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understood where women are not.99 But in so doing they do not speak in the
male voice, but in the voice of dominance; they are not understood as men, but
as those with the power to establish the terms and conditions of understanding.
Those terms and conditions are not male in any sense other than that of their
having been established by those they de¬ne as men.100 The character of men

97 Id. at 123. Drucilla Cornell, however, maintains that MacKinnon also understands women as
men wish them to be understood, in terms of their oppression. MacKinnon, Cornell alleges,
endorses that reality, although she refuses to value it. See Beyond Accommodation, supra n. 7,
at 124.
98 Feminism Unmodi¬ed, supra n. 1, at 61.
See id. at 37 (“ . . . men™s differences from women are equal to women™s differences from
99
men”); 42 (“ . . . men are as different from women as women are from men, but socially the
sexes are not equally powerful”); 51 (“Feminists have noticed that women and men are equally
different but not equally powerful”).
100 Cf. id. at 173: “Gender has no basis in anything other than the social reality its hegemony
constructs. Gender is what gender means. The process that gives sexuality its male supremacist
62 equality

as a sex, the male identity as we know it, is no more, therefore, than a re¬‚ection
of the dominance enjoyed by men.101
It cannot be true, then, as MacKinnon at times appears to suggest, that the
male identity has formed the social world.102 Rather, the experience of social
dominance has formed male identity.103 Seekers of equality can ¬nd nothing
male in men, therefore, except the fact of dominance. Consequently, they cannot
end the hegemony of men except by abolishing hegemony itself, or relocating
it in women. It may be for this reason that MacKinnon calls for the ending
of all forms of dominance and hierarchy, rather than for the ending of male
dominance.
None of this is intended to suggest that in order to be inherent and genuine,
sexual characteristics must be founded in biology. It is simply intended to
clarify and to develop the implications of MacKinnon™s claim that sex is entirely
socially constructed. The primary consequence of that claim is that the only
basis for the reconstruction of sex is social decision. It follows that critics of
existing sexual roles cannot appeal to the natural as a basis for their criticism.
It is indeed possible and perhaps necessary to speak of women™s subordination
and oppression in order to describe the role that women now play in society. It
is not possible, however, to associate that subordination with the suppression
of genuinely female qualities.104


meaning is the same process through which gender equality becomes socially real.” MacKinnon
criticizes the difference approach for endorsing a male referent, but her critique reveals that
what is called a male referent is not male at all, but dominance located in men. What the
difference approach endorses are the criteria of dominance.
101 Or if men have assigned themselves features for reasons other than the dominance of women,
they have subsequently assigned dominant value to those features. In that way, difference is
made dominant. See Sexual Harassment of Working Women, supra n. 1, at 140.
102 See Feminism Unmodi¬ed, supra n. 1, at 36. There may indeed be an af¬rmative action plan
in effect for men, “ . . . otherwise known as the structure and values of American society”,
but it cannot be a plan that af¬rmatively compensates men for their differences from women,
apart from those few differences conceded to be biological. MacKinnon asserts that “[m]en™s
physiology de¬nes most sports . . . ” and in a supporting note cites a ban on breast protection
in boxing. That physiological difference, being part of the reproductive system, is clearly
biological, but MacKinnon is careful elsewhere to challenge the biological basis of physical
capacities such as strength: see id. at 120. On other sexual distinctiveness, see id. at 65.
103 See, for example, MacKinnon™s discussion of athletics, id. at 121.
104 As indicated at note 95, this follows from the contention that genuinely female qualities do not
exist in the absence of legitimate social action establishing them. If what is genuinely female
cannot be found either in nature or in the product of illegitimate social actions based upon
dominance, it can be established only through legitimate social action that has yet to take place.
On one view, therefore, what is genuinely female has not been suppressed because it has not
yet been created and de¬ned.
On another view, however, it could be argued that what is genuinely female has been
suppressed in the prospective or imaginative sense. From that perspective, women have been
denied the opportunity to become what legitimate social action would have permitted them to
become. However, MacKinnon de¬nes legitimate social action as that which avoids dominance,
understood broadly and not in terms of sex. While the absence of legitimate social action has
denied women legitimate qualities, therefore, that is, qualities not based upon subordination,
III. Implications 63

Nor, on this thesis, can critics of existing sexual roles maintain that women
are entitled to share the qualities that de¬ne men as a sex. Those qualities are
no more than the qualities of dominance produced by the system of sexual
subordination. As such, they could be shared by a minority of women but they
could not coherently be shared by all. MacKinnon herself makes this clear in
rejecting the difference approach to discrimination on the basis that it would do
no more than admit a few women to a share in the spoils of dominance.105
Nor is it possible, on this thesis, to suggest that some selection of the qualities
that at present de¬ne women as a sex should be valued in the same way that men™s
qualities are valued. What we know as women™s qualities are the qualities of sub-
ordination, and hence to value them is to value subordination. What MacKinnon
seeks are the qualities of sexual equality, and those are as yet unknown.
Ultimately, if it is true that sex is merely the product of social decision, it is
necessary to establish the proper basis for social decision. For MacKinnon the
exclusive, or at least the governing, basis for the social reconstruction of sex is
the avoidance of hierarchy.106

B. Ending Hierarchy
If ending hierarchy is the goal that is to animate the reconstruction of sex,
then the differences that are henceforth to de¬ne men and women must be
established in such a way that they neither express nor foster dominance, nor
lend themselves to conversion into dominance. This will have to be true not
merely of the differences between men and women, but of the differences that are
to distinguish any one group of people from another, whether on racial, cultural,
physical, intellectual, or other grounds, since MacKinnon™s condemnation of
dominance extends to all forms of difference that de¬ne one group of people
as subordinate to another, whatever the context.

i. lives and their assessment. In discussing our present understanding
of the different physical abilities possessed by men and women, MacKinnon
observes:
It is not that men are trained to be strong and women are just not trained. Men are trained
to be strong and women are trained to be weak. It™s not not learned; it™s very speci¬cally
learned.107

it cannot have denied them legitimately female qualities, since MacKinnon™s idea of what is
legitimate is not sex-speci¬c. See note 95 and accompanying text.
105 Id. at 4, 31.
106 Presumably, MacKinnon would acknowledge that the reconstruction of sex may be animated
by goals other than the ending of dominance, but she would insist that those goals be compatible
with the ending of dominance, that is, that they not enable one sex to dominate the other in any
way. As indicated in section III above, I intend not to question MacKinnon™s assumption that
the only legitimate basis on which sex can be reconstructed is the ending of dominance and
hierarchy but to pursue its implications.
107 Id. at 120.
64 equality

On this analysis, physical ability as we know it is constructed by society in
such a way, ¬rst, as to make one group of people strong and another weak.
Next, strength and weakness are assigned to men and women, respectively,
and presented as a natural consequence of sex. Finally, what is established
and presented by these means as the natural male capacity for strength is en-
dorsed as the social norm against which the physical abilities of both men
and women, and their inequalities, are to be assessed. It is this three-stage
process, which may in fact have taken place either sequentially or simulta-
neously, that MacKinnon describes as the construction of sex in hierarchical
form.
Reconstruction of physical ability in this setting might take a number of
forms. It might take the form, for example, of ensuring that men and women
are, on average, as strong as one another, or as supple, or as ¬‚eet of foot.
In that case, neither sex would be able to dominate the other physically, not
because men and women would be different but equal, but because they would
be indistinguishable in that respect. This solution thus abolishes hierarchy by
ensuring that men and women are identical in the face of a common standard,
strength, for example. This is the path of identity, or as it can be called in the
context of the sexes, androgyny. It has nothing to do with sexual difference,
which in this situation would exist only in some dimension other than that of
physical ability.
Alternatively, reconstruction of physical ability might take the form of re-
fusing social recognition to qualities such as strength, on the ground that they
foster dominance, as a result of either their history or their nature.108 This too
would render the sexes indistinguishable in terms of the qualities in question;
in that sense, it would have the same effect as the ¬rst option. Moreover, it
would still leave men and women open to comparison in terms of some other,
as yet unstated, criterion of physical ability, according to which they could be
found unequal. If we are to prevent hierarchy, then, whatever physical abilities
are to be assigned to men and women must render them equal in the face of
whatever standards are employed to assess those abilities. This, however, is the
path of sexual difference, in its sameness branch. It foresees the comparison
of different people according to the same as yet unstated criterion, whatever it
may be, and seeks to prevent hierarchy by designing people in such a way that
they perform equally according to that standard.
Finally, reconstruction of physical ability might take the form of ensuring
that while the sexes have different physical capacities, such as strength and
weakness, our appreciation of athletic endeavour does not involve comparing
the capacities associated with one sex and those associated with the other.
This might be achieved by conceiving athletics in terms other than those of a
competition in which one quality or characteristic, and by extension the group

108 See id. at 121.
III. Implications 65

of persons that possesses it, is rendered dominant.109 Ending competition in
athletics would permit the sexes to be different without either being dominant.
This solution seeks to abolish hierarchy by establishing separate identities for
men and women and assessing them, if at all, according to different standards.
This is the path of sexual difference in its difference branch.
These illustrations suggest the pervasiveness of the form of analysis that is
embodied in what MacKinnon calls the difference approach to sexual equality.
That analysis, it will be recalled, seeks to establish sexual equality through an
assessment of the different capacities of men and women, according to either
a common standard or different standards. What MacKinnon has attempted, in
her criticism of the approach, is not so much to escape from this form of analysis
as to escape from the discriminatory assumptions under which she contends it
is now carried out, assumptions that are embodied in the social construction of
sex. The elimination of any deliberate sexual biases present in the difference
approach, however, does not necessarily lead to the elimination of dominance
from its results. If MacKinnon achieves her ends, dominance may no longer
govern the comparisons employed to establish the equality of the sexes, but it
may still be present in their effect.
In claiming that sex is entirely socially constructed, MacKinnon has set aside
the idea that what we know as male or female is in any way determined by
nature or biology. In claiming further that sex has been constructed by society
in terms of the dominance of men and the subordination of women, she has
sought to reveal and forestall any reference to the male standard as a norm. In
rewriting in this way the second and third stages of the process of sex formation
described above,110 she has attempted to nullify the power of sexual conventions
and the privileged status that they confer upon men, and consequently has
attempted to give the greatest possible remedial scope to the claims of sexual
equality.
But the revelation that the male standard relied upon by the difference
approach is neither natural nor normal does not resolve the tensions that
MacKinnon has accurately identi¬ed in the two branches of the difference ap-
proach, those of sameness and of difference. The abolition of dominance does
not remove the dif¬culties involved in achieving equality through the recogni-
tion of difference. On the contrary, it appears to highlight them.

109 See id. at 121: “From a feminist perspective, athletics to men is a form of combat. It is a
sphere in which one asserts oneself against an object, a person or a standard. It is a form
of coming against and subduing someone who is on the other side, vanquishing enemies. It™s
competitive. From women™s point of view, some rather major elements of the experience appear
to be left out, both for men and for women. These include . . . kinesthesis, pleasure in motion,
cooperation . . . , physical self-respect, self-possession, and fun.” Emphasis added. MacKinnon
appears to see these interpretations of athletics as inherent in the attitude of the participants, not
in the activity itself. She records her own extended participation in “martial arts as a physical,
spiritual, and political activity”: id. at 117.
110 See notes 107“8 and accompanying text.
66 equality

To return to the model of sexual construction set out above, if men and women
are reconstructed so that they possess the same capacities, so as to be as strong
or as supple as one another, for example, then clearly the three-stage process
that MacKinnon describes as the social construction of sex in hierarchical form
will be bypassed altogether. But there will be no hierarchy of the sexes only
because and to the extent that there is no difference between them. What is
achieved by this means is not sexual equality but androgyny.
I do not intend to pursue the possibility that men and women could be
reconstructed in this way so as to be the same as one another, either generally
or for all public purposes. Such a remedy is not merely implausible; it is the
course of sexual identity rather than sexual equality. It is certainly not what
MacKinnon has in mind in seeking the well-being of women in the name of
feminism unmodi¬ed.
Nor do I intend to pursue the possibility that, however reconstructed, men
and women might avoid the problem of sexual hierarchy by inhabiting entirely
separate worlds. Dominance is a problem born of a world in common and its
resolution lies there. Even if separate worlds were conceivable as a practical
matter, so that it were possible to contemplate a response to sexual and other
forms of social hierarchy through segregation of the dominant and the subordi-
nate, those worlds would at some point have to interact, at which point the issue
of hierarchy would reemerge, albeit in the shape of a con¬‚ict between worlds
rather than between sexes.
On the other hand, if men and women are reconstructed so that they possess
different capacities, so that one sex is supple and the other swift, for example,
and if furthermore there is no assumption that this arrangement is natural or
that the capacity possessed by men is the norm, the three-stage process will
have been reconceived in such a way that it does not embody dominance by
design. But whether one sex will dominate the other in this situation will de-
pend upon the approach taken to the lives in question and their assessment. A
genuine realization of sexual difference, and the revised evaluation of women
that that would entail, would ultimately make sexual hierarchy inconceivable.
However, the reconstruction of men and women in such a way as to eliminate
any inferiority of one sex to the other would have the perverse consequence of
making that realization of sexual difference impossible.

ii. standards of assessment. The standards in terms of which human
beings are assessed and compared may be one-dimensional. We may seek to
discover who can cover a given distance in the shortest time, or who can lift the
greatest weight, or who can obtain the most correct answers on a multiple choice
examination. More complex assessments may sometimes be converted into
these terms, as when letter grades are given for a performance, or an interview,
or a piece of written work. Through the use of standards such as these we seek
to quantify the character of human beings. The terms of assessment we use
III. Implications 67

are concrete, speci¬c, univocal, capable of registering the differences between
people in one respect only. In other words, they de¬ne the existence of a human
capacity while denying the complexity of its character.
When different people are assessed in terms of such a standard, a hierarchy
is established, whose character is de¬ned by the ground of assessment. Some
people will be found to be swifter, or stronger, or quicker-witted, and hierarchies
of speed, strength, and intellectual capacity will be recognized accordingly. In-
deed, the purpose of assessing and comparing people in these terms is usually
to establish such a hierarchy. This is not to suggest that we tend to value hierar-
chies for their own sake; we are more likely to value them instrumentally, as a
means of allocating opportunities or resources, or because we value a particular
activity and so value the performance of those who are shown to carry it out
most successfully.
Assessments of this one-dimensional kind are capable of de¬ning people as

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