Developing the Legal-Capitalist-Patriarchy: Title VII Sex Jurisprudence, Socialist Feminism, and Vulnerability Theory Open Access
Hunady, Lauren (Spring 2021)
Abstract
The first section of this paper is designed to provide an overview of contemporary sex jurisprudence under Title VII. With a particular focus on non-normative gender expression, I intend to extrapolate the major issue within sex jurisprudence as well as antidiscrimination law in general: immutability. The law itself requires a tangible, easily-located set of conditions in order to attribute rights to, but gender theorists have historically emphasized the discursive flexibility of both sex and gender – they are incompatible with existing antidiscrimination requirements. Through this inadequacy, I intend to expose the limitations of legal formal equality, the guiding system of antidiscrimination doctrine which seeks to ‘level the playing field’ of different identity-based groups. Since the law’s attendance to immutability leaves many individuals outside of the reach of antidiscrimination protection, the antidiscrimination model must be reconsidered as a primary mode for achieving substantive social equality. The second section of this paper uses the limitations of antidiscrimination law and the history of Title VII gender nonconformity jurisprudence to expose the role of the state in capitalist and patriarchal domination; in this, I introduce the concept of legal-capitalist-patriarchy, building off the work of mid-century socialist feminists. Especially in the context of Title VII gender nonconformity jurisprudence, the state generally defers to the desires of the employer, ensuring they exist prior to those of the worker. This concerning relationship suggests the alliance of the law, in current structural organization, to both the capitalist class (through the primacy of employer interests) as well as patriarchal domination (through the suppression of non-normative gender expression). As such, socialist feminism provides important insight on the workings of capitalism and patriarchy, and the ideological backing that allows the state to put profit before people. Finally, I pose vulnerability theory as an avenue for conceptualizing legal and social organization, as well as broader social justice, that moves beyond the individual rights framework. By exploring the connections between Title VII jurisprudence, vulnerability theory, and anti-capitalist feminism, this paper intends to envision a future that cares for our material conditions and their importance to our ability to navigate the American landscape.
Table of Contents
Part One: Title VII, Antidiscrimination, and the Problems with Formal Equality....................7
Title VII and “Sex” Discrimination.................................................................7 Immutability and the Pathology Strategy........................................................11 The Problems With Formal Equality: Identity-Based Legal Protections....................29Part Two: Conceptualizing Response to Human Need...................................................37
The Problem with Rights...........................................................................37 Legal-Capitalist-Patriarchy: Expanding Socialist Feminism to Include the State..........43 Beyond Socialist Feminism: Vulnerability Theory.............................................59Conclusion: The State and Material Need................................................................71
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