Feminism in the second wave disparaged the public-private distinction because it was used to uphold male supremacy over women in men’s designated private spaces, to protect male violence and domination of women from scrutiny by the state. Women asserted themselves as subjects of law, who have a right to protection of safety and freedoms against male domination asserted in spaces that previously were claimed to be private and free from state regulation. Women thereby asserted a claim on public protection against men’s claims of privacy.
Catharine MacKinnon also disagreed with the grounding of abortion rights in privacy and saw it as preferable to ground in women’s equality with men. I agree that this would have been preferable, as privacy arguments for abortion and contraception do not adequately distinguish between male and female orientations to privacy, and do not capture either the sexed or gendered nature of women’s right to complete autonomy in our own bodies, including our reproductive capacities.
(Note that I wrote first “over” our own bodies, and I think there is a need in changing to a women’s orientation to privacy, to rethink the property-based conception of autonomy in favor of one based on embodied personhood. I have written about that here.)
Nevertheless, MacKinnon, while she has an analysis of the state as male, does not go further than challenging the aspect of this that relates to the public-private distinction which worked to men’s benefit. She has sought to invoke public power to enforce women’s rights, as the strategy to change the state into an institution more favorable to women. Yet the fundamentally male structure of the state in relation to women remains in place. The state is uniformly further removed from women than it is from men; we do not have equal claims on the state by removing the private sphere from public regulation so that we all stand simply as citizens confronting public power. The legitimation of public power, and the creation of both public and private spheres, is sexed and gendered male, as Carole Pateman discusses extensively in The Sexual Contract. Public power is neither neutral nor can it be assumed to have the capability to function in women’s interest. Yet, since we have to confront state power as a feature of the legal and political order, we need to look at whether male power externalized in the state can be dismantled from within, through the development of relevant conceptual tools and strategies, or whether there are feasible alternatives to develop alternative forms of society in the modern world.
Perhaps as a step towards this larger project, I am interested in reclaiming both public and private for women, from a woman’s perspective. This interest stems from many sources.
First, I cannot accept that disappearance of the private, and a right to privacy, is in my interest as a woman. A professor who taught me Human Rights Law in 1999, Penny Andrews, once said that she considered that her home needed to be protected from state intervention, she saw it as a place where she was safe from external society. I cannot be sure I remember correctly, but I believe she was speaking as a woman of color about safety from racism in particular, in addition to other potential ways that home is a source of comfort and refuge when it is yours alone or when it is not undermined by domestic violence. For me as a white woman, seeing my home as protection means a place where I am free from male aggression and where I can be myself without fear of anyone carting me off to psychiatry: where no one will ask me in that patronizing tone, “how are you?” and where there is no penalty for shouting or grieving or staying up all night and writing, or for dancing or wearing the same clothes for days.
That privacy is highly contested. The state can in fact invade my home and cart me off to psychiatry, under domestic law both in Norway where I am living temporarily and at home in the United States. I am highly attuned to this because of my early experience with forced psychiatry that I will never forget, that is stamped indelibly in all parts of my body, mind and soul. I can never take for granted my privacy in my home, or my bodily privacy as a human being, as sacrosanct, the unity of self and body in embodied personhood was broken for me irreparably when my body became a place that was invadable, and I had to learn what it meant to be an autonomous self within a body and mind that were coursing with toxic psychotropic drugs administered to me against my will. It was a privilege to learn that, to experience a core self that could not be touched despite that violation and destruction, and it was something that I would do whatever it takes to not be subjected to again.
Thus I come to a defense of privacy, and say to feminism, privacy is not about men, it is about me. If I am a woman whose rights and interests count for feminism, my privacy against the state and against state-legitimated patriarchal chemical rape by psychiatry has to count for something. There is similarly for me a common experience of having my attention, time, personal space, intruded upon mostly by men but also by male-female couples, by groups, by servers, who do not consider that a woman sitting alone in a public space is anyone at all taking up space there nor is she doing anything, whether she is immersed in reading or in her own thoughts. (I have to say this is less true in Norway than it has been in the United States, but still happens.) Also it is common that men interrupt women’s conversations with each other, and male classmates who are young enough to be my sons have presumed to demand my attention to their needs and become affronted when I denied them.
That is privacy too. Women need the vocabulary to talk about this. It is privacy in public space, that men take for granted as the default human beings, and that I value for myself and claim as a human being also. It is precisely by not being able to take it for granted that I notice men have it and that I choose to name it as a value meaningful to me as a woman; it does not mean that I am modeling myself on men or seeking “mere” equality copying whatever men have.
And public space. I mourn the death of the Michigan Womyn’s Music Festival. There we created public space for women. A world in this space for a week, that was all women, no men except the employees of the company that maintained the porta-potties, who came at night escorted by one of the festival’s security crews. Women built stages and outdoor kitchens to feed thousands, ran the lighting and sound systems for concerts, drove the shuttles, created workshops and created culture of all kinds. Over a forty-year span, some girls grew up at Michigan and brought their own daughters. I can’t imagine how they must feel now. I only went a few times, but needed it to be there for me. One of the most important turning points of my life was initiated by a workshop there, that eventually set me on a path of the spiritually driven political legal activism that I am doing now.
Michigan could not consider itself legally public space; it was a private party thrown by Lisa Vogel who could set the terms for who was invited. The festival maintained an “intention” of welcoming womyn-born-womyn, i.e. natal females, and centered on female experience as women and girls. While some transgendered males (transwomen) attended, the festival did not center their experiences or consider them equally a form of women’s experience as those of females. Transgender advocates protested outside the gates and also in the festival itself, and eventually escalated to organizing a boycott not only of the festival but also of festival performers, seeking to deprive them of a livelihood. I had been away from the festival for long years, when I was in law school and then working on the Convention on the Rights of Persons with Disabilities, with important meetings being held in August; then I became involved with Diana who hadn’t gone to festivals and we were just doing other things. Living in the Adirondacks I didn’t need to go to festival to be in the country, and I felt I was drawing on my feminist roots but didn’t feel the need to replenish them.
I came back for the last festival, responding to the escalating attacks and getting involved in Facebook discussions before we even knew it was going to be the last, and then attending with Diana. In many ways it was anticlimactic for me; I’m a different person, and large groups even of womyn are harder for me to feel connected to, also being there with Diana made it more of a continuum with everyday life, but it was enough. I also never felt entirely safe at festival, unlike most women who have gone and felt it was home. For me, intrusive questioning and the culture of a kind of mutual negotiation of personal boundaries that can empower most those who already feel entitled by it, means I do not get to let down my guard. The “how are you?” happens, and I know of crazy wimmin who have been given a hard time. It is not, was not, a safe space to claim madness that has been labeled as such by patriarchy, in a way only madness that wasn’t stamped and vilified as such gets to howl.
So I need more from public space. I need a womyn’s public space and I need for the public space womyn share with men to be controlled effectively by women. And I need it to be all women including me. I need, broadly speaking, for disability as well as race, and of course sex, to be part of what we mean when we talk about public and private, in terms of space and in terms of law and rights. And for disability to include me, to include all ways that patriarchy sorts us as normal human beings and abnormal freaks who only get the crumbs from the table.
I’m left with intersectionality, which has been given a bad name by the transgender movement using it incorrectly. Intersectionality cannot be used to magically transform members of an oppressor class into members of an oppressed class to confer on them all the benefits of positive measures allocated to the oppressed class to remedy systemic discrimination as well as all the entitlements they have already enjoyed and in many respects continue to enjoy as members of the oppressor class. That is what the transgender movement does by claiming that transwomen are women, and not merely claiming but asserting it as uncontestable fact as a trick of language. Women – you know, the people formerly known as biological females living under a construct of gender that shapes other people’s reactions to us irrespective of our subjective feelings – we women are now facing a similar kind of inside-out transformation of public and private that I faced when locked up in psychiatry 40 years ago. Public becomes private and private becomes public so that there is no definitional boundary or physical space claimed by women that men cannot invade. The boundaries are defined by males, period. We cannot talk about female sex or sexuality, about female bodies and their unique features and capacities, as feminists, it is increasingly culturally, politically, and even legally unacceptable to claim the right to create culture and politics as women, to serve women’s own interests. The transgender movement does not oppose pornography of women – the exploitation of female bodies by men – rather they tend to align with pro-pornography and pro-prostitution, although most of the transgendered males who are killed by male violence are killed in the sex industry, made vulnerable similarly to women by that industry that is based on the hatred and abuse of women.
(I have not made a thorough examination of the radical feminist writings on prostitution but I am convinced that it entails dissociation of women, separation of self from body, in a way that amounts to abuse, and that exchanging money for this abuse does not legitimize it. I do see the complexity in relation to agency under limiting conditions, because women do not have equal opportunities in work, and if we are always expected to give a little extra, if men are always extracting sexualized labor from us anyway, why not do it upfront and make it simple and real? From what I am understanding, the vast majority of women in the sex industry have nothing resembling free choice sometimes in getting in and also once they are in, and so I support structural change to end the industry in this case over the individual rights of women to make this accommodation with patriarchy in preference to other strategies. I do not know how transgendered males relate to the sex industry, if they too dissociate and utilize these feminized strategies in order to make an accommodation in a world that hates them, or if as males there are significant differences. But their interests cannot trump those of women to be free from a particularly destructive form of male abuse and violence.)
Not only can we not talk about women’s bodies as feminists. In addition, when gender identity is made to supplant biological sex, or gender in the sense of identities constructed by society, for the purpose of non-discrimination guarantees, we lose the ability to use law to secure women’s rights as women, since women can have no guarantees that males cannot reverse on us simply by claiming to be women.
It is time for a rethinking of public and private as women, as females, as lesbians, to re-situate ourselves with respect to law, public space, private space, with respect to public vs private as government versus private enterprise, as civil society versus home and family, as social role or responsibility versus personality and subjectivity. Lesbian feminist thinkers like Claudia Card and Sarah Hoagland have given us some ways to look at lesbian relationships and community, as a form of social order outside patriarchy (yet surrounded by it and infiltrated by it). Yet these conversations have mostly taken place as a way of theorizing what might amount to carved-out private spaces within the public orders of patriarchy. What if we move further, as Claudia Card began to do with her theories of friendship, to talk about lesbian claims on public space and all aspects of what public can mean.
This entails situating ourselves in relation to the patriarchal state and understanding it fully as patriarchal and thus not ours, as a coercive order that we do not control though we can influence both by appeal to its internal principles like equality and non-discrimination, and by political agitation. We have to re-problematize the public, the patriarchal state, in relation to all women, to reinstate a value of privacy as women, and to re-conceptualize public and private in ways that start from embodied personhood and bodily autonomy, and female sovereignty in the creation of culture, including economic relationships and systems of trade and production, and including the possibility or a new or different legal and political order.