Feminist legal theory

The liberal equality model operates from within the liberal legal paradigm and generally embraces liberal values and the rights-based approach to law, though it takes issue with how the liberal framework has operated in practice. This model focuses on ensuring that women are afforded genuine equality including race, sexual orientation, and gender—as opposed to the nominal equality often given them in the traditional liberal framework—and seeks to achieve this either by way of a more thorough application of liberal values to women's experiences or the revision of liberal categories to take gender into account. For example, when black women are only provided legal relief when the case is against her race or gender.[9]

The difference model emphasizes the significance of gender discrimination and holds that this discrimination should not be obscured by the law, but should be taken into account by it. Only by taking into account differences can the law provide adequate remedies for women's situation, which is in fact distinct from men's.[10] The difference model suggests that differences between women and men puts one sex at a disadvantage; therefore, the law should compensate women and men for their differences and disadvantages. These differences between women and men may be biological or culturally constructed.[3] The difference model is in direct opposition to the sameness account which holds that women's sameness with men should be emphasized. To the sameness feminist, employing women's differences in an attempt to garner greater rights is ineffectual to that end and places emphasis on the very characteristics of women that have historically precluded them from achieving equality with men.[10]

The sameness feminist also argued that there was already special treatment for these so-called "differences" in the law, which is what was oppressing women. The idea of there being differences between the sexes lead to the classical thought that feminist legal theory was trying to get rid of. It forced women to prove that they were like men by comparing their experiences to those of men, all in an attempt to gain legal protection. This all only led to women trying to meet norms that were made by men without questioning why these were accepted as the norm for equality.[4]

The dominance model rejects liberal feminism and views the legal system as a mechanism for the perpetuation of male dominance.[11] Further, dominance theorists reject the difference model because it uses men as the benchmark of equality. While the liberal equality model and difference theory aim to achieve equality for women and men, the dominance model's end goal is to liberate women from men. Dominance theorists understand gender inequality as a result of an imbalance of power between women and men and believe the law contributes to this subordination of women.[3] It thus joins certain strands of critical legal theory, which also consider the potential for law to act as an instrument for domination. This theory focuses on how male dominate females, but it also talks about other groups being oppressed such as how legal aid is not often offered to the transgender population. Also, any white female would have good legal representation compared to minority groups.[11]

In the account of dominance proposed by Catharine MacKinnon, sexuality is central to the dominance.[12] MacKinnon argues that women's sexuality is socially constructed by male dominance and the sexual domination of women by men is a primary source of the general social subordination of women. According to MacKinnon, the legal system perpetuates inequalities between women and men by creating laws about women using a male perspective.[13]

Anti-essentialist feminist legal theory was created by women of color and lesbians in the 1980s who felt feminist legal theory was excluding their perspectives and experiences.[3] Anti-essentialist and intersectionalist critiques of feminists have objected to the idea that there can be any universal women's voice and have criticized feminists, as did Black feminism, for implicitly basing their work on the experiences of white, middle class, heterosexual women. The anti-essentialist and intersectionalist project has been to explore the ways in which race, class, sexual orientation, and other axes of subordination interplay with gender and to uncover the implicit, detrimental assumptions that have often been employed in feminist theory.[14] This model challenges feminist legal theorists who only address how the law affects heterosexual, middle-class white women. Anti-essentialist feminist legal theory recognizes that the identities of individual women shape their experiences, so the law does not influence all women in the same ways.[3] It is about building actual equality for all regardless or gender, race, sexual orientation, class, or disability.[14]

Mari Matsuda created the term "multiple consciousness" to explain a person's ability to take on the perspective of an oppressed group.[3] Anti-essentialist feminist legal theorists use multiple consciousness to understand how the law is affecting women belonging to groups other than their own.[15]

Postmodern feminist legal theorists reject the liberal equality idea that women are like men as well as the difference theory idea that women are inherently different from men. This is because they do not believe in singular truths and instead see truths as multiple and based on experience and perspective. Feminists from the postmodern camp use a method known as deconstruction in which they look at laws to find hidden biasses within them. Postmodern feminists use deconstruction to demonstrate that laws should not be unchangeable since they are created by people with biasses and may therefore contribute to female oppression.[3]