Student No. _______
Gender & Justice
1998 Answer Key
1. How law silences identity
___ 5 how silencing occurs: refusal to recognize important aspects of
identity, punishing deviance from traditional norms, denying benefits available
to the majority, preventing integration of minority groups, no protection from
discrimination, upholding seemingly neutral laws, law makes choices for people
and deprives them of self-determination
Gender
___ 10 historically, women prohibited from voting, entering contracts, owning
property, jury service, speaking in public to mixed sex groups, suing in their
own names, custody of their children, access to education; doctrines of
coverture and chastisement (women became their husband’s property)
___ 5 women’s identity constructed as fragile: restricted working hours =
workplace disadvantages; denied admission to the bar, Bradwell v. Illinois;
once admitted to L.S., not accepted; protectionism within the workplace Dothard
v. Rawlinson; Johnson Controls
___ 5 subtle occupational discrimination accepted, relegating women workers
away from particular jobs, hiding their value as workers: EEOC v. Sears
acceptance of gender stereotypes kept hidden cultural discrimination by cloaking
it as "choice"; Personnel Administrator v. Feeney
"veteran" seen as gender neutral; AFSCME v. Washington no
comparable worth
___ 5 law refuses to protect nontraditional personal characteristics atypical
for one’s gender: dress and grooming codes (dress, no long hair on men)
enforce traditional norms and prohibit self-expression; Price Waterhouse v.
Hopkins while blatant discrimination prohibited, subtle gender norming
persists
___ 5 treatment of pregnancy and child care shifts responsibilities to women and
keeps hidden socially unacceptable states: Chambers v. Omaha Girls Club
prohibited single mothers in the workplace; Geduldig v. Aiello ignored
reproductive differences; Bruno v. City of Crown Point employer questions
re child care allowed
___ 5 custody laws: primary caretaker standard prevents men from fathering Garska
v. McCoy; in divorce property and maintenance awards ignore economic needs
for women and children
___ 5 rape laws silence victims (by requiring resistance and indicating
disbelief of complainant; consideration of appropriateness of victim’s attire
and public behavior condemns sexuality of women New Hampshire v. Colbath;
victim goes on trial)
___ 5 abortion laws deprive women of reproductive choices; Planned Parenthood
v. Casey refusal to acknowledge women’s choices without a state-imposed
thinking period
___ 5 domestic violence victims hidden: domestic violence calls given low
priority, Hynson v. City of Chester; male victims not taken seriously
___ 5 first amendment protects pornography that portrays women as objects
___ 5 intersectional discrimination: racial minorities (Sojourner Truth, Ain’t
I a Woman?); indigent women (Maher v. Roe, Harris v. McRae),
but limited recognition of intersectional claims, Judge v. Marsh
___ 5 harms to men discounted: men bear physical harms of workplace, Johnson
Controls; same sex sexual harassment not recognized by Supreme Court until
1998 in Oncale v. Sundowner; drafting men but not women, Rostker v.
Goldberg; punishing men but not women for statutory rape, Michael M.
– all contribute to hiding the softer side of men and force men to be stoic
Sexual orientation
___ 10 LGBT no right to marry (Congress passed Defense of Marriage Act, 26
states prohibit same sex marriages; no public recognition of union); although
some municipalities allow domestic partner benefits, the institutional symbolism
of marriage is missing
___ 5 intimate activity may be criminalized Bowers v. Hardwick
___ 5 economic benefits denied (no health insurance, disability, tax, or
social security benefits)
___ 5 don’t ask, don’t tell policy is explicit silencing; law prevents LGBT
families from forming (no adoption rights, lose custody)
___ 5 Romer Equality Foundation (no "special" protection
= legalized discrimination, by calling equal rights "special
privileges"; pockets of intolerance)
___ 10 Innovative arguments
2. Political, social, and cultural effects of legal silencing
___ 10 silence = powerlessness, deprivation of political voice; inability to
build coalitions (example: % of women in population to % of women elected
representatives; abortion laws, passed by men, regulate women’s choices)
___ 5 suppression of identity inhibits relationships, creates fear, and limits
expressive abilities of individuals
___ 5 on a social level, silencing gender and sexual orientation differences
diminishes diversity and cultivates social insensitivity
___ 5 stereotypes persist, status quo prevails; change is difficult (women seen
as less reasonable, heterosexual presumption); legal silence affords more room
for negative cultural representations to flourish (educative effect of laws)
___ 5 women relegated to domestic sphere, their educational and professional
choices limited; wage discrimination persists, as does occupational segregation
by sex and the glass ceiling
___ 5 second-class citizenship: subordination and hierarchy reinforced;
traditional roles perpetuated
Government reasons for ignoring aspects of identity
___ 5 not recognizing differences = fairness as sameness, fear of special
rights; theory of equality as no distinctions
___ 5 difficulty of creating standards for many different facets of identity
___ 5 government supports individual autonomy, protects majorities, and
preserves traditional concepts (e.g., argues that marriage must be reserved for
opposite sex couples)
___ 5 Innovative arguments
3. Can law constitutionally regulate cultural representation of disempowered
groups?
___ 5 in theory government doesn’t regulate private behavior or cultural
depictions of it; in actuality, that happens all the time as courts and
legislatures limit or approve permissible representations (e.g., Chambers v.
Omaha Girls Club court’s acceptance of role model theory)
___ 5 first amendment challenges to direct regulation of media depictions, but
hate crime laws
___ 10 equal protection: gays not a suspect class (immutable?, visible?,
discrete, insular, history of purposeful discrimination), no heightened
scrutiny; women a quasi-suspect class, so intermediate scrutiny
("exceedingly persuasive justification" United States v. Virginia)
___ 5 Romer: unconstitutionality of legislation motivated by animus
___ 5 Title VII regulates representations in the market as it controls
identity-based employment discrimination
___ 5 Violence Against Women Act (one effort to change cultural construction)
___ 5 Sexual harassment laws targeted to change private behavior (and cultural
construction of women as objects)
___ 10 Innovative arguments
___ 10 Depth of analysis (answers specific to question rather than writing about
gender generally; anticipate and defend counterarguments; fleshing out thesis
with specific evidence; citation to authority)
___ 10 Quality of writing and composition (clarity of writing; conciseness,
grammar, syntax, punctuation, avoidance of passive voice, use of complete
sentences, avoidance of run-on sentences, subject-verb correspondence,
transitions, use of language with flair)
___ 10 Organization (a sensible, clearly demarcated method of organization, with
internal structure; logical flow of ideas; signposting; formatting; pagination;
word count)
Total