Law School Gender Study Ignores Sex Differences

by Kirk Sowell

This is a response to the Gender Study Committee's report "Women Students' Experiences at Cornell Law School: Findings and Recommendations". While the report deals with legitimate issues regarding harassment, its analysis and recommendations only follow if one assumes the central tenet of modern feminism, i.e. that the kind of inequalities found in the report result from social conditions rather than innate sex differences.

Evidence from other sciences undermines this assumption and suggests an alternative paradigm which will allow us to better understand the report's findings. Let me be clear: All I am saying is that while men and women are equal in their ability to succeed and their right to do so, they have different drives and motivations and therefore have different outcomes in terms of both their experiences and their representation in hierarchies. Also, two recommendations violate the principle of academic freedom.

It is troubling that the report has so far gone unchallenged. Hopefully, what has been a monologue can now turn into an open discourse that reflects the spectrum of views on the subject.

GENDER AND SOCIETY

The Physiological Difference: The main determinant of the roles and characteristics of men and women is differentiation in prenatal androgenization of the brain. On a social level, this higher androgen level and its effect on the central nervous system gives males a stronger drive for hierarchical attainment in the form of high status non-maternal roles, those having economic or discretionary power. In females, increased androgenization increases aggression coupled with lessened maternal instinct.

The link between androgen and the sex differences we observe has been well established experimentally. The literature on this subject is quite extensive and I can only give a sample here. The most significant human trials have been done by Dr. John Money of Johns Hopkins University. Money studied girls whose mothers had taken an androgenizing drug during gestation. He described the girls in comparison to a control group as follows: Preference for rough and tumble play, high self-assertiveness, preference for achievement and career over motherhood, de-emphasis on physical appearance, and objectification of males.

The converse is also true; genetic males who were not fetally androgenized were feminized not only in terms anatomical sexual characteristics but also in behavior. They "showed a high incidence of preference for being a wife with no outside job" and "of having played primarily with dolls and other girls' toys." This is called "Androgen-Insensitivity Syndrome" and occurs when a genetic male both is born with female genitals and is not testicularly masculinized at puberty; thus: male genes - androgen = feminine behavior (Money and Ehrhardt).

Eleanor Maccoby and Carol Jacklin, both feminist psychologists, give the following reasons to believe that aggressive tendencies are innate:

1. Male hormones function during prenatal development to masculinize the growing individual. Genetic females exposed to abnormally high (for females) levels of androgens prenatally are masculinized both physically and behaviorally, including elevated levels of threat behavior and rough-and-tumble play.

2. Male hormones increase aggressive behavior when they are administered postnatally even without prenatal sensitization.

3. More aggressive males have higher levels of androgens."

Male aggressiveness can also be negated by reducing androgen levels, such as through castration before puberty (Lunde). Females who have opposite-sex twins and are thus exposed to androgen prenatally have been found to have stronger tendencies toward dominance in dyadic relationships (Miller).

I know the use of animal studies in regard to gender is uncomfortable for some, but they are relevant to the claim that gender is socially induced (every time you take a pill you validate such studies). For example, male rhesus monkeys show the same "stereotypical" traits displayed by human males: They engage in aggressive, threatening play while young and when grown they outrank females in the dominance hierarchy.

Yet when females are injected with testosterone during pregnancy their female offspring exhibit frequencies of aggression and threatening intermediate between those of males and normal females. Postnatal injections caused females to compete with males at the top of the dominance hierarchy (Symons). Other studies have found that the dominance hierarchy of chimpanzees can be altered by simply injecting lower ranking males with testosterone (Lunde).

Universalities: Despite a great deal of variation in gender roles across societies, there are two universal patterns. One, males hold the high status non-maternal roles, those that hold economic or discretionary power in the suprafamilial arena. Two, regardless of what other work they do, women are the primary caregivers.

Matriliny is often confused with matriarchy. Kathleen Gough, a feminist anthropologist, writes, "...matriliny does not involve matriarchy or female dominance, either in the home or in society, as Engels tended to believe. Matriarchy...has in fact almost certainly never existed ...men predominate as heads of households, lineages and communities in matrilineal as in patrilineal societies,....Some degree of male dominance has, in fact, been universal to date in human society,...."(Gough).

Margret Mead wrote "It is true...that all the claims so glibly made about societies ruled by women are nonsense. We have no reason to believe that they ever existed..."(Mead). These universalities are powerful evidence that these patterns are of biological origin; with over 1,000 societies studied there is not a single exception.

Variation on the micro or macro level does not negate these universalities. That some women exceed most men in height or status drive does not mean that the differentials we observe are not biological. Indeed, both genders each have drives toward achievement and nurturance; the difference is merely one of degree. Likewise societies show variation, as a number of factors such as women's legal status can have an effect.

Yet although granting women equality before the law can help curb the abuses that can come with male domination, such equality will not eliminate it because women will exercise their rights in a manner consistent with their reproductive strategy. Thus support for women's equal rights is consistent with the theory I propose here.

An Egalitarian Test Case - The Kibbutzim: The limits of equality can best be seen in Israeli communes, the kibbutzim. The elimination of sexual inequality has always been a central tenet of kibbutz ideology. Children were separated from their parents and raised in communes, had the same education and in every way were raised the same. Fathers had no disciplinary role and parental relationships were purely emotional. Women were supported by the commune, abolishing the male provider role.

After nearly a century of intense socialization toward equality, the results are striking (Spiro, Stein). "Kibbutzim now classify work as either productive or service...A more distinct sex-role division has developed...with women working almost exclusively in service jobs - particularly child care, education, the kitchen, and the laundry - and men in productive jobs - especially agriculture and industry - or management.(Stein)" The governing committees are predominately male, but "even those with a majority of women are usually chaired by a man." When asked what was most important, men cited their jobs while women cited their families (Stein). The position of metepelet, who raise, train and educate the children, became a high status (maternal) role for which women competed eagerly (Datan).

One might note that in most societies agriculture is a predominately female activity. In the kibbutz this work was glorified and the suprafamilial status it brought ensured that it would be a primarily male activity. This is a good example of how gender roles can change without deviating from the universalities noted above.

The Evolutionary Process: The key principle here is sexual dimorphism, the process by which the sexes of a species develop a characteristic differentially when it is advantageous to do so. In the ancestral environment high-ranking males would have had an advantage in both having sexual access to females and in ensuring the survival of their offspring. Concomitantly, selection would have favored females that could bind a high-ranking male into a long-term relationship and commit themselves to the care of their children (which can include non-domestic work, of course).

Again, the similarities between gender roles among humans and other primates are significant because they undermine the claim that sex differences result from socialization. Although there are a few primate species where gender roles are reversed and the male is the caregiver, the point to remember is that gender is relatively static within each species; if a species is male-dominant and female-nurturant in Asia, it will be in Africa as well.

Unfortunately for modern feminists, homo sapiens just happens to be a species in which the male is the primary achiever and the female is the primary caregiver (A recent poll done for a feminist organization published in Ms. shows that 48 percent of American women agree that "it is better for society if the man is the achiever outside the home and the woman takes care of home and family (Thom)."

Two additional examples should suffice. Male gorillas, chimps, and baboons engage in aggressive activity similar to that of men in similar contexts. The only context in which females exceed males in aggression is in protecting infants (Hamburg).

Chimpanzees have a male-hunter/female-gatherer division similar to humans, where males go on coordinated hunting forays over large areas (Hamburg and McCown). Thus selection would have favored males who 1) engaged in adventuresome, risk-taking behavior and 2) had a propensity to take leadership roles.

So what relevance does all this have to us today? Put simply, physical aggression is merely the way in which the male status drive expresses itself in a social context which requires such aggression for hierarchical status.

Males can be extremely passive when passivity is required for status, and will engage in whatever form of competition facilitates hierarchical attainment in a given context be it capitalist, socialist, or whatever else. Once a society gives a (non-maternal) role high status, this provides the environmental cue which stimulates the status drive. Males will be more motivated to sacrifice family time, health, or just being able to do something which is interesting or altruistic for the sake of hierarchical attainment. Females, while just as capable of achieving, will be less so. A woman might put in a full shift at work and then come home and do a "Second Shift", thus expending much more effort than her husband. She just doesn't expend it attaining hierarchical status.

The relevant result here is that while nearly 50 percent of law and medical students are women they hold only a small minority of the upper-hierarchical positions of each profession, and there is reason to believe this situation will change little over time (Singer and Steinhauer). A recent article in The American Lawyer discussed how even the most successful of female graduates do not want to imitate the lives of women who have made senior partner, and are already looking for "alternatives" (Singer).

The essence of the male reproductive strategy in a modern society, then, is to compete for status by sacrificing competing priorities which are less important to men.

To the extent that women do pursue career achievement they will thus suffer a detriment relative to males because to be successful they must live a life centered around the male drive for hierarchical attainment, and because for males, but not females, achievement facilitates the attainment of familial goals (Crittenden).

This is illustrated by Elizabeth Pearle Mcenna in When Work Doesn't Work Anymore. Mcenna (a feminist and former publisher) was spurred on by a survey of female managers and executives appearing in Fortune in which more than 40 percent said they felt trapped, 46 percent knew someone who was in therapy, and 39 percent knew someone who was taking antidepressants (Morris). Large numbers - much more often than men - were abandoning the career track unsatisfied.

Mcenna's own survey included 200 interviews and over 1000 surveyed, all of them successful career women. She found these women were very dissatisfied with their lives, feeling an "adversarial relationship" between their work and personal selves, and that the love they had for their work was "dwarfed by the maelstrom of bad behavior that results from corporate pressure, competition, and punitive success..." She concluded that this was so because the way women work "better fits a man with a wife at home to take care of life," being based on male values of hierarchy and competition which could be changed to better suit women (Mcenna).

She is half right. Career orientation can be unhealthy for women. But it is not because of some deliberate male design, but rather the natural outgrowth of the male reproductive strategy. Suprafamilial achievement takes different forms across societies, and marketplace competition is merely the form it takes in our society. Mcenna writes that a better system would replace the emphasis on power, hierarchy and competition with sharing, teamwork and flexibility, and would focus on the quality of what is produced rather than "pecking order and egos".

Such changes could be made, but it would make no difference (compare with Japan). High status roles by definition revolve around competition, and it is merely the specific form of suprafamilial competition that changes. Women who pursue suprafamilial achievement will always live according to the male reproductive strategy.

Nature does seem to have put feminists in a bind. On the one hand, women have enough testosterone to be receptive to the same hierarchical cues that elicit male ambition. On the other, there are not enough high-testosterone females to allow women to achieve proportional representation, and most will not derive the same satisfaction as men even assuming equal levels of success, because they are satisfying a weaker drive. Moreover, being female, they cannot derive the benefit which is the central purpose of the male reproductive strategy -- using achievement to attract a mate. Finally, birth control has put natural selection into hyper-drive as family-oriented women have fertility rates far higher than their career-oriented sisters. The pool of career oriented women will thus grow smaller with time.

Nature v. Nurture -- The Nonsensical Dichotomy: Given the influence of biology, many argue that socialization can overcome this influence and thus create substantially egalitarian gender roles. Yet this never happens because socialization always works in conjunction with biology without changing its substance. Those with a genetic propensity toward a specific trait will always be socialized toward development of that trait, whether it be intelligence, musical ability, or competitiveness. In regard to gender characteristics, society recognizes that it has different needs, and so it socializes those most disposed to different activities to specialize in them, developing a sexual division of labor in which males strive for suprafamilial status and females perform whatever tasks, domestic or non-domestic, which are beneficial to their family. Socialization is important, and a wise society will attempt to channel innate dispositions into productive expressions, such as by using the status of the male provider role to bind males to their children and force them to live productive, responsible, lives. But there are limits.

To believe that socialization can make the sexes functionally equal is to ignore the fact that in every society socialization always conforms to the biological reality my theory posits. Even when egalitarian ideology is strongest it has only a very modest affect. This is shown most clearly by examining hierarchies in the former Communist bloc (Kerig) and the (male-dominated) left-wing political parties in the West. If my arguments are wrong, then they can easily be refuted by finding even a single society in which males do not hold the vast majority of upper-hierarchical positions in high status (non-maternal) roles, or in which males are not more oriented (on average) than females to the attainment of hierarchical status.

ANALYSIS OF THE GENDER STUDY REPORT

Women's Experience in Law School: The Committee found that the law school experience affects women detrimentally in regard to stress and general level of satisfaction. I assume these findings are accurate because they are consistent with women's experiences in similar contexts. What is most surprising is that the committee was surprised by the findings. Given the different drives and motivations which men and women everywhere exhibit, and it is predictable that in an environment based around hierarchical attainment most women will have a less positive (for law school, more negative) experience.

Gender Representation in Upper-Hierarchical Positions: The report records a good deal of frustration on the part of some with the representation of the sexes within the law school hierarchy. Recommendations 1, 2, and 3 are meant to remedy this, setting up what is essentially a quota system for faculty hiring. There are two reasons why they should not be adopted. First, their adoption would undermine the integrity of the law school's hiring procedure. Second, they are premised upon an assumed functional equality between the sexes that as an empirical matter simply does not exist. Throughout history there have been women who have held a great deal of power and often have done so as effectively as any man, but they have always been a small minority, and it is consistent with the natural dispositions of each gender that this be so.

This frustration is the result of unrealistic expectations based upon the ideology the report itself is promoting. Again, this has nothing to do with capacity to do the work. If ability were all that mattered, then the female advantage in verbal-IQ would make law a female-dominated profession. We must keep in mind that things are the way they are because of women's as well as men's natural dispositions.

Gender Neutral Language: The report recommends that faculty not use hypotheticals using "stereotypes of male and female roles and characteristics" and not use textbooks which "stereotype men and women" or "deal with gender and gender-related issues in a seriously inadequate way", i.e., do not reflect the feminist world view. This is viewpoint discrimination, and if these recommendations were to affect tenure decisions at a public institution, for example, that law school would be liable to lawsuit under the First Amendment. I do not object to the use of gender neutral language per se, and would use it myself if I felt it appropriate, but I do object to the setting of a guideline. We might as well add a clause to the school catalogue: "All instructors and students shall be expected to abide by standards of gendered semantics as set down by the Gender Study Committee." If some are uncomfortable with the use of masculine pronouns for those having predominately masculine roles and characteristics, then that is the price they pay for attending an institution with people who have a different world view. Such usage is not stereotypical, but rather is a largely accurate generalization which represents real differences between the sexes. Ultimately instructors should just do as they wish without any guidance from above.

The Status of Women in the Profession -- A Better Approach: The best approach for the law school to take in regard to gender is to do nothing. Sexual harassment should be given the same zero toleration as harassment generally. I do not advocate that the law school create inequality, only that it recognize that most of the differences found are the result of the fact that the survey subjects were men and women. Given how sex differences influence societal function, women should not be specifically targeted, and Recommendation A4 should be rejected.

This does not mean that the profession has little to offer women, as many men and women become lawyers because they think the work is interesting or altruistic, and there are some women who will be as fulfilled by climbing the ladder of success as most men. But we have gotten to the point that it is assumed that women who excel in school will pursue careers like men, and so women are supported if they choose anything but motherhood as a career. Ultimately individuals must make decisions in the context of their own lives, but they should do so in an environment which openly and honestly recognizes the way in which innate sex differences affect the way we function in society.

CONCLUSION

Both the differential experiences of men and women and their disproportionate representation among the faculty and deanships can be better explained by innate sex differences than by an ad hoc approach which attempts to explain universals on the basis of context-specific circumstances.

Rather than being functional equals who can be fungibly alternated in and out of societal roles, men and women are much closer to being polar opposites whose natural roles and characteristics fit together in a complimentary whole. There is no society that functions the way the Gender Study Report expects ours to function, and there is no society which fails to conform to the patterns my theory predicts. Only with this in mind can we understand how men and women interact in a law school environment.

Kirk Sowell is a first-year student in the Law School.