor are subordinated in MacKinnon™s sense, since by de¬nition
they are seen as not worth much.
Subordination may thus be established through economic as well as through
sexual and racial practices. All of these practices may be used to the same end,
and in fact all are; each sustains the ability of one group of people to obtain and
consolidate power over another. Accordingly, MacKinnon speci¬cally rejects
any interpretation of group disadvantage that addresses sexual subordination
but fails to address the condition of the poor.87 She insists that blacks and
women should be entitled to relief from disadvantage not only on the basis of
their race and sex, but also on the basis of any other social practices that make
them poor:88
We need to systematically understand in order to criticize and change, rather than repro-
duce, the connection between the [general] fact that the few have ruled and used the many
in their own interest and for their own pleasure as well as pro¬t and the [gender-speci¬c]
fact that those few have been men.89

And further:
. . . gender in this country appears partly to comprise the meaning of, as well as bisect,
race and class, even as race and class speci¬cities make up, as well as cross-cut, gender.
A general theory of social inequality is pre¬gured, if inchoately, in these connections.90

This comprehensive understanding of dominance and subordination, then, ap-
pears to be what MacKinnon has in mind when she says: “To us [feminists] it
is a male notion that power means someone must dominate. We seek a trans-
formation in the terms and conditions of power itself.”91


III. Implications
One might disagree with MacKinnon™s contention that sex is a social rather
than a biological construct, or with her assumption that what has been socially
constructed can be socially reconstructed through an act of collective will. One
might also disagree that equality requires us to abolish all social hierarchies,
and therefore to eliminate any dominance of one sex by the other in any respect.
It is possible that one could construct a response to her work on either or both
of these grounds.

87 Sexual Harassment of Working Women, supra n. 1, at 4, n. 9.
88 Id.: In rejecting Owen Fiss™s approach to group disadvantage, she writes: “Since poverty is not
seen to be completely all-pervasive, cultural, disabling, maintained by false consciousness, and
as dif¬cult to change as the meaning of being black, it seems unlikely that women would fare
well under this interpretation.”
89 Id. at 61“62.
90 Feminism Unmodi¬ed, supra n. 1, at 2“3.
91 Id. at 23.
III. Implications 59

It seems to me, however, that neither of these grounds is the most fruitful
basis on which to assess the merits of her argument. I ¬nd it more enlightening
to explore the consequences of her argument on her own terms. In particular,
the implications of her two main theses “ ¬rst, that the differences between
people are entirely socially created, and second, that those differences amount
to inequality whenever they de¬ne one group of people as inferior to another
in any respect “ need to be pursued to their conclusions. This is something
that MacKinnon herself does not do. Indeed, it is a notable feature of her
exposition that her discussion of the ideal of equality, and the changes required
to achieve it, is much briefer and less assured than her description of the physical
circumstances of sexual inequality. Her ear for what women have to say seems
acute, and her understanding of the nature of their predicament, of the ways
in which they have been dominated, devalued, and silenced, appears to be rich
and attentive. Yet she says little of what it would ultimately take for women
to be empowered and valued, of what it would mean for women™s voice to be
heard in full.
This is not to suggest that MacKinnon is under any obligation to de¬ne a
solution to the problem she describes. It is to say, however, that her analysis must
be compatible with such a solution. In the absence of any extended consideration
by her of the problem of reconstructing sex and other social differences in a
nonhierarchical form, there is reason to be concerned about the consequences
of her argument in favour of sex equality. It seems to me that the only way to
meet that concern is to pursue those consequences sympathetically, in terms of
MacKinnon™s own analysis.
I do not intend at this stage, therefore, to question the substance of her theses,
and will proceed rather on the basis of her own assumptions, namely, that sex
is in fact a social construct, that in our society it has been constructed in such a
way as to establish and entrench the dominance of men over women, and that
the only legitimate basis on which it can be reconstructed is the ending of that
dominance.


A. The Social Construction of Sexual Identity
If sexual identity as we know it has been entirely socially constructed, if it has no
basis in either nature or biology, then there can be no basis for its reconstruction
other than social decision.92 On this view, their different reproductive systems
aside, men and women are by nature blank slates, indistinguishable in their

92 I do not mean to suggest that there is no constraint of any kind upon such social decision, for in
that case there would be nothing to complain of in sex as we know it. I point out only that there is
no constraint upon such social decision in the facts of nature. Clearly, any social reconstruction
of sex will be legitimate only if it is based upon a morally enlightened attitude to the relations
between human beings, which for MacKinnon is a commitment to the avoidance of hierarchy.
On that issue, see the next subsection.
60 equality

capacity to be created and de¬ned by the society in which they live. Neither sex
has a presocial, natural character that can be referred to in order to establish
its true identity or reveal its equality with the other. On the other hand, the
character that has been inscribed by society over the course of human history
upon the blank slate provided by nature, namely, the content of sex as we know
it, while true, is illegitimate, and so must be replaced. In short, there is no true
meaning to sex other than the meaning that MacKinnon seeks to reject. This
view of the origins of sex has a number of signi¬cant implications.
First, if women have no natural existence as women, it cannot be the case
that their voice has been silenced. Women may indeed have been assigned the
role of silence. They may have been prevented from speaking at all,93 or they
may have been prevented from using language as others do and as they might
wish to.94 They may have been assigned silent roles, that is, in a society in
which voice is an aspect of dominance. But they cannot have been silenced
as women, for in MacKinnon™s theory there is no inherently female voice to
silence. There cannot have been any suppression of a natural or genuine female
identity, because no such identity exists.95 Accordingly, women™s nature cannot
be awakened or revealed; it can only be invented.
What is striking about MacKinnon™s treatment of this aspect of her argument
is that the only programme of invention she offers for the reconstruction of sex
is the avoidance of hierarchy. That programme, however, is not in any sense dis-
tinctively female. On the contrary, MacKinnon emphasizes that subordination
within a hierarchy, as she understands it, is experienced by blacks, the poor,
and women alike. She speci¬cally rejects any interpretation of subordination
that would focus on sex- or race-based disadvantage to the exclusion of that ex-
perienced by the poor. On her account, disadvantage is not based on the content
of sex or race; the content of sex and race is based on disadvantage.96 Women
who pursue her programme for equality, therefore, may escape subordination,
but in doing so they can neither discover nor invent themselves as women.
The corollary to this view of the origins of sexual identity, as MacKinnon
herself points out, is that nothing of what now de¬nes women can be said to
be intrinsically theirs. Our society has assigned certain qualities to women, and
those qualities have thereby become women™s qualities for us: both men and
women claim to recognize them as such. In truth, however, those apparently
female qualities have been established by the social decision of men. What
we see as women™s features, therefore, are no more than the features of men™s

93 See id. at 45: “Take your foot off our necks, then we will hear in what tongue women speak.”
94 I include here the idea that they may have been prevented from having anything to say, from
having a life out of which articulation might come, so as to suffer what MacKinnon calls silence
of the deep kind: see id. at 39.
95 In the absence of legitimate social action establishing it, which has yet to take place. See
following paragraph and note 104.
96 See notes 88“89 and accompanying text.
III. Implications 61

purpose, and where that purpose has been to create and maintain a hierarchy,
they are simply the features of subordination. If subordination wears a different
guise in women than it does in blacks or in the poor, that too is the result of the
social decision of men. Women have no distinctive or inherent claim even to a
subordinate identity.
It is for this reason that MacKinnon rejects Carol Gilligan™s attempt to discern
and describe qualities that could be said to constitute women™s different voice.
Given male dominance, the voice and the qualities that Gilligan sees as women™s
are in fact men™s. They are the characteristics of the oppressors, not of the
oppressed. It is merely a sentimentalization of oppression, MacKinnon charges,
to attempt to value them as women™s.97
Furthermore, the more successful and thus comprehensive the construction
of sex, the more dif¬cult it is for women to de¬ne themselves in opposition
to it, as MacKinnon again points out. If the construction of sex is effectively
governed by an all-embracing purpose, it may be impossible for women to
develop a perspective from which to criticize it. Women in that position are
the victims of a consciousness that might be called false if there were any that
could be called truer:
What I™ve learned from women™s experience with sexuality is that exploitation and
degradation produce grateful complicity in exchange for survival. They produce self-
loathing to the point of extinction of self, and it is respect for self that makes resistance
conceivable. The issue is not why women acquiesce but why we ever do anything but.98

The second dimension of the thesis that sex is socially constructed is that
men also lack any natural identity as men. It cannot be the case, then, that
authority has been conferred upon the male voice and male identity. On the
contrary, men have assigned themselves roles that are the correlatives of those
they have assigned to women: they speak where women are silent, and they are

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