SOURCE: Hein, Hilda. “In Search of Equality.” Women's Review of Books 5, no. 1 (October 1987): 6-7.

[In the following review, Hein delineates the major thematic concerns of the essays collected in Feminism Unmodified.]

Catharine MacKinnon will be best known to readers of The Women's Review of Books for her work in feminist theory¹ and, with Andrea Dworkin, for her legislative campaign against pornography. Ordinances proposed by Dworkin and MacKinnon narrowly missed becoming law in both Minneapolis and Indianapolis and, had they been approved, would have radically transformed the law around pornography. I believe that MacKinnon's most important contribution to feminism lies in this intermediate area between theory and activism. Her incisive legal scholarship and innovative interpretation of legal concepts are already beginning to have an impact upon the slowly moving tide of precedent. A dozen years ago, as MacKinnon pointed out in her earlier book, Sexual Harassment of Working Women (Yale University Press, 1979), no court had held that sexual harassment is sex discrimination and several had held that it is not. Her arguments, articulated in that book and the cases she litigated, have helped to change the climate of opinion.

Feminism Unmodified is a collection of occasional essays, “engaged works,” originally delivered as speeches at law schools, university debates, professional conferences and public gatherings between 1981 and 1986. In them MacKinnon refines and articulates the legal concepts through which theory is brought to bear upon the concrete experience of women and men. The essays embrace a body of issues now identified as “women's concerns” and frequently discussed by feminists—sex discrimination, rape, battery and violence against women, harassment, abortion, pornography, women in sports. The choice of topics is obviously determined by the occasions on which the speeches were delivered, and the book lacks the dramatic coherence of MacKinnon's earlier work; but taken collectively the essays provide a consistent statement of her radical, or “unmodified,” feminist position, and a corresponding critique of feminisms that are “modified”—marxist, socialist, or liberal. MacKinnon sees all of these as ultimately unsuccessful endeavors to extend male-centered theory to women's reality.

Modified feminisms, says MacKinnon, have failed to come up with an adequate theory of the state and so cannot imagine an alternative legal system conceived from women's perspective. Ironically her own strength seems to lie in her exquisite comprehension of the logic of the existing structure of American law and her ability to unmask its intent. She envisages ways to deflect the law along pathways that are innovative and likely to be beneficial to women without appearing to require revolutionary change. MacKinnon does not herself devise a feminist theory of the state or a new legal system. She does argue persuasively for jurisprudential reforms which if implemented would strike at the male bias that is as deeply embedded in current legal theory and practice as it is in the society that they reflect.

The chief merit of this book is its piecemeal approach to legal change; for revolution is not around the corner, and short of it, we cannot expect profound transformations in the social lives of women. MacKinnon's hair-splitting, sometimes repetitive, legalistic style will irritate some readers. I see it as simply a reflection of her competence and technical expertise—qualities sometimes at odds with the passionate expressions of personal and political conviction that ruffle the restraint of her lawyerly tone.

Readers of MacKinnon's earlier book will pick up references to a distinction made there between the “differences approach” and the “inequality approach,” which takes into account the effect that difference produces, implicitly acknowledging that inequality, rather than mere difference, is at the root of sex discrimination. She interprets gender as a predominantly social difference that is essentially hierarchical and enforces inequality. To see gender as a natural subdivision of a universal, neutral “humankind” is to misrepresent it; in fact, gender is chiefly a political device used to justify treatment that favors some to the disadvantage of others. In her judgment, it is not the fact of difference but its outcome that matters; on a metaphysical level, because what is other becomes inferior; on a political level, because the inferior is legitimately subordinated; and on a phallocratic level, because the subordination of the inferior is sexualized.

Feminism Unmodified begins squarely from the collective perspective of women as women, historically placed in a world in which male power is so absolute that it can invisibly set a standard of “point-of-viewlessness.” As she rejects that standard's authority, MacKinnon reflects angrily upon the absolute control that it exerts even over women, including some feminists. Her own brand of feminism has won few followers, and yet the overwhelming abundance of her evidence and the relentless efficiency with which she presents it must have had a powerful impact even upon audiences who are not sympathetic to her point of view. She must have moved adversaries as well as allies to reconsider those genderized concepts and institutions that we have come to think of as “women's issues.”

Her assault on pornography, for example, places it in an altogether different legal framework from that murky domain of “protected speech” in which it usually resides. Under the currently prevailing interpretation of the law, the pornographer's right to free speech can be superseded only if demonstrable harm or injury is done to an individual (a claim that is nearly impossible to prove), or if the material depicted violates “contemporary community standards” of propriety and is socially irredeemable. These standards, be it noted, are defined in terms of a “normal,” i.e. male, disposition to prurient arousal, and the offense that is alleged is against the sensibilities of this abstractly “normal” person. MacKinnon argues that the pornographer's speech is protected at the cost of the exploitation of all women, for whom the world has become a pornographic place.

MacKinnon devotes particular attention to the case of Linda Marchiano, the real person behind “Linda Lovelace” and author of Ordeal, the book that describes the coercion and torture that Marchiano suffered at the hands of her pimp/manager while making the film Deep Throat. MacKinnon points out that the film continues to be widely distributed and shown. It qualifies as protected speech, but the book that tells its story has been suppressed as the result of a libel suit. Why this differential treatment? Her answer is that pornography is so pervasive that it creates its own atmosphere, one which renders the implausible ecstasies of the Lovelace character believable, while silencing the woman who seeks to expose their fraudulence. This invisibility of pornography and its victims is the problem that cannot be relieved by appeals to “community standards” since they are the product of the reality that pornography constructs. Pornography cannot police itself. But women, all of us live in the world that pornography has made. It determines how we are perceived, and also how we perceive ourselves and each other. It legislates behavior as well as attitudes; but so far our only recourse has been to a police force which creates the very conditions against which it “protects” us.

The legislation that Dworkin and MacKinnon have proposed would circumvent the protected-speech definition and treat pornography as a form of political action which harms women. By defining it as a practice of sex discrimination, they argue that those who benefit or profit from it are guilty of violating women's civil rights. This charge rests in turn upon the “inequality approach”: because pornography promotes inequality, it reinforces the domination of one sex by the other. Sex has always been a matter of dominance: as MacKinnon sums it up, “the issue is not the gender difference, but the difference gender makes.” It certainly makes a massive difference in the lives of women whose gender alone consigns them to subordination. And if pornography is an injury of gender inequality, then, the argument goes, compensation may be sought for it. As in affirmative action cases, it is not necessary to prove direct personal harm in order to obtain relief; the charge is brought on the basis of the history of injury suffered by an entire group. In short, anti-pornography suits are retributive claims on behalf of all women.

MacKinnon's struggle against sexual harassment is also expressed in a legal conceptualization that seeks to give concrete form to a practice previously nameless to its victims while perpetrated with impunity by their victimizers. Although a well-known phenomenon to women, sexual harassment did not exist as a matter of grievance or litigation until the mid-seventies. Before then, a woman could charge a harasser with causing a nuisance or, if he was physically violent, with assault, but in addition to the difficulty of proof, those charges failed to capture the systemic and political nature of the offense. Sexual harassment was not merely permitted by law; it was unthinkable in law. (By now, sexual harassment cases have reached epidemic proportions; as MacKinnon notes, “it may well be that sex harassment is the hottest Title VII issue.”²)

By taking the “inequality” approach to this type of exploitation, MacKinnon again abandons the traditional legal fiction of the abstract, gender-neutral individual. Sexual harassment, she argued in her defense of Mechelle Vinson before the Supreme Court in 1986 and in Sexual Harassment of Working Women, is a form of sex discrimination. The point is not just that men sexually harass women, which they do, but that they do it in a hierarchical world where women, as women, occupy an inherently inferior place. Sexual harassment, like pornography, helps to keep them there.

According to the “difference” doctrine, differential treatment of people is legitimate where genuine non-arbitrary differences can be shown to exist: that is, as long as it is based upon authentic and relevant variations. The Equal Protection Clause of the Fourteenth Amendment does not prohibit discrimination based upon “some ground of difference having a fair and substantial relation to the object of legislation, so that all persons similarly circumstanced shall be treated alike.” This means that “genuine” differences such as a propensity to pregnancy can be regarded as “relevant,” non-discriminatory reasons for differential treatment—for example, of women as insurance risks.

In 1976 the Supreme Court ruled (in the case of Gilbert v. General Electric) that although pregnancy was excluded from disability coverage by a private employer's insurance plan, this was not sex discrimination. Because not every woman gets pregnant, it was argued, the distinction was not based on gender; while the fact that only women get pregnant was dismissed as irrelevant. Pregnancy, in other words, counts as a “natural” difference, one that has nothing to do with our allegedly neutral humanity but at the same time legitimizes our differential treatment.

How many other differences are supposed to be “natural”? And who does the supposing? Much of the language and actions that women find most repulsively harassing is condoned under law as a “natural” way of expressing appreciation for “genuine” differences. The burden falls on the deviant woman who reacts so hypersensitively (read “unnaturally”) to men's normal biological expression. By contrast, MacKinnon shows how men's “normal” behavior capitalizes on women's actual and gender-based social inferiority. She also points out that harassment is not the spontaneous manifestation of a man's lust or sensuality; it is not a response to individual qualities of a specific woman but to generic qualities of woman as gender. It is the sexualization of power, disguised as the power of sexuality.

Another issue that MacKinnon addresses from the same perspective is abortion. As she sees it, women generally get pregnant from intercourse under conditions of gender inequality. In other words, the choice to have sex, let alone to conceive, is not entirely their own. This may seem like an obvious observation, but the point is that it is not assumed by existing legal theory, nor by the celebrated reforms of Roe v. Wade. Examining the judicial history of abortion decisions since that case, MacKinnon finds that they have uniformly preserved a male perspective upon the human person, making only such extensions as appear necessary to conform to the vagaries of liberal ideology. This means that individual women's right to privacy has been exalted “as a means of subordinating women's collective needs to the imperatives of male supremacy.” Under the appearance of women's right to have sex (with men) on the same terms as men have sex with women, that is, “without consequences,” access to abortion is presumed to be an equalizer. Yet to conclude that women are now liberated to “enjoy” sex freely, like men, takes for granted the “gender neutral” norm. Women, no longer encumbered by the inconvenience of pregnancy, are free to be like men. But, MacKinnon insists, they are not like men, and in a world in which access to women's sexuality remains under the control of men, the private “privilege” of abortion gives only limited and negligible relief.

MacKinnon perceives even this relief as suspect. In an analysis of the 1981 case of Harris v. McRae, in which the Supreme Court held that the Medicaid program was not obligated to fund medically necessary abortions, she argues that the rhetoric of women's right to autonomy and privacy actually covers up the public delivery of those rights into the control of private men. Women are guaranteed only what they can get in private, and for most women that is not much. The law shields the private domain, and, as MacKinnon sees it, this protects “the central institutions whereby women are deprived of identity, autonomy, control and self-definition.”

MacKinnon's object here is neither to deny women access to abortion nor to promote more government intervention in our sexual and reproductive lives. It is to warn against false friends bearing legal gifts. An ideology that “keeps the private beyond public redress and depoliticizes women's subjection within it” is not to be trusted. As she notes, almost none of the lawyers who have dealt with the abortion cases, nor any other writers on the subject, have argued that constraint upon abortion is a practice of sex discrimination, although both sides have used the charge of every other kind of social discrimination—poverty, race, minority status—upon each other. MacKinnon's aim is to recast the abortion issue altogether in terms of a political approach and legal strategy that clearly identify it as a matter of gender inequality.

Feminism Unmodified explores other topics—the politics of Playboy, a feminist redefinition of athletics, the sexual politics of the First Amendment, and the merits of the ERA. The essays are sometimes irritatingly repetitious in their cataloguing of the same statistical data, and entire paragraphs reappear in several essays, flaws that might have been corrected by better editing. But I believe that, in the end, the redundancy strengthens the force and clarity of MacKinnon's argument. The book also presupposes that the reader is familiar with ideas that are more fully worked out in MacKinnon's earlier writings and not discussed here. Their absence makes reading Feminism Unmodified a more difficult task than it need be, even though MacKinnon strives to preserve a spontaneous conversational tone.

MacKinnon has been criticized—and she defends herself against the rebuke—for her remorseless presentation of women as victims. Others fault her for seeking to use (and modify) the institutions of existing society instead of pursuing more radical feminist aims. I think these objections are misplaced, as are the objections to her assigning preeminence to gender inequality, rather than to class or race or cultural status, as the basis of women's oppression. She does not underestimate the weight of these forms of oppression; but she observes that while they may intensify and multiply the variety of ways in which women suffer from gender inequality, they do not explain it.

MacKinnon's objective is not merely to explain, but to change, and she believes in the power of words and institutions to do that. Women have had little to do with defining the words or creating the standards that control them. They have been exhorted to buy into the myth of gender neutrality, and privileged women especially have been invited to dissociate themselves from the reality of gender. To those women who think “it isn't good for women to think of themselves as victims,” she responds, “How can it be good for women to deny what is happening to them? Since when is politics therapy?”

Of course politics can be therapeutic, because to become engaged is to initiate, if not to seize, control, and that is what MacKinnon is doing. She is doing it in an adversarial environment and with minimal means. Her experience is with the law and that is what she manipulates well without glorifying it as more than the instrument it is. Does she trust it? By no means, but the alternatives are limited:

We do not trust medicine, yet we insist it respond to women's needs. We do not trust theology, but we claim spirituality as more than a male preserve. We do not abdicate the control of technology because it was not invented by women. We do not abandon the environment, the more it is taken over. We do not trust the media; we are more likely to pressure it to express our values than to let it go on as it is because it doesn't. If women are to restrict our demands for change to spheres we can trust, spheres we already control, there will not be any.

(p. 228)

Notes

1. “Feminism, Marxism, Method and the State: An Agenda for Theory,” Signs, Vol. 7, no. 3 (Spring 1982), and “Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence,” Signs, Vol. 8, no. 4 (Summer 1983).

2. An encouraging example of this trend was the unanimous ruling by the Massachusetts Supreme Court in June, 1987. The Court ruled in the case of Loretta D. Rizzi that sexual harassment is in violation of the state's discrimination laws; it further ruled that employers have vicarious liability for the harassing conduct of their employees.