Exploring Masculinities : Feminist Legal Theory Reflections – Introduction

Introduction by Martha Albertson Fineman

“This collection of chapters investigates the ways in which emerging masculinities theories in law could inform feminist legal theory in particular and law in general. Masculinities theories generally explore relationships of subordination between different men and how those relationships rebound in the subordination of women. A central theme of masculinities studies has been the construction of idealized and societally praised forms of masculinity. In addition to devaluing women and ‘non-masculine’ men, such hegemonic modes of masculinity serve to create a general sense of anxiety among men as to whether they can live up to the hyper-gendered standards.

Relations of subordinations and the process of indoctrination into hegemonic masculinity have implications for law. As many of the chapters in this collection illustrate, law is constantly in a dynamic interaction with masculinities: it has both influenced existing masculinities and has been influenced by those masculinities. Despite the integral link between law and masculinities, few feminist legal scholars have examined the implications of masculinities theories for feminist legal theorizing. The chapters in this collection are intended to focus feminist and critical theoretical attention on masculinities and to consider the implications of masculinities theories for law and legal theory.

Part I sets out the theoretical trajectory of masculinities studies as a field and its application in law. In Chapter 2, Nancy E. Dowd highlights the importance to feminist theory of  ‘asking the man question’. Dowd believes that by asking ‘[w]hat is the position of [some or all] boys and/or men in [a] situation’, feminist theorists can better understand the social and psychological construction of male dominance. Also, ‘asking the man question’ will spur feminist theory to be attentive to harm suffered by boys and men, thus avoiding essentialism in understanding multiple and diverse forms of discrimination and inequality. Masculinity analysis, according to Dowd, can inform feminist theory by making visible gender issues embedded in situations in which one sex is dominant, regardless of whether members of the dominant sex are privileged or harmed by those gender issues. Dowd warns feminist theorists about the risks in adopting a masculinities approach of displacing the focus on women’s issues or ending up blaming women for men’s challenges. She cautions that masculinities scholars need to constantly challenge masculine hegemony and patriarchy and work towards creating a reoriented masculinity as an affirmative identity.

In Chapter 3, Martha Albertson Fineman raises some concerns about the use of masculinities theory that are part of a broader critique about the limitations of focusing on identity-based approaches in seeking social justice and equality. Too often identity-based arguments, theories and approaches fail to address complex institutional and structural forms of injustice. She argues that the most important task for those interested in a social justice project at this particular time in legal history (at least in the United States) is to construct a universal legal subject based on an appreciation of the human condition with which to effectively combat the exalted universal liberal subject with its attendant political mandates of personal responsibility, small government and autonomy.

In Part II, the authors use insights from a masculinities approach to study the sociopolitical construction of gender identities in specific settings. Roja Fazaeli points to evolution of notions of gender identity as a result of sociopolitical developments in the contemporary Middle Eastern context. In both Palestine and Iran, women have shown an increased willingness to participate in seeking ‘martyrdom’ in fighting against Israel or the United States. As a result, the historically masculine notion of martyrdom is being challenged in ways that have transformed cultural understandings of both femininity and masculinity. On the one hand, values of bravery and political militancy traditionally deemed masculine are used to explain women. Women are deemed equal to men in their duty to protect their country or faith and seeking martyrdom in that path. On the other hand, men are described with some traditionally feminine attributes such as economic and political dependence and weakness.

The role of sociopolitical factors in forming gender identities is again revisited in Camille A. Nelson’s chapter. Nelson believes that the presence of misogynist and homophobic themes in recent Jamaican dancehall music has to be understood in the context of the construction of Jamaican national masculinity in colonial and post-colonial Jamaica. As a primary vehicle of national identity construction in post-colonial Jamaica, dancehall defines ‘Jamaican-ness’ as being not ‘gay, lesbian, white or weak’. Unknown to dancehall artists, however, they are deriving their formulation of Jamaican national identity from a historical trajectory of homophobia and opposition to non-procreative sex in which British colonial impositions have been constitutive.  Nelson concludes, ‘in seeking to legitimize themselves post independence, Jamaicans struck a legislative bargain with their former colonizers.’ She underscores the importance of understanding cultural roots of gender oppression in other parts of the world and warns against ignoring such local, historical and cultural issues in framing strategies to help gender equity activists around the world.

Frank Rudy Cooper’s chapter investigates the effects of intersectional factors such as race, class or position in social institutions on the construction of gender identities. He considers how individuals perform their socially defined gender roles in real-world occurrences influenced by those intersectional factors. In explaining the 2009 confrontation between a police officer and black male Harvard scholar, Henry Louis Gates, Jr., that led to Gates’s arrest, Cooper asserts that the officer’s class background and position in the police department as well as Gates’s race were relevant factors in explaining the parties’ behavior.  All these factors (the so-called ‘penalty statuses’) are markers of one’s identity that may make an individual insecure in his masculinity, creating anxieties and efforts to reclaim his masculinity. What resulted in the Gates arrest was a ‘masculinity contest’ between the police officer and Gates that created a zero-sum game of claiming dominance over the other party.

In Part III, the authors provide insights into how understanding historical constructions of gender identities can inform more effective public policy and activism. Marie Fox and MIchael Thomson discuss the notions of masculinity underlying medical recommendations for male genital cutting and warn against the continued presence of such stereotypical notions in the contemporary mobilization of male circumcision in response to HIV/AIDS in sub-Saharan Africa. Historically, medical recommendations in the United States for male circumcision were often grounded in projects aimed at controlling black masculinity, perceived as hyper-sexual and threatening. Circumcision has also been tied to concerns regarding sexually transmitted diseases and male hygiene. Against this historical background, the authors argue for a more careful examination of contemporary – largely American funded – circumcision programmes. Further, Fox and Thomson point out that the current policy encouraging male genital cutting in sub-Saharan African pays little attention to concerns over women’s health, including risks that any protection offered by circumcision is overstated, will not be evident (if at all) for decades, and will compromise women’s ability to negotiate condom use and, ultimately, their health. Given this background, Fox and Thomson express concerns over funneling resources toward population level circumcision programs in attempts to fight HIV/AIDS in Africa.

Chris Beasley explores the idea of reorienting masculinity towards embracing equitable gender practices. She proposes that masculinity theory needs to rethink its understanding of hetero-masculinity and heterosexuality by integrating pleasure as a key component of its understanding of heterosexual relationships. She finds that conceptions of heterosexuality in both gender and sexuality studies and preventative health literature are informed by a negative conception focused on risk, danger and prevention. Against this background, Beasley proposes a positive narrative of hetero-masculinity that embraces egalitarian sexual practices. Beasley cites the success of campaigns based on condoms as an erotic necessity in increasing men’s acceptance of condom use to support her proposition.

The theme of reorienting masculinities toward positive directions in order to prevent male aggression is the topic of the chapter by Fionnuala Ni Aolain, Naomi Cahn and Dina Haynes. They argue that the construction of aggressive masculine identities in post-conflict eras is a result of frustrations men feel when unable to positively express their masculine roles in post-conflict periods. Aggressive masculinities harm women and the negative implications of unaddressed masculinities in causing continued gender violence means that effective post-conflict transition programmmes will have to be mindful of the importance of attention to masculinities. The authors propose that post-conflict transition programmes need to make attempts at socializing men in their communities, emphasize values of gender equity to then, and address male victimization during periods of conflict. Accordingly, they criticize current Disarmament, Demobilization and Reintegration practices as not adequately addressing gender violence in post-conflict reconciliation efforts.

Jamie R. Abrams critiques the lack of attention to social construction of gender identities and their role in transformations of gender violence in the context of feminist movements’ attempts at reforms in the contexts of domestic violence and military integration laws. While both areas of feminist law reform successfully challenged and led to modified visions of prevalent hegemonic masculinities, their success was to some extent tainted by the influences of existing masculinities on the law reform projects. Law reforms for protection of women in domestic violence situations resulted in reinforcing the dominant conception of men as being naturally prone to violence, as well as portraying women as weak and in need of pro1ection. Governmental protection of female soldiers in the wake of military gender integration similarly has reproduced the image of  women  as weak and in need of protection. As a result. opponents of women’s integration can assert that ‘they find it irreconcilable to position women as ” helpless victims of sexual harassment” by male service members, while contemplating women as ” fearless warriors” in direct ground combat.’ Abrams there ore recommends that law reform measures should incorporate masculinities theory, which will benefit them in understanding gender violence and discrimination.

In two separate chapters in Pan IV, Juliet A. Williams and David S. Cohen discuss movements for single-sex education. Williams discusses the political dynamics by which proponents of single-sex education have pursued their goals. She points to the limitation of the intermediate scrutiny analysis adopted  by the Supreme Court in analysing sex discrimination. She points out that despite their questionable scientific accuracy, the recent wave of identifying biological and brain-based distinctions between boys and girls is likely to be  used to justify single-sex education. These narratives appeal to  the inadequacies of Supreme Court criteria for evaluating sexually discriminatory laws that emphasize ‘real’ and biological differences between sexes that could be grounds for constitutionally permissible discrimination. Proponents of single-sex education also claim that current co-education is responsible for the inequalities in the educational system harming poor and disadvantaged kids. Williams warns of the risk of cooptation of economic and class inequali1ics in order to bolster the same-sex education movement, which is rooted in assumptions about gender identity and not informed by economic or class- based concerns.

Cohen points to the construction of dominant forms of masculine and feminine gender identities in the context of the single-sex education. The  masculine  identity  constructed  in single-sex  education is a  hegemonic  one,  with  traits  of heteronormativity, aggression, high activity, sports obsession, competitiveness, stoicism, and rejection of things perceived as feminine. Those essentialized notions of masculine identity prevent  alternative conceptions  of  masculinities to  flourish, thus alienating both girls and  boys who fail to  live up to this ideal. It also creates anxieties in all boys who are cast in competition with each other to achieve this ideal masculinity. Unlike Williams, Cohen believes that current anti-discrimination jurisprudence both in United States’ Supreme Court case law and concerning Title IX of the Civil Rights Act’s ‘anti-essentialism thread’ if read properly have potentials for confronting the threat of single-sex public education.

Part V considers masculinities at work. Ann C. McGinley investigates possibilities   for   plaintiffs to challenge  workplace  structures   that   reward socially defined parameters of masculinity under American anti-discrimination jurisprudence. She asserts that academic tenure-track jobs that require heavy time investment during a point in the life-course where men typically have greater flexibility than women may be prone to attacks based on a  disparate  impact  theory of discrimination. Gender-biased curricula  and  training  programmes  also  could be challenged  both  under  disparate  impact  and  disparate  treatment theories  of discrimination. McGinley notes that masculinities studies could be  used  to  show that hiring criteria, such as a preference for competitiveness or  aggressiveness  for car dealers, embody stereotypes that favour white males  and  disfavour  minority men and females. She argues that establishing this fact could lead to more viable anti-discrimination challenges to such hiring criteria.

Leticia M. Saucedo and Maria Cristina Morales undertake  a  qualitative empirical study of immigrant construction workers employed in the Las Vegas residential construction industry and interrogate patterns of masculinity developed in that context. Due to the effect of oppressive work conditions, immigrant workers reinterpret their experiences in ways that elevate them above women in workplace hierarchy. As such, the brown-collar hyper-masculinity of immigrant workers is built around understanding their abilities and experiences as uniquely qualifying them for the work at hand. They interpret their willingness to take jobs as independent contractors  (rather  than  employees  with  greater  benefits) as representing their ability to take risks and showing their entrepreneurial capabilities. They also cast their withstanding of the challenges of  immigration as evidence of their extraordinary toughness. Their hyper-masculine workplace culture also disdains complaints about health and safety risks as indicating weakness and fragility. The authors recommend empowering new workforce narratives that emphasize safety and health.

In Part VI on the family, Richard Collier discusses how emerging discourses on fathers’ rights (especially concerning men’s pos1-divorcc  child  adoption and visitation  rights)  relate  to  new  socially  and  legally constructed  images of masculinity. While protests by fathers’ rights groups often embody public representations of hyper-masculine modes of behaviour, they also present issues of men’s emotional health that cut across traditional notions of masculinity and the kind of ra1ional and reasonable fatherhood portrayed in law. Collier believes that exhibiting such behaviour seems to be one of the many ways in which men, while drawing upon conventional notions of male parental responsibility, respond to accumulated personal problems and the emotional trauma they arc experiencing in the divorce setting. Collier urges a comprehensive understanding of how the construction of gender identity manifests itself in the divorce context. including atten1ion to emotion, and the welfare of the disputants.

In her chapter, Jocelyn Elise Crowley describes the views of many members of fathers’ rights movements and proposes ways to effectively accommodate their concerns in family law. Analysing the results of surveys she conducted, she concludes that proponents of fathers’ rights movements believe they are prevented from parenting their child after divorce because the current child custody system is anti-child, excessively interventionist, and biased towards mothers. Crowley believes that a de-gendered legal standard that gives priority custodial preference to the parent who has contributed most to the child’s life prior to divorce would work to lessen the influence of gender biases in custodial determinations and also encourage more egalitarian divisions of parental responsibilities.

Finally, Clifford J. Rosky investigates the role of homophobic and sexist stereotypes in custody and visitation cases involving the children of gay and lesbian parents. Because of the strength of the belief that children are more likely to be influenced by the parent of the same sex in formulating their gender identity, gay fathers of boys and lesbian mothers of girls face stereotypes more frequently than gay fathers of girls or lesbian mothers of boys. Influenced by a concern over the perceived central role of the ‘masculine’ father in the development of masculine boys. homophobic stereotypes are frequently found in cases of boys with  both gay fathers and lesbian mothers. On the other hand, gay fathers of girls faced considerably fewer instances of stereo typing in the cases studied by the author. Rosky speculates that, because masculinity is perceived as more socially valuable than femininity, ‘unmasculine’ gay fathers are allowed to raise female daughters despite another social stereotype in which ‘fatherless’ daughters are harmed by lack of strong male role models.

Together the chapters in this collection probably raise more questions about how the relationship between feminisms and masculinities theories will unfold over the next decade than they answer. The only observation we can feel confident in making is that the interaction of masculinities scholars with those engaged in feminist legal theory work has been productive and creative, enhancing the work of both groups of scholars and activists – a pattern we would like to see continue.”


Fineman, M.A., & Thomson, M. (2013). Exploring Masculinities: Feminist Legal Theory Reflections. London: Routledge.

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