In this document I will try to define the so-called differences between men and women, and see how they have been used to justify the discrimination against women. Secondly, I will analyze cases where gender differences are denied or not considered as strong enough to legitimate discrimination in law. And finally, I will reflect on the possibility of positive discrimination, towards the concept of human beings being "equally different?.
[...] Thus male dominance and female submission in sexuality is the evil: they express as well as are women's substantive inequality. But women report [ ] that equality in sexuality is not what we find pleasurable or desirable. Rather, the experience of dominance and submission that go with the controlled, but fantastic, “expropriation” of our sexuality is precisely what is sexually desirable, exciting and pleasurable.” Ib. p KANOWITZ Leo, Women and the Law, The Unfinished Revolution, University of New Mexico Press Susan Nicholas, Alice Price and Rachel Rubein, Rights and Wrongs, Women's Struggle for Legal Equality, The University Press at the City University of New York, 1986. [...]
[...] Mccolgan[1], its most important limitations lie in the non- application to indirect discrimination (Washington v. Davies, 1976): even if a intention to discriminate has been identified, a violation of the e.p.c. will not be recognized if rule would have been imposed even in the absence of this motive” (Village of Arlington Heights v. Metropolitan Housing Development Corp., 1977). Moreover, each piece of evidence of discriminatory intent must also be considered separately and discrimination can only be found the basis of one or more factors viewed in isolation” (City of Mobile v. [...]
[...] Albright, 1998: distinction drawn on basis of sex is not discrimination when it involves parenting or reproduction and it justifies superior maternal rights. Yates v. Avco Corp Robin L. West, difference in Women's Hedonic Lives: A phenomenological Critique of Feminist Legal Theory”, in Weisberg In 1973, the case Miller v. California defined an obscene material as a work which, taken as a whole and according to the average person applying contemporary community standards: “appeal to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state and “does not have serious literary, artistic, political or scientific value”. [...]
[...] Old stereotypes on women's special needs and role in society have been removed. Nevertheless, the struggle against discrimination and for legal equality is not totally won since in some areas of the law and especially in the people mentality, some women continue to be treated as inferior to men. Moreover, as Susan Nicholas puts it in Rights and Wrongs, Women's Struggle for Legal Equality: “Achieving the goal of sex equality with demand more than opening up an equal place for women in today's world, because it is in many ways still a man's world”. [...]
[...] That is why, according to Robin West, both liberal-legal feminist theorists and radical-legal feminist are wrong (among them Catherine Mackinnon): they forget to reason with women's felt desires[11] and definitions of harm and needs. Faced to a same event, women may experience different feelings than men. The assumption is that women may be different, which does not mean that they must not be considered as equal to men, but as “equally different”. Conclusion: Today the American society is less and less male-dominated and the legal status of American women has risen to the point that is not now far below that of American men[12]”. [...]
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