Mainstreaming Women’s History in Law

Feminist Legal History
Essays on Women and Law
Tracy Thomas and TJ Boisseau, editors
May 12, 2011

By Tracy Thomas, professor of law at the University of Akron.  Thomas co-edited the new book, Feminist Legal History: Essays on Women and Law, with TJ Boisseau, an associate professor of gender and cultural history at the University of Akron. 

The study of women’s legal history has been more prevalent in the field of women’s studies than in law. A few of the leading cases of women’s history like Roe v. Wade or Frontiero v. Richardson appear in cameos in constitutional law courses, but few conventional treatments of legal history include women, leaving the study of women’s issues to segregated courses on “women and the law.”  The book Feminist Legal History ambitiously seeks to change that. It hopes to integrate the learning about women and gender into the mainstream understanding of legal history. Whether the focus is tort law, constitutional law, or administrative law, women’s history offers a more complete understanding of the operation of that law and its disparate effects. As Felice Batlan, one of the contributors to this collection puts it, the goal of feminist legal history is to “engender the law,” that is, to add gender to the discussion to reframe the dominant narratives of law by offering more factually complete, if analytically complicating, understandings of it.

Feminist Legal History’s reconceptualization of law and legal history is accomplished through a series of legal stories that few will be familiar with. The book begins with an introduction that provides one of the first succinct summaries of the nascent field of women’s legal history, including the key cases, feminist theories, and events. The essays then explore a wide range of legal issues illustrating the historical interaction of gender and the law. The topics include women in the temperance movement, women’s recovery of tort damages, military women and veteran’s preferences, informed consent to abortion, race-based marriage expatriations and immigration, nineteenth-century domestic relations law, the gendered origins of legal aid organizations, women’s creation of the law of sexual harassment, and the race and gender implications of pay equity laws. The careful and detailed research of these chapters challenges the assumed understanding of women and the law.

The conventional story portrays law only as a barrier or constraint upon women’s rights. But the law also worked as a facilitating structure for women, providing a basis of actualizing power.  Women have used the law over time as a vehicle to obtain personal and societal change. They applied feminist theory in context to transform the law itself to incorporate an appreciation of gendered realities. This book highlights the reach and nuances of feminist legal theory, and the way in which beliefs about the independent power and authority of women have driven legal reform over time.

A fuller appreciation of the development of constitutional rights and legal notions of gender equity has far-reaching implications for issues that continue to dominate the front pages today.  Legal rationales of protecting women, usually associated with nineteenth-century social theories of “true womanhood” or early twentieth-century labor protection laws, continue to drive U.S. Supreme Court’s decisions on abortion and women’s exclusion from the military. Gendered notions of women’s workplace role as secondary to that of men persist, and are used to explain the lack of opportunities like GI benefits and inequities in women’s pay. This book captures the subtle and intrusive ways in which the law continues to control existing inequalities based on gender, and offers examples of the ways in which women have successfully challenged these notions over time, working within the legal system to bring about change.