Sex equality has served as a primary project of the feminist movement for centuries. Feminist legal scholar Catherine A. MacKinnon describes the difficulties around setting legal protections for sex equality in her 1991 Yale Law Journal piece. MacKinnon notes that the Supreme Court did not rule women had equal protection under the law until 1971. Even so, women largely struggle to get adequate legal protection because the premise of equality in our legal system engenders an assimilationist approach. Thus, legal classifications do not occur on the basis of sex because having equality means being treated the same as men despite the existence of various gender-specific inequalities like rape and sexual assault:
This analysis suggests that the law of discrimination, to the extent it centers on empirical accuracy of classification and categorization, has targeted inequality’s failures of perception such that full human variety is not recognized, above inequality’s imposition of commonalities, such that full human variety is not permitted to exist.1
Grassroots organizing changed the assumption equality for women required the same legal standards as men because much legal sex equality theory failed to resolve sexual inequality. In particular, women face sexual violence due to their subordinated social status. Society normalizes the sexual violence against women by introducing gender roles of men as sexually aggressive and women as sexually submissive.
These gender norms do the work of disenfranchising mothers reproductive control. However, as MacKinnon notes, forced maternity is a form of sexual equality deprivation while legal abortion should be seen as a sex equality right.
Expanding on the Argument for Marginalized Women
MacKinnon notes that women of color face additional hurdles to legal sex equality. Furthermore, MacKinnon explains how much of the legal definition of sex equality for women relies on the belief that sex is biological. As a sociologist, I find it important to note that such a legal basis means that transgender women do not have equal protection under the law as do other groups of women that fail to meet the legal standard of womanhood.
Indeed notions of sexuality according to the law rely on heteronormativity as a legal standard. As MacKinnon notes, the biological and heteronormative legal standard juxtaposes fetal right with those of women, often as a way to maintain control over women. However, “personhood is a legal and social status, not a biological fact.”2 Therefore, seeing personhood and sex as social constructs helps illuminates the ways the law defines personhood to the exclusion of certain groups.