Gendered Assumptions: the True Dominator of Legal Autonomy.
Gendered assumptions around autonomy affect the operation of the law to a large extent. ‘Gendered assumptions’ denote the supremacy of the male perspective, as via men’s shaping of the law, legal language and understanding has been given a meaning which is consistent with their own. In consequence, understandings which do not adhere to this are deemed ‘unexpressable,’ and so true individual autonomy is in fact the law’s (law makers’) greatest threat. The current operation of the law can thus be critiqued, as autonomy is not presented as a value to be protected at all costs, but one that should be protected only if expressed in a particular way – in accordance with the male assumptions. ‘Autonomy for the oppressed is likely to be a lost cause,’ thus largely encapsulates the following analysis, which will illustrate the way in which the law’s gendered version of autonomy is unattainable for both women and homosexuals. This article will proceed in three parts, examining the impact that the gendered assumptions around bodily, emotional and behavioural autonomy have upon the law’s operation, sustaining heteronormativity, the gender dichotomy, and the nuclear family. This will be discussed in relation to motherhood and BDSM, two topics which may not be obviously linked prima facie, but are significantly comparable in the law’s regulation of autonomy.
Part I: Bodily Autonomy: Separation and Distinctness
Bodily autonomy is understood as the right to self-governance over the human body. The gendered assumptions around bodily autonomy have affected the operation of the law by placing as its central concern: the bounded heterosexual male body. In consequence, the law is premised upon the idea that people are ‘essentially bounded and separate,’ as a tool to reinforce heteronormativity. Thus, Nedelsky highlights the destructiveness of viewing human beings’ autonomy in terms of bounded spheres, as penetration becomes a violation of this boundary, even if consented to.
This problematic nature can first be perceived in relation to BDSM, which has been categorised as the ‘laws gravest threat,’ as its practices challenge this exact conception that the law seeks to protect. The heteronormative tendencies which drive this gendered assumption fear this particular manifestation of autonomy, as it is deemed to reduce the man to the fluid bodily status of a woman, which will be considered subsequently. In consequence, the law condemns the man who gains sexual gratification from the erosion of these body boundaries. This heteronormative stance is well evidenced via the judicial discussion in Brown, a monumental judgement in this area: ‘it is some comfort to be told…that ‘K’ is now…settled into a normal heterosexual relationship.’ The construction of a ‘normal’ expression of bodily autonomy, wholly exhibits the way in which individuals must conform to the legal, as opposed to a self-imposed standard of governance. Hence, exhibited by the ensuing criminalisation in Brown, is the effective removal of homosexual autonomy, as it is not expressed in the particular way that the law demands. In conformity with Nedelsky’s contentions, is the way in which this is enforced to such an extent, that even consent becomes marginalised, ‘the question of consent is immaterial.’ Moreover, diagnostic labelling goes as far as to suggest that those who purposefully deviate from this boundary actually suffer from a disorder of sexual preference, as sadomasochism appears in the International Classification of Diseases (ICD-10). It is suggested that this pathologization has no scientific basis, but merely masks a form of moral indignation, as the ICD-10 presumes the importance of intercourse, reflecting a traditional attitude towards sexuality. Therefore, true individual autonomy is triumphed by our paternalistic legal system, which serves to promote the gendered assumptions around bodily autonomy.
The mere concept of, and process into motherhood exhibits how this ideal bounded body is also ‘a unitary model of bodily existence from which the pregnant woman departs.’ In order to effectively safeguard heteronormativity, women cannot be autonomous, bounded individuals, but must be viewed as ‘something less than fully human,’ to enable and legitimise male invasion of their boundaries. This perception of women is authenticated by the aforementioned fear of being relegated to a woman’s fluid bodily status. This can be explained by the way in which a woman’s body is physically occupied in two respects within consensual heterosexual relations. During the initial intercourse her ‘body bag’ is punctured, as a consequence of being permeated by a penis. Also antithetical to the law’s emphasis on separation is the pregnancy itself, as the mothers body is invaded by, and shared with the foetus. This was explicitly recognised by the judiciary in XXC, whom classified both sexual relations and pregnancy as the most severe breaches of autonomy imaginable. The development of advanced technologies during pregnancy further enables the mother to be deconstructed, leaving her physical boundaries indeterminate. The case Re MB exemplifies this issue, as the court permitted a caesarean – an extremely invasive procedure – to be legally undertaken without the mother’s consent. For Cavarero, this was a further illustration of how the female body is always appropriated, and invaded by men. As a result, the gendered assumptions around bodily autonomy similarly relegate women to a space whereby autonomy cannot be achieved.
A very interesting consideration within this context is the way in which female genital mutilation (FGM) has been outlawed in the United Kingdom. This article does not seek to suggest that this is erroneous, yet under the current gendered assumptions around bodily autonomy it seems certain types of FGM should be desirable in law, particularly infibulation. This is so, as after undergoing infibulation, only a small aperture remains for the urinary and menstrual flows. This would allow women’s bodies to be conclusively bounded, as the vagina could no longer be violated by penetration. Thus, the criminalisation of FGM in fact reaffirms how the gendered assumptions are concerned with a heteronormative operation of law, as penetration is ‘construed to be normal and fundamental to continuing human existence.’ Therefore, it has been suggested that men now oppose FGM in the Western world as it is seen as posing a problem to their heterosexual relations; men know that it is difficult to have sex with someone who is circumcised.
In summary, the gendered assumptions around bodily autonomy largely affect the operation of the law, by presenting the bounded model of self-governance as a value to be protected at all costs. This consigns both homosexual practice and women to a space whereby true autonomy cannot be achieved, as neither adhere to, or are legally prevented from adhering to (via the outlawing of FGM) the male assumptions.
Part II: Emotional Autonomy: Individualism and Masculinity
Emotional autonomy is concerned with personal feelings and the way individuals relate to others. Examining the extent to which the gendered assumptions around emotional autonomy have affected the law reveals that its operation has long been coded masculine; placing ‘manly’ men as its beneficiary, via the privileging of male-associated traits. Positioning men as representative of the human condition has consequently steered the law from a relational to an individualistic interpretation of autonomy. Hence, the law seeks to endorse only two expressions of emotional autonomy: those which preserve the conception of the self as individualistic, and the stereotypical image of ‘man.’ In this respect the gendered assumptions perpetuate the prominence of the gender dichotomy, as ‘gender polarity underlies such…dualisms as autonomy and dependency.’
Part II (a): The Protection of ‘Masculine’ Expression
The privileging of the male image is pertinent in relation to the law’s prosecution of BDSM activity. BDSM provides its practitioners with a framework in which to play on gender structures, challenging the constructed polarity between masculine and feminine. This complete disregard for the gender dichotomy helps elucidate why men’s ability to act as autonomous individuals is respected when participating in activities which conform to the gender narrative, but not when deciding to injure each other for sexual pleasure. For example, the exhibition of traits such as aggression, and a capacity to use violence typically epitomize hegemonic masculinity; a concept which justifies the subordination of any other marginalised way of being a man. Thus, this hegemonic practice is actually reflected in the way in which the usual perception of violence, as a normal male facet, is not equally manifested within inter-male relationships. As such, Moran critiques the law as this ‘logic of violence’ obliterates those identities which are marginal to the hegemonic order. This is well evidenced by a direct comparison of the cases Aitken and Brown. The supposed justification for the criminalisation in Brown was the difference between incidental violence, and that which is inflicted for the ‘indulgence of cruelty.’ Yet, this reasoning is wholly undermined by the facts of Aitken, which, contrarily, did not in fact result in criminalisation. It cannot be doubted that the violence here was intentional, as Gibson attempted to resist the other officers who poured white spirit on him and lit a match, igniting the fuel. Commentators were thus quick to remark that the real basis for this judgement was that this act was considered a manly diversion, and so ‘real men may set each other alight…but do not wound each other for sexual pleasure.’ The implication of these cases is that autonomy is unachievable for homosexuals, as their expression is in conflict with the current operation of the law, which protects only the most ‘masculine’ autonomous mind.
Part II (b): Conception of the Self as Individualistic
The notion of masculinity discussed above has resulted in the conceptualisation of emotional autonomy as individualistic, as ‘the most perfectly autonomous man is the most perfectly isolated.’ Chodorow attributed this to the developmental task of adolescent males, who must resist dependency. Yet, on the basis of the former analysis, it is feasible that men’s desire to conceal their internal boundary between hegemonic traits (deemed socially acceptable), and non-manly characteristics (not deemed suitable for projection) necessitates isolation. This emphasis on relinquishing dependency precludes women, who are quite clearly connected to another human life via motherhood, from achieving this gendered version of emotional autonomy in theory and in practice.
Theoretically, connection to a child is antithetical to both individualism and masculinity. As motherhood is a function of women’s essentially female nature, it remains tied to characteristics which are dichotomized and defined by gender. This is evidenced firstly by the conception of mother as loving, gentle and tender; some of the greatest expressions of femininity. Moreover, as suggested in West’s connection thesis, women are inherently and essentially connected, as opposed to essentially separate from the rest of human life. According to radical feminists, women’s connection to others is thus the source of their misery under the current law, as ‘female possibility has been massacred on the site of motherhood.’ This can be refuted, as it is the gendered assumptions driving the law which should be condemned, as opposed to women’s connection to others. In order to lessen the extent to which the current gendered conception of emotional autonomy affects the operation of the law ‘masculine jurisprudence must become human jurisprudence.’ The gendered conception of emotional autonomy should be reformed, as research has shown that women actually approach self-determination via relational competence. Therefore, inter-reliance does not undermine autonomy, but can explain how it emerges. This is similar to the perception of BDSM as demasculinising, when in reality it is considered a means by which to achieve personal empowerment.
In practice, in the same way in which the law operates to preclude achievement of bodily autonomy for women, the possibility of achieving this version of emotional autonomy is equally reserved for male individuals. Under the Children Act 1989, the mother is provided with automatic parental responsibility, and thus a legal connection to the child. The same cannot be said for fathers, and thus the absence of an invariable legal paternal duty creates much greater potential for independence.
Overall, similarly to bodily autonomy, the gendered assumptions around emotional autonomy have affected the operation of the law to such an extent that homosexuals and women currently have no prospect of achieving it. This is so as neither accord to the misplaced ‘masculine’ account of feeling and relatedness that the law emphasises.
Part III: Behavioural Autonomy: Oppression and the Nuclear Family
Behavioural autonomy refers to the ability to make decisions independently, and to effectuate these decisions with relative action. The gendered assumptions around behavioural autonomy have affected the operation of the law, by proscribing and stigmatising particular behaviours; those which are averse to the traditional notion of the nuclear family. The law has in fact been the most influential support for this social unit, which narrowly consists of a husband, wife and their children. Conceptually, it insists on the sustainment of conventional family roles, which carry restrictive prescriptions for behaviour. By discriminating against variance, the repression of women and homosexuals is retained within the law, as true autonomy is entirely unattainable whilst this remains the pinnacle image.
Accordingly, Smith asserts that ‘the nuclear family is the root of women’s oppression.’ This contention is authenticated by the multi-faceted use of the legally constructed image of family to undermine behavioural autonomy in motherhood. It is easy to overlook this oppression, as hierarchy becomes naturalised by being associated with seemingly natural processes of the family. This masked form of control is well illustrated by the legally prescriptive role in the Children Act, as formerly discussed. Prima facie it may seem that this symbolised a significant step towards empowerment. Yet the act actually introduced an unrealistic behavioural burden, for which men did not want to take responsibility. The law prescribes a very particular way of behaving, as mothers are expected to perpetually devote their entire ‘physical, psychological, emotional and intellectual being’ to their children. The suggestion that this is an outdated view, is undercut by recent statistics which confirm that mothers with a youngest child between three and four years, have the lowest employment rate of all adults. This inequality was recognised by the European Council, who confirmed that it is essential to offset the disadvantages faced by women, arising from the social practices which presuppose women are chiefly responsible for looking after the family. The inference which can thus be drawn is that the gendered assumptions around behavioural autonomy, retain women’s oppression via legally prescriptive roles, which prohibit true autonomy.
Moreover, the law responds with fierce resistance to any chipping away of the nuclear home, manifested by the pregnant woman’s physical boundaries being policed against her. For instance, in Alabama, control over women’s reproductive capacities has been central to their oppression, as abortions are banned altogether. Despite a more liberal abortion regime existing in England, women are still not entitled to terminate their pregnancies pursuant simply to a legal right of self-determination. There remains a principal statutory barrier to abortion: the approval of two doctors, on the basis that having the baby would pose a greater risk to health. A bid to marginally relax the law and slightly increase the time for abortion was recently rejected by the High Court, implying that these gendered assumptions still affect the operation of the law to a great extent. Therefore, the autonomous woman is invisible within a gendered law, as personal determination of behaviour and reproductive capacity which do not adhere to the male assumptions, are consequently prevented.
The role of the family also occupies the central legal narratives upon which criminal justice is administered, demonstrated by the prosecution of only certain cases within the BDSM sphere. Discussed in the preceding paragraph was only one way in which expressions of autonomy which defy family are disallowed, the entailing analysis shows how another is stigmatised. Evidence has confirmed that heterosexuals participating in BDSM are much less likely to be discriminated against, as it is ‘queer’ that poses a challenge to the traditional notions of family. The dissimilarity between the treatment of this behaviour in Brown and Wilson exemplifies the way in which the gendered assumptions have led to a law which oppresses both women and homosexuals through the notion of family. One of the central lines of reasoning in Brown was that sadomasochistic homosexual activity cannot be regarded as ‘conductive to the enhancement or enjoyment of family life.’ This can be contrasted with the outcome of Wilson, a case where one would expect an alike decision, after the husband branded his wife with a hot knife. The court instead saw no place for their involvement, as the activity was between husband and wife, in their matrimonial home. As noted by Weait, the court took no issue with the behaviours as the injury was a symbolic one, representing the traditional subordination of wife to husband, in alignment with the traditional notion of family.
Overall, in accordance with the other types of autonomy formerly discussed in this essay, the gendered assumptions around behavioural autonomy have affected the law to such an extent that true autonomy is unattainable. Women and homosexuals are legally prevented from making independent decisions from which action can be carried out, as behaviours which are not perceived as adhering to the nuclear family are outlawed.
In conclusion, the foregoing analysis confirms that the gendered assumptions around autonomy have affected the operation of the law to a large extent. The gendered assumptions around bodily autonomy, have evoked the legal idealisation of the bounded body. The gendered assumptions around emotional autonomy have affected the law by necessitating both masculinity and individualism. Lastly, the gendered assumptions around behavioural autonomy have affected the law’s operation by outlawing actions which oppose the ideology of the nuclear family. Despite the gendered assumptions around each type of autonomy affecting the law in a particular manner, all have the same consequential impact. Ultimately, the consideration of bodily, emotional and behavioural autonomy has substantiated Friedman’s quote, which was presented in the introductory paragraph. All three have similarly shown that autonomy is a lost cause for the oppressed groups: women and homosexuals. Hence a major way in which the law’s operation is affected is the evident lack of protection for all types of autonomous expression, as the gendered assumptions serve to protect only those expressions of autonomy which adhere to the masculine interpretation.
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 ibid 890.
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 R v Brown (n 14).
 R v Wilson  QB 47,  3 WLR 125.
 R v Brown (n 14) 255 (Lord Lowry).
 R v Wilson (n 80) 49.
 M Weait (n 3) 111.