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


___ 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 husbandís property)
___ 5 womenís 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 oneís 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 victimís 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 womenís 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, Ainít 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. Ė 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 donít ask, donít 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 womenís 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 doesnít 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 courtís 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)