Eyes Wide Shut: Erasing Women's Experiences From the Clinic to the Courtroom

41 Pages Posted: 10 Jul 2004 Last revised: 25 Jun 2009

See all articles by Ellen A. Waldman

Ellen A. Waldman

Thomas Jefferson School of Law

Marybeth Herald

Thomas Jefferson School of Law ( (deceased)

Date Written: July 10, 2004


In his decade-long exploration of female sexuality, Sigmund Freud professed to be on a mission to answer the elusive question: "What do women want?" Unfortunately, the 19th-century psychiatrist was unable to separate that question from the one he ultimately answered: "What do men want women to want?" In some sense, Freud's inquiries provide an apt metaphor for the medical profession's stance toward female experience. When confronted with the difference presented by the female body as well as women's unique life experiences, the medical field has responded with approaches that range from bemusement to hostility to intense indifference.

Although the pernicious effect of gender bias on healthcare delivery is well-known, less attention has been paid to its secondary effects. Disinterest in or hostility to the female experience leads to an informational vacuum that allows for the development of ideas, theories, and assumptions founded on cognitive bias, rationalization, and wishful thinking rather than empirically-based knowledge. These biases, then, are imported into the legal field where they undergird juridical movements that serve to disadvantage women.

This essay explores how, in the medical context, the stunted development of knowledge about women, becomes, in the legal context, a dangerous thing. In examining the interplay between medical and social science information and legal dogma, this essay will discuss how bodies of knowledge are selectively pursued, exploited, or ignored in the service of patriarchal assumptions that achieve expression in legal responses to emerging social dilemmas. Selective information flows between the medical and legal professions result in untoward consequences in a wide variety of settings.

Here, we limit our focus to two such untoward consequences. The first part of the essay discusses the impoverished medical discourse on female sexuality and how inattention to female sexual fulfillment has led to legal rules that disproportionately affect women's expression as sexual beings. The second part examines available social science data detailing the distinction between psychological and genetic parenthood and shows how that data has been ignored in favor of judicial presumptions that privilege men and disadvantage women in disputes over frozen embryos. A close look at these contested arenas of sexuality and reproduction demonstrates the difficulty of charting women's progress toward equality. On the surface, in both law and medicine, norms of gender equity command facial allegiance. Medicine disavows its earlier efforts to exclude women from the profession, while law proffers the equal protection doctrine as proof that sexist behavior can be rooted out in a zero-tolerance legal culture. Under the waterline, though, unconscious beliefs and stereotypes hold sway. These unruly currents lead to rationalizations and cognitive errors that elude rigorous examination, but affect women at work, at home, and in the bedroom.

Keywords: gender, privacy, sexuality, reproduction, discrimination, medicine

JEL Classification: K10

Suggested Citation

Waldman, Ellen and Herald, Marybeth, Eyes Wide Shut: Erasing Women's Experiences From the Clinic to the Courtroom (July 10, 2004). Harvard Journal of Law and Gender, Vol. 28, No. 2, p. 285, 2005; TJSL Legal Studies Research Paper No. 601521. Available at SSRN: https://ssrn.com/abstract=601521

Ellen Waldman (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4346 (Phone)

Marybeth Herald

Thomas Jefferson School of Law ( (deceased)

701 B Street
Suite 110
San Diego, CA 92101
United States

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