Vol. 13 No. 6 (June 2003)
WOMEN GOING BACKWARDS: LAW AND CHANGE IN A FAMILY UNFRIENDLY SOCIETY by Sandra Berns. Burlington: Ashgate Publishing Limited, 2002. 232 pp. Hardcover $89.95. ISBN: 0754623033.
Reviewed by Caren G. Dubnoff , Department of Political Science, College of the Holy Cross. Email: email@example.com .
WOMEN GOING BACKWARDS is primarily a book about how law reinforces inequality between men and women in Australia. This review is from the perspective of an outsider, familiar with United States constitutional discourse and feminist literature. As a consequence, my evaluation will focus on the clarity of the book's arguments and its contribution to the larger scholarly discourse. I will not attempt to judge the accuracy of its descriptions of Australian policy, law or culture.
For many years now, one of the prominent debates among advocates of women's rights has been over the meaning of equality. Is equality achieved if societal distinctions based on gender are eliminated, or alternatively, do women need to be treated differently from men in order to achieve equal benefits from society? Berns' analysis defines equality as substantive. According to this perspective, an ideal world would be one in which men and women would have the same chance to work productively, to support themselves throughout their lives, and to participate in family life and the raising of children. However that world cannot be achieved merely by eliminating formal barriers to participation in a market economy.
The world that Berns surveys is anything but ideal. Gender inequalities remain an important feature of Australian reality. With the exception of those who are well-educated and well-off, women remain in sex-segregated, part-time, low paying work. Few are able to support themselves. There is evidence, reflected most particularly in a growing wage gap, that gains made from the 1960s to the 1990s are eroding directly as a result of a political backlash.
Berns places the blame primarily on the legal structure, by which she means statutory law. Court interpretation is discussed, but far less extensively and mostly in the footnotes. While the Australian Parliament has adopted laws outlawing sex discrimination and requiring that women be afforded equal employment opportunities, these have not been associated with broad gains for the vast majority of women, partly because the government's efforts have been half-hearted. Coverage of anti-discrimination laws is limited to large firms, with enforcement left to individual plaintiffs. The use of arbitration generates little press coverage and limited public awareness. Penalties have little bite, involving as they do only public exposure by the reading of names. Compliance is then a matter of private action of individuals and in a culture that remains supportive of male/female role allocations, little action is taken. Not surprisingly women's biggest gains preceded this legislation "and was the result of feminist and trade union agitation" (p8.).
Berns gives several reasons why the law has failed to correct gender inequalities. The first is the adoption of a formal model of equality under which discrimination is measured by disparate treatment. According to this understanding of equality, if men and women are treated the same, then there is no inequality toward women. But because the standard of social behavior is the one that existed prior to the entry of women in the workplace, it is a male-oriented model, in which male workers operate in the market and in society unburdened by family responsibilities. Berns labels this model "The Unencumbered Citizen." It disadvantages women because it limits their ability to participate fully in the market unless they give up participation in family relationships.
The second fundamental way according to Berns in which law has contributed to the persistence of gender inequalities has been its support for what she alternately calls the sexual contract, or the breadwinner/homemaker bargain÷the arrangement by which women stay home and provide care to the family in exchange for monetary support from their husbands. The sexual contract is the primary reason that women are encumbered, and policies that support it are, by definition, at odds with equality. To the extent that women are responsible for domestic work, they have little time for the full time market. And part-time sex-segregated work is underpaid. The woman who either chooses to stay at home or works part-time is economically vulnerable, dependent on either her spouse or the state or a resentful ex-spouse if the marriage fails. The woman in the circumstance of a failed marriage is left without marketable skills, which were either never there or have atrophied during years of disuse. Inequalities in the market affect power within the family. "Most women simply do not have the bargaining power to seek a more equal family bargain" (p.201).
The third factor in keeping women in their place, according to Berns, is the distinction drawn between the public sphere, where government action is felt to be appropriate, and the private sphere, where it is not. Thus while the sexual contract and the model of the unencumbered citizen may appear to be a function of private action and not of law, that view assumes that there is something inherently unnatural about the state playing a role here. Berns challenges that view. The state is not merely a passive observer of choices made by private actors, it is the facilitator of that authority. Recent state policy has expanded the so-called private realm when, according to Berns, the allocation of decisional authority is a function itself of a government choice.
Nor is the state's role confined to supporting the private/public distinction. Australia's laws give legitimacy to these so-called private choices. Berns goes on to identify several policies that support the prevailing structure. These include tax and welfare policies that provide benefits to women who continue as traditional caregivers. For instance the state provides tax benefits to single income families that are unavailable to dual income families. This, she argues, discourages work outside the home because there is an economic cost, expenses incurred in going to work. Further, in facilitating the stay-at-home mother, these policies support a choice that leaves the woman without marketable skills later in life should she choose to or be forced by the dissolution of family to reenter the labor market. A similar result is produced by the 1999 tax law which gives dependent spouses credit for child care but does not make such credit available to earned income ãby married women who engage in waged labour on a full time basis" (p.200).
Berns also states that women are disadvantaged as much by what the government does not do as by what it does. It has not adequately enforced comparable worth. Commonwealth labor legislation "does not require attention to the 'equity implications of any agreements" (p.3). The government has not pressed for "universal paid maternity leave and parental leave" (p 158). Instead it has supported business's adoption of flexible work schedules, a policy that while at first might seem to support a more active role for women in the workplace, in reality benefits business by expanding its utilization of resources. At the same time, it harms women and families by making it more difficult to find day care and limits family time where both parents work.
Globilization has made things worse in at least two respects. It has produced greater income disparities, and since women are at the lower end of the income scale, they are most adversely affected. It has also resulted in economic hardships for many previously employed men, hardships that they blame on women who they see as taking their jobs.
Berns' position is that in the context of long-term structural inequalities, removing formal barriers to employment is likely to have little effect. ãEqual Opportunity is insufficientä (p.205) Her solution is a reordering of the family. "While gender equality would not require the abolition of the family, it would require its reimagination and restructuring upon an egalitarian basis" (p.19). A fallback proposition is much less radical÷the achievement of equality would at least require "[a]dequate paid maternity leave, paid parenting leave for both men and women and adequate and affordable child care facilities"(p18.).
One strength of this book lies in its detailed description of the position of women in Australia and of the legal and cultural context within which women are situated. I was struck by the degree to which the situation for these women remains so starkly unequal. I felt as though I had stepped back in time to America in 1970 when there were few women faculty where I was teaching, when child care was highly limited, where parenting was almost entirely a woman's role, and when social conventions were decidedly unsympathetic to the working mother. Women in the United States still face barriers, especially those that arise from their continued primary role in the domestic sphere. Still, compared to Australia, it seems that we have accomplished a great deal in the United States.
A weakness, in my view, is that Berns' analysis appears to be driven by a particular view of how women should order their lives, a view that emphasizes participation in the market economy. Berns sees a woman's choice to be a caretaker as illegitimate, one that is either forced by government policy or by social convention, and a choice which is in any event mistaken. This puts her in opposition to policies that provide support for such choices.
I share many of her specific concerns regarding the vulnerability of choosing to stay at home and the inequality in the division of domestic labor where women engage in paid employment. There is also often a real tension between women who choose paid employment and take it seriously, and those who do not. If caretaking is seen only as a women's concern, women in the labor force will face discrimination.
But Berns' view that the family as currently structured is illegitimate will not lead to a solution. Traditional family structure continues to have strong majority support. Disparaging a woman's role as caregiver is counterproductive because it alienates those women who have made a conscious and deliberate choice to assume this role. The solution, as feminist scholar Judith Baer (1996) has argued, is not to pit one group of women against another but rather to enforce rigorously anti-discrimination laws and to provide supports for different choices.
And finally, there is the question of the book's utility as a teaching tool. There is some benefit to a book that is provocative, as this one is. Unfortunately this is not an easy book to read. It is densely written and attempts to accomplish a great deal in a limited space (232 pages), making its arguments hard to follow. At the same time, other relevant questions are not developed. What factors account for the shift in political support for state interventions in the market? What is the broad role of the judiciary? Has there been a shift to a more egalitarian educational policy? Where are the women's rights activists? So, while I think there is much to be learned from this book, I would have real difficulty assigning it to undergraduates.
Baer, Judith, 1996. WOMEN IN AMERICAN LAW: THE STRUGGLE TOWARD EQUALITY FROM THE NEW DEAL TO THE PRESENT, 2d edition. New York: Holmes & Meier.
Copyright 2003 by the author, Caren G. Dubnoff