The Man, the State and You: The Role of the State in Regulating Gender Hierarchies

Abstract

This paper begins with the thesis that an andocentric-assimilation model of women's liberation both has affected workplace outcomes for women and has desensitized us to those outcomes. The paper then applies that thesis to understandings of equality within a hierarchical framework, arguing that the equality-liberty dichotomy is false in the context of gender discrimination in the workplace. Instead the paper argues that disparate treatment is a liberty concern. In seeking to have our professional fates married to the fates of our male colleagues - which is what workplace equality doctrines aim to do - women are seeking to be only as free as our male colleagues are to find work and to find meaning in our work, to procreate or not, to coast along or to stand out, and, if we choose, to stand alone. Further, this paper offers the perspective that we should resist the inclination to make our peace with the ordering of the gendered paradigms as they stand and to negotiate compromises from these vantage points. Within this theoretical framework, this paper explores the implications of the regulation versus governance debate in the context of gender discrimination. The article suggests that renaming and reframing aside, the approach embodied by the governance paradigm as it is applied to gender discriminatory contexts is neither new nor a deal for those already occupying a subordinate bargaining position, but it is instead a framework by which to privilege existing power structures and efficiency-based values over other values and interests. Moreover, this paper defends the civil rights model of rules-base state-enforced mandatory anti-discrimination measures, such as Title VII, as an admittedly non-panacean yet nonetheless indispensable means by which private gender hierarchies are inhibited. Finally, this paper contends that in looking to the law to inhibit this particular privately-enforced tyranny, women are correctly interpreting the obligation of the state within our constitutional scheme to disrupt private tyrannies when those tyrannies reach the point of functioning as class-based power monopolies, limiting the fundamental freedoms of those outside the monopolist class.

Keywords: gender discrimination