In Connection Distributing v. Keisler, the Sixth Circuit struck down on First Amendment overbreadth grounds certain record keeping requirements of the Child Protection and Obscenity Enforcement Act. I’m struck not by the specific ruling in the case, but by three small words the court used to describe the statute’s coverage: “If a person is producing [any sexually explicit image], she or he is subject to the recordkeeping requirements.”
This conspicuous ordering of pronouns must have been intentional. After all, he or she is the more common, supposedly “gender neutral” convention, and the statute in question, 18 USC § 2257, uses conventional pronoun ordering in making it unlawful “for any person . . . to refuse to permit the Attorney General or his or her designee to conduct an inspection [of records].” A quick Westlaw search returned Bowen v. Gillard as the last time a majority opinion of the Supreme Court used the she or he construction – and that was a 1987 case involving support obligations owed to low income mothers (actual research might turn up additional cases). Bucking both tradition and statutory usage, Connection Distributing led with she three times in its majority.
Linguistic anthropologists teach that language both shapes and reflects cultural attitudes and individual thought processes. With this in mind, I first read Connection Distributing as a subtly subversive decision that purposefully rejected he or she as an inadequate alternative to the sex-exclusive he. That phrase includes a reference to women, but its masculine before feminine ordering reflects and reinforces sex-based expectations and presumptions. The converse, though, is not necessarily true. That is, in a world where women are neither perceived nor treated as equal, much less superior, to men, she or he cannot gratuitously subordinate men the way he or she subordinates women. I personally prefer they as a singular pronoun, but see how she or he can simultaneously highlight and protest sexist language practices.
But should the case be read differently? Using she or he to describe hypothetical pornographers covered by the statute’s reporting requirement creates an image of women as the primary produces and purveyors of sexually explicit material, while reducing men’s involvement in the industry to a linguistic afterthought. For some this language places a positive spin on female sexual agency, but it does so in a decision that protects a market dominated by men for the primary (though not exclusive) purpose of sexually exploiting women.
I wonder how feminist linguists read Connection Distributing. Does she or he champion female sexual independence or excuse the rampant misogyny behind anti-feminist pornography by portraying women as active and willing participants in their own exploitation?
-Kathleen A. Bergin
Interesting post. I’m not surprised the court is trying to obfuscate the true tilt of its reasoning.
There may be ways in which 2257 could be more artfully drafted, but so many pornographers flagrantly lie about what it actually requires, raising the false specter of stalkers having easy access to personally identifying information, which isn’t the case at all. Watching pornographers dishonestly position themselves as “protectors” of women in the 2257 context is pretty bitterly ironic. The real reason they are desperate to avoid mandatory recordkeeping is because they want to use underage performers, to get away with not paying taxes, to prevent anyone from checking up on the health and safety of the performers, etc.