LSESU AMNESTY INTERNATIONAL

Radmila Yarovaya

The male paradigm has served as the standard reference point for human experience throughout much of western history. Due to the narrowness of this perspective and the exclusion of women from the socio-legal sphere, men constructed a world in the image of themselves. This world upheld the power structures that kept men at the top and enforced stereotypes that saw women as feeble minded, hysterical, perverse, and in general incapable of agency. My research paper will examine the ways in which society sought to control the female body – primarily through the legal system – and how that has impacted the way in which women are broadly seen and treated in society as well as the barriers that they continue to face. This will be done by looking at how women and their bodies have been treated through history and how misconceptions about women and their agency have influenced laws which continue to uphold traditional gender norms and image of women in society. By engaging not only with the works of legal scholars such as Mary Joe Frug and Richard Arneson but also contextualizing it within feminist theory by examining Simone de Beauvoir, it will be demonstrated that the consequences of a fixed mindset that others women has a negative impact not only in the legal sphere but more directly on the bodies of women. 

In one of the seminal works of feminist philosophy in particular and western philosophy in general – The Second Sex, Simone de Beauvoir proposes that the gender divide between the traditional male and the traditional female is not a self-contained event but a persistent severance constantly perpetuated by human action. To begin to understand the cycle of division that the woman is a part of perpetuating, it is necessary to look at how the division began in the first place. Women always view themselves in relation to men, “Humanity is male, and man defines woman, not in herself, but in relation to himself; she is not considered an autonomous being” as a result, a man can see himself as separate from a woman, whereas a woman cannot see herself as separate from a man (Borde and Malovany-Chevallier 26). The foundations of this phenomenon can be found in our basic psyche, as Hegel explains it, in that when two individuals exist together, an automatic animus develops towards the other, to which the subject sets itself up in opposition, casting the other as the inessential object because it views itself as obviously unique through the lens of its own existence (Borde and Malovany-Chevallier 27). Thus, an artificial primary opposition is established.

Mary Joe Frug echoes this sentiment of exaggerated division by asserting that it is not sex differences themselves that pose the problem but rather the “that the continuous interpretive struggles over the meaning of sex differences can have an impact on patriarchal legal power” and that “the differences between women and men are not biologically compelled; they are, rather, ‘socially constructed’” (Frug 126, 128). Thus, it is not simply that men and women are different but that throughout the development of the world, female traits and roles have been purposefully downgraded. This has seeped into every layer of society and is what led to the establishment of the standard male paradigm and the continuous power of patriarchal ideals. 

However, the question remains – how exactly did the first divide occur? The answer lies at the beginning, and in the beginning, there was struggle. Life in the beginning of human history was difficult and littered with danger. Women could not contribute to the tribe’s prosperity because they were continually inhibited by the responsibilities of reproduction – such as pregnancy, giving birth, and menstruation – and therefore were bound to their bodies via their reproductive function (Borde and Malovany-Chevallier 97). As a result, women created a burden for the community without being able to compensate them with any tangible benefits. It would be thousands of years still until an agriculture based society evolved where an abundance of people, and therefore work power, would be seen as a plus. Nevertheless, one can see how a distrust of the female body was established as well as the need to regulate it. In this way, the woman became the lesser of the two sexes and her body a site for communal surveillance. 

This continued obsession with the female body can still be seen through the regulation and stigmatization of activities such as prostitution and surrogacy. Not only is the prejudice surrounding these activities and the women who engage in them important, but also how it continues to shape the societal version of what a woman is and ought to be. The criminalization of prostituion negatively affects all women as, “Anti-prostitution rules terrorize the female body. The regulation of prostitution is accomplished not only by rules that expressly repress or prohibit commercialized sex. Prostitution regulation also occurs through a network of cultural practices that endanger sex workers’ lives and make their work terrifying” (Frug 133). Due to the marginal status of prostitutes and their precarious financial and social situations, all women are forced to mitigate their conduct and try to monitor how they are perceived by the world, lest they be associated with the uncleanliness of the sex trade, stripping them of respectability and social protection, “The terrorization of sex workers affects women who are not sex workers by encouraging them to do whatever they can to avoid being asked if they are “for” illegal sex . Indeed,marriage can function as one of these avoidance mechanisms, in that, conventionally, marriage signals that a woman has chosen legal sex over illegal sex” (Frug 133). In order to change the way that women are perceived and truly liberate them from the need to fit into the madonna or whore binary, prostitution must be decriminalized, which will lead to its destigmitaztion. As Lumina Albert writes, “Stigma associated with sex work involves the perpetuation of negative stereotypes, which result in discrimination that seeps into a multitude of avenues (e.g., health care, housing, social services etc.)” (Albert 672). Most of this stigma and fear of association stems from the inherent perception of prostitution as degrading and as women of being more vulnerable to its negative effects. Debra Satz points out that “The advocates of prostitution’s wrongness in virtue of its connection to self-hood, flourishing and degradation have not shown that a system of regulated prostitution would be unable to respond to their worries. In particular, they have not established that there is something wrong with prostitution irrespective of its cultural and historical context” (Satz 74). She argues instead that, prostitution disadvantages women since it prevents them from obtaining the same income and possibilities as men once they engage in it, “In this sense, prostitution can have an effect on labor-market inequality, associating women with certain stereotypes. For example, images reinforced by prostitution may make it less likely for women to be hired in certain jobs” and that prostitution reinforces the idea that all women are merely sex objects who exist to serve men as such (Satz 77, 78). 

Women’s precarious position is demonstrated further when one considers that there is no similar negative stereotype that affects men who are engaged in sexual labour, “Men are gigolos and paid escorts-but their sexuality is not seen as an independent capacity whose use women can buy… Men are not depicted as fully capable of commercially alienating their sexuality to women; but prostitution depicts women as sexual servants of men” (Satz 78). Therefore, in order to truly reform the perception of female sexuality and make it – and by association all women – equal to men both in the sphere of sexual labour as well as society at large, women must accept prostitution as a legal vocation and retake control of their bodies as a result. This will earn them more respect since, unlike male prostitutes, they will not be separated from their sexual profession on a personal level. The prostitute, while fulfilling the sexual wants of her (most likely) male client, will be utilising him to gain her own income and achieve her own goals. As a result, a type of equality will be achieved, in which both parties get what they want and neither is exploited unfairly. This approach will also take care of the degradation argument as, “By insisting on the inherent and unqualified degradation of sex commerce, those who use the metaphor only add to the degradation they presumably oppose” (Shrage 43-44). By acknowledging that prostitution is no less degrading then other forms of labour, its exploitative conditions might be alleviated, as “If businesses that provide customers with personal sexual services could operate legally, then they would be subject to the same labour regulations that apply to other businesses… Such businesses would not be allowed to treat workers like slaves, hire underage workers, deprive them of compensation for which they contracted, or expose them to unnecessary risks” (Shrage 42). This will also allow women who otherwise would not have any other financial or employment options to access a form of revenue that will not devalue them as individuals in society, “Sex work allows women, who have nothing else to offer in the world, who lack skills, and who are given few opportunities in life, a means to earn a legitimate wage” (Swanson 600). Much like the negative perception of prostitution casts all women in an unfavourable light, so does the inferior social status of women contribute to the violence faced by sex workers in a vicious negative feedback loop, “Female subordination in civil society situates females to be the more likely victims in cases of human trafficking and sexual assault. Thus, through the gendered approach to security, females are victims of these crimes because of the gendered socialization process that characterizes females as physically and socially inferior” (Swanson 605). The criminalization of sex work only serves to reinforce the patriarchal ownership of the female body, whereas the legalisation of it will not only remove the stigma associated with selling sexual labour as opposed to other forms of labour, but will also empower women and change the way they are viewed in society. 

When tackling the perception of women and their legal autonomy, one must also examine surrogacy and the role it plays in transforming female labour. One of the issues that arise with this practice is the fact that it necessarily commodifies women’s labour and strips women of their dignity, as “The application of commercial norms to women’s labor reduces the surrogate mothers from persons worthy of respect and consideration to objects of mere use” (Anderson 80). Setting aside the fact that many forms of what are seen as traditionally women’s labour – such as childcare or housekeeping – are already commodified without women who engage in them being reduced to mere objects, the “bringing forth of children into the world” is not specifically female labour and requires male participation as well (Anderson 80). No one, however, is disturbed by the practise of male sperm donation or believes it should be subjected to the same severe regulations that apply to surrogacy. It seems ridiculous to hold women to a higher standard than men if both men and women are just engaged in their specialised biological duty of having a child. Furthermore, the discourse around consent and the unfairness of the surrogate’s mother alienation from the child, only serve to infantilize women and force them into the roles of helpless victims. While it is true that economic disparities do exist between surrogate mothers and the commissioning parents, “the bodies of poor brown women that now produce babies for rich (primarily) white women and men”, it is by no means indicative of all situations (Deckha 36). In fact surrogate mothers have far more agency then critics might imagine and  “Women who elect to be surrogates are aware of their life circumstances and have made choices about what would be best for themselves and their families. Advocating respect for surrogates’ decisions to participate in commercial surrogacy is not to deny the sense of compulsion many may feel to enter the industry, but to insist that it is too reductive to dismiss these choices because they materialize amidst disadvantaged life conditions and deep structural inequality” (Deckha 60). 

The aim of commercial surrogacy is to ensure that there is an agreement in place, which is validated by a contract, and that both parties to the contract fulfil their commitments,  “Any contract ties down the future and determines one’s future behaviour to some extent. That is what contracts are for. Signing a contract for future performance does not deny that one’s views might change in the interim. Undergoing a change of one’s perspective, however, does not change the terms of the contract” (Arneson 155). If we are committed to respecting the surrogate’s autonomy, as well as the autonomy of all women, we should trust that she has fairly weighed her options and decided to agree to the terms of the contract, knowing that a change of perspective could occur but being reasonably certain that she would still be committed to fulfilling her side of the bargain. Instead of patronizing women and regulating what they can and cannot commercially use their bodies for, we must make both the sex and surrogate industries as safe as possible and ensure that women entering into them are fully aware of the potential consequences and everything that their job will entail. Seeing women as hysterical beings incapable of putting their emotions aside for the sake of accomplishing their responsibilities is incredibly patriarchal, stripping them of their legal agency.  

Not only do preconceived notions of femininity impact women when it comes to issues in the legal sphere – like prostitution and surrogacy – but it also has an effect on the health of their bodies and overall quality of life. Preconceived conceptions about women in society and the adoption of the male paradigm as standard when it comes to human experience induce gender bias in medicine. Men have historically dominated the social order and “The roots of gender bias grow from the historical patriarchal power structure of western civilization” (MacDougall 2002). As a result, the dominant male group became more essential and the benchmark against which all experience was supposed to be measured, meaning that “a ‘normal’ human being is assumed to be a man, women as a group are regularly subordinated to men, and boys and men are seen as being more important and valuable compared with girls and women” (Hamberg 2008). Women were thus perceived as a function of their usefulness and difference as compared to the male norm, rather than as persons with their own social and healthcare demands. As the concept of andronormativity –  the idea “that men, and health problems more often present in men, tend to be considered as the norm, while women (and other social groups outside the norm) are seen as irregularities” took hold gained traction, women’s health concerns were pushed aside (Samulowitz et al). This in turn caused the near total elimination of the female experience from medical consideration, as aberrations and deviations from the conceived standard receive less attention. The study by Samulowitz et al. on chronic pain patients is an excellent example of this, since they discovered that “symptoms in women-dominated conditions that do not fit the masculine norm actually seem to be invisible. The definitions of these conditions in the reviewed studies have focused on the absence of medically provable signs, for example, ‘pain in the absence of diagnostic evidence’ or ‘pain without organic pathology’” (Samulowitz et al). As a result, a disease that differs from society’s masculine paradigm is not defined separately, motivating a quest for a remedy, but is pushed under the rug as irrelevant, causing patients to suffer because they are not taken seriously. 

The fact that most female complaints are deemed psychological rather than physiological adds to the trivialization of the female experience. Because women were thought to be innately more emotional than males, the core reasons of their illnesses were overlooked. This leads to overdiagnosis and overmedication of women with psychiatric problems, while female depression is caused by a range of variables. What is telling is that a large amount of the issues labelled as psychiatric, could have been a result of the women’s subordinate position in society, “Betty Friedan described how women’s dissatisfaction was related to the fact that their opportunities were exclusively restricted to being a homemaker, wife, and mother. The emotional distress of women is medicalised by erroneous symptomatic treatment strategies which ignore the causes. Thus, it has been reported that women are more likely to be prescribed anti-anxiety drugs, sleeping pills, and medication for mental health problems than men”  (Chilet-Rosell 2014). This enforced view of women as more mentally unstable and hysterical is what in part contributed to them being kept out of the public and legal spheres for so long, without the ability to influence decisions being made about the use of their bodies and the social consequences thereof.

Since the dawn of time, society has been built on the gender divide between men and women. As a result, notions regarding what are and what are not women’s roles have taken hold. Having made their way into the legal system, these prejudices continue to negatively impact all aspects of women’s lives and dictate how they are seen by society and treated within the established patriarchal norm. Not only does the continued criminalization regarding prostitution and stigma surrounding surrogacy prevent women from engaging in safe ways of earning money, thereby alleviating economic pressures and helping put them on equal footing with men, but it also perpetuates negative stereotypes about all women in general. This strips women of their agency and makes them seem vulnerable and like they are in need of unnecessary protection from the law. Of course, these protections do little to address actual issues faced by women as their unequal treatment is spread through all spheres of society, including the medical one. 

Works Cited

Albert, Lumina. “Lifting the Veil: The Unintended Consequences of the Legalization of Prostitution.” Human Rights Quarterly, Volume 43, Number 4, November 2021, pp. 659-682. https://doi.org/10.1353/hrq.2021.0054

Arneson, Richard. “Commodification and Commercial Surrogacy.” Philosophy and Public Affairs, vol. 21, no. 2, Wiley, 1992, pp.132-164.

Borde, Constance and Sheila Malovany-Chevallier, translators. The Second Sex. By Simone de Beauvoir, Vintage Books, 2011.

Chilet-Rosell, Elisa. “Gender Bias in Clinical Research, Pharmaceutical Marketing, and the Prescription of Drugs.” Global Health Action, vol. 7, no. 1, Taylor & Francis, 2014, pp. 25484–25484, doi:10.3402/gha.v7.25484.

Deckha, M. (2015). “Situating Canada’s Commercial Surrogacy Ban in a Transnational Context: A Postcolonial Feminist Call for Legalization and Public Funding.”  McGill Law Journal / Revue de droit de McGill, 61(1), 31–86.https://doi.org/10.7202/1035385ar

Frug, Mary Joe. “A Postmodern Feminist Legal Manifesto.” 05 Harv. L. Rev.  1045 (1992)   

Hamberg, Katarina. “Gender Bias in Medicine.” Women’s Health (London, England), vol. 4, no. 3, Future Medicine Ltd, 2008, pp. 237–43, doi:10.2217/17455057.4.3.237.

MacDougall, Vickie Lawrence. “Medical Gender Bias and Managed Care.” Oklahoma City University Law Review, vol. 27, no. 3, Oklahoma City University, 2002, pp. 781–910.

Samulowitz, Anke, et al. “‘Brave Men’ and ‘Emotional Women’: A Theory-Guided Literature Review on Gender Bias in Health Care and Gendered Norms Towards Patients with Chronic Pain.” Pain Research & Management, vol. 2018, Hindawi, 2018, pp. 6358624–14, doi:10.1155/2018/6358624.

Satz, Debra. “Markets in Women’s Sexual Labour.” Ethics, vol. 106, no. 1, The University of Chicago Press, October 1995, pp. 63-85.

Shrage, Laurie. “Should Feminists Oppose Prostitution?” Ethics, vol. 99, no. 2, The University of Chicago Press, 1989, pp. 347-361.

Swanson, Jessica. “Sexual Liberation or Violence Against Women? The Debate on Legalization and the Relationship to Human Trafficking.” New Criminal Law Review, Vol. 19, Number 4, pps 592–639.