Bad Boys’ Brains: Law, Neuroscience and the Gender of ‘Aggressive’ Behavior

Abstract

As law begins to integrate neuroscientific research about behavior, brain-based models of identity are emerging. In these models, behaviors such as aggression, swearing and impulsivity are increasingly categorized as brain-based disabilities, raising questions about how law should respond.

In the public institution of school, an increasing cohort of students are exhibiting what would once have been considered “bad” behavior and a trigger for exclusion from school. Yet with this rapidly expanding knowledge about the biological bases of behavior, students with challenging behavior can increasingly invoke the protection of disability discrimination laws. Such behavior may also be viewed through a criminal lens, as “anti-social” behavior, which ultimately tends to exclusion from public institutions rather than inclusion. Should law take a protective or punitive stance towards people exhibiting “anti-social” behaviors if those behaviors have a biological source?

Taking a feminist approach, this paper addresses gender and disability in Australian discrimination cases on “bad” behavior. It argues for a contextual approach to regulating brain-based behavior, one that sees the brain as inseparable from its functioning within the body and embedded in overlapping biological, social and environmental systems. Such an approach makes visible the gendered underpinnings of unacceptable behavior and how it is regulated in law.

Keywords: disability discrimination, gender, feminist, school students, behavior