Zillah Eisenstein

My writings, thoughts, and activism.

Supreme Court Sept. 11th Document

The following is an excerpt from the book in progress: IMPERIAL DEMOCRACY;
The Court and Gender Decoys—What’s a Woman Anyway?
Zillah Eisenstein
Ithaca New York
July 2005
Sandra Day O’Connor says that John Roberts, Bush’s pick to replace her on the
Court is perfect, except for the fact that he is not a woman. Shortly before her husband
was to choose his nominee Laura Bush weighed in with her hope that it would be a
woman too. On the day of the actual announcement there was much speculation that the
nominee would be a woman. So what exactly is a woman in this dialogue? If female
refers to the biological sex; and woman refers to the cultural/religious/social meanings of
womanhood, then which do they mean here? Both? Neither?
Even if they just mean the straight-forward everyday usage of the word, there still
are many different kinds of women: feminine, womanly, radical, liberal, Black, lesbian,
anti-abortion, anti-feminist, feminists or all sorts, and so on… What of a feminine, Black
lesbian, radical feminist woman? The identities are endless, as are the political
persuasions. Roberts’ wife, Jane Sullivan Roberts, is described as feminist and antiabortion and does pro bono work for “Feminists for Life”. Hmmm….
The very idea of `woman’ as an identifiable identity—one which resonates with a
shared sexual status that is not completely individual in nature–derives from the idea of
feminism itself. Recognizing this identifiable category is central to a feminist
construction of democracy. Instead, today, gender stands in more and more as a decoy
for democracy. Gender decoys are females in drag and the drag allows us to think that
they represent the best of democracy when they don’t. Women—whomever, whatever,
the definition—play a role of deception and lure us into a fantasy of gender equality
rather than gender fluidity. As a result, the sex often just changes while the gendered
politics can and often remain the same.
As decoys—the females in military uniform at Abu Ghraib—let one think that
this is what democracy can look like; females acting like men. As decoys they create
confusion by participating in the very sexual humiliation that their gender is usually
victim to. As well, Laura Bush has morphed into a `desperate housewife’ by her own
admission. She delivered jokes about her husband at a May, 2005 black tied affair
complaining that he goes to bed by eight o’clock and obviously leaves her sexually in
need. She goes to Africa to do the U.S.’s bidding in Africa—to show the world “how
good America is”. She now is marketed to us as the dutiful wife who is an activist
humanist and defender of women’s rights abroad. Neither Laura nor her version of
gender remain unchanged. The more inept and ineffectual the president looks, the more
she must be re-gendered. Flux and flexibility are the rule here—for the necessary
patriarchal relations of gender that the new globalized economy needs. 2
According to Anne Fausto-Sterling “labeling someone a man or a woman is a
social decision”; actual physical bodies blur clear boundaries. She argues that the state
and legal system may have an interest in maintaining that there are only two sexes, but
that “our collective biological bodies do not”. She continues: “masculinity and femininity
are cultural conceits”; that the “two party system” of sex is a social construction”; that
male and female “stand on extreme ends of a biological continuum” with many other
kinds of bodies which are a “complex mix of anatomical components”. As such, our
sexual bodies are “indeterminate” and therefore “policed” to become male and female;
and man and woman.
It then follows that biology as well as gender is political and the more gender is
challenged that the more rigidly sex is constructed as either male or female. This extends
to hormones themselves that Fausto-Sterling says are identified as though they were
sexually determinant, but rather are simply part of an already “gendered discourse of
scientists”. Citing Frank Lillie Fausto-Sterling states that there is “no such biological
entity as sex”, but rather it is merely a name for our impressions about sexual differences.
Sex is not fact here. It is random acts of science that name male hormones androgens and
female hormones estrogen.

Accordingly Joanne Meyerowitz argues that there are “overlapping sexes”;
possibly a universal bisexuality. Men and women have male and female hormones—“all
women had elements of the male and all men elements of the female” As such it is
scientifically inaccurate to “classify people as fully male or female.”
In this sense,
biology is not simply innate or genetically determined. Nancy Krieger and George
Davey Smith write that “societal conditions shape the expression of biological traits”;
that there are “linkages between bodily constitution and the body politics”.
constructs of sexes and genders reflect this fluidity. Krieger argues further that
transgender, transsexual and intersexual blur the established boundaries between and
within the gender/sex dichotomy. Gender influences biological traits and sex linked
biological characteristics can affect gender.

Similarly Susan Oyama queries the nature/nurture divide and says that each is
partly constructed by and through the other. She rejects the notion of biology as an innate
category and instead argues that innate and acquired are complexly entertwined—that
genes are complexly interactional and change as a result of context. “Bodies and minds
are constructed, not transmitted”. As such nature is a product and a process; “nature is
not transmitted but constructed”. The biological/sexual body includes our whole selves
“which includes the social worlds in which we are made”. Oyama asks us to reject the
“disciplinary imperialism” of “genetic control”.
It is then crucial to understand that gender impinges on how we see and name the
sexual body; and the sexual body is used to justify the very notion of gender. Gender
even defines the sexed body and the sexed body constructs gender. There are several
sexes, and more than two. And there are more than two genders. Yet the language of
two-ness dominates. This means that both sex and gender are part of the most intimate
constructions of our power-filled viewing of the world; so black slave women were
breeders and denied a gender identity `like’ white mothers. Defining both sex and gender
is a form of politics by another means.
This argument is never resolved. Lawrence Summers, president of Harvard
University explains that women are underrepresented in tenured positions in science at 3
top universities because of “intrinsic aptitude” sounding awfully close to innate
differences; as though scientists are born, and not made.

It is often thought that sexuality—as in biological sex and sexual preference is
more stable, or static, and predefined, than gender. But I am wondering whether
gender—as in the cultural construction of masculine and feminine is not more rigid and
contrived and more resistant to change. I am thinking that gender rigidifies sex; that
gender reformulates sex and sexual preference, and not the other way around. This is not
to overdraw the distinctness of sex and gender but rather to query whether the sexed body
itself is not more ambiguous and multiple and diverse than the constructs of gender
themselves. Or put slightly differently: that gender exists to control sex and its
variability. Gender makes biological sex and sexuality static and rigid and this rigidity
plays back on the justification for gender. My point: neither sex nor gender are simply
essentialist or constructed but a complex relational mix. But given this, the sexual body is
possibly more fluid than its gendered meaning.
Then sex and gender is both fiction and real. Today the diversity within gender—
more women are doing more things–loosens its tight grip. Gender even defines the
sexed body and the sexed body constructs gender. Women’s lives are more diverse today
and therefore are thought to be more equal as well. But the variety of women’s lives and
the constructions of gender meanings are more plural, not more just. Women in prison,
in war, as multi-millionaires, in chadors voting, in war-rape, create a cacophony of
meanings. The militarized globe has re-sexed many sites without re-gendering them.
But the very process of re-sexing them slightly shifts the actual gender relations.
Madeline Allbright and Condi Rice come to mind.
Females occupy more and different sites of power and they also do so within the
constraints of gendered and racialized hierarchy, but some remain more constrained than
others. Neo-liberal and right-wing women occupy many more sites of empire building
and wield power by doing so but not a power that many feminists had in mind at the start.
These deployments of the sexes with their racial content confuse the feminist issues of
gender equality and racial justice.
This is why a democratic Court needs a female who is committed to creating
democracy for women. This means women’s rights must include an agenda of
reproductive rights. Being female should mean that there is some potential for a
particular sensitivity and knowledge about what it means to live as a woman, and live
with a female body democratically.
Women of the Bush administration like Karen Hughes and Mary Matalin have a
very different notion of what feminism means, and what democracy should look like.
They probably were hoping for a new female justice; but one that is closer to Clarence
Thomas than Ruth Bader Ginsburg.
Females in the Bush administration operate in both neo-liberal and right-wing
fashion. The neo-liberals embrace women’s rights but not women’s equal access to
rights. The divide between neo-liberal and right-wing feminist is that the latter wish to
make abortion illegal and enforce traditional forms of patriarchal heterosexism. Neoliberals think that abortion should remain “safe, legal but rare”; available but with no
assist from the federal government, as a formal right rather than an accessible choice.
This political stance spans both political parties and includes Hillary Clinton. Choices for
progressive, radical and anti-racist feminists have been narrowed to these two vantage 4
points. The next Supreme Court justice will hold one of these two positions. There is no
room for anything but a neo-liberal or right-wing feminist—male or female—in sight.
Neo-liberal feminism, which is both a contradiction in terms AND also a poignant
political identity today exploits the inadequacy of identity politics. It does not see gender
identity as a detriment, nor does it identify with the notion of sexual class, or its structural
limitations. This kind of feminism is individualist and privatized. There is no
consideration of the masses of women—simply individual women’s ability to succeed.
Gender decoys are the practice; neo-liberal feminism its theory. These decoys allow this
privatized version of power to work.
It is newly significant that Roberts is white and male and conservative. No
female decoy needed here because he can stand in, in re-gendered form. It is important to
see this newest gender move by the Bush administration in historical context. Roberts, a
white male is chosen to replace Sandra Day O’Connor, a white female and the first
woman ever appointed to the Court. Ronald Reagan in the early 80’s had said he would
appoint a woman, and he did. At that moment there was political capital in making such
an appointment. He chose a conservative woman. She actually became less conservative
because more right-wing justices were appointed after her. She started on the right and
became the center.
Two decades later there is no clear voice with political muscle demanding the
appointment of a female/woman in whatever form. Interestingly, there was less push for
a woman, but more people expected that the nominee would be a (conservative) woman.
So Bush didn’t need to actually appoint a female, like Reagan did. He was expected to,
so if he didn’t, it mattered less. Times change like gender does. Bush could effectively
have a white male do his bidding without using the gender decoy system. A white female
is replaced by a white male because neither gender nor sex supposedly matter to
conservatives. And race is completely privileged in the silencing of it.
To further muddy the waters, Attorney General Alberto Gonzalez was nixed by
the right-wing fanatics as a possible justice because they thought he was soft on abortion.
Obviously, there are males on the Court who support the legality of abortion so exactly
what is the particular identification being parlayed here? Meanwhile Gonzalez’s
acceptance of torture in the war of/on terror is ignored and he looks like a feminist to the
Republicans. And abortion, in its dumbed down version becomes the legal arbiter of too
much democracy.
At this moment of democracy in its imperial form masculinity is being re-sexed
with females and re-gendered accordingly as females become more masculinized and
males become `girlie’men’. It is a stage, a moment, a historical process of globalizing
capital and its modernized forms of racialized patriarchy. Feminists who believe in
women’s rights to their bodies as fundamental—must reclaim and radicalize democracy
both inside and outside the Court in the U.S. And this critical stance on behalf of
women’s equality and justice must be extended to all present day discussions of
democracy –including, and especially the contested constitution in Iraq.

Anne Fausto-Sterling, Sexing the Body (New York: Basic Books, 2000), pp. 3, 31, 32, 40, 54, 177, 179,
Joanne Meyerowitz, How Sex Changed (Cambridge: Harvard university Press, 2002), p. 28 5

Nancy Krieger and George Davey Smith, “Bodies Count and Body Counts: Social Epidemiology and
Embodying Inequality”, Epidemiologic Reviews, vol. 26, 2004, pp. 92, 93.
Nancy Krieger, “Genders, Sexes, and Health”, International Journal of Epidemiology , vol. 32 (2003), p.
Susan Oyama, Evolutions Eye (Durham University Press, 2000), pp. 3, 18, 22, 28, 29, 48, 191.
Lawrence Summers, “Remarks at NBER Conference on Diversitfying the Science and Engineerig
Workforce”, January 14, 2005, available at: www. president.harvard.edu/speeches/2005/nber.htm

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