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Title: Slide 1 Author: Corporate Edition Last modified by: Loredana Created Date: 12/12/2012 12:46:51 PM Document presentation format: Presentazione su schermo – PowerPoint PPT presentation

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Philosophy of Law
Libera Università Maria Ss. Assunta (LUMSA)
Philosophy of Law

Course reference for final exam
preparation L.Palazzani, Gender in Philosophy
and Law, Springer, Dordrecht 2012
Philosophy of Law
  • 1. defining our field of enquiry
  • 2. the role of Gender in philosophy and law
  • 3. the interdisciplinary nature of the
    sex/gender debate

Philosophy of Law
  • 1. Defining our field of enquiry
  • Preliminary remarks
  • ?Gender' denotes
  • a conceptual category referring to things or
    persons that share essential properties (e.g.
    kind, species, class, type). It refers to human
  • the grammatical category distinguishing between
    masculine and feminine (male/female distinction).

Philosophy of Law

  • At a linguistic and semantic level the structural
    ambiguity of the term is manifest, as it can be
    used both to indicate individuals belonging to
    the human species (including males and females)
    and to point out the male/female distinction.

Philosophy of Law

Conceptual definitions Sex indicates the
biological condition of man and woman, of the
male or female being (how one is born). Our
genetic, gonadal, hormonal, genital,
morphological condition. It denotes how we are,
our natural condition. Gender refers to the
interior psychological perception of ones own
identity (how we feel), but also the exterior
social, historical and cultural condition (how we
appear to others) in behaviour, habits and roles
that are given and assumed by masculinity and
femininity. It designates how we become, our
acquired condition.
Philosophy of Law
The use of Gender in feminist thought It
indicates women, privileging the peculiarity of
the female condition in employing the term, based
on the assumption of their historical, social and
cultural disadvantage with respect to men,
therefore, requiring special consideration. Simone
de Beauvoir in Le deuxième sex (1949) addresses
the issue of the subordination of women,
investigating the underlying reasons for this
condition through a detailed analysis carried out
in biological, psychoanalytical and historical
terms. The author argues that one is not born a
woman, but becomes one (due to internal
biological and psychological conditions,
alongside external social and historical
conditions. A woman is not a fixed reality, but
a becoming.
Philosophy of Law
  • As a consequence, Gender covers several meanings
  • human gender
  • male/female gender
  • female gender
  • What is the relationship between sex and gender?
  • One naïve answer is to consider that the meanings
    of the two terms overlap indifferently, arguing
    that gender is only a preferable expression
    compared to sex, since it is more polite.

Philosophy of Law
  • Sex/gender theories
  • We must take into account the structured
    theoretical debate between
  • - biological determinism (pre-modern theory),
    reducing gender to sex
  • - social constructionism (modern theory),
    separating gender from sex
  • - deconstructionism (post-modern theory),
    thematizing a priority of gender over sex.

Philosophy of Law
  • In other words, a debate among those arguing
  • - there must be a correspondence between sex and
    gender (biological determinism), i.e. between how
    we are and how we become
  • - there may be no correspondence between sex and
    gender, i.e. we can become different from how we
    were born (social constructionism)
  • - only what we become really matters
  • A debate between those on the side of nature
    (claiming a priority of sex over gender) and
    those on the side of culture (in favour of a
    priority of gender over sex).

Philosophy of Law
  • Critical issues
  • The question becomes increasingly complex
    whenever considering that, following the
    broadening of scientific knowledge, sex
    determination is not only directly connected with
    what appears at the moment of birth
  • The cases of children born with genital
    ambiguities/sexual indeterminacy
  • Adults discovering the incongruity between
    acquired identity and genetic sexual belonging
  • These two cases are empirical proof of this.

Philosophy of Law
  • Possible outcomes
  • In this context, gender is separated from sex to
    designate an identity being shaped by a feminine/
    masculine-oriented education, following a medical
    transformation of the body, in an attempt to
    achieve a difficult sex/gender correspondence.
  • It is no coincidence that the distinction between
    sex and gender was born in the field of
    psycho-sexology, with the purpose of looking for
    a theoretical and practical answer in such
    difficult cases
  • - gender variability made it possible to explain
    sexual identification even in cases of sex
  • - psychoanalysis expounds sexual identification
    as the gradual process of gender identity
    acquisition in correspondence or opposition to
    sex (i.e. transsexualism) or in cases of
    non-correspondence between the sex embodied and
    the gender experienced psychologically.

Philosophy of Law
  • 2) the role of Gender in philosophy and law
  • Gender in philosophy and law takes on two
    ambitious tasks disambiguating the confusing
    ways in which the language of sex and gender
    have been used and explaining how law ought to
    address issues of sex and gender, in light of the
    recent treatment of sex and gender in
    international and European law.

Philosophy of Law
  • 3) the interdisciplinary nature of the sex/gender
  • The debate by psycho-sexology and psychoanalysis
    was taken up by a set of feminist orientations
    with different modalities and arguments at many
  • - sociological
  • - cultural-anthropological
  • - philosophical
  • Main goal
  • investigating reasons for the disadvantaged
    condition of women in history, society and
  • According to a number of feminist theories, the
    way in which gender was constructed, or the
    cultural and social expectations towards women,
    alongside the assigning of roles to them, linked
    to their biological condition, led to the
    subordination of women with respect to men.

Philosophy of Law
  • Feminism and social constructionism
  • A new construction of gender at a social and
    cultural level which sets aside sex is viewed as
    a chance to achieve a position, if not of
    advantage, at least of equality and symmetry with
    respect to men.
  • In this perspective, the use of reproductive
    technologies is seen as a way for women to have
    children without a partner, without pregnancy and
    without childbirth (i.e. heterologous assisted
    fertilization techniques or surrogate
    motherhood). It is called ?gender revolution',
    like a sort of second sexual revolution
  • - the first one was aimed at the sexual
    liberation from inhibitions and repressions of
    moral norms for the affirmation of free love
    transforming ?politics into sex'
  • - the second revolution transforms ?sex into
    politics', modifying sexual politics towards a
    transformation of the sexual relationship meant
    as a relationship of power/subordination

Philosophy of Law
  • A conceptual shift from modern to post-modern
    lines of thought
  • In this context, gender already previously set
    free from sex, multiplies itself in
    ?differences', strictly and intentionally
    declined in the plural form.

Philosophy of Law

  • ?Sexuality studies'
  • Gender denotes not only individual psychological,
    social and cultural identity acquired regardless
    of sex, but also sexual orientation or the choice
    and preference with regard to the relationship
    with the other person of the same sex, opposite
    sex, as well as of both sexes.
  • The debate on heterosexuality, homosexuality and
    bisexuality arises from this assumption.

Philosophy of Law
  • Post-gender theorisations
  • In post-modern thought, post-gender theories are
    drawn up
  • Post-gender means beyond gender, de-constructing
    both sex and gender, moving away from nature
    which is considered irrelevant, but also from
    culture, perceived as the cause of
    ?normalisation'/?naturalisation', e.g. the
    restrictive imposition of assumed roles.
  • To deconstruct means ?un-doing' sex and gender,
    in favour of transitory instinctive pulsionality
    of multiple and plural identities( both male and
    female or neither male nor female identities,
    i.e. trans-gender), deeming any
    homo/hetero/bisexuality equivalent.
  • This perspective rises against every paradigm
    that may claim complying with a hetero-sexual
    social model (standardisation)
  • The exaltation of in-difference, neutrality,
    which ends up denying identity itself.

Philosophy of Law
  • Post-modern theories get to the point of
    challenging sexual binarism (e.g. the sexes are
    two and opposite) and heterosexism (which
    declares the privilege of unions between two
    opposite sexes).
  • These theories exalt sexual polymorphism and
    pansexualism, which admits any tie between sexes.

Philosophy of Law
  • Practical examples
  • For the first time, in Australia, a man/woman
    asked for the registration of a neuter sex.
  • In Canada, two parents have not revealed the sex
    of their son/daughter with the intention of
    raising him/her ?without sex' so that he/she can
    decide freely.
  • Post-modern theories are extremely provocative.
    It is not easy to foresee the developments of the
    gender debate, due to its inter-disciplinarity
    and non-systematic nature, alongside an
    underlying intention to not express the reasoning

Philosophy of Law
  • Problematic scenarios
  • the cases of sexual ambiguities at birth show
    that even the determination of biological sex is
    not univocal
  • the cases of psychological non-recognition of
    ones identity in the body (transsexualism)
  • - the provocative cases of trans-gender claims
    of neutral identity are increasing (in the sense
    of accepting/exalting ambiguity identified with
    the co-existence of both female and male
    features, or perhaps neither male nor female

Philosophy of Law
  • The concept of neutrality and relationships
  • Neutrality also affects the relationship between
    individuals, outlining a comparability between
    hetero/homo/bisexuals. The relationships of men
    with men, women with women (also more than two),
    of transsexual and transgender persons with each
    other are placed on an equal footing. Everything
    becomes indistinct and indistinguishable.

Philosophy of Law
  • The queer theory
  • The post-modern fragmentation of the concept of
    gender is exemplified by the queer theory.
  • The gender category is replaced with queer to
    denote how the diversity must not be considered
    ?strangeness' but ?normality', eliminating any
    distinction between normal and abnormal, by the
    very denial of every diversity. Individuals
    create their own identities, unconstrained by the
    strictures of biology, social constructions, or
    cultural constructs.

Philosophy of Law
  • This raises many questions
  • Are males and females really different? To what
    extent and how?
  • Can we be neutral, i.e. neither men nor women or
    men and women?
  • Is the fact that a certain identity is given to
    males and females and a role according to their
    anatomy a natural fact or convention? What is the
    source of individual and relational diversity,
    biology, culture or individual will?

Philosophy of Law
  • Gender studies are often ignored by public
    opinion. However, they have already begun to
    produce effects at different levels
  • juridical
  • social
  • political
  • This is maybe caused by the very ambiguity and
    the non-immediate understanding of the language.
    A real silent paradigmatic subversion is even
    suggested, through educational, cultural and
    political institutions, with the aim of
    transforming society the so-called ?gender
    agenda'/?gender mainstreaming'.
  • The term ?gender ideology' is also used to
    indicate the studies that have debated this issue
    in connection with gender identity, but also to
    the ideology underpinning it. Ideology means a
    structured system of ideas formulated and
    theorised at a philosophical level, which is
    proposed as a total interpretation of the social
    and historical reality, in order to reach the
    above-mentioned transformation of society,
    according to the suggested social model.

Philosophy of Law
  • The gender ideology proposes the following
  • the irrelevance of nature for sexual identity
  • the irrelevance of sexual difference for setting
    up a family, exalting freedom as a result of
    individual desire
  • a ?sex-less' society, without sexual identity and
    sexual difference.
  • It is important to reconstruct the debate to
    understand if it still makes sense to ground
    sexual identity in nature, whether sexual
    difference in the relationship still matters.

Philosophy of Law
  • Our goal is to
  • analyse the different theories that have dealt
    with the gender category, highlighting the
    theoretical and philosophical aspects, while
    devoting particular attention to the sex/gender
  • We will mainly refer to the Anglo-Saxon
    literature in which the debate is considerably
    developed, alongside the international one.

Philosophy of Law
  • Setting our focus
  • The sex/gender debate is structurally
    interdisciplinary, relating to the scientific
    areas of genetics, biology, endocrinology,
    anatomy, physiology, neurology and the field of
    human sciences (i.e. history, sociology, cultural
    anthropology, psychology, psycho-sexology,
    psychoanalysis, etc.). Particular reference will
    be made to the common applicative issues
  • intersexuality
  • transsexualism
  • transgender
  • homosexuality
  • bisexuality

Philosophy of Law
  • A roadmap through theories in order to achieve a
    critical stance
  • From a juridical point of view, the introduction
    of the term gender without providing any
    explanation is evident. It is possible to grasp
    its meaning by analysing the philosophical
  • Our focus will shift from the de-construction of
    gender to a possible philosophical-juridical
    re-construction of the importance of nature in
    sexual identity and of sexual difference within
    the family relationship.
  • We will disclose the dangers of an in-different
    law, the contradictions and ambiguities that
    arise behind the appeals to equality and
    non-discrimination, in order to call for a
    central role of the fundamental rights of the
    person before gender claims.

Philosophy of Law
  • Contact information
  • E-mail

Philosophy of Law
  • Thank you for your attention