ATHARINE A. MacKinnon is a renowned lawyer and activist working in the area of sex equality. She focuses on women’s rights and sexual abuse and exploitation, including sexual harassment, rape, prostitution, sex trafficking and pornography.
She pioneered the legal claim for sexual harassment as sex discrimination in employment and education. Her work with Andrea Dworkin recognized the harms of pornography as civil rights violations
She is Elizabeth A. Long Professor of Law at the University of Michigan and the James Barr Ames Visiting Professor of Law at Harvard Law School. She was the special gender adviser to the Prosecutor of the International Criminal Court. She is a widely published author of a dozen books which include Sexual Harassment of Working Women (1979), Feminism Unmodified (1987), Toward a Feminist Theory of the State (1989), Women’s Lives, Men’s Laws (2005), and Butterfly Politics (2017).
Speaking with Indira Jaising, she talks about Ruth Ginsburg contribution to feminist jurisprudence and how it paved the way ahead.
To what extent has your contribution to anti-discrimination laws and, in particular, your work on sexual harassment been influenced by the work of Ruth Bader Ginsburg (RBG)?
Our work mutually influenced each other. Although, since she preceded me, hers both lay the foundation and provided a fulcrum for mine.
Before her litigation work, no sex-discriminatory laws were considered constitutionally unequal. She changed that in 1971, before I began law school. By the time I pioneered the legal claim for sexual harassment, the judicial response to her work made it clear to me that a new paradigm for sex equality was needed, or women would never be socially equal to men. So the sexual harassment claim, which was under a federal statute and not the Constitution, interpreted sex through a new theory of equality — substantive equality.
Certainly, an important factor in Ginsburg’s thinking, that looked to fit life into law, would have been that there was no guarantee of nondiscrimination based on sex in the Constitution.
Had sex equality not been previously established under the Constitution, such progress would not have occurred. And had the conventional formal equality approach not been adopted in a clear and decisive manner, sexual harassment laws would not have been the force for change that they have become today, particularly in cases where the facts are distant from women’s core issues.
Some have seen Ruth’s Supreme Court decisions as becoming more radical over time, but her original briefs implicitly understood sex discrimination as a hierarchical system.
Do you think that she focused her attention on formal equality given that there was no guarantee of non-discrimination based on sex in the Constitution and no Equal Rights Amendment (ERA)?
She argued formal equality because at the time there was no other known theory of equality. And she aimed to win. So she paralleled women’s inequality with Black peoples’ inequality, using the standard Aristotelian model. That this model has not worked for race, and will not work for sex, certainly not when the two are combined, seemingly had not been imagined at the time.
Certainly, an important factor in Ginsburg’s thinking, that looked to fit life into law, would have been that there was no guarantee of nondiscrimination based on sex in the Constitution. There was no explicit guarantee as such, as there still is not in the U.S. to this day. A fitting law to the needs of changing an unequal life is my project.
She focused on male petitions, what was the strategy behind that? Did it break stereotypes of male and female gender constructs prevalent in the law?
Her strategy, in that she was speaking entirely to privileged men, was to show men that sex-based distinctions in law hurt them too. Building a legal sex equality theory around facts in which men are subjected to explicit sex-based distinctions has its merits, although men are unlikely to be, or to experience themselves as, subordinated by them in any structural way.
Building a legal sex equality theory around facts in which men are subjected to explicit sex-based distinctions has its merits, although men are unlikely to be, or to experience themselves as, subordinated by them in any structural way.
By involving insurance survivorship benefits for the husband of a working woman who died in childbirth, Ruth was able to focus on the woman not being able to secure her family for the same amount of work or her baby not being able to receive the benefits of a supported surviving parent, AND on a man not being equally able to mother a baby whose biological mother had just died. So it did break stereotypes in a way no one could gainsay. Especially, anytime a man does not receive money that would be there if he was a woman, you can count on the U.S. legal system to think something must be seriously wrong.
But the approach also has its costs, in that the facts that give rise to the subordination of women largely do not need to be enforced explicitly in law, because they are so effective in social life. And stereotypes, the real engines of discrimination, are not all there for the enforcement of second class gender status.
Would you agree with her description as “first wave of feminists “ in the law
Not exactly. Other women, including African American women, in the U.S. broke barriers to law school, bar admission, legal argument before courts. This includes Arabella Mansfield, Ada Kepley, Charlotte Ray, Belva Lockwood, and Myra Bradwell.
Ruth was part of a generation of breakthrough women in law, small but valiant, many of whom considered themselves feminists. But there were waves of women who changed the world for women that preceded her.
If you’re asking about a visionary view of equality, whether that becomes possible likely depends on the outcome of the election.
She was critical of the Roe v Wade decision, what was the basis of her criticism? Did you agree with her on that?
Ruth criticized Roe v. Wade for going too far too fast too definitively. She thought that states may well have made more progress locally by arousing less opposition had they been given more latitude by the Supreme Court in this area. Historians dispute this, saying that states were moving more in the direction of restricting abortions by the time this case was decided in 1973.
My own view is that Roe should have been decided on sex equality grounds — an argument that has never been made in courts (but is made in some of my published writings to some extent) but, if properly made, arouses far less opposition from those who oppose decriminalizing abortion.
How does the future look for the Supreme Court of USA? Will there be another RGB on the bench in the near future?
No one can replace her pioneering role; there can only be one first. Before her, the Supreme Court had never seen a sex distinction it didn’t like. She changed that. If you’re asking about a visionary view of equality, whether that becomes possible likely depends on the outcome of the election.
(Indira Jaising is Senior Advocate at Supreme Court of India and Founder of The Leaflet)