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Neutral Treatment Only Works for Neuters : THE FEMALE BODY AND THE LAW: by Zillah R. Eisenstein (University of California Press: $25; 235 pp.)

June 04, 1989|Reviewed by Sheila James Kuehl | Kuehl is an associate professor at Loyola Law School in Los Angeles and a managing attorney at the new Southern California Women's Law Center. and

What would laws mandating workplace equality require if one of the "normal" models for a worker was a pregnant woman? Zilla Eisenstein takes such a question as her premise in this sequel to her earlier book, "The Radical Future of Liberal Feminism." There she theorized that the liberal idea that all people must, in fairness, be treated the same would inexorably have to give way to a more radical recognition of the particularity of real lives and the differences of race, economics and class. Here she takes a look at the law's treatment of gender equity and, despite a deplorable tendency to jargon and overwriting, throws open the door on a number of skeletons in America's jurisprudential closet.

Until recently, she writes, the idea of equality between the sexes has been defined within an exceedingly narrow boundary, taking the everyday life of the white male as the universal standard. The dominant ideas of men about women, became, thanks to their legitimation through the law and other voices of authority the only audible ideas and, thus, the only truth. In that untruthfully neutral discussion, women were totally defined by their sex. It was this about them which constituted their difference from men, and, this difference, Eisenstein posits, was perceived purely through the idea and symbol of their bodies as potentially, actually, or previously (in the case of mothers) pregnant.

Eisenstein's identification of the idea of woman as narrowed, in law, to the idea of the female body is a brilliant stroke by the author because it reveals discrimination for what it is: disparaging treatment based on bodily difference. Eisenstein reviews the brief philosophical and strategic history of the feminist response to this image and suggests a new ideal for equality doctrine, one that will include, but not be limited to, the pregnant woman's body and will allow the law to create particular responses where particular responses are needed while seeing real similarities where they exist.

Actually, her book treads no ground not already thoroughly covered by the inventors of feminist jurisprudence in law journal dialogues on equality doctrine. But, despite Eisenstein's sometimes exasperating language, the crisp shock of the truth about the inequalities protected by our laws makes her book more than worthwhile.

Before the 1970s, she says, when the first successful gender equality cases were brought under the Equal Protection Clause of the 14th Amendment, the law did not recognize the bare possibility of equality between men and women. The entire dialogue about gender, a dialogue in which women were absent, concerned women's differences from men, differences that entirely justified different treatment by the law. The law, as the authorized voice of the state, gave power to this idea, and its pontifical "fairness" closed out any other idea.

All this began to change in the 1970s as feminists used the alleged neutrality of the law against itself, by introducing the idea that women, for all practical purposes, were the same as men and could not, therefore, be treated differently under the law. It became important, strategically, of course, that women's bodies must be seen as non-pregnant and non-mothers. And thus issues of birth control, abortion and sexual freedom took the spotlight.

Still, the law would only require that women be given an equal opportunity to compete in the workplace once the barriers against their entry and participation on an equal basis had been removed. This is known as the doctrine of sameness.

The doctrine of sameness was progressive, Eisenstein says, because it introduced the idea that women might be not-different. It was also, she says, reactionary, because, in order to be treated as equals, women had to assimilate to a purely male model: male priorities, institutions and values were the central referent. This model, unfortunately, had nothing to do either with women's social lives or with their real bodies. Under the male model, pregnancy leave, for instance, has been covered by insurance as a disability, the same as any other disablity, without relation to the obvious truth that it is not disabling and not a sickness. This one inescapable difference had to be disguised as the same, as something male, in order to be admitted.

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