Neutral Treatment Only Works for Neuters : THE FEMALE BODY AND THE LAW: <i> by Zillah R. Eisenstein (University of California Press: $25; 235 pp.) </i>

What would laws mandating workplace equality require if one of the “normal” models for a worker was a pregnant woman? Zilla Eisenstein takes such a question as her premise in this sequel to her earlier book, “The Radical Future of Liberal Feminism.” There she theorized that the liberal idea that all people must, in fairness, be treated the same would inexorably have to give way to a more radical recognition of the particularity of real lives and the differences of race, economics and class. Here she takes a look at the law’s treatment of gender equity and, despite a deplorable tendency to jargon and overwriting, throws open the door on a number of skeletons in America’s jurisprudential closet.

Until recently, she writes, the idea of equality between the sexes has been defined within an exceedingly narrow boundary, taking the everyday life of the white male as the universal standard. The dominant ideas of men about women, became, thanks to their legitimation through the law and other voices of authority the only audible ideas and, thus, the only truth. In that untruthfully neutral discussion, women were totally defined by their sex. It was this about them which constituted their difference from men, and, this difference, Eisenstein posits, was perceived purely through the idea and symbol of their bodies as potentially, actually, or previously (in the case of mothers) pregnant.

Eisenstein’s identification of the idea of woman as narrowed, in law, to the idea of the female body is a brilliant stroke by the author because it reveals discrimination for what it is: disparaging treatment based on bodily difference. Eisenstein reviews the brief philosophical and strategic history of the feminist response to this image and suggests a new ideal for equality doctrine, one that will include, but not be limited to, the pregnant woman’s body and will allow the law to create particular responses where particular responses are needed while seeing real similarities where they exist.

Actually, her book treads no ground not already thoroughly covered by the inventors of feminist jurisprudence in law journal dialogues on equality doctrine. But, despite Eisenstein’s sometimes exasperating language, the crisp shock of the truth about the inequalities protected by our laws makes her book more than worthwhile.

Before the 1970s, she says, when the first successful gender equality cases were brought under the Equal Protection Clause of the 14th Amendment, the law did not recognize the bare possibility of equality between men and women. The entire dialogue about gender, a dialogue in which women were absent, concerned women’s differences from men, differences that entirely justified different treatment by the law. The law, as the authorized voice of the state, gave power to this idea, and its pontifical “fairness” closed out any other idea.

All this began to change in the 1970s as feminists used the alleged neutrality of the law against itself, by introducing the idea that women, for all practical purposes, were the same as men and could not, therefore, be treated differently under the law. It became important, strategically, of course, that women’s bodies must be seen as non-pregnant and non-mothers. And thus issues of birth control, abortion and sexual freedom took the spotlight.

Still, the law would only require that women be given an equal opportunity to compete in the workplace once the barriers against their entry and participation on an equal basis had been removed. This is known as the doctrine of sameness.

The doctrine of sameness was progressive, Eisenstein says, because it introduced the idea that women might be not-different. It was also, she says, reactionary, because, in order to be treated as equals, women had to assimilate to a purely male model: male priorities, institutions and values were the central referent. This model, unfortunately, had nothing to do either with women’s social lives or with their real bodies. Under the male model, pregnancy leave, for instance, has been covered by insurance as a disability, the same as any other disablity, without relation to the obvious truth that it is not disabling and not a sickness. This one inescapable difference had to be disguised as the same, as something male, in order to be admitted.

Something had to give. Everyone was living a lie. Women’s lives were still gender-marked by society, no matter how many ways women could paint their similarity to men. Consequently, in the ‘80s, a small number of law school feminists, incorporating the work of other academics in the social sciences, like Carol Gilligan, and colleagues in the critical legal studies movement, began to propose a new equality doctrine, according to which women’s bodies and lived-out lives were, indeed, so different from men’s that real (and legal) equality would not result unless the difference were taken into account. And this movement has borne fruit. Thus, when California passed a law requiring employers to allow up to four months of pregnancy leave with a guaranteed return to the job, the Supreme Court approved, saying the law was not in conflict with federal equal treatment laws since it required different, “special” treatment only in order to allow an equal result.

The consequence? In California, men and women alike could now procreate without losing their jobs. The problem, as Eisenstein identifies it, was that because this new approach focused attention again on women as different, some feminists feared a renewal of discrimination and stereotyping. The fear was not ungrounded, for the Reagan Administration and the antifeminist New Right--also in the ‘80s, though for entirely different reasons--had been reasserting the natural difference of women from men. Theirs was an attempt to recenter the male body as the norm and to return women to their “different” role as the center of the disintegrating American family. This, of course, required control over the sexual freedom and reproductive choices of women who did not want, symbolically or actually, to be forced back into the ideal of the mother’s body.

However, despite the great neoconservative push for the reassertion of women as “different”--and, therefore, outside equality doctrine, the reassertion has stalled, Eisenstein says. There is a terrific tension between theories of sameness and difference, both from the New Right perspective and from the very different perspective of feminist jurisprudence. She suggests a resolution which denies that the only choices are dichotomous: either sameness or difference; either the pregnant body or the pseudo-male, non-pregnant body.

Rather, she says, we need to use all our options and chart a path in the law based on the particularities of women’s bodies as both different from and like other women’s bodies and both different from and like men’s bodies. The law must take bodily diversity into account, in short, including the pregnant body as a part of the diversity.

Zillah Eisenstein’s recommendations can seem vague and hard to grasp. But the underlying message is solid: True equality is only possible when both difference and similarity are taken into account. In order to achieve true equality, the overlapping notions of “male” and “normal” must be pulled apart and scrutinized, and legislatures and courts must take into account the real diversity of the population. Unfortunately, there are those who believe that the vagaries of this theory open the door even wider to those who simply want to treat women and others who are not white, able-bodied and male as different, without the safeguard of feminist jurisprudence’s characteristic insistence on an equal result. The whole thing, at times, looks distressingly like relativism, which simply allows everybody to be “who they are” while allowing those in power to remain in power. A lot of work must be done to convince those who promulgate the powerful images of “normalcy” for the country that equal dignity must be accorded to the pregnant body and the mother’s body. Equal dignity entails more than the kind of simple accommodation which does nothing to change the norm.

The laws mandating equality can indeed incorporate within their ambit a requirement of equal result, even if doing so takes a little more creativity than we have seen in the workplace and in the courts. The law has never been neutral. Eisenstein asks why we may not, for a change, allow it to work for the majority of Americans.