Feminist Jurisprudence: Landmark Gender Rights Decisions

Introduction to Feminist Jurisprudence

Feminist jurisprudence as a philosophy and practical enterprise began in the 1960s. It is a philosophy of law based on "the political, economic, and social equality of the sexes." Among the issues dealt with under the rubric of feminist jurisprudence are "sexual and domestic violence, inequality in the workplace, and gender-based discrimination." These include general issues relating to laws affecting employment, divorce, reproductive rights, domestic violence, and sexual harassment.

The foundation of feminist jurisprudence lies in the struggle for equal rights and against gender discrimination. It is essentially based on the view that societies have shown a tendency toward gender subjugation and discrimination. Furthermore, "the language, logic, and structure of the law are male-created and reinforce male values."

The history of the struggle for gender equality is marked by a continual fight in many countries throughout the world for legal rights for women and against gender discrimination — a struggle that still continues in many parts of the world. Central to this struggle is the legacy of a male-dominated society in which women were often relegated to the status of inferior or second-class citizens and were in many cases discriminated against by the male legal and social system. This view runs counter to the ideals of a democratic and ethical society. While there was an appearance of democratic freedom, women in particular felt oppressed in the nineteenth and early twentieth centuries in America. The feeling was similar to the famous statement by Rousseau in the Social Contract that "Man is born free, but everywhere he is in chains" (Bryson, Finkelstein, and MacIver, 1947, p. 1).

Historical Foundations and International Frameworks

Feminist jurisprudence has led to a number of landmark and vital decisions affecting gender rights. While the contemporary decisions affecting gender began in the 1960s, there are in truth a number of historic factors and decisions that preceded this era.

The advent of women's suffrage ensured that women achieved more extensive rights in the first half of the twentieth century in Europe and America. In 1945 the Charter of the United Nations went into effect, and "for the first time the human rights of women were afforded equal status with the human rights of men" (Devine and Hansen, 1999, p. 250).

In 1970 the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted to address the issue of women's rights more extensively and in a variety of contexts (Devine and Hansen, 1999, p. 250). In more recent times the issue of discrimination against women in the workplace has also been addressed through various legislation and court decisions extending from the early 1960s.

In 1961 President Kennedy issued Executive Order 10925, which "created the President's Committee on Equal Employment Opportunity and prohibited discrimination on the basis of gender, race, creed, color, or national origin by federal contractors" (Gibelman, 2003, p. 22). This was expanded upon in 1965 by President Johnson, making it illegal for federal contractors to discriminate on the basis of race or sex in their employment policies and practices, and requiring contractors to take affirmative steps in all business operations, not just in fulfilling federal contracts (Gibelman, 2003, p. 22).

Civil Rights Legislation and Workplace Gender Equality

One of the most important and far-reaching landmark legislative decisions was the Civil Rights Act of 1964. This law effectively outlawed various forms of discrimination based on race, color, religion, sex, or national origin. The Bill was initially intended mainly to protect the rights of Black Americans but had a profound effect on the promotion and enforcement of gender rights as well.

This Act had numerous consequences and was responsible for the enforcement not only of minority rights but also of other areas of perceived discrimination. Importantly, the Act stated that "Title VI of the Act prevents discrimination by government agencies that receive federal funding. If an agency is found in violation of Title VI, that agency can lose its federal funding."

An important aspect of the Bill was its very positive effect on wage and workplace discrimination in terms of gender disparities. Title VII of the Act "specifically forbade discrimination in employment practices based on race, color, religion, sex, or national origin" (Gibelman, 2003, p. 22). It is also significant that the Bill was further amended in 1991 and that the protection against gender discrimination in particular was strengthened.

The Civil Rights Act of 1964 also provided protection for women in the workplace through its "glass ceiling" legislation (Title II). This legislation against barriers to the upward mobility of women protected against "the under-representation of women and minorities in management and decision-making positions and the need to remove artificial barriers to advancement" (Gibelman, 2003, p. 22).

Sex discrimination, particularly in the workplace, has been one of the central issues affecting women. Sexual discrimination can result from "a policy or practice which treats similarly situated men or women differently from the opposite gender." Another way in which this form of discrimination can be precipitated is when "a gender-neutral policy or practice has a disproportionate adverse effect on one of the genders." Discrimination based on sex is prohibited by Title VII of the Civil Rights Act of 1964.

Among the many contemporary landmark legal decisions affecting sexual discrimination and gender was Reed v. Reed in the Supreme Court in 1971. In this case the Supreme Court invalidated an Idaho law that "required that preference be given to men when people of both sexes are equally qualified to administer estates" (Gibelman, 2003, p. 22). This decision was reached on the basis of the constitutionality of state statutes considered to discriminate on the basis of gender.

In another case, Frontiero v. Richardson in 1973, the Supreme Court ruled that "differential treatment of women members of the military in regard to dependent's benefits was unconstitutional" (Gibelman, 2003).

Conclusion: Progress and Persistent Barriers

There have been, over the last few decades, legal as well as legislative moves towards rectifying many of the issues relating to gender inequality and discrimination based on sex and sexual identity. As Gibelman (2003) states, "With this substantial and cumulative legislative, executive, and judicial history, discriminatory barriers have diminished" (p. 22).

However, it is also recognized that many barriers to gender equality before the law remain. One area still in need of improvement is the workplace, where there are still many instances of inequality and discrimination. One criticism is that the corporate and business world is more concerned with self-interest than with ethics and human rights. "Corporate America, upon which much of the burden of economic growth depends, does what is good for itself. Such self-interest has had the effect of barring women from most executive suites and maintaining status quo gender roles…" (Gibelman, 2003, p. 22). This is an aspect which, in combination with issues pertaining to reproductive rights and gender equality, must continue to be addressed in contemporary society.