Feminism Unmodified: Discourses on Life and Law

Research and legal work

Sexual harassment

According to an article in 2006 by Deborah Dinner in Legal Affairs, MacKinnon first focused on what became known as sexual harassment after learning about an administrative assistant at Cornell University who had resigned after being hospitalized because of it. The woman had refused a transfer when she complained about her supervisor's behavior, then was denied unemployment benefits because she quit for what were termed "personal" reasons.

In 1977 MacKinnon graduated from Yale Law School having written a paper on sexual harassment for Professor Thomas I. Emerson arguing that it was a form of sex-based discrimination. Two years later, Yale University Press published MacKinnon's book, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), creating the legal claim for sexual harassment as a form of sex discrimination under Title VII of the Civil Rights Act of 1964 and any other sex-discrimination prohibition. While working on the paper and book, she shared draft copies with legal authorities who embraced her approach. She also conceived the legal claim for sexual harassment as sex discrimination in education under Title IX, which was established through litigation brought by Yale undergraduates in Alexander v. Yale. While the plaintiff who went to trial on the facts, Pamela Price, lost, the case established the law: the U.S. Court of Appeals for the Second Circuit recognized that, under the civil rights statute Title IX of the Education Amendments of 1972, schools must have procedures to address sexual harassment as a form of sex discrimination.[11]

In her book, MacKinnon argued that sexual harassment is sex discrimination because the act is a product of, and produces, the social inequality of women to men (see, for example, pp. 116–18, 174). She distinguishes between two types of sexual harassment (see pp. 32–42): 1) "quid pro quo", meaning sexual harassment "in which sexual compliance is exchanged, or proposed to be exchanged, for an employment opportunity (p. 32)" and 2) the type of harassment that "arises when sexual harassment is a persistent condition of work (p. 32)". In 1980, the Equal Employment Opportunity Commission followed MacKinnon's framework in adopting guidelines prohibiting sexual harassment by prohibiting both quid pro quo harassment and hostile work environment harassment (see 29 C.F.R. § 1604.11 (a)). Courts also used the concepts.

In 1986 the Supreme Court held in Meritor Savings Bank v. Vinson that sexual harassment may violate laws against sex discrimination. MacKinnon was co-counsel for Mechelle Vinson, the plaintiff, and wrote the brief in the Supreme Court. In Meritor, the Court recognized the distinction between quid pro quo sexual harassment and hostile workplace harassment. In a 2002 article, MacKinnon wrote, quoting the Court:

"Without question," then-Justice Rehnquist wrote for a unanimous Court, "when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex." The D.C. Circuit, and women, had won. A new common law rule was established.[12]

MacKinnon's book, Sexual Harassment of Working Women: A Case of Sex Discrimination, is the eighth most-cited American legal book published since 1978, according to a study published by Fred R. Shapiro in January 2000.[13]

Pornography

Position

MacKinnon, along with feminist activist Andrea Dworkin, tried to change legal approaches to pornography by framing it as a civil rights violation in the form of sex discrimination, and as human trafficking. They defined pornography as:

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the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised, or hurt in a context that makes these conditions sexual.[14]

In Toward a Feminist Theory of the State, MacKinnon writes, "Pornography, in the feminist view, is a form of forced sex, a practice of sexual politics, and institution of gender inequality." As documented by extensive empirical studies, she writes, "Pornography contributes causally to attitudes and behaviors of violence and discrimination which define the treatment and status of half the population."[15]:196

Anti-pornography ordinances

In 1980, Linda Boreman (who had appeared, under the name Linda Lovelace in the pornographic film Deep Throat) claimed her ex-husband Chuck Traynor had violently coerced her into making Deep Throat and other pornographic films. Boreman made her charges public for the press corps at a press conference, together with MacKinnon, members of Women Against Pornography, and feminist writer Andrea Dworkin offering statements in support. After the press conference, Dworkin, MacKinnon, Boreman, and Gloria Steinem began discussing the possibility of using federal civil rights law to seek damages from Traynor and the makers of Deep Throat. This was not possible for Boreman because the statute of limitations for a possible suit had passed.[16]

MacKinnon and Dworkin continued to discuss civil rights litigation, specifically sex discrimination, as a possible approach to combating pornography. MacKinnon opposed traditional arguments and laws against pornography based on the idea of morality or filth or sexual innocence, including the use of traditional criminal obscenity law to suppress pornography. Instead of condemning pornography for violating "community standards" of sexual decency or modesty, they characterized pornography as a form of sex discrimination and sought to give women the right to seek damages under civil rights law when they could prove they had been harmed. Their anti-pornography ordinances make actionable only sexually explicit material that can be proven to subordinate on the basis of sex.

In 1983, the Minneapolis city government hired MacKinnon and Dworkin to draft an anti-pornography civil rights ordinance as an amendment to the Minneapolis city human rights ordinance. The amendment defined pornography as a civil rights violation against women and allowed women who claimed harm from trafficking in pornography to sue the producers and distributors for damages in civil court. It also allowed those who had been coerced into pornography, had had pornography forced upon them, or were assaulted in a way caused by specific pornography to sue for harm they could prove. The law was passed twice by the Minneapolis city council but was vetoed by the mayor. Another version of the ordinance passed in Indianapolis, Indiana in 1984, but was ruled unconstitutional by the Seventh Circuit Court of Appeals, a decision summarily affirmed (without opinion) by the U.S. Supreme Court.

MacKinnon wrote in the Harvard Civil Rights-Civil Liberties Law Review in 1985

And as you think about the assumption of consent that follows women into pornography, look closely some time for the skinned knees, the bruises, the welts from the whippings, the scratches, the gashes. Many of them are not simulated. One relatively soft core pornography model said, "I knew the pose was right when it hurt." It certainly seems important to the audiences that the events in the pornography be real. For this reason, pornography becomes a motive for murder, as in "snuff" films in which someone is tortured to death to make a sex film. They exist."[17]

MacKinnon represented Boreman from 1980 until Boreman's death in 2002. Civil libertarians frequently find MacKinnon's theories objectionable (see "Criticisms" section), arguing there is no evidence that sexually explicit media encourages or promotes violence against, or other measurable harm of women.[18] Max Waltman states that the empirical evidence for this view is emphatic.[19]

International work

In February 1992 the Supreme Court of Canada largely accepted MacKinnon's theories of equality, hate propaganda, and pornography, citing extensively from a brief she co-authored in a ruling against Manitoba pornography distributor Donald Butler. The Butler decision was controversial to some; it is sometimes implied that shipments of Dworkin's book Pornography: Men Possessing Women were seized by Canadian customs agents under this ruling, as well as books by Marguerite Duras and David Leavitt.[20][21] In fact, MacKinnon's brief argued that seizure of materials for which no harm was shown was unconstitutional.

Successful Butler prosecutions have been undertaken against the lesbian sadomasochistic magazine Bad Attitude, as well as the owners of a gay and lesbian bookstore for selling it. Canadian authorities raided an art gallery and confiscated controversial paintings depicting child abuse. Many free speech and gay rights activists have alleged that the law is selectively enforced, targeting the LGBT community.

MacKinnon represented Bosnian and Croatian women against Serbs accused of genocide since 1992, creating the legal claim for rape as an act of genocide in that conflict. She was co-counsel, representing named plaintiff S. Kadic, in Kadic v. Karadzic and won a jury verdict of $745 million in New York City on August 10, 2000. The lawsuit (under the United States' Alien Tort Statute) established forced prostitution and forced impregnation when based on ethnicity or religion in a genocidal context as legally actionable acts of genocide.[22] In 2001, MacKinnon was named co-director of the Lawyers Alliance for Women (LAW) Project, an initiative of Equality Now, an international non-governmental organization.[23]

MacKinnon proposed the law against prostitution in Sweden in 1990, which Sweden passed in 1999. What became termed the Swedish Model, also known as the Nordic Model, the "Equality Model" or the "Restrictive Model," penalizes buyers of sexual services as well as sellers, where sellers are characterised as pimps or sex traffickers, while putatively decriminalizing all those who are "bought and sold in prostitution." The fundamental concept is that the requirement to exchange sexual services for survival is a product of sex inequality and a form of violence against women. This model has been accepted in Norway, Iceland, Canada, Ireland, Northern Ireland, and France, but was rejected in New Zealand.[24][25]

Some organisations and individuals, such as the Global Network of Sex Work Projects,[26] Amnesty International,[27] and the Global Alliance Against Traffic in Women[28] say that this legal model makes it harder for sex workers to find housing, make money to survive, screen clients to avoid violence, prevent their boyfriends from being arrested as "pimps," and avoid the interactions with police which account for the plurality of sexual violence against sex workers.

MacKinnon works actively with the Coalition Against Trafficking in Women (CATW) and Apne Aap in India.


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