carol tavris - “Tavris’ bracing i11sights...demonstrate...

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Unformatted text preview: “Tavris’ bracing i11sights...demonstrate that women are measuring themselves with a rigged yardstick—one designed to measure (and exaggerate) the stature of men.” ——Susan Faludi, author of Backlash T H E IIIIOIIDIIIDIIII.I.IIIIIII‘IIUIIIICICODIIIIII...llIllll-‘llilll MISMEASIJRE WHY WOMEN ARE NOT THE BETTER SEX, THE INFERIOR SEX, OR THE OPPOSITE SEX 7|K TOUCHSTONE Rockefeller Center 1230 Avenue of the Americas New York, New York 10020 Copyright 0 1992 by Carol Tavris All rights reserved including the right of reproduction in whole or in part in any form. First Touchstone Edition 1993 TOUCHSTONE and n are registered trademarks of Simon 8: Schuster Inc. Designed by Karolina Harris 20 I9 18 17 [6 l5 l4 13 12 Library of Congress Cataloging-in-Publication Data Tavris, Carol. The mismeasure of woman/Carol Tavris. p. cm. Includes bibliographical references and index. 1. Women—Psychology. 2. Sex role. 3. Sex differences. 4. Sex difi‘erences (Psychology) 1. Title. HQ1206.T28 1992 305.3—dc20 91-36338 CI? ISBN: 0-671‘66274-0 ISBN: 0571-79749: (pbk) Excerptsfi'om Hope Lindy-inc, "The politics ofmsanality, " Psychology of Women Quarterly. 13 ( I 989) 0 Cambridge University Press, rep-fined with (Wawhdofwm; n a - - s47}; my; 712-“!‘17 ' i 92 I Carol Tavris ritual, chanting, intuition, and herbal teas. The Doctrine of the Beautiful Soul is comforting, but if it simply allows women to feel better about themselves without doing anything that might offend others or require real change, it is not enough. A ‘ Finally, thinking of the sexes as opposites implies that women and men invariably act in opposition to one another. It implies an under- lying antagonism or conflict, the pitting of one side against the other, I one way (which is right and healthy) versus the other’s way (which is wrong and unhealthy). Yet nothing in the nature of women and men requires us to emphasize difference and opposition. We can emphasize similarity and reciprocity..79 We can continue to reclaim the psychological qualities long associated with female deficienCy by Celebrating them not as glories of female nature but as potentials in human nature. As long as people think in opposites, they Will be prevented from envisioning a future that would combine, for example, “male” access to power andresource's with “female” values and skills. They will continue to define problems in a narrow way, instead of expanding the visions of possibility. They will continue to provoke animosities across the gender line, instead of alliances. That is why the woman- is‘better school is ultimately as self—defeating as the woman—is-defi— cient school it hopes to replace. The 7 O-Ifilogram Man and the Pregnant Person ‘ Why women are not the same as men What do these stories have in common? I In the spring of 1990, the Board of Directors of the all-women Mills College, in Oakland, California, voted to admit men for the sake of the school’sfinancial survival. The ensuing protest by the female students, photographed weeping and desolate, outraged the public—especially, judging from phone calls to talk shows and let— ters to the editor of various, newspapers, the male public. The reac- tion was angry and unsympathetic to the women students’ unhappiness: Quit sniveling and join the twentieth century. You women can’t have it both ways. If you demand access to all-male schools, you don’t get to turn around and demand the right to have all—female schools. A priest, writing to the Los Angeles Times, said the students’ reaction was a dangerous sign of man-hating. I "Myra" and “Jim” married as law students and planned to have an egalitarian marriage and independent careers.’ After a few years, 3 r they had a baby—an event that changed Myra's life, but not Jim’s. 2 3 ‘ 3 Mg ,2 l 1 ,. ‘5. If; I» 94 - Carol Taoris They couldn't find reliable live-in help; the baby was, Myra said, more “absorbing and exhausting" than she had anticipated; Jim’s law firm would not permit him to spend less time at work so, he could help with the baby, and he was not prepared to give up his high salary for another position. As a result, Myra quit, her job to care for the baby. When Myra and jim divorced, the judge was unsympa— thetic to Myra’s situation. He awarded her no spousal support and' minimum child care, because, he said, a professional woman should H be able to take care of herself: - Myra now works full—time to support herself and her child, but. not at a career that is remotely comparable to her former husband’s (or to her own). She had to take a job that would allow her time off when her son was sick, that would never require late hours or trial appearances, and that would finish at 5:00 so she could pick her son up from the day-care center on time. Many people today have no sympathy for women like Myra. “You wanted to be equal with men under the law,” runs their attitude, “and the law is treating you equally. Youcan’t cry now for special protection." I A few years ago, the results of a massive study of 22,071 volun- teer physicians made headlines across the country: taking small doses of aspirin can reduce the chances of having a heart attack. There were no women in the study. A compilation of studies of the effects of drug treatments on the likelihood of having subsequent heart attacks involved 13,385 patients; there were no women in any of these studies. And in still another research project, a study used a sample only of men to examine the effects of diet on . . . breast canCer. An editor of the New England journal of Medicine, Marcia Angell, replying to charges of gender bias in medicine, said, “Gender bias is not serious in a way that distorts research. It doesn’t serve ' women well to see sexism where it doesn’t exist.”2 What all of these stories share, I believe, is a confusion between gender equality and gender sameness: the idea that to be. equal in life and law, the sexes must be the same. But to deny that men and women differ in their basic natures, personality traits, and abilities, as I have done in the previous two chapters, is not to deny that men and women differ at all. Of course they do. They differ in the life The 70-Kilogram Man and the Pregnant Person - 95 ’ experiences that befall them. They differ in the work they do, at home and at “work.” They differ in reproductive processes. They differ, most of all, in power, income, and other resources. By ignor- ing these real differences in men’s and women's lives and bodies, people who take the normalcy of men for granted have fallen prey to a third error: Generalizing from the experiences and even the phys- iology of men to all humanity on the grounds that everyone is like men—and usually a narrow band of middle—class white men, at that. The assumption that “there are no differences that matter" is the guiding principle of egalitarians who believe that equality of opportu— nity and result rests on treating men and women as they were the same. Because the emphasis on sex differences has, for centuries, been a flimsy disguise for the belief in female deficiencies, the modern w0m- en’s movement at first downplayed or rejected any discussion of differences, demanding that women be treated like men, no better, no worse. I still share these concerns, but I don’t cling to them as fervently or apply them as universally as I once did, and I will try to explain why. ’ ‘ The confusion between equality and sameness must be untangled, because it has now become abundantly clear that in many domains the assumption of sameness has led to unfair and unequal results. . Here is an illustration that affects everyone, which we might call “The Exasperating Ladies-Room Problem." Most public restrooms in airports, theaters, movie houses, or restaurants are equal in terms of the size and number of stalls they allot to men and women. But everyone who has ever used a busy public restroom knows that they are not equal in result: Women are always waiting in line. A Cornell engineering student, Anh Tran, discovered why this is so. She and a male assistant monitored "toilet time" for each person at high-use rest stops in Washington, DC. The men took an average of forty— 'five seconds each, while the women spent an average of seventy-nine seconds each. Because men and women differ in dress, anatomy, and personal needs, the researchers concluded that restroom allocation, to be fair, should be difirerent: a fairer allocation of toilets would be I ' 60-40, favoring women.3 (California was the first to pass such legis— lation in 1987; in 1990 a “potty parity" law went into effect in New York, requiring all public facilities to have as many stalls in women’s 1 restrooms as there are stalls and urinals in men's; and in 1989, 96 - Carol Tamils Virginia revised its plumbing code to require twice as many stalls in women's restrooms as in men's—except in restaurants and night- clubs.) Unfortunately, in several arenas the assumption of sameness has produced rather more disastrous consequences for women than hav- . ing to wait longer than men in restroom lines. Two of those arenas, which together affect so much of our lives, are medicine and the law. I The 70-kilog1'am mom . . . though they of different sexes be, Yet on the whole they are the same as we, For those that have the strictest searchers been, I Find women are but men turned outside in.‘ Modern medicine seems to agree with this bit of nineteenth—century doggerel—éwomen, on the whole, are the same as “we” men. In the field of medicine, both in research and clinical practice, the male body can therefore be used as the medical norm. In anatomy textbooks, for example, the illustrations that show a full body typically show a male body, except for the illustrations of the female reproductive System. A group of psychologists examined eight major anatomy textbooks now in use in medical schools, docu- ' menting the sex ratio for all illustrations of bodiesand body parts. In general anatomy chapters, males made up 64 percent of the illus— trations, females 11 percent (in the remaining illustrations gender was not apparent). Only in the sections on reproductive anatomy were female and male bodies represented in equal numbers. The drastic omission of women from the realm of "human" anatomy, the authors concluded, “creates the impression that female bodies are somehow uncommon or abnormal" except for their sexual and repro— ductive functions.‘ The message, they suggest, is that women’s bodies are most suited to reproduction, whereas men’s bodies are capable of all activities. It was not always this way, nor is this way inevitable; it reflects The 70-Kilogram Man and the Pregnant Person - 97 an underlying attitude about similarities and differences between men and women. In the late seventeenth century the Dutch anato— mist Godfried Bidloo created a set of stunning drawings to illustrate parts of the body, using male and female bodies indiscriminately.“ [For example, a female model, drawn from head to waist, was used to illustrate the muscles in the upper back. Until the nineteenth century, anatomical artists explicitly portrayed the sex of the bodies they were illustrating with genitalia, breasts, beards (for men), or long hair falling on the shoulder (for women). They assumed that most of men’s and women’s body parts were perfectly interchange- able, and, that the parts that were not—those interesting reproduc- tive organs—were nevertheless analogous: women’s organs were the same as men's, "turned outside in." In the nineteenth century, however, scientists in all fields began to attack this premise, and to emphasize instead the chasm between masculine and feminine natures, physical and mental. They con— , cluded that differences between male and female bodies were corre- spondingly vast, because female development had been arrested at a lower stage of evolution. Women, they said, could be placed on the evolutionary ladder along with children, apes, and “primitive” peo- _ ples. Even illustrations of female skeletons reflected this belief in female inferiority. Female skeletons were drawn with tiny skulls and ample pelvises, to emphasize the idea that women were intellectually weak and suited mainly for reproductive functions.7 The male body became the prototype of the humah body, and this attitude persists today. _ . Medical students are trained on the male model—literally. The. paradigm patient in medical school is "the 70-kilogram man” (or, in older schools not on the metric system, the "lS4-pound man”). Ac— cording to Perri Klass, who is a pediatrician and writer, and Lila Wallis, an internist and former president of the American Medical Women’s Association, medical students learn what the average ‘ man’s heart weighs and what his minimum urine output should be; they treat him for allergies, appendicitis, diarrhea, and prostate problems. They compute dosages of medication based on his weight. And the 70-kilogram man is definitely a macho guy; he never gets ovarian cysts, fibroids, or any other female disorder.8 Medical research, too, is oVerwhelmingly based on men and a male 98 I Carol Tavm's standard of normalcy. A 1990 report released by the Government Accounting Office sharply criticized the National Institutes of Health for continuing to exclude women from most studies of drug effects, diseases, and treatments (a violation of NIH’s own 1986 policy of including more women) and for devoting only 13 percent of its research funds to research on women. For years, congresswomen and female physicians have been observing that the bulk of money for medical research in America is directed to the problems that male members of Congress have, apparently on the principle that “we fund what we fear.” 'So there has been ample funding for, say, large- ' scale studies of heart disease in men, but not for comparably large- scale studies of the causes of breast cancer or the effects of high cholesterol on women. Psychologist Margrit Eichler, at the Ontario Institute for Studies in Education, and' two psychiatrists at the Toronto Western Hospi— tal, Anna Lisa Reisman and Elaine Borins, examined all issues of four professional journals in the year 1988: The New England journal of Medicine, The American Journal of Psychiatry, The American Journal of Trauma, and The Canadian journal of Surgery. They found evi— dence of gender bias in all stages of the research process: in the very titles of the articles, in research design, methods, data collection and ‘ interpretation, and in treatment recommendations. This bias turned 1 up in American and Canadian journals and cut across all medical specialties.9 Titles, for example, reveal the common practice of basing a study exclusively on men but implying or stating that the results are appli- cable to both sexes. Thus, a typical article in The New England journal of Medicine, “Work Activity and Coronary Heart Mortality,” was based on a sample only of males, yet the title implies that the findings apply to people—in—general. An articlein Psychosomatic Med— icine was entitled “A Study of the Effects of Gonadotropin‘Releasing Hormone on Human Mood and Behavior”; the ,hormone affects everyone, but the humans in question are twelve males. A 1984 report from the National Institute on Aging, based on a large-scale study of men, was entitled "Normal Human Aging." 'In contrast, almost no one assumes that a study done only on women would apply to men also. Studies of women get titles like these: “A Prospective Study of Moderate Alcohol Consumption and the Risk of Coronary The 70-Kilogram Man and the Pregnant Person - 99 Disease and Stroke in Women” or “The Differential Impact of Dia— betes Type on Female Sexualit .” ' Eichler and her colleagues also found that most of the authors of studies in professional journals viewed their research problems from a male perspective and overlooked females altogether. One such team examined the effects. of cardiac medication and exercise on recovery from heart attack. In the text of the article, the patients involved in the research are described in general terms; only in a footnote to a table does the reader learn that the patients were fifty-four men and five women. In a second phase of the study, the researchers evalu- ated the results of the exercise treadmill on thirty-eight male pa- tients; all five of the original females vanished. Nevertheless, the researchers concluded that the treatments were effective, without warning that the findings might not apply to women. (They don’t.) Women have been excluded from clinical trials of new drugs for two reasons. One is that after the Thalidomide disaster of the 19705, when many pregnant women who had been given this drug had deformed babies, the FDA issued rules stating that women who have "childbearing potential” should be excluded from most studies. The second reason is that experimenters claim that it is simpler and cheaper to use male animals. The female’s estrous cycle disrupts responses in certain behavioral and biological tests, and increases variation among animals. The goal in research is to minimize this variation, the better to determine the precise effects of the drug or treatment in question. But of course males and females do vary physiologically, and eliminating this variation means that the results of many experiments cannot be applied to females in any simple or direct way. If you want to know the effects of Drug X and you throw women out of your study because the menstrual cycle affects their responses to medication, you cannot then extrapolate from your study of men to women, precisely because the menstrual cycle affects their responses to medication. ‘ Other researchers actually do include significant numbers of WOmen in their studies, and then proceed to overlookthe importance ‘ ' of social and physical sex differences in analyzing the results. In one such study described by Eichler and her associates, investigators were hoping to develop procedures for the genetic testing of people who are at risk of Huntington’s Disease, and for helping those who 100 - Carol Tums prove to have the gene learn to cope with that knowledge. They worked with thirty-four women and thirteen men, reporting that of those who tested positive for having the disease, half had “periods of severe depression” and half “reported a serious re-evaluation of long— term goals in their careers and marriages”; a year after testing, "the intensity of the emotional response had waned." Because men and women are known ,to differ in their experiences with work and marriage, and because of the greater incidence of depression among wOmen, these findings raise many questions. “Half” of the women _ and the men became depressed? Or only the women? Or all of the men and Some women? Did the intensity of emotional responses 'wane for everybody? The researchers do not say. This blindness about the potential importance of gender pervades many studies that are ostensibly of basic medical procedures. In one article on the measurement of hormones in urine, the authors state that 1,086 patients were assayed; nowhere is their sex mentioned. As Eichler and her associates observe, “If the patients were all male, this is a crucial aspect of the study and should have been'made entirely clear. If, on the other hand, urine samples from both male and female patients were assayed and not analyzed separately by sex, this would be grossly incompetent. The reader is left to guess." Does it matter that only male» kidneys are used in a study of the effects of oxygen depletion in kidneys—and only male rat kidneys, at that? A kidney is a kidney, isn’t it? Does it matter if dosages of medication are based on the weight and metabolism of the average man? Who cares about the gender ~of urine samples? “Women are different biological entities," physicians Klass and Wallis answer, "with different hormones, different patterns of health and disease, different responses to stress."“ This is why the assumption that findings about the 70-kilogram man will apply equally to women has ' proven wrong, over and over again. Consider this small sampling of topics: I Alcohol. In general, alcohol behaves more unpredictably in women than in men, possibly because of its interactions with Wom— en’s hormonal and metabolism changes. Many women who are tak' ing birth control pills, for instance, are more susceptible to adverse reactions to liquor than are women not on the pill.12 The 70-Kilogram Man and the Pregnant Person I 101 I Drugs. Medications behave differently in different racial and ethnic groups, in people of varying ages, and in women and men. When psychiatrist Keh-Ming Lin moved from Taiwan to Seattle, he learned that the dosage of antipsychotic drugs given to schiZOphrenic American patients must often be ten times higher than the dose for schizophrenic Taiwanese patients to get the same therapeutic effect. Similarly, Richard Chaisson, director of the AIDS service at the Johns Hopkins Hospital, has warned against generalizing from drug studies done with middle—class gay white men to women, blacks, and other groups at risk, but this is precisely what most researchers who study AIDS medication do.13 The tremendous individual and group variability in response to medication means that researchers who conduct clinical trials, test- ing experimental drugs before permitting them to be given to pa- tients, must be careful about their generalizability. Unfortunately, many are not. Women receive about 70 percent of all prescriptions for antidepressant medications, but many, perhaps most, of the stud- ies of these drugs'have been conducted only on men, and very few studies have specifically investigated the ways in which women and men might differ.” The index of a leading LOCO-page text in psy— chopharmacology lists only two citations under “gender,” and mini— ’ miles the effects of gender in those two instances.” Researchers seem to have a blind spot in assuming that women and men will respond the same way to the same drug,but studies | show more adverse effects from medication in women than in men. Age, body Weight, and reproductive events all influence the effects of medication differently for men and women. ‘6 Yet women of repro- ductive age are specifically excluded in the first phase of testing of new drugs, and studies that have included both sexes have typically failed to look for gender differences. As a result, psychiatristsand physicians'know least about the group they prescribe drugs for most: “7 women. I Heart disease. Almost all of the classic studies in the cardiology field have been conducted solely or primarily with men as subjects. ' Endocrinologist Estelle Ramey thinks the reason is not just that it ; would be too costly or too complicated to add women. “Women have ‘ been excluded from these studies," she maintains, “because re- 102 I Carol Tavris searchers believe, incorrectly, that women don’t die of heart disease. - .‘ :« It is true that premenopausal women rarely do, but coronary heart disease is the leading cause of death in women after menopause. I think there. is aim of anger in this field at the fact that women live longer than men.” ‘7 ' That men—only study on the benefits of aspirin generated consid- erable uproar, and subsequent research with thousands of 'women (nurses) suggests that aspirin reduces the risk of first heart attack in postmenopausal women too. This is good news, but it is not time for ' complacency, because the pattern of excluding women from research on heart disease is widespread. There was no hoopla, for instance, over this characteristic 1988 study: Stating at the outset that their purpose was to determine the cost-effectiveness of a routine drug treatment (beta—adrenergic-antagonist therapy) in patients of differ- ent age and risk groups, the researchers concluded that all survivors .- of heart-attack who are atfmedium—to—high risk of having another attack should be given the drug. All survivors! The conclusions were based on a compilation of studies involving 13,385 men.18 I Cholesterol. High cholesterol is associated with elevated risk of heart disease for men—~actually, for men between the ages of forty and ' fifty—five—but not for women: Before menopause, estrogen seems to counteract the risk effects of cholesterol for women, but no one has really studied cholesterol and postmenopausal women specif- ically to know if high cholesterol is a risk'for them. 'In 1989, an ' editorial in the Journal of the American Medical Association acknowl- edged that there are “no data regarding the treatment" of high blood cholesterol in women. Even that ideal cutoff point of a cholesterol ' level of 200 or less is specific to men; it is not known what level, if any, increases the risk of heart disease in women.19 In fact, in one major study of the factors in coronary heart disease, postmenopausal women with cholesterol levels higher than 295 had heart attack rates that were the same as or lower than those of men with, cholesterol readings of less than 204.20 There is not even direct evidence from controlled studies that , postmenopausal women who lower their cholesterol through diet or ‘ by taking estrogen achieve a corresponding drop in their risk of heart attacks. (I’ll have more to say about estrogen replacement in Chapter The 70-Kilogram M an and the Pregnant Person I 103 4.) "Much of the enthusiasm over using estrogen as a cholesterol- lowering drug in postmenopausal women,” concludes physician Sid- ney Wolfe, Director of Public Citizen Health Research Group, “comes from the assumption that women basically turn into men. after menopause as far as their cardiovascular protection is con- cerned.”“ Yet the belief that cholesterol studies apply equally to both sexes is subtle and pervasive. Consider the following front-page newspaper story, headlined: “Cholesterol Level Is Lower for Nibblers, Study Finds.” Since I myself am partial to nibbling, I eagerly read on: “Frequent nibbling maybe better for a person’s cholesterol level than eating three square meals a day." Only at the end of the study does the reader learn that the “persons” in the study were seven men.22 Such a tiny sample means that the results cannot yet be generalized to all men, let alone. to women. I Rheumatoid arthritis. Menstrual cycle phase and pregnancy af- fect the outbreak-of symptoms in many women who have rheumatoid arthritis (and other diseases). For years, physicians regarded these symptoms as “spontaneous” fluctuations. Although studies get mixed results, clearly for some women with this disease the menstrual cycle has an unmistakable influence. In one study of fourteen women who were followed through sixty-nine menstrual cycles, symptoms of rheumatoid arthritis dropped significantly in the two weeks after ovulation; symptoms were significantly related to changes in Concen- trations of estrogen and progesterone. In another study of thirty— One women who had given birth after the onset of this disease, fully 75 percent had a complete remission of symptoms during the pregnancy, and 62 percent developed fairly severe symptoms after delivery. 23 I Hypoglycemia. This disease, low blood sugar, was once thought to affect countless millions of women. It turns out that the aver— age woman has a .blood sugar level that is normally considerably lower than that of the average male. "If you took a random sam- ple of women on the street and took their blood sugar levels,” says Ramey, "you’d be expecting them all to faint dead away at any mo- . mainstays: ' 104 I Carol Tavris ment from insufficient blood sugar. Instead, they're out doing just fine.”” I Hypertension and responses to stress. Women with high blood pres- sure are at less risk than men with the same level of hypertension, perhaps because estrogen makes blood vessels more flexible. Al— though women can suffer complications from hypertension, these complications appear an average of ten years later than they do for men. Further, a large body of research finds gender differences in neuroendocrine reactions to stressors: for example, males excrete higher levels of epinephrine (adrenaline) in response to pressure (such as threats, insults, and achievement tests) than females do.25 If a heightened physiological reSponse to stress contributes to heart disease, as many researchers believe, this sex difference may help to explain why women are better protected than men, at least before menopause. The traditional reliance on the male body as a medical norm has two serious consequences for women's health. First, many physi- _ cians regard conditions that are normal or at least medically safe for women as if they were abnormal or dangerous, and treat them in- appropriately. The most blatant example of this error' is the treat— ment of pregnant women. Perri Klass, who was pregnant while a medical student, writes that medical school conveys the attitude - "that pregnancy is a deeply dangerous medical condition, that one walks a fine line, avoiding one serious problem after another, to reach the statistically unlikely outcome of a healthy baby and a healthy mother.”2“ . ' Second, many physicians ignore conditions that are problems for women, for example mistakenly believing, as Ramey says, that “women don't die of heart disease.” The results of two recentstudies of sex bias in the decision to recommend coronary—bypass surgery are cause for alarm. In, a group of patients who had taken special—I ized tests that showed evidence of heart disease, 40 percent of the men but only 4 percent of the women were referred by their physi- cians for the next medical test to see if bypass surgery was war— ranted. The women had the same symptoms, the same abnormal test results, but apparently the doctors did not take their symp— _The 70-Kilogram Man and the Pregnant Person - 105 toms seriously. Because many cardiologists tend to neglect heart disease symptoms (such as chest pain) in women, by the time women are referred for coronary artery surgery, they are older and Sicker than men would be with comparable symptoms. As a result, women are nearly twice as likely as men to die from this surgical procedure.27 There are signs of improvement on the horizon, however. Govern- ment institutions and many physicians have become aware of gender bias in research and practice, which is the first step toward correct- ing it. A few large-scale studies have begun, including a ten—year, $500-million Women’s health study‘to be cenducted (at last) by the National Institutes of Health. Research on women and heart disease is increasing. For example, it was knov‘vn that men who quit smoking reduce their smoking-related risk of heart attack within two years; but no one knew if the same would be true for women. Now physi- cian Lynn Rosenberg and her colleagues have found that for women, 'no matter how long they have smoked or how much, the elevated risk of heart attack due to smoking disappears within a few years of quitting.28 And in March 1993, the Food and Drug Administration ended its ban on women in drug safety tests, instructing companies that “women simply must be included.” Until research programs are more evenly balanced, women would do well to be prudent yet cautious in following medical advice that has been based exclusively on men—for example, struggling fever- ishly to get their cholesterol levels downto a fictitious ideal number. (Eating sensibly and nutritiously, of course, has its own benefits.) A friend of mine, a healthy sixty-five—year-old woman, discovered at a routine medical exam that her cholesterol level was 260. Her male physician said to her: "If you were a man, I would know how to advise you, and I might even consider'recommending medication. But we just don’t know what a level of 260 means for a woman of your age, considering that you have no other risk factors, and I don't want to. risk subjecting you to the side effects of medication.” At- least he was candid; many physicians confidently treat their female patients asthey would treat males. I am not advising women to completely ignore research that was conducted with men as if it had no applicability to them at all. The lesson, I think, is to take it with a grain of salt—which, by the way, affects men and women differ- ently. 106 I Carol Tmmls I Can women be “different” and “equal”? Equality is a platitudinous concept that practically everybody supports because it can be given any meaning we like. . . . Formal agreement-On equality as a value masks the fact that we haven't a clue as to what is supposed to be equal to what, and in what way, or to what degree.29 ——Phillip E. Johnson, Stanford Law Review. During a recent dinner party, a friend of mine got himself into a charming verbal muddle. In his desire to use the encompassing “he or she" instead of the generic male “he,” my friend found himself, referring to the “pregnant person”——"he or she. . . .” Surely, we all agreed, this was carrying equality too far! But my friend's gaffe goes right to the heart of the legal dilemma of sexual equality. As in medicine, the law regards the male as the legal standard of a human being. Therefore, women may be treated like men, in which case they are equal to them, or not like men, in which case they are deficient or special. But they are never treated specifically as women. There is no concept in the law of what is normal for. women. Robin West, Professor of Law at the University of Maryland, argues that modern jurisprudence (like medicine) is masculine rather than human: the values, dangers, fears, and other real-life experiences of women’s lives are not, she says, "reflected at any level whatsoever in contracts, torts, constitutional law, or any other field of legal doctrine.” The ‘Rule of Law does not value intimacy, for example, but autonomy: "Nurturant, intimate labor is neither val- ued by liberal legalism nor compensated by the market economy. It is not compensated in the home and it is not compensated in the workplace—wherever intimacy is, there is no compensation. Simi- larly, separation of the individual from his or her family, community or children is not understood to be a harm, and we are not protected against it.” 3° The law, she argues, simply does not reflect the female experience: “Women are absent from jurisprudence because women as human beings are absent from the law's protection” (emphasis in original). 3‘ Christine Littleton, Professor of Law at UCLA, argues that wom- en's inequality in society results from devaluing women’s real-life The 70-Kilogram Man and the Pregnant Person I 107 biological and cultural differences from men. Efforts to achieve I equality through precisely equal treatment, therefore, are doomed to fail, because men and women are not starting from the same place. “As a concept,” she says, “equality suffers from a ‘mathematical fallacy’——that is, the view that only things that are the same can ever be equal.”32 Equality has been the rallying cry of every subju- gated group in American soeiety, she maintains, but the time has come to examine its inherent dangers and-fallacies. The ideology of equality evolved from legitimate attacks on the "separate spheres” theory of blacks and women—4e, that blacks and women "naturally" inhabit separate arenas of life (for blacks, their own race; for women, the home and family). The separate- Spheres ideology historically put both blacks and women at a disad— vantage; it kept black people out of white railway cars and white law Schools, for example, and kept women at home. It is no wonder, then, that women and minorities are rightly wary of any legislation or legal ruling based on arguments about natural differences or sep- arate spheres, for such regulations have invariably served to exclude them from many areas of social, political, and economic life. For example, special protection laws~such as those forbidding women to work at night in some jobs or to lift heavy objects—were used to restrict women’s opportunities and relegate them to lower 5 < status and poorer—paying occupations. There were/no special laws, however, protecting women from. long and excruciating labor in sweatshops. So the modern women’s movement has understandably opposed any laws or policies that would essentially be female—spe- cific, fearing these would be used against women’s best interests. Their attitude reflects Mae West’s observation: "Men are always , trying to protect me,” she said. "Can’t imagine what from. ” ' For these reasons, the initial response of legal scholars to the traditionally asymmetrical treatment of women and men under the ' law was to argue in favor of perfect symmetry: because there are no natural differences and no inevitably separate spheres, both sexes must be treated alike. "Women cannot be given any special consider— ations and be considered equal. Wendy Williams, an articulate spokesperson for this View, has warned that “we can’t have it both ways [and] we need to think carefully about which way we want to have it.”33 And Wendy Kaminer has written a brilliant analysis of 108 I Carol Tam the issue of sexual symmetry under the law in her book A Fearful Freedom: Women's flight from equality. Christine Littleton calls the model of legal symmetry the "assimi— lation" ideal, for it is based, she says, on the "notion that women, given the chance, really are or could be just like men.”3“ Thus, institutions should be required to treat women as they already treat men, admitting those who are"'qualified,” and demanding that once admitted, women behave like men. If a law firm requires that its partners put in long hours and sacrifice their family relationships and child—care obligations, then that’s what a woman must do if she wants to be a successful attorney. If a gadget manufacturer requires workers to be at least 5'9" tall, because of the height of the conveyor belt on the assembly line, then only women who are at least 5'9" can be hired. It is a "woman's gotta do what a man’s gotta do” model of equality. V I ‘ The symmetrical model has great appeal for the legal system, for liberals, and for many people who see in this vision a way to eradicate rigid sex roles that constrain men as well as women. It seems to be fair and logical, and applying it universally is certainly easier than trying to grapple with slippery exceptions. Nevertheless, notice that at the core of this vision is our now-familiar male standard of nor- malcy: The goal is to treat women as men already are treated. “To the extent that women cannot or will not conform to socially male forms of behavior, they are left out in the cold,” observes Littleton. "To the extent they do or can conform, they do not achieve equality as women, but as social males” (emphasis in original).35 Now many scholars of legal issues are questioning the wisdom and the consequences of the symmetrical vision of legal equality, and focusing on the male bias at its heart. One of their most powerful arguments against symmetry is the accumulating evidence that treat— ing women like men often produces disastrously unequal outcomes. In 1986 a New York State Task Force on Women and the Law found that on virtUally all issues of specific concern to women—notably domestic violence, rape, child support, day care, and pregnancy—- being treated equally under the law leads to unequal results. So did a major review in 1990 of gender bias in the courts conducted by the Judicial Council of California.36 Following are some illustrations 'of legal arenas in which women’s experience has gone unrecognized in - for [them] to acquire skills and return to the job market. The 70-Kr'logram M an and the Pregnant Person - 109 the. law, and in which being treated equally has produced unequal results.' I Divorce and custody laws. Almost everyone by now is familiar with the highly publicized finding of what happened after changes in the divorce and custody laws. The new laws were designed to treat divorc— ing couples "fairly" (that is, the “same"), without apportioning fault. The laws were based on the assumption that the sexes have equal ‘ social and economic standing, and that now that so many women are working, they should be able to support themselves. Judge Robert Satter, of the Connecticut Superior Court; reflected this attitude in his autobiography, commenting that he awards alimony to unem- ployed women in their forties for only two to five years, “sufficient ), This assumption has proved to be false. Women’s wages and ben- efits are not the same as men’s: Until recently, women earned, on average, only 60 percent of what men with comparable education and skills were earning.~The gap today “has narrowed to 70 percent, not because women’s salaries have risen appreciably but because in the cost—cutting, union-busting 19805, men’s salaries dropped. Moreover, in spite of Judge Satter’s optimism, it is not easy for middle-aged, unskilled women to get good jobs that pay well. Leaving the job market for several years to raise children makes it difficult to re-enter the field later at competitive wages; and good day care is costly, if, it is even available. For these reasons, divorce typically lowers a woman’s standard of living by an average of 73 percent, and raises a man’s by an average of 42 percent. “The impact of the divorce revolution is a clear example of how an equal—rights orientation has failed women," writes Mary Ann Mason, a professor of Law and Social Welfare, in The Equality Trap. "Judges have taken the position that women with children can sup- port themselves as well as men can support themselves. It is as if every time the media announces that a woman has been appointed to a j'udgeship or a high corporate position thousands of women lose , spousal support."38 And as if every time a celebrity wife gets a settle— ment of $250,000 a month, thousands of working—class women lose their meager $250 a month. In most divorce cases today women are awarded no alimony at all, 110 - Carol vam's 'or possibly short-term alimony for "rehabilitative" purposes. In Cal- , ifornia, after no-fault divorce became the law in 1970, only 13 per- cent of mothers with preschool children got spousal support. The amount of child support awards has dropped as well. When it is collected, which is less than half the time, it pays for much less than half the cost of raising the child. The New York State Task Force reportedthat many if not most awards in child-support cases are made with the needs of the father rather than the needs of the children in mind; when women protest or demand enforcement of child—support payments, judges typically regard them as being vin— dictive. ' ' , The elimination of long—term support for older women who were divorced after twenty- and thirty-year marriages caused such griev— ous hardship for so many thousands of women in California that the state legislature eventually passed the “Displaced'Homemakers' Re— lief Act.” Judges Were instructed not simply to divide all assets "equally," but to consider “the earning capacity of each spouse,” the supported spouse's contributions to the family in terms of child care and domestic work, and history of unemployment. But in many other states, such as Idaho, no such relief exists. Mason reports the case of Edith Curtis, whose husband, a college professor, abruptly left her after thirty years of marriage. Curtis argued before the Idaho Supreme Court that she should be allowed to‘ draw unemployment insurance, because she had worked for her husband during their marriage, helping his career and carrying out the duties of a faculty wife. Curtis, whose B.A. degree in English was useless on the cur— rent market, was only able to get a job as a part—time cashier at the minimirm wage. She was forced to live in a one—room cabin without ' plumbing, eating charity food. The Idaho Supreme Court dismissed her case as “frivolous.”39 No-fault divorce was an "egalitarian triumph,” Mason argues, whose main effect was to impoverish women, from young single mothers to older displaced homemakers. More than half of all single- parent families now live below the poverty line; of those, more than 90 percent are headed by women. There is, she adds, no Single Parent Relief Act in sight. ‘ I Violence. On December 17, 1988, Robin Elson picked up her husband’s gun and shot him in the back of the head while he was The 70-Kilogram Man and the Pregnant Person - 111 sleeping. For years, Elson had been severely battered and abused by her husband, and on this occasion he had been railing around the house, waving the gun and threatening to kill her and their children. Elson was arrested and charged with murder. Should she have been acquitted, on the grounds that she believed she was in imminent danger of death, was unable to escape, and had no choice but killing her husband if she were to survive? ‘Or should she have been con— victed, on the grounds that she could have walked away from the marriage, taking the children with her? ' Elson's jury found her not guilty of murder. But ashort distance ' away, another jury convicted a battered woman who killed her abu- sive husband, a conviction that was upheld on appeal. The differ- ence in the two cases was the admission of evidence, in Elson’s case, of “battered woman’s syndrome,” a psychological pattern of fear, helplessness, and passivity that results from living with constant abuse and threats of death. As Sheila James Kuehl, an attorney for the Southern California Women’s Law Center, has observed, until recently “the real lives of women have not been reflected in the interpretation of California’s law of self—defense. The law has gen- erally been) interpreted only from the male experience, which gives no basis for understanding how any decent, sane person would stay with an abuser. This interpretation of the law conceives of self— defense as a kind of schoolboy battle in which people of equal strength are matched, gun for gun and fist for fist."“° But a battered Woman is psychologically and physically no match for a battering husband, nor is she equal to him in opportunities for escape. (I .am not talking about garden-variety verbal hostility, abu- siveness, and rudeness in the family, in which men and women are all too equal.) Like prisoners of war, abused women come to believe ' —indeed, for'many of them, to know with certainty——that they have ‘ no exit. They know that their husbands will track them down and murder them if they leave, as many battering husbands do, if indeed leaving were even economically feasible. By ignoring the reality of the battered woman's life, the law assumes a woman will behave as a "reasonable man [sic]" would: defend herself in the heat of passion. But most battered women who kill their abusers do not dare to do so in the heat of passion. They know they would die if they tried to fight back. So they wait until their husbands are asleep or drunk, and 'kill them with whatever weapon is at hand. .. 3:... .. ... < ...-.: r3," [WP-ML; .., 31%. :w gum,» ,-_u;14m> ‘ 112 - Carol Tavr'is ,Until recently, most courts have not even considered the evidence of battered woman’s syndrome and have applied the self-defense rule to both sexes equally. Efforts are now underway to make additions to the Evidence Code in a number of states that would admit expert testimony about the possible relevance of this psychological syn- drome. “In this way, the real, lived—out experiences of women, not generally found in assumptions made by American law, may be taken into account,” says Kuehl.“ Juries may then decide whether to pun- ish or vindicate battered women who kill, but without falsely assum— ing that men and women are equally matched in physical strength or in the ability to fight back. ' I I Rape. Courts still place much blame on victims of rape rather than on rapists. Judges, juries, and defense attorneys continue to put the victims on trial for their dress, demeanor, previous sexual activities, and relationship any) to the rapist. Laws‘about rape, almost entirely a crime against women, conform to the male experi? ence of violence, not to the female’s experience of invasion, fear, and humiliation. Robin West writes: Sexual invasion through rape is understood to be a harm, and is criminalized as such, only when it involves some other harm: today, when it is accompanied ,by violence that appears in a form men understand (meaning a plausible threat of annihila- tion); in earlier times, when it was understood as theftof an— other man's property. But marital rape, date rape, acquaintance rape, simple rape, aggravated rape . . . are either not criminal— ized, or. if they are, they are not punished.” The reason is that from the male point of view, these rapes, if they do not involve violence, cannot possibly be "harmful"; why are women making a fuss about “nonviolent” sex? The law expects a raped woman, like a battered wife, to behave like a man when threat- ened: to try to defend herself even at the risk of death. The law demands that a woman behave like a reasonable man and fight back. It does not demand that a man behave like a reasonable woman and understand the difference between consent and coercion, between the words "yes" and "no." I The 70-Kibogram M an and the Pregnant Person - 113 The male bias in rape laws is further apparent in the fact that several states still define-rape as "nonconsensual sexual intercourse ‘ by a man with a woman not his wife.” Tell that to the San Francisco wife who told an interviewer that her husband "would put a pillow over my head when he wanted to have sex and I didn't. He didn’t want others to hear me scream.”43 To consider this episode as an example of marital sex and not rape reflects only the husband's perspective. The experiences of wives who are raped by their hus— bands thereby become invisible in the law. For Robin West, such stories are evidence that the law must recognize experiences that happen mostly or exclusively to women if it is going to become a fully human jurisprudence. "We need to show ' that the harm of invasive intercourse is real even when it does not look like the kind of violence protected by the Rule of Law,"‘she argues. "We need to show that invasive intercourse is a danger even when it cannot be analogized in any way whatsoever to male experience" (my emphasis).‘“ . Here too there are harbingers of change. The US. 9th Circuit Court of Appeals, in an opinion written by Judge Robert R. Beezer, recently adopted a “reasonable woman" Standard in finding for a woman in a sexual harassment case—“primarily because," wrote Judge Beezer, "we believe that a sex-blind reasonable—person stan- dard tends to be male-biased and tends to systematically ignore the experiences of women. ” ‘5 I Sentencing and stereotypes. Sometimes a story turns up in the news suggesting that because of the lingering chivalry or sexism of male judges, women get off easy when they commit a crime. US. District Court Judge A. Andrew Hauk, declaring that women are "soft touches" for clever men “particularly. if 'sex is involved,” gave a reduced sentence of only two years to a woman convicted of five bank robberies.‘6 (We all know that men are never vulnerable to clever women when sex is involved.) These stories always get media attention, whereas~the real news is that women get more severe sentences than men for most crimes, and once imprisoned they are treated more harshly. "Judges are simply being harder on women,” said Tracy Huling, director of pub— lic policy for the Correctional Association of New York. "The rate of 114 - Carol Tamis incarceration is much higher [for women] than for men." Even the few women who are on Death Row- get fewer privileges than con— demned men. In the late,l9705, a federal court ordered San Quentin prison to improve living conditions for the condemned inmates on Death Row. But the privileges apply only to condemned men, so the single woman on Death Row, Maureen McDermott, lives in isola- tion, has no access to typewriters, games, or sports, and may see visitors only if separated from them by a glass wall.47 While women often get many years in prison for killing their abusers, many men get reduced sentences for killing their wives or girlfriends. In 1986 alone, 1,500 women were murdered by their husbands or boyfriends, and the average sentence for these killers was two to six years. In Illinois, James Lutgen strangled'his wife in front of their children. His provocation, he said, was that she refused to do the Christmas shopping for him. (She had just filed for divorce and received a court order for protection from him.) Lutgen served ~ twenty months in jail, and then won custody of his children. A woman in Massachusetts asked a judge for protection from a hus- band who bragged, even to the police, that he would kill her. The judge said, "This court has a lot more serious matters to contend with.” The woman was murdered by her husband not long after. This case is not unusual.“ The California Judicial Council report describes widespread ster- eotyping that affects how the courts treat women. For example, information about'a mother’s sexual behavior is acceptable evidence in probation reports, and puts her at a disadvantage when the court is considering placement of ‘her child. But, as one witness at the Council hearings said, "[if] a father who has been absent for eigh- teen months shows up on the scene at last, and has fathered sixteen children by whatever number of women, that never becomes mate- rial to the court record.”“9 , 1 Women are frequently held to a different‘standard from men, the Council concluded. Judges expect more from mothers than fathers and thus treat them more harshly if the women fall from grace. If a father is seen as "less than proficient in caretaking," in the words of one testifying attorney, “[the court’s attitude is] well, gosh, we need to teach him." But a mother who lacks skills in child-rearing, who is poor and illiterate, is seen as unnatural, unfit. "She’s net given, /‘ The 70-Kilogram Man and the Pregnant Person I 115 in many cases, the same kind of benefit of the doubt that she wants to take care of the child properly,” the attorney added.50 In custody battles, which without doubt are terrible for everybody, women often find themselves in no-win situations. They have been denied custody both because they have paying jobs' (which shows they care more about their careers than their children) and because they don't have paying jobs (which shows they don’t love their chil- dren enough to support them well). They haVe been denied custody if they are living with a man (which shows they are promiscuous) and if they aren't living With a man (which shows they can't provide ' a “stable heterosexual environment”). When a woman provides evi- dence of the husband’s abuse of the child, she is often acCused of being crazy, hysterical, or sexually cold—which the husband claims is what drove him to commit incest. When a woman provides evi— dence that the husband is violent, irresponsible, or disturbed, she often finds the tables turned on her. She will be portrayed as the one who is crazy; the father, despite his problems, will be praised for caring enough about his children to sue for custody.5| I Property vs. emotions. The law values physical security and prop- erty more highly than emotional security and relationships. This hierarchy of values seems to be neutral, simply a reflection of societal values; but, writes attorney Martha Chamallas, it has “privileged men, as the traditional owners and managers of property, and has burdened women, to whom the emotional work of maintaining human relationships has commonly been assigned. The law has often failed to compensate women for recurring harms—serious though they may be in the lives of women—for which there is no precise masculine analogue" (my emphasis).52 For example, until recently, if a pregnant woman watched her two—year-old child be killed by a hit- and—run driver, and in her shock and fright subsequently miscarried, she would have been treated like any (male) bystander: no special harm was done to her. For that matter, consider how the law has typically construed the categories of “physical” and ‘femotional” harm. A husband enraged by his wife’s infidelity was treated as if he had suffered a loss of property, compensable under the law; but a wife's outrage at her husband’s infidelity was considered a “subjective” harm, noncom: >116 - Carol Tavris pensable “hurt feelings." “By locating the wife's injury within her own mind,” observes Chamallas, "the court could dismiss the harm andblame the victim for not mitigating her own injuries." But the husband's hurt feelings are transformed by the court into objective harm: loss of a valued object, his property, his wife. I The pregnant person: Woman as flowerpot Do you agree with this view?- Of course, pregnancy is unique, but should its uniqueness mat- ter in the workplace? Shouldn't disabled male workers have their jobs reserved for them as well? The notion that women are affected by pregnancy . . . in a way that no man is ever affected by a slipped disc or prostate surgery has always been used to justify their marginal status in the workforce.-"3 Or do you agree with this view? . . . there has tq be a concept of equality-that takes into account that women are the ones who have the babies. We shouldn't be stuck with always using a male model, trying to twist pregnancy into something that’s like a hernia.“ ' Both of these views make sense to me, and both of them are true. How might we get out of this impasse? The simmering ideas of equality versus sameness come to a boil on the one great indisputable sex difference where law and medicine combine forces: The male body doesn't become pregnant; the female body, does. Efforts to combat the illogical belief that «the female body is not a deficient male body, however, have led to the equally illogical conclusion that the female body is just like the male body—even the pregnant female body. A ' Certainly thelaw itself goes around in circles. Sometimes it has regarded pregnant women as being different from men, and, as many legal experts fear, it has usedvthat difference to justify inequality. For example, thelaw has, in Various times and places, required The 70-Kilogram Man and the Pregnant Person - 117 pregnant teenagers to leave school (but not penalized teenage fa— thers); allowed pregnant women to be fired from their jobs; or re- quired nonpregnant women to be sterilized in order to keep their ‘ jobs. Sometimes the law has regarded pregnant women as being the same as men, thereby denying them special considerations. And sometimes the law has granted pregnant women, but not men, those benefits. ~ In the famous case of the California Federal Savings and Loan Association v. Guerra (hereafter Cal Fed), a woman named Lillian Garland took an unpaid pregnancy leave from her job at the Savings and Loan. Under a. l978law, she was entitled to get her job back after four months, but Cal» Fed challenged the law on the grounds that it discriminated against men. This case polarized many women’s groups. Some supported Garland, but others, including the National Organization for Women and the National Woman’s Political Cauv cus, supported Cal Fed’s reasoning.» The case made its way to the Supreme Court, which had to resolve the conflict in this situation between equal treatment and preferential treatment. They ruled, six to three, that preferential treatment of pregnant women is not un4 constitutional. California and other states may pass laws to permit maternity leaves. . According to equal—rights advocates, pregnancy should be treated like any disability that might cause workers of either sex to lose a few days' or a few months’ work. Women’s-rights advocates disagree. Sociologist Barbara Rothman puts the matter this wayzv A woman lawyeris exactly the same as a man lawyer. A woman cop is just the same as a man cop. And a pregnant woman is just the same as . . . well, as, uh . . . It’s like disability, right? Or like serving in the army? "Pregnancy is just exactly like pregnancy,” she concludes. "There is '1 , nothing else quite like it. That statement is not a glorification or a mystification. It is a statement of fact. Having a baby grow in. your belly is not‘like anything else one can do. It is unique. How can uniqueness be made to fit into an equality model?”55 To Rothman, pregnant women are not in need of protection, and they are certainly not weaker or stupider than men or nonpregnant women; but it is 118 - Carol Tavris ridiculous, demeaning, and antiwoman to ignore the special condi- -,tion of pregnancy. In The Female Body and the Law, political scientist Zillah Eisen- stein illuminates the male'bias in the law by showing gwhat would ‘ happen if the model of the basic human being were not the male body, but the pregnant female body. (There’s an imaginative idea for youl) The law, she shows, would immediately have to become more complex and sensitive to human diversity than it is, because preg- nancies range from being uncomplicated and uneventful to being seriously disabling to the mothervto-be, and because some women, like all men, will not become pregnant. Thus, the law would recognize that the pregnant worker may have needs that are different from those of the nonpregnant worker: to avoid nausea, she may need to eat several small snacks thrOughout the day rather than have one break at lunchtime. Further, theneeds of individual pregnant women will differ: some will require consid- erable time off, and others will be able to work right up to the delivery (and return two hours later). Some pregnant workers may not differ at all from their nonpregnant coworkers, female or male, and will neither need nor want special considerations. These are all equal ways of being, Eisenstein points out, if we remove the male standard of normalcy. But if pregnancy occurs with so many variations, why not regard it as something comparable to illness and disability, which affect both sexes and which also occur in degrees of seriousness and inca— pacity? For many, the answer is that once again, it is the male norm that construes pregnancy as a disability rather than, say, as an addi— , tional ability. “Normal pregnancy may make a woman unable to ‘work’ for days, weeks, or months, but it also makes her able to reproduce,” says Littleton. "From whose viewpoint is the work that she cannot do ‘work,’ and the work that she is doing notwork? Certainly not from hers._” 56 _ In addition, medicine and law, based as they are on the-male experience, fail to recognize the female viewpoint of what is distinc- tive about the experience of reproduction. The male perception of pregnancy, as Rothman points out, consists of two steps: In goes a seed, out comes the result. It is a "mother as flowerpot" view of pregnancy. 57 In contrast, the woman’s experience is continuous from The 70-Kilogram Man and the Pregnant Person - 119 conception to baby.‘ By making the male experience the norm, Roth? ' man argues, we deny that continuity, the nine—month relationship a mother has with the fetus—calming it down when it’s fussy, trying to sleep when it is too big, feeling it grow and change. By regarding pregnancy from the male perspective, and by celebrating high-tech prenatal technology over the continuous maternal relationship, law and medicine have created the impression that women are merely containers for the fetus, and untrustworthy, inefficient containers at that. ~ Rothman, who has been studying the social consequences of ' changes in reproductive technology, fears that pregnant women are fast becoming viewed as "the unskilled workers on a reproductive ' assembly line." They are blamed for producing “flawed products”— i.e., damaged newborns or fetuses with defects. “America is devel— V oping a legal and medical system to monitor pregnant women, control them, keep them in line with ‘fetal—abuse' statutes," she argues.58 In the meantime, people conveniently overlook the more likely causes of “flawed fetuses," such as the appalling lack of prenatal services and care for poor women, the growing evidence of the male contri- bution to birth defects, and the exposure. to leads and other toxins in the workplace that are hazardous to men’s and women's reproductive ability. . . Once a technological substitute for a thing exists, argues Roth- man, the thing itself loses its mystique. That is What has happened to mothering in this complex age of sperm and egg donors, test-tube babies, in-vitro fertilization, and other modern baby-making possibil- ities. People are now asking what is so special about the mother’s relationship to the fetus, compared to anyone else’s. This absurd question, says Rothman, occurs because lawyers, physicians, and technicians have focused on the seed, the embryo, and the fetus, “and reduced all of the nurturance, all of the intimacy, all of the mothering, to background environmental factors" (emphasis in origi- nal)?” One has only to think of the vehemence directed toward the few surrogate mothers who, although not the genetic parent, changed their minds about giving up the baby after its birth. How dare a flowerpot speak up? How dare it lay any claim to the flower it nurtured? Once childbearing becomes a technological rather than a human ‘5 : l i i 120 - Carol Tam-is process, market considerations take over. Because there is a market for (white) babies today, the fetus is increasingly valued, while the relationship with the woman in Whom it resides is losing value. This elevation of the fetus over the mother has been abetted by the medi— cal establishment, which remains eager to preserve its control over pregnancy and childbirth. Thus, in‘recent decades, women have rejected the notion that to be pregnant is to be sick; demanded alternatives to being drugged into an obedient stupor during delivery; and begun flocking to “alternative birthing centers" and midwives. One way that doctors fought back, Rothman maintains, was by turn— ing their attention to the fetus, “a separate patient within." Physi- cians used to tell women: “You need us to protect you from having an unhealthy baby.” Now they say: “Your baby needs us to protect it from you.” Many people, touched and heartened by recent advances in pre- natal technology, are sympathetic toward the fetal-rights movement. Shouldn’t the fetus be protected from a mother who cannot or will not take care of it properly? Shouldn’t doctors get a court order to force a diabetic pregnant woman who seems not to be taking care of ‘ herself to Stay in the hospital during her pregnancy? Before the public says yes, Rothman reminds us, it would do well to consider this: Should doctors have gotten a court order, years ago, to force a pregnant woman to take thalidomide to prevent miscar- riage, or to lose twenty pounds (when it was. mistakenly believed that pregnant women should not gain "too much” weight)? Today obste- triCians are likely to recommend that women have cesarean sections emajor surgery—if they think there is the slightest risk of damage to the fetus; as.a result, the United'States has the highest rate of cesarean surgeries in the world, Should physicians be able to over- ride the decision of a pregnant woman if she chooses to have a vaginal delivery? Fetal—rights advocates overlook the huge error rate in ob— stetrical advice over the years. We are dangerously close to creating a second class of citizen, warns Rothman: the pregnant woman, who does not have the rights of bodily integrity and self—determination that all competent adults in this society are granted. Many of the more punitive recommendations of the fetal-rights movement, such as locking up drug—abusing women during their pregnancies, actually do little for the ultimate protection of children. ‘ The 70-KiLog'ram Man and the Pregnant Person - 121 They deflect attention from the hazardous conditions in which those mothers and children live. And they certainly deflect attention from fathers. Drug-using fathers also contribute to the smaller size and health problems of the fetuses they conceive, but no one is accusing . them of producing flawed infants. 1 How then might we think about the laws and social policies having to do with reproductive issues? How can society preserve women’s rights, promote social equality between the sexes, protect the health of both seies, and foster a woman-centered standard for the experi- ences that are uniquely or predominantly female? ' Let’s start by. stipulating what a woman-centered standard of preg- nancy does not mean. It does not mean a return to concepts of “maternal instinct,” the “sanctity of motherhood,” and other saccha— rine ideas that historically have relegated women to their roles as mothers. It does not mean that men should concentrate on business and Women on babies, or that women are superior to men in the ability and desire to love and nurture children. It does not mean a return to the protective legislation that treats, women differently in the name of protecting their “special” reproductive processes, but has the effect of confining them to lesser-paying, lower—status jobs. It does not mean that employers would be able to fire female employ— ees because of possible risks to their possible fetuses, while ignoring the risks to male fertility of the same hazardous jOb conditions. But law and social policy can accommodate the ways in which the female and male experiences of procreation differ. According to Bar- bara Rothman’s guidelines, for the entire duration of pregnancy, womenwould haverfull rights of personal privacy, bodily autonomy, and individual decision making. The fetus would not be regarded as a separate persOn or have rights that supersede those of its mother. ‘ The fetus would be part of its mother's body as long as it is in her I body. The state may not force her to undergo a pregnancy that she does not want, just as it may not force her to abort a pregnancy that. she does want. ' The point, says Rothman, is that pregnancy, like abortion, "takes its meaning from the woman in whose body the pregnancy is unfold- ' ing.""0 That is why for one woman, pregnancy is a mystical and special experience; for another, an experience no different from having a bad back or swollen ankles. That is why fOr one woman, an s _ 122 - Carol Tam'is abortion (or a miscarriage) is a minor inconvenience or a major relief; for another, or even for the same woman on another occasion, it is the death of a baby. That is why for one surrogate mother, a fetus is a chick that she is merely incubating; forvanother, or even for the same woman on another occasion, a fetus is an anticipated baby—to- be. . ' What woman-centered policies share is the premise that it must be the pregnant woman, not the state, whodecides what pregnancy means to her. Without such policies, society will continue down its current path, moving toward a chilling invasion of privacy into wom- en’s bodies, a severe restriction of women’s freedom, and a relegation of women’s rights to third plaCe—after men and fetuses. \ II Women’s rights versus equal rights Perhaps if difference were not so costly, we, as feminists, could think about it more clearly. Perhaps if equality did not require uniformity, we, as women, could demand it less ambivalently.6l ——Christine Littleton, California Law Review Equality under the law would be an excellent goal for women if it weren't that it always seems to travel a one-way street of making women equal to men. Sometimes, women do not fit the male norm in medicine and law, and the problem with the dream of equality is that it excludes such real-life sex differences. Theories of equality can operate only if those differences can be smoothed over, if wom- en’s lives and experiences can be made comparable to experiences that men can have too. Equality theories are inherently prejudiced against women, because they focus on the “differences” that are in women (it is women who do the differing from the norm), and because they mistakenly assume that social institutions, such as banks and schools,'are already egalitarian and gender-‘neutral—it’s just a matterof fitting women into them. i . ' This is why many legal scholars, men and women, are now argu- ing that the right to be treated as an equal doesn’t always entail identical treatment.’ Ronald Dworkin writes, "If I have two children and one is dying of a disease that is making the other uncomfortable, The 70-Kilogram Mam and the Pregnant Person - 123 I do not show equal concern if'l flip a coin to decide which should have the remaining dose of the drug.”62 It's a good metaphor, for most parents realize that loving their children equally does not necessarily require treating them identi— cally. One child may need more help with homework. One may have a gift for athletics or music that warrants special favors. One may have a disability~that requires attention. But parents can hope to treat their children‘in ways to assure equal outcomes for them: people who know they are loved, who can earn a living at work they enjoy, who are valued for the individuals they are. Most parents intuitively operate on a notion of equality that encompasses the real differences among their children. “I was fortunate enoughto have a mother who believed her four very different children should be equals,” says Littleton. "I now want the same for all of us.”63 Many alternative ideas to equality-as-sameness are blooming today, and they are sources of exciting possibilities as well as passion- ate debates over which policies will enhance the status of women and producethe most equitable results all around. Mary Ann Mason urges a return to “the flexible, pragmatic concept of women's rights," rather than the rigid ideology of equal rights.“ “Equal rights does not challenge the structure of the economy or the role of the government," says Mason. "Asking to be treated as men are treated is a fundamentally conservative position that asks for no special support from the government or special consideration from employ- ers for working mothers. "65 Mason would not abandon the goal of equal rights entirely; rather, she argues that it is not the only goal for all women. Equal rights, she maintains, is an appropriate strategy for the many women who, like men, “live to work” and wish access to the careers and circles of v the male elite. But it is not helpful to the many more-millions of women who "work to live,” and who are clustered in low-paying, female-dominated occupations. For this reason, Mason believes, Title VII of the Civil Rights Act. of 1964, which forbids discrimination on the basis of race or sex, should not be the sole model of rights for women. "Sex" was added to the language of Title VII at the last minute, as a joke, by Southern congressmen who were hoping to defeat the Civil Rights Act en— tirely. But if a Woman’s Rights Act had been passed at the time, Mason argues, it would have looked quite different. “A bill written 1'24 - Cami mm for the needs of working women,” Mason says, “would not have stressed equal competition, but would address the issues of govern- ment—subsidized child care, paid maternity leaves, a higher mini- mum wage (since 65 percent of all minimum-wage workers are women), medical care and pension rights for part—time workers, affirmative action, and reentry rights. It w0uld also require some form of pay equity between male—dominated occupations and female- rdominated occupations. Instead, women have trapped themselves into a competitive model that leaves no room for the special needs of women who are the primary child-rearers.""6 As Mason’s list of provocative suggestions indicates, once the lid of the equal-rights cauldron is lifted, all sorts of possibilities come bubbling out. Some advocates of a women's rights agenda want a potpourri of policies that will vary depending on a woman’s age and position in society—‘whether she is a wife and homemaker, a career women, a part-time worker, a divorcee. Others, wary of returning to the bad old days of protective legislation, 'would exempt only the biological processes of pregnancy, breastfeeding, and childbirth from the basic equality model, treating all other sex differences under the rubric of symmetrical equality. - Radical legal schOlars, for their part, claim that all the talk about equality and differences obscures the one difference that really mat- ters: that in this society women are economically and politically subordinated to men. In their View, therefore, if women and men must be treated differently under the law in order to end the subor- dination of. women, that is only right. "Why should you have to be the same as a man,” asks Catharine MacKinnon, an eminent repre- sentative of this view, “to get what a man gets simply because he is one?” She adds: Clearly there are many differences between Women and men. One could not systematically elevate one half of a population and denigrate the other half and produce a population in which everyone is the same. . . . The sameness/difference approach misses the fact that hierarchy of power preduces real as well as fantasied differences, differences that are also inequalities."7 In general, I share the widespread concern that anylegal policy that celebrates or implies that women have a special edge inthe maternal, nurturing, Gilligan-connectedness front is bound to be The 70-Kilogram Man and the Pregnant Person I 125 . bad for women. Yet, overall, I have been persuaded by a flexible new approach that Christine Littleton calls "equality as acceptance" rather than “equality as sameness." Equality as acceptance means that instead of regarding cultural and reproductive differences as problems to be eliminated, we would aim to eliminate the unequal consequences that follow from them. We would ask 'how to achieve equality despite gender differences, not how to achieve equality by getting rid of (or pretending to ignore) gender differences. We would no longer accept the prevailing male norm as always the legitimate one, while trying to find special cir— ‘ cumstances to accommodate women or minorities who areltrying to measure up to it. We would stop labeling women’s experiences as the deviant ones. ‘ This approach is more complicated than equality as sameness, and it does not generate clear, simple right answers. It is easier to try to squeeze human diversity into one universal, “normal” way of doing things. But equality as acceptance offers new strategies for old prob— lems, even as it unmasks our silent assumptions about whose ways are normal and whose are deviant. In this View, for example, women and men could achieve equality v in athletics without requiring football teams to add a few physically powerful females. Equality as acceptance would require, instead, that equal resources be allocated to male and female sports programs in schools, regardless of whether or not the sports themselves are similar. In this way, sports would accept women’s athletic skills on their own terms; equality would not depend on the ability of individ— ual women to fit in to the male game or vice versa. Or consider the gadget maker whose employees must meet a min— imum 5’9" height requirement because of the height of the conveyor belt used to assemble the gadgets. Let’s assume that this is an inher— ent requirement of the job, and not a conscious effort to exclude women (or Asians, Hispanics, and other groups whose average height is shorter than that of Caucasians). Some women and minorities will meet that requirement, but many, because of average height differ— ences between groups, will not. A policy of equality as sameness would lead to two unsatisfactory results: either failing to hire many women, or lowering the standards of gadget—assembly in order to assimilate women. But a policy based 0n equality as acceptance offers other solutions. a gramme.“ _ ‘Mnhlv-Hw' 'v 126 I Carol Tam-is Perhaps the height of the conveyor belt could be modified. Perhaps ‘a second, lower belt could be added for assembling other gadgets. Perhaps jobs could be established at the plant that do not have height requirements. The resulting de facto sex segregation would be ac— ceptable, says Littleton, “but only if the predominantly male and predominantly female jobs have equal pay, status, and opportunity for promotion into decisionmaking.”°" That_”only” is the heart of it: Currently, most practices of de facto segregation are not separate and equal; the segregated group pays for it in loWer status and oppor- tunity to advance. _ In short, equality as'acceptance evaluates policies by directing attention to their results rather than their intentions. What is the result of a law that treats divorcing husbands and wives as if they were economically equal? What are the consequences for women of taking off a few (years from the work force in order to care for children or elderly parents? What are the consequences for men, women, and families, if men do not get paternity leave? If the results are disastrous for women, as they now are, more equitable remedies must be sought. ' ' . "The question we should be asking,” observes law professor Vicki Michel, "is: What are the barriers to women's equality? This ques- ‘tion does not presuppose that people are the same, must be treated the same, or have the same opportunities. By asking ‘what does this law accomplish for women?’ we keep our eye on goal."69 Defining the goal cuts the Gordian knot that entangles equality and sameness. Consider again the situation at Mills College. Under an equality- as-sameness umbrella, the students of Mills must accept the admis- sion of men to their college; if women want admission to male schools, they must allow men into theirs. An equality—as-acceptance perspective, however, leads to a different conclusion. Because of existing differences between the sexes in power, opportunities, and resulting self-confidence, on the average young women do better in their intellectual development when they have at least a few years to learn and study with one another than when they are in. co-ed envi- ronments. In contrast,‘ co—ed education is beneficial for-males. How— ever, when males are admitted to female colleges, the traditional patterns of male conversational dominance, in class and out of it, quickly return even when everyone tries to avoid them. In education, ‘ what's good for the gander isn't alWays so good for the goose. The 70-Kilogram Man and the Pregnant Person - 127 Further, men’s and women’s single-sex institutions are not equal in the amount of power, prestige, and access to the establishment they provide; thus, the consequences of not being admitted to them differ for men and Women. Men as a group will not suffer in any . way by being excluded from Mills; but females (like minorities) have suffered by being excluded from most male institutions. This is why legal challenges to male-only institutions have had to establish that these institutions are not merely social clubs or private gatherings, but places where business is done, the business of America, the business that for so many years excluded outsiders. If Mills were the only school, say, of veterinary medicine in the United States, or if joining the elite alumnae of Mills represented the only access to the prestige career of, say, banking, then of course men must be admit- ted. These considerations convince me that it is neither hypocritical nor necessary to support coeducation at Mills in the name of equal- ity. Of course, I know that these young women will one day be working with men, and some may want to learn how to do that sooner rather than later. That is why they should have the opportu- nity to do so by going to co—ed schools. But, until males and females are equal in power and status—until, for example, men listen to women as often as women listen to men—there is a legitimate place for all—women schools if they give young women a stronger shot at achieving self—confidence, intellectual security, and professional competence in the workplace. ‘ In 1968, the California Supreme COurt decision in Dillon v. Legg found that a mother who witnesses the negligent injuring of her child may be compensated for her own fright-induced injuries, such as miscarriage. This case was a watershed because it opened up the legal category of emotional harm. The Dillon decision allows both mothers and fathers to recover for fright, and removes the general association of fright-based harm as a female problem. In this respect, Dillon is. a fine example of how the integration into law of a “wom- an’s" issue makes for a human and humane jurisprudence. I believe that a guiding philosophy of equality as acceptance, com— bined with the specifics of a woman’s-rights agenda, would benefit both sexes and reduce many of the largest disparities between them. 128 - Carol Tavris These ideas are gaining popularity, although they have yet to make a dent in the national political scene. Suzanne Gordon has called for a “National Care Agenda" and Sylvia Ann Hewlett‘r’aises "A Call to Action" in their recent books, which argue that the traditional wom— en’s issues of caretaking, children’s welfare, and education must become national, human priorities if we are to survive as a sdciety. I Parental leave and child care. Seventy-five countries (including India, Egypt, Poland, and Argentina) have national policies that guarantee parental leave when a baby is born; the United States has none, being unwilling even to permit unpaid parental leave. (The Cal Fedcase allows states to pass laws permitting maternity leave.) Unpaid leave was a compromise idea in Congress and may have been necessary as a foot—in-the—door technique, but it is completely useless for the many millions of mothers whose incomes are necessary for family survival. Currently, employed women feel it is up to them as individuals to find a way to solve the complexities of combining work and family. The individual solution is the American (male) way. Many women are trying hard to be like men, either sacrificing family time (as many men do) or struggling virtually alone to combine jobs with, families. No other Western nation that needs the labor of women leaves it up to individual mothers to try to care for their children and carry out a full-time job. I Organizational flexibility. Vicki Michel tells of a law-school col- league of hers who was expecting a baby and asked'the Dean to be relieved of teaching that semester. She offered, in exchange, to teach two classes the next term. The Dean wouldn't hear of it. "When you’re the only woman on a male faculty, you have to accommodate to their way of doing things," observes Michel. "The attitude we used to have was gratitude—they're doing us a favor to ‘let us' take a week off to have a baby. Now women are realizing that we are half the people. We can start demanding changes that benefit us. And reasonable, flexible work arrangements are among them.”'7° ' One: proposed flexible work arrangement that turned up in the news a few years ago was the “mommy—track” solution to the problem of combining careers and families. The idea was to permit career The 70‘Kilogram Man and the Pregnant Person - 129 women to choose one of two paths: a “mommy—track" group who work at a slower pace in exchange for having more time at home, and a “fast-track” group who want to devote their energies exclu- . sively to their careers. (The term itself came from journalists, which may indicate how the work of mothering is so easily trivialized.) Many career women objected to this plan because of its potentially unequal consequences: Women who choose to have families, unlike men who choose to have families, would pay the price, down the line, in career achievement and income. According to Michel, the mommy-track idea wasn’t radical enough. “Mothers arent taken seriously in the way the system is currently set up,” she says, "so any proposal that sets them apart is going to be detrimental to them. But we can start thinking of how to reshape work, including the work that mothers do, so that it will not be detrimental to women to have families.” Michel and others have proposed many ideas to reshape work: increased benefits and security for part—time workers; an arrange— ment of work for reduced income now, in exchange for the possibility of expanded opportunities and greater income later; the acceptance of part-time partners in law firms, or part-time tenured faculty in .universities; and permanent part—time arrangements with health and other benefits. In careers that are incompatible with daily child care, because they require traveling, long hours, or erratic schedules, individuals can press for the right to reenter the occupa- tion later. All of these solutions and many others can be generated as soon as people rethink their priorities, says Mary Ann Mason, without being, afraid to challenge the male definition of what it means to have a suCcessful career. And once they do, men as well as women are likely to take advantage, of them. I Revaluing, and compensating, "women's work.” Years ago a jury awarded-$56,000 to a man who had to do the housework for two whole months became his wife had been injured in avcar crash. Newsweek, which reported the story, commented that not even the women’s movement had valued a housewife’s job at $336,000 a year. If it were, you can bet more men would be doing it. And you can bet that no woman would ever say that she was only a housewife! é. . i v . i l 5 130 I Carol Tavm's No one has (yet) set a value on housework of $336,000 a year, but this story reminds us that the housework and child care that women do, although essential, are invisible and unpaid. The real goal of equality, says Littleton, should be to reduce the emotional and finan— cial cost of sex differences. At present, it is expensive to be a woman, especially to be a mother: It costs in terms of income, benefits, time, ' and unpaid labor. If a woman takes years off from paid work to care for her children, aging parents, other relatives, or husband, she pays in her future wage-earning potential, old-age pensions, and an in— creased likelihood of eventual poverty. This is a horrible dilemma to impose on anyone. ' An alternative, Littleton suggests, is a system in which “anyone may follow a male, female, or androgynous lifestyle according to their natural inclination or choice without being punished for following a female lifestyle or rewarded for following a male one.”" We don't have to payhousewives or househusbands $336,000 a year, but we would as a society have to value, in concrete benefits, the people who bear children, and those who care for them. Equality as acceptance does not require us to assume that men’s ways are superior, so women should be fitted into them. ’It does not require us to believe that women’s ways are superior, so women shouldn’t try to be like men or achieve equal power with them. "It does, however,” says Littleton, “affirm the equal validity of men’s and women’s lives" 72-—and seeks to make them equally valued under the law. A legal system which protects and rewards nurturance and community, as well as self—reliance and autonomy, is one that en- riches all of us. . I » a , ‘ Misdiagnosng the Body ‘ I Premenstrual syndrome, postmenstraal syndrome, and other normal “diseases” Conversation overheard in a Hollywood casting office, between a man and a woman angry at being kept waiting by a female casting director: MAN: “It must be her time of the month." WOMAN: "And how do we explain the rudeness of male casting directors?" In 1975, when I was working for Psychology Today magazine, we ran a short article called "A Person Who Menstruates Is Unfit to Be a Mother.” The author maintained that women are hypertense and anxious for the week before menstruation, moody and incapacitated for the week of menstruation, and utterly exhausted for the week after menstruation. How, then, could the complex care of children, which requires stamina, intelligence, and several advanced degrees, be entrusted to persons who are erratic and unreliable three weeks out of the month? I This essay poked delighted fun at the then-common argument that women’s abilities are limited by their physiology. Edgar Berman, Hubert Humphrey's personal physician, had recently declared that ...
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