The Second Sexism: Discrimination Against Men and Boys by David Benatar

Author:David Benatar [David Benatar]
Language: eng
Format: epub
Publisher: John Wiley and Sons
Published: 2012-03-08T05:00:00+00:00

“The conditions are different”

The justifications that the courts have provided for their judgments concerning bodily privacy of male and female prisoners and equal opportunity employment for male and female guards often appeal to specifics of the case at hand. This is meant to explain why the courts reached the particular judgments they did. The implicit claim is that the case at hand differs from other cases (where the prisoners or guards are of a different sex) and thus apparent inconsistencies are not real ones. On rare occasions the courts have explicitly attempted to explain away those apparent inconsistencies. When we look at the particular arguments that have been advanced, however, we see that they are inadequate. They appear to be rationalizations rather than unprejudiced reasoning.

Two cases are very rarely, if ever, alike in every relevant way. Judgments should be made on the full constellation of facts in a given case. Thus, showing that two cases with a common variable were decided in two different ways leaves open the possibility that other variables in the cases account for the difference. However, a trend emerges when we examine each of the variables that the courts have stated were relevant in their decisions.

One variable that the courts have cited as relevant in judgments concerning fully clothed cross-gender pat-down searches is the degree of intrusion into bodily privacy that the search incurs. Thus, in justifying its finding against male inmates objecting to such searches, the court in Smith v. Fairman cited the fact that the genital area was excluded in the searches under review. 102 However, in other cases, when female guards did conduct pat-down searches that included the groin area, the courts still ruled against the male inmates. 103 And when male searches of female inmates included the groin area then the court found in favor of the inmates. 104 Now it is true that in one of the cases involving male plaintiffs the touching of the groin and anal areas was said by the court to be only “brief and incidental” whereas in the case of female plaintiffs the search was said to be more intrusive than this. However, in another case involving male plaintiffs the court makes no mention of how much contact was made with the groin area. This leaves one wondering whether the greater contact with female genitalia (through the clothes) was highlighted but similar contact with male genitalia was simply glossed over. At the very least, one wonders why the specific degree of contact with the male genitalia was either not considered or not thought worthy of mention.

The inconsistencies become clearer if we shift from fully clothed pat-down searches to strip searches and inmates being viewed naked by guards of the opposite sex. Very often courts are not even asked to rule on strip searches of female inmates by male guards because prison policy already precludes it. 105 And sometimes prisons already have mechanisms in place to protect female prisoners from being viewed naked by male guards. 106

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.