PODCAST: Why sex matters in law

In this episode, Meghan Murphy speaks with Andrea Orwoll about the history of — and ongoing need for — women-centered language in law.

The notion that sex matters, in terms of the law, is a fairly new one. It wasn’t until recently that discrimination against pregnant women was considered to be discrimination against women, specifically. In 1974, an American court case, Geduldig v. Aiello, determined that differential treatment based on pregnancy only distinguishes between a group consisting of “pregnant women” and a group consisting of “nonpregnant persons.” In other words, this type of discrimination was considered only to be discriminatory against those who are pregnant, rather than against those capable of giving birth — i.e. females. “Nonpregnant persons,” is, of course, not sex specific…

We know today, thanks to the work of feminists, that women have been discriminated against in a myriad of ways — notably in the workplace — on account of their assumed ability to become pregnant, regardless of whether or not they actually were pregnant, at that moment. In her paper, “Pregnant ‘persons’: the linguistic defanging of women’s issues and the legal danger of ‘brain sex’ language,” Andrea Orwoll addresses the danger of linguistically erasing women as a class from the law, all the while incorporating sex stereotypes into it. She writes:

“The language of the law should acknowledge and constitutionally protect real, biological sex differences precisely because they are real: because they are based in the body — the only plane of reality that the law can effectively govern—and because they have historically imposed, and continue today to impose, material consequences on women. At the same time, the law should refuse to participate in the ages-old practice of stereotyping and disenfranchising the female sex based on assumed mental capacities.”

Andrea is a first-year attorney and an alumna of William S. Boyd School of Law (magna cum laude) and Whittier College (summa cum laude). In this episode, I speak with her about the history of women-centered language in law and why it still matters.

Meghan Murphy
Meghan Murphy

Founder & Editor

Meghan Murphy is a freelance writer and journalist. She has been podcasting and writing about feminism since 2010 and has published work in numerous national and international publications, including New Statesman, Vice, Al Jazeera, The Globe and Mail, I-D, Truthdig, and more. Meghan completed a Masters degree in the department of Gender, Sexuality and Women’s Studies at Simon Fraser University in 2012 and lives in Vancouver, B.C. with her dog.

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  • Christine

    Thanks so much for this important interview!

    The absurdity of “nonpregnant persons” reminds me of another case I came across while compiling a timeline of advances for women in Canadian law, Janzen v. Platy Enterprises (1986), wherein the Manitoba Court of Appeal failed to recognize that sexual harassment in the workplace amounted to sex discrimination:

    “The Court concluded that, because only some women are subjected to sexual harassment, it is discrimination based not on sex but on individual characteristics. The cause of the discrimination was found to be the physical attractiveness of the complainants, rather than their sex. It was further inferred that, in the absence of legislation specifically prohibiting harassment based on sex, discrimination could not be found to include sexual harassment.”

    (I am quoting from a somewhat dated, but excellent and comprehensive (in 1992), paper by Deborah Ann Campbell: http://irc.queensu.ca/sites/default/files/articles/campbell-the-evolution-of-sexual-harassment-case-law-in-canada_0.pdf)

    • Meghan Murphy

      omg!

    • Laurel

      This is really quite shocking. Or, if we didn’t leave in a patriarchal world, it would be, and should be.

    • aorwoll

      Thank you for sharing that case and the article! Honestly, many of the resources I have used in my feminist writing and research have seemed dated – partly because newer sources just aren’t taking about these issues as often.

      • Christine

        Yes, in my (relatively limited) experience, there’s a wealth of material from the ’70s – ’90s and not so much since.

        I haven’t read your whole article yet, but it sounds/looks excellent, so I will be certainly be reading and sharing it. The world needs more lawyers like you!

  • susannunes

    Is her last name real, or is it a clever pseud ala Eric Blair?

    • aorwoll

      Hahaha I can assure you it’s real! I believe, and I spoke with Meghan about the fact, that it’s important to speak about these topics under our own names, in our authentic voices.

  • Max Dashu

    Great interview! i deal a lot with legal coverture of women in European history, and this was a great exposition of how it extended into modern law, and the patriarchal assumptions underlying it. Without understanding that law treated women as a sex class, a subordinated and oppressed class, over long periods, we cannot change the continuation of this structural subordination.

    • Meghan Murphy

      Thanks for listening, Max! Glad you enjoyed it.