The Second Sexism: Discrimination Against Men and Boys

When the military is accused of sex discrimination, the purported victims are usually female. This, of course, is part of the broader pattern of seeing females as the sole victims of sex discrimination. The criticism of the military is usually that women who wish to be part of the armed forces are excluded, either entirely or from certain roles, most notably ground combat, but also aviation and warships. It is thus not surprising that those who defend the exclusion of women from combat similarly focus on volunteer women, arguing that those women who want to serve should be prohibited from doing so. Most proponents and opponents of integrating women into all aspects of the military tend not to expend much time or energy arguing for or against the conscription of females, and especially conscription into combat roles. The prevailing assumption is that where conscription is necessary, it is only men who should be conscripted and, similarly, that only males should be forced into combat.

This, I shall argue, is a sexist assumption. The disadvantages men suffer in being conscripted and forced into combat are the products of wrongful discrimination. While those women who are desirous of combat positions are sometimes discriminated against in being excluded from these, many more men who would like to avoid such positions are discriminated against by being forced into them. Put another way, some women are excluded from combat, but many more women are exempt. While some men are excluded from combat (because they fail the relevant tests), many more are pressured or forced into combat (and the military more generally).

It is absolutely clear that the burdens of conscription and combat are substantial, as I argued in Chapter 2. It is equally clear, as I also showed, that these burdens are distributed on the basis of sex. The question before us now is whether there is adequate justification for this distribution of burdens. If there were adequate justification, then the discrimination would not be wrongful and thus not sexist. I shall argue, however, that the imposition of those burdens on males alone cannot be justified. To make this case I shall consider a number of arguments that seek to defend female exemption or exclusion from conscription and combat and I shall argue that they fail. Most of these arguments appeal to biologically based differences between males and females — differences that, it is said, cannot be eliminated by social means. A notable proponent of this position is Kingsley Browne.1 His is the most compelling and fully developed argument against women being sent into combat and thus I shall consider it in some detail.2

Kingsley Browne’s basic argument

Professor Browne argues that there are a number of physical and mental differences between men and women that make it problematic to integrate women into combat activities.3 Men are physically stronger than women, they can run faster, throw further and more accurately. He argues that these differences cannot be overcome through training. Women, he argues, are also more prone to training injuries.

Turning to mental differences, he says that men are more inclined to take risks, are less fearful (and they fear cowardice more than injury or death4), are more aggressive and dominant, less nurturant and empathetic and have a higher tolerance for pain. He also argues that “men love war.”5

He denies that these differences are mostly attributable to socialization.6 Rather, he says, they are the result of hormonal differences between the sexes, which in turn are a product of sexual selection,7 because different traits are adaptive in men and women.

Professor Browne argues that these differences are very relevant to combat. He rejects the claim that combat has become sufficiently mechanized and computerized that soldiers no longer engage in hand-to-hand combat.8 When troops find themselves in such close contact with the enemy, physical strength can be the difference between life and death. This, he says, is true not only in fighting but also in removing the wounded from the battlefield. Women are much less likely to be able to carry much larger, wounded male soldiers from the combat zone.9 Strength can also be required in aviation if a pilot is to bring a damaged aircraft under control10 or to operate the lever on a jet’s ejector seat.11 It can also be required for tasks such as lifting heavy artillery shells and carrying machine guns.12 He says that many women are also unable to throw a grenade sufficiently far to avoid blowing themselves up.13

The psychological differences between the sexes are also relevant, he says. For example, combat requires a greater willingness to take risks, because without soldiers taking risks, battles and wars cannot be won. Because war is dangerous, combatants are more inclined to take effective action if they are less fearful of injury and death. Combat is an aggressive activity, and thus combat troops need to have greater levels of aggression. Soldiers who have a higher tolerance for pain will be more likely to be able to continue fighting if they are wounded.

For these reasons, he says, women are less likely to be good soldiers. Because he thinks that “military effectiveness must be the touchstone of military manpower policy,”14 females should not be sent into combat.

Professor Browne’s argument so far can be formalized as follows:

(1) There are physical and psychological differences between men and women.

(2) These differences are not primarily a product of socialization, but rather substantially the product of biology.

(3) The attributes females have (and the attributes they lack) make them less likely to be good soldiers.

(4) The guiding consideration in determining who performs which tasks in the military should be military effectiveness.

(5) Military effectiveness requires sending into combat those troops who are most likely to do the job well.

(6) Therefore, females should not be sent into combat.

Professor Browne develops his argument further, but before considering those additional components of his argument, we should understand the problems with the basic argument.

“Slippage”

The first of these problems concerns the differences between men and women. The existence of these differences, to which Professor Browne repeatedly refers, is obviously central to his case. Why, however, does he include the second premise — that these differences are, to a significant degree, attribut-able to biology? He clearly thinks it is an important step in his argument, for otherwise he would not devote as much attention as he does to defending this claim. Perhaps the assumption is that whereas products of socialization are alterable, there is nothing that we can do about differences that are attributable to biology. In Chapter 3 I argued that this is not always true. However, for the sake of argument, we can temporarily assume otherwise.

Now imagine that although there were the stated differences between men and women, they were primarily a product of socialization. Under such circumstances it might be argued that these sex differences, even if the result of socialization alone, would surely be relevant to a policy decision about whether to conscript only men or also women. In other words, it might be said that if men tend to have attributes that make them better suited than women to combat, then it is not unfairly discriminatory to force only men into combat, irrespective of how men came to have those attributes.

The strength of this argument depends on considerations to which I referred in Chapter 3 and to which I shall return shortly. However, it is worth noting that even if discrimination at the policy-making level were not unfair, it would still be unfair discrimination to socialize males in a way that made them alone liable to the considerable costs associated with conscription and combat.15 This is why Professor Browne requires (or may be purported to require) the second premise. Without it, the charge of upstream wrongful discrimination can be leveled and it can be argued that we should begin to socialize boys and girls differently from the way they are currently socialized.

However, if the second premise is necessary then the problem is that there is some slippage in Professor Browne’s argument. He describes many more differences between the sexes than he demonstrates are attributable to biology. Moreover, even when he does provide evidence that a given difference is partly biological, it is often unclear how much of the difference is attributable to biology. He thus slips from claims about differences between the sexes to claims that these differences are (significantly) attributable to biology, but the evidence for the former does not always support the (full extent of) the latter.

Consider, for example, the claim that men fear cowardice16 or that men love war.17 Insofar as these are true of men but not women, Professor Browne does not provide evidence that these differences are biologically based. This is a problem because it is not sufficient merely to point to numerous current differences between the sexes. Such differences could be substantially due to socialization, in which case the socialization itself may be discriminatory. Therefore, it is essential to the argument that these differences instead be shown to be substantially biological, and even then that they are not remediable by socialization (without unacceptable costs) if the biological differences are undesirable.

The difference in strength between men and women is primarily attributable to biology (even if social factors can make some relatively small contribution). However, in the case of other attributes, it is far from clear how much of the difference is caused by biological differences. For example, Professor Browne refers to the masculinizing effects of in utero androgen exposure. Although he notes that “testosterone is most often linked in the public mind with aggression,” a link he seems to accept, he cites no specific evidence of this link.18 He also acknowledges that the “relationship between circulating testosterone and aggression is not a simple one.”19 In humans there is, he says, no linear correlation, as there is in mice, between levels of testosterone and levels of aggression. Rather, he says, testosterone levels increase when a man is presented with a challenge, such as sexual opportunity or a competitive challenge from another male.20 He also notes that testosterone levels “have been found to be positively correlated with the trait of ‘sensation-seeking’ in some studies.” And he says that “in nonhuman animals — and potentially in humans — low levels of testosterone are associated with fear,”21 the cited evidence for which is a study on rats.

If we accept that this evidence supports the claim that there is a biological basis for the stated differences between the sexes, the evidence hardly shows that the differences we see between the sexes are fully or even substantially explained by these biological considerations. Moreover, there is good reason, as I indicated earlier, to think that basic biologically caused differences would be amplified by societal expectations.

Military effectiveness

A second problem concerns the fourth premise in (my construction of) Professor Browne’s argument. He says that “military effectiveness must be the touchstone of military manpower policy.”22 At first sight this premise may seem indisputable. Surely various military positions should be staffed by those most suited to performing them, particularly when assigning less suited people could lead to greater costs, especially in lives and injuries (to one’s own side). However, there are a number of problems with this assumption.

First there are moral constraints on the invocation of an effectiveness principle. While all militaries may believe that they are engaged in just war, at least one side in any conflict must be wrong. And if we consider only the initiation of wars, such decisions must surely be wrong much more often than they are right. If one is not justified in waging war, then waging it more effectively may actually be morally worse. Consider, for example, military manpower decisions by the Axis powers in the Second World War. While the military leaders might have thought that their invasion of or attacks on other countries, and subsequently defending themselves against Allied forces, was permissible or even required, they should actually have desisted from starting war. Once begun, they should have surrendered earlier rather than later. The conscription of only males into the armed services of the Axis powers cannot be objectively justified by the greater effectiveness of an exclusively male military, even if an exclusively male military were indeed more effective. In other words, Axis power leaders cannot objectively justify their sending only male conscripts into battle on the basis of the military effectiveness principle. The same is true of hundreds of other states and armies in the history of humanity. While there might be disagreement about which states and armies these are, we can agree that there are many such cases.

Even when states are warranted in going to war, they cannot employ a military effectiveness principle without moral constraint. This is because just wars are those that not only have just cause but are also waged in a just way. In other words, meeting the jus ad bellum conditions does not eliminate the necessity for jus in bello. Sometimes this requires sacrificing a measure of effectiveness, even though the effectiveness should not be abandoned entirely. Professor Browne seems insufficiently sensitive to this. For example, he says that including “women in combat forces might reduce rapes and war atrocities”23 but then quickly notes, as if to neutralize this point, that some “measures to reduce wartime atrocities might come at the cost of combat effectiveness… since some psychological traits that cause men to be willing to kill in battle may dispose them in extreme circumstances to overdoing it.”24 The question of what jus in bello requires and, more specifically, to what extent moral considerations should constrain a military effectiveness principle is not one I can answer here. And thus I shall not consider whether we should add a condition to the requirements of just war — namely that those forced into combat not be forced on the basis of their sex (or race or creed, and so forth). It would be an unusual condition — one that focuses on justice to one’s own conscript troops — and it is a more controversial condition than I require in order to make my case. What should be clear, even if we set such a condition aside, is that an unqualified invocation of the military effectiveness principle is problematic even when a state is fighting a war it is justified in fighting.

It is worth noting that even if, as a matter of fact, no military would (currently) accept particular moral constraints on the principle of military effectiveness, this tells us absolutely nothing about whether they should. Abandoning racial discrimination might, at a particular time, not be a live option for a society in the grip of racism, but it simply does not follow from their limited moral vision that they are not engaged in wrongful discrimination. Similarly, Genghis Khan never constrained his military by ethical principles that limit the actions (and thus effectiveness) of some militaries today. It does not follow that Genghis Khan was morally justified in doing what he did. It thus will not do for the advocates of realpolitik to lampoon my view as idle speculation of a philosopher detached from the practicalities of the real world. I make no claim about whether states will (now or later) recognize the importance of non-discrimination in conscription. I am making a claim about whether they should.

Professor Browne also seems to underestimate the ways in which respecting the moral constraints on war can sometimes (but obviously not always) increase military effectiveness. For example, it is very likely that invading or occupying forces raping locals or inflicting other atrocities on them will cause or exacerbate animosity towards those forces, thereby motivating locals to support resistance or insurgent forces. Or consider the role played by female US soldiers in performing searches on female civilians in Afghanistan and Iraq.25 If these searches were performed by male soldiers, antipathy to the occupying US forces would be considerably greater, making success much more elusive. But because searches of female civilians are often conducted by patrols that encounter insurgents, the inclusion of women in what often become combat conditions has been essential if female civilians are to be searched by female soldiers. If female soldiers are to be placed in such conditions, it would surely be more effective if they were also suitably trained for combat.

This broader view of effectiveness can also shed light on why those with the “masculine traits” to which Professor Browne refers, might sometimes be less effective in battle itself. Although a propensity to risk-taking is sometimes necessary for military effectiveness it is not infrequently a threat to military effectiveness. The Battle of the Somme is but one of many examples where a greater aversion to risk might have saved many thousands of lives that were lost for no military gain. Indeed, it is true in every war (even if not in every battle) in which one side is massacred without achieving its goal. In at least many such cases it would have been better if they had stepped down. The point is that military effectiveness is not always enhanced, even if it sometimes is, by aggressive risk-takers whose greatest fear is cowardice.26 Thus the question is whether overall, the (hyper)masculine traits unalloyed by a female presence have a beneficial or deleterious effect on military effectiveness. Given the history of pointless carnage consequent to recklessness on the side suffering it, it is very difficult to know the answer. At the very least, the answer is not obvious.

There is a further reason why the inclusion of females in combat troops could sometimes inhibit foolhardy ventures that lead to the massacre of one’s own troops without military advantage. Instead of the purportedly greater risk-aversion of females, the mechanism would be the greater valuing of female lives. Professor Browne agrees with me that the norm of valuing female lives more than male lives endures.27 He thinks that this phenomenon will minimize combat effectiveness for a variety of reasons.28 For example, he says that enemies will exploit the greater protectiveness that male soldiers feel towards female soldiers. Now, Professor Browne does not explicitly claim that this protectiveness is either substantially biological or immune to social alteration. If it is subject to alteration, then the failure to alter it is indicative of ongoing discrimination against men, even if that discrimination is occurring upstream rather than at the point of deciding who will enter combat. There are at least three directions in which it could be altered. We could encourage greater protectiveness towards males, or less protectiveness towards females or some equalizing combination of the foregoing.

As long as the different levels of protectiveness to the two sexes exist, whether this is primarily social or biological, military leaders will likely be less inclined to dispatch female troops on futile ventures to which they have been excessively willing to send male soldiers. If male soldiers were only sent (involuntarily) on missions when female soldiers also were, male soldiers would then enjoy the benefit, now lacking, of having their lives put at risk only when it was really necessary.

Finally, while Professor Browne’s primary focus is on the volunteer army, my primary focus is on the conscript army, because that is where the military most overtly and profoundly discriminates against males.29 A broader view of Professor Browne’s military effectiveness condition is relevant here. Sometimes the need for troops outstrips the number of males volunteering. Historically these have been the very circumstances in which conscription (of males) has been imposed. In at least some cases (now and in the future, even if not in the past), having military jobs, including but not only combat positions, open to volunteering women would avoid the need to conscript unwilling men.30 Even if we assume that men are generally more effective soldiers than women, willing women will, at least in respect of their willingness, be more effective soldiers than unwilling men. Volunteer women will also be self-selective and thus more likely to have other attributes required of a good soldier. This stands in contrast to conscripted men, who will include many men who are below average on the various attributes required of a good soldier. Moreover, because volunteer women would have to prove their fitness to be included, whereas unwilling men would have to prove their unfitness to serve, a volunteer army that includes women could well be preferable to a conscript army of men only. The latter is arguably more likely to include people it should not be including.

Of relevance here is not only effectiveness but also efficiency. Conscript armies have to devote resources to dealing with unwilling conscripts. Whether or not a willing woman is more effective and efficient than an unwilling man might be an open question for those who think that men, all things being equal, are more effective soldiers than women. Nevertheless, it is not a question that can be ignored — or answered glibly.

Dangers of conservatism

We should not reject a conclusion merely because it is a conservative (or reactionary) conclusion. It is likely that at least some traditional views are correct, and thus discarding all received wisdom will come at a cost. At the same time, we should avoid well-known dangers of conservatism. In the realm of sex discrimination, the chief such danger is the assumption that things could not be other than they are or have been. There was a time when the idea of women voting or studying at universities, much less teaching in such institutions, was thought to be ludicrous. People could not imagine that women could be lawyers or engineers or doctors. They thought that society would collapse if women worked outside the home. Consider some examples.

Harvard medical students, in a letter to the (Boston) Daily Evening Transcript, objected to the admittance to the medical school of the first female medical student. They wrote that they

Justice Bradley, in an 1872 US Supreme Court opinion affirming the State of Illinois’ refusal to admit a woman, Myra Bradwell, to the state bar, wrote: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”32

Arguing against women having a right to vote, Sir Almroth Wright stated that the “woman voter would be pernicious to the State not only because she could not back her vote by physical force, but also by reason of her intellectual defects.”33

The aim in providing these quotations is not to imply that current conservative arguments about women in combat are contemporary analogues of these earlier views. Instead the aim is to show that they might be. If people in former times could have held their preposterous views with the conviction they did, it is entirely possible that people today could be making the same mistake. If we are going to countenance a profound form of discrimination — one that subjects some people, but not others, to the horrors of war merely on basis of their sex, we need to be confident that we are not making the same mistake as has been made many times before.

Professor Browne says that we should “guard against the arrogance that convinces us that we are the first society wise enough to recognize that men and women are interchangeable in combat roles.”34 I am suggesting that we should guard equally against the arrogance that convinces us that we are the first society wise enough to avoid making a mistake that has been made a hundred times before. There is a common human tendency to see the current norms as natural, desirable and unavoidable. In some cases the current norms may indeed be correct, but we cannot assume them to be so.

Professor Browne suggests that in determining who bears the burden of proof we need to consider what the costs of error on each side are. As he is primarily concerned with a volunteer force, he says that the “primary cost of erroneous exclusion of women from combat would be to deprive a relatively small number of women of that opportunity,”35 whereas if women are erroneously included in combat the costs will be human lives and “a reduction in military effectiveness.”36 For this reason he thinks that the burden of proofs lies with those who seek to integrate women into combat.

But the costs of the respective errors are not quite as he suggests, especially if we are speaking about conscription rather than a volunteer force. The primary cost of excluding or exempting women from combat will vary. When permitting women to serve in combat would preclude the necessity of conscripting men, the primary cost of excluding women would be that a large number of men will be forced into combat with its attendant risks and costs. Although this has historically been taken very lightly, it ought not to be. It is no small matter.

When permitting women to serve in combat would not preclude the necessity of conscripting men, then conscripting only men would inflict a severe hardship on a large number of men just because of their sex. That may not be as bad as the previous case, because many (even if not all) of those men would have been conscripted anyway, but it is a lot worse than excluding a small number of women from the opportunity to participate in combat, which Professor Browne says is the cost. It is worse for two reasons. First, more men will be affected by conscription than women are affected by prohibitions on their volunteering. Prohibitions on women volunteering affect only those few women who would volunteer if they were permitted to do so. By contrast, when men are conscripted, it is typically many of them who are conscripted. Second, being forced to participate in war is arguably worse than being prevented from participating in it.

But there are further possible costs. As I have indicated, there are a variety of ways in which the exclusion of women could make for a less effective fighting force and thus a force in which more of one’s soldiers’ lives would be lost. Thus an erroneous exclusion of women from combat, like an erroneous inclusion of women, could increase the number of deaths on one’s own side. Moreover, it is at least relevant that the deaths that would result from the erroneous exclusion of women would be exclusively those of a sex whose lives are systematically less valued such that they are already at a disadvantage in terms of life expectancy.

The upshot of all this is that the costs of the two possible errors do not clearly lead to the conclusion that the burden of proof rests on those who would integrate women into combat. There is another principle for assigning the burden of proof. On this alternative principle, the burden of proof lies with those who would discriminate on the basis of race, sex, sexual orientation, religion and other such attributes. Such discrimination is presumptively wrong, and this presumption can be defeated only if there is good reason for the discrimination. Professor Browne might retort that the substantial biologically based differences between men and women provide such reason. However, that is a separate question, which can only be answered by examining his other arguments, as I am doing.

It is possible that I am wrong, but the real test of whether it is Professor Browne or I who is wrong would be to include women and see what happens. As Professor Browne acknowledges,37 when countries are in extremis they have been known to allow women into combat — because, he says, it is better to have an additional fighter, even if of an inferior kind. He denies that women should therefore be included in less dire circumstances. My counterclaim is that it is much better to test the hypothesis that sex integration can work in circumstances that are less dire. If the hypothesis survives, one can be better equipped to fight the wars that do pose an existential threat by knowing that one can conscript and train females as well.

Some will argue that the hypothesis has already been tested, given the extent to which women have been integrated in the US operations in Afghanistan and Iraq. According to media reports the experiment has been a success.38 Professor Browne has a different reading of events and thinks that the media reports to the contrary can be explained. He asks how we would know whether the inclusion of women in combat has been a mistake. He claims at various points in his book that there is great pressure on members of the military, at least in the United States of America, to endorse the integration of women. For example, he says that although “military leaders were initially resistant to sexual integration, decades of political pressures and inculcation into the officer corps of the lesson that failure to support sexual integration will kill their careers have left a military leadership unwilling to admit that the emperor has no clothes.”39

We cannot exclude the possibility that soldiers and military leaders feel pressure, when they speak to journalists and others, to endorse the inclusion of women in the military and in combat. This is one of the many dangers of political correctness. It stifles discussion and prevents people speaking their minds. However, we need to be cautious about the argument that military endorsement of female participation is a consequence of such pressure.

First, the United States military seems to have been proactive, by circumventing regulations limiting the integration of women. There is still a regulatory prohibition on assigning women to combat units (below the level of brigade). The military has de facto bypassed this prohibition by “attaching” women to combat units rather than “assigning” them to such units. It is hard to see why the military leadership would bypass policies that prohibit what the military leadership purportedly really want prohibited. It is possible, of course, that the military leaders have concerns about the inclusion of women but see it as a (temporary) necessity. (For example, they need female troops to search female civilians in Iraq and Afghanistan.) But that itself would be a military decision, even if it is a reluctant or begrudging one, about all-things-considered effectiveness rather than a consequence of political pressure.

Second, one wonders how cowardly a military leader would have to be to parrot the purportedly politically correct views of his civilian bosses if that reduced military readiness. Military leaders (in liberal democracies) are appropriately bound to follow the orders of the country’s political leadership, but following orders and explicitly endorsing the underlying views or the political leadership are quite different matters. It is hard to reconcile the bravery required to sacrifice one’s life with the utter spinelessness of not contradicting views that seriously compromise the military’s effectiveness. This does not prove, of course, that military leaders are not acting in a cowardly manner, but if they are acting in such a way they bear a responsibility to find the courage to speak out.40

Finally, if the statements of military personnel are not to be trusted because they are suspected to be the result of political pressure, then the most reliable way to determine their actual views would be via an anonymous survey, preferably one that examined the views of people of various ranks and serving in different branches of the armed services. It would be interesting to see the results of such a survey.

Let us assume, however, that the results of such a survey would show that military personnel think that sex integration had failed. It would not follow that they were correct. It could be that the survey was detecting early prejudicial resistance to integration, which is hardly an uncommon phenomenon. More objective ways of assessing the success or failure of sex integration are required to determine whether it really has worked.

Statistical differences

Consider next an objection that Professor Browne anticipates. This fourth objection notes that the relevant differences between men and women are statistical rather than categorical. For example, it is not the case that all men are stronger than all women, but rather that men tend to be stronger than women. Thus, it might be argued, we should choose for combat those individuals, irrespective of their sex, who have the attributes that are most suited to combat. This might lead to a disproportionate number of men being sent to battle, but, the objection goes, it would be preferable to using sex as a proxy for the relevant attributes when determining who would make the best combat soldiers.

Indeed, as we saw in the previous chapter, armed forces have been notoriously undiscriminating with regard to which males it will enlist. It has not been unusual for boys to be enlisted. Whatever the differences between the average (young) woman and the average (young) man might be, the differences between the average young woman and the average boy are less marked.

Professor Browne anticipates this objection and has at least three kinds of response to it. The first is that the use of sex as a proxy is, contrary to the objection, indeed preferable. While the strength of individuals and their ability to throw could relatively easily and cheaply be screened, many of the other attributes do not lend themselves to easy measurement. He says that “one never knows who is going to be an effective soldier until the shooting starts, and the identity of the good fighters often turns out to be a surprise.”41 The implicit assumption here is that while some females could turn out to be surprisingly good fighters, one is more likely to get more good fighters if only men are sent into combat.

There are a number of problems with this argument. First, and foremost, are moral problems with treating people on the basis of attributes (such as their sex) that are a proxy for the attributes that are actually relevant. It is not that this may never be done. However, the less accurate the proxy and the greater the burden imposed on people because they have the proxy attribute, the less warranted is the use of the proxy, all other things being equal. If being male were an extremely reliable way of picking out those people who had the attributes of a good combat soldier, then it would be less problematic than it is given that sex is actually quite a blunt proxy. For example, Professor Browne says that “men love war.” If this were true of vast numbers of men, conscription would not be necessary, because enough men would volunteer. This suggests that most men do not love war. There may well be even fewer women who love war, but it remains the case that sex is a very poor proxy for working out who loves war. There will be many men who are less suited than many women to enter the military and combat, even if men on average are better suited to war. Many men who hate war and loathe being in the military more generally will be swept up in the conscription net merely because they are males.

Second, the use of proxies is often just laziness. People presume that the use of a proxy is the only way to attain some goal. Defenders of affirmative action tell us this about the use of race or sex in racial and gender preference policies, and defenders of male-only conscription tell us this about the use of sex in determining who will be forced into the military. But the best test of whether they are correct is to deny them the use of the proxy. Because necessity is the mother of invention, they might then discover previously unimagined ways of attaining the desired goals. This is exactly what happened with the South African National Blood Services, which had maintained that there was no alternative to the use of “race” as one proxy for HIV-tainted blood. Following governmental outrage in the wake of the exposure of this policy, alternatives were soon found.42 As this case illustrates, the laziness of using proxies is often reinforced by scaremongering. Defenders of male-only conscription use fear as a way of preserving the proxy. They tell us that without the use of the proxy, the armed forces defending us will not function as effectively. There is, of course, a chance that on this one occasion the defenders of a proxy are correct, but we can have no confidence that they are.

Third, even if sex does reliably track the relevant attributes, it is far from clear that the differences between men and women are sufficiently attributable to biological factors that they would not be susceptible to significant alteration by social means. Thus even if it were not unfairly discriminatory, at a given time, to use sex as a proxy, this would be attributable to upstream discrimination. Therefore, to rely on this from generation to generation without addressing the upstream discrimination would be unfair.

Furthermore, it would not be enough to claim that biological difference explains part of any given difference between men and women. Among other things, it would also need to be shown that the biological factors explain a large part of the difference. This could be shown in the case of physical strength, but that is also an attribute easily measurable without recourse to sex as a proxy. When it comes to various psychological attributes it is much less clear that any biological basis explains as much of the difference as Professor Browne seems to think.

Even if women are generally inferior soldiers and this is substantially attributable to biology, willing female fighters, especially if they are trying to prove themselves in the face of male scepticism about their ability, may very well be better fighters than men who resent being forced into combat. Finally, even if female volunteers are generally not as good fighters as unwilling men, I have suggested that the narrow focus on fighting ignores other relevant features of an effective and efficient military.

Professor Browne’s second argument against a policy of determining which individuals, irrespective of their sex, have the relevant attributes is that the effectiveness of most combat soldiers depends on their being part of an exclusively male team. One reason for this, he says, is that “one of the greatest fears and most powerful motivators of fighting men” is their “concern about not measuring up as a man.”43 If women, who are not under pressure to prove their womanhood through combat, are part of the fighting force, it is said, such pressure will be reduced. If women become combat soldiers, combat will be seen less as a manly activity and thus men will be less pressured to prove their manliness in combat. A second reason for the greater effectiveness of all-male combat units, he says, is that group cohesion, which is essential to effectiveness, is promoted by male bonding.44 which, he says, is different from the kind of relationships women form with one another and which men and women form.45 Men’s resistance to the inclusion of women in combat is also likely to be intractable, he says.46 Furthermore, men are more likely to follow other men. Part of the reason for this, he says, is that effective combat leaders are those who are more willing to expose themselves to danger, and men are generally more likely to be so willing.47 Dominance, another trait he says that men exhibit to a greater extent than women, is also crucial to military leadership.48 Moreover, the type of leadership to which he says men are more inclined — “the autocratic or directive style” — is better suited to military leadership.49

My earlier objections pose challenges to this response, too. For example, a man’s fear of not “measuring up as a man” and the resistance of male soldiers to the inclusion of women, even if they have a biological basis, have not been shown to be substantially attributable to unalterable biological factors. Thus the slippage objection arises here. So does the concern about the dangers of conservatism. Men have historically been resistant to the inclusion of women in many professions and other areas of activity, yet these attitudes proved amenable to change. Now it is true that male resistance to the inclusion of women in combat has proved to be more intractable than their resistance to the inclusion of women in any other area, but it is not surprising that those occupations most closely associated with male gender roles will be hardest to penetrate. However, we cannot assume that because there has been more enduring resistance to women entering combat that that resistance cannot be overcome, especially given the long track record of error.

The objection about military leadership is an odd one. The inclusion of women in combat does not entail promoting to leadership positions women who are not fit to be military leaders. Professor Browne has provided some indication of what makes a good military leader. Some women will prove themselves good leaders by, for example, exposing themselves to danger. Even if Professor Browne thinks that there will be disproportionately few women who meet these standards, he has provided us with no reason for thinking that those women would not make good leaders. Moreover, insofar as male soldiers are motivated by notions of masculinity, the pressure on them to perform will be heightened when they are led by a woman who has proven she can lead.

Perhaps, however, the concern is that there are pressures to promote women even when they have not proved themselves to be capable leaders. Such affirmative action promotion is not unknown, and it might be argued that it will be especially dangerous in the context of combat troops. However, the fitting response to such double standards in promotion is to oppose the double standard rather than to oppose the inclusion of women.

Even if my responses to Professor Browne’s objections fail, there is another solution: admit women to combat roles but segregate male and female soldiers into different units (such as platoons, companies, battalions or brigades). Males would still be able to bond within their units. They would be led by other males. When wounded they could be carried away from battle by other men who are more likely to bear that load. Professor Browne considers this possibility, but he rejects it for the following reasons.50

First, he wonders whether there would be sufficient women willing to participate in battle without large numbers of men around them. That point is entirely moot in the case of conscripts, who are not afforded the choice. In the case of volunteers, females would at least have the choice.

Professor Browne also wonders whether the public would be willing to send women into combat without males “to protect them.” If Professor Browne is correct that this is not currently a political possibility, the very fact that he was correct would support my claim that males are being discriminated against. One cannot invoke the public’s prejudice to show that the prejudicial treatment is not prejudicial. Perhaps it will be said in response that people’s prejudices need to be taken into account in deciding who ought to be conscripted and sent into combat because the failure to do so will have bad effects. However, that is a separate question, and an affirmative answer is far from obvious. This is because of the many problems with pandering to prejudice. Even if it turns out that we should take people’s prejudices into account, it certainly does not follow that the prejudices do not exist or that they should not be undermined in some other way.

A further problem, says Professor Browne, is that while individual weaknesses in females would be masked by large numbers of men in the same unit, a unit of only female soldiers would magnify the deficiencies. He also doubts that “all-female groups would exhibit the same kind of cohesion that men’s groups exhibit.”51 The second of these two concerns is more speculative than the first, but even if both are currently reasonable concerns, they make problematic assumptions. If the assumption is that there are biological differences that are immune to social alteration, then the slippage problems, discussed earlier, arise here again. Perhaps, however, the assumption is the more modest one that although the differences are liable to social alteration, they cannot be changed quickly. On this view, the military is in the interim warranted in making decisions based on the current differences. Alternatively (or in addition), the assumption may be that that although the biological differences are liable to social alteration, the costs of such alteration are unreasonable. Neither of these more modest assumptions has been demonstrated. Given the dangers of conservatism, it is quite likely that they may be overestimated.

Professor Browne has a third kind of argument against a sex-neutral method of determining which individuals should be selected for combat. This kind of argument appeals to particular vulnerabilities of women. Women, he says, are more vulnerable to rape, both by fellow soldiers52 and by the enemy if they are taken captive.53 Unlike men, women can also become pregnant. Professor Browne says that pregnancy presents many problems.54 One is that pregnant women cannot be deployed or will need to be withdrawn from a deployment if they become or are found to be pregnant. Among the knock-on effects of this is that women can avoid deployment simply by becoming pregnant. Because men who render themselves medically or otherwise unfit for service are subject to disciplinary action, a double standard is created, which increases resentment towards women. Pregnant women, unless they terminate the pregnancy, become mothers. Many are single parents. Because more custodial parents are female, more problems arise when single mothers try balancing child rearing with the demands of a military career, which can include deployment overseas for long periods.

These sorts of arguments are less convincing than the others. The fitting response to rape of female soldiers by their fellow soldiers is not to ensure that there are no female soldiers but to take action to prevent rape and then prosecute it when it does occur. Female soldiers are more likely than male soldiers to be sexually assaulted and raped when taken captive, although male captives have also frequently been subjected to sexual assault. But the argument that women should therefore be exempt from combat only works if one thinks that sparing women this fate is more important than sparing men from the kind of treatment that is regularly inflicted on male captives. Severe ill-treatment of captives is, sadly, a regular occurrence. This is why we need and have the Geneva Convention, ignored though it often is.

Professor Browne’s response to this rebuttal is that “rape is generally considered a more serious imposition than nonsexual assault.”55 Whether or not all those who say this really believe it, it is a claim that is hard to justify. For example, is it worse to be raped or to be tortured? The answer probably depends in part on the individual, but it is far from obvious that rape is worse. There are many people who would prefer to be raped to being tortured (in other ways). Obviously rape is sometimes worse than some non-sexual assault, but it is equally obvious that non-sexual assault is sometimes worse than sexual assault. For example, is fondling a woman’s breasts really worse than inflicting excruciating torture on a man? (Anybody who answers this rhetorical question affirmatively should ask whether it would be worse for a woman to have her breasts fondled or to be subjected to excruciating torture. If it is the latter, it needs to be explained why altering the sex of the tortured person is sufficient to make breast fondling worse.) Moreover, torture of male captives is not infrequently sexual.56 Consider, for example, electric shocks to the genitals, or the sorts of treatment inflicted by US soldiers (including female soldiers) on prisoners in Abu Ghraib prison.57

There is disagreement about how many women purposefully become pregnant in order to avoid deployment (or other unwanted tasks). However, pregnancy, whether intentional or otherwise, does considerably reduce the rate at which females are deployed.58 Professor Browne seems to think that there is nothing that could be done about this. I disagree. We live an age of effective contraception and safe abortion. The former include various long-acting methods, at least some of which could be employed to circumvent the problem of soldiers failing, in the heat of passion, to bother with barrier contraception. The use of long-acting contraception need not prevent female soldiers from becoming mothers. Instead, it can assist in the timing of their pregnancies in a way that would enable the military to plan deployments more reliably. In some cases, a soldier’s request to end contraception could be temporarily declined until she has completed her tour of duty. But the relevant regulations could also prohibit the military from endlessly deferring a soldier’s pregnancy.

There will be those who will object to compulsory contraception and, a fortiori, abortion. The abortion case is harder and thus, although I think that a case might be made for sometimes requiring a pregnant servicewoman to have an abortion, I shall focus for now only on contraception, which is a much less serious intervention. Some will argue that a woman should have control over her body even with regard to contraception. The problem with this argument, however, is that soldiers generally have much less control over their bodies than do civilians. They may, it is thought, be subjected to compulsory medical examinations and medication, as well as being sent involuntarily into harm’s way. Insofar as control over one’s body is permissibly restricted in the case of other soldiers, it should also be permissible to restrict it for female soldiers.

In a volunteer force, female soldiers could actually consent, while enlisting, to long-lasting contraception and the requirement that pregnancies must be planned and will require military permission. Such consent could be a condition of enlistment. Female conscripts might not consent, but it is hard to see how compulsory contraception is really a more serious violation than compulsory combat. Some people do not see this because, as I have been arguing, males are treated in ways that many people simply would not dream of treating females.

I don’t suggest that this will eliminate the pregnancy problem entirely, but it could certainly reduce it to very manageable levels. Men, after all, are also susceptible to unpredictable medical conditions that render them ineligible for deployment. Managing the pregnancy problem in the way I have suggested would very likely bring females to a similar rate.

It would also significantly address the single-mother problem. Professor Browne reports that the United States military will only enlist single parents if they attest that their children are in the full custody of the other parent.59 The problem, he says, is when enlistees become single parents after they join the service. Under my proposal, the military could require those enlistees seeking permission for pregnancy to attest that there are suitable arrangements in place to care for the child (or children) that will result from the pregnancy. Such arrangements may not be foolproof, but they would significantly reduce the problem.

Finally, my proposal would avoid the deployment-evasion double standards problem, whereby women could avoid (or be seen to be avoiding) being deployed by becoming pregnant. Under my proposal, unauthorized pregnancy, unless contraceptive failure or rape could be demonstrated, would be grounds for disciplinary action.60 Some might wonder how the difference between contraceptive failure and sabotage of contraception (or between rape and consensual sex) could be established, but the very same sorts of problems have not prevented military courts from distinguishing between self-inflicted and enemy-inflicted wounds in male soldiers.

Professor Browne argues that evasion of deployment through pregnancy is not the only double standard that causes problems. Among the double standards he alleges are these.61 Female soldiers are held to lower physical standards. They are allowed to have showers more often than men while in the field. Some women use “female problems” such as complaints about menstrual cramps to avoid unpleasant duties. Women are more likely to defy authority, and more likely to get away with it. Women can use complaints of sexual harassment (or threats of such complaints) to avoid doing some things that they would rather not do. Women who are engaged in sexual misconduct are less likely to be investigated and disciplined than are males who engage in such behavior. The perception of these double standards creates resentment and thus compromises the necessary group cohesion.

It is unclear to what extent these perceptions are accurate and to what extent they are mistaken. The case of physical standards is straightforward. The requirements for women are lower than those for men, given the physical differences between the sexes. This does not mean that there is no unfairness here. Even the physical differences are statistical and thus there are a small number of men who are less capable than a small number of women of meeting the male standards. If the physical differences are what explain the differential standards, it seems unfair that the standards should be set on the basis of one’s sex rather than one’s ability. In other words, it is hard to see why two people, both of whom are physically incapable through no fault of their own of meeting particular standards, should either nonetheless be held to those standards or held to lower standards depending only on their sex.

There is a sliding scale of possible standards to be set. The higher the standards are set the fewer women, and the fewer men, will be able to meet them. While there is no specific level at which the standards must be set, there are obvious constraints. They must not be set so high that an insufficient number of people could meet them, but they should also not be set so low that many people meeting them are unable to do things they will need to be able to do. Nor need there be only a single standard. It is possible to stream people. The military already has units that are more and less elite. It is hard to see how those meeting higher standards will resent those meeting lower standards if the higher achievement is also recognized with greater prestige. If more men meet the higher standards, then women will be under-represented in the more elite units, but that is something we should accept, for reasons I shall amplify in Chapter 6.

The other double standards to which Professor Browne refers are both harder to prove and more worrying if they do occur. If they do occur, there is a further question about how pervasive they are. To the extent that they do exist they are further examples of the second sexism. Professor Browne’s and my responses to this are quite different. He sees the problem of double standards within the military as intractable and thus avoidable only by excluding women from combat — or from the military more generally. My response is to condemn the differential standard, as I think we should in every other instance of the second sexism, including the exemption of women from the military, and to hold men and women to the same standards in all cases, except where there is good reason not to do so.

Final thoughts on combat and conscription

In Chapter 2 I described the many disadvantages males have experienced and continue to experience with regard to conscription and combat. These disadvantages are a consequence of discrimination. People have different beliefs about men and women. As a result men and women are treated differently. If this discrimination is wrong, then men are the victims of sexism.

The most promising argument that the discrimination is not unfair is one that would show that there are relevant differences between men and women that fully justify the different treatment. I have now examined what I take to be the most comprehensive and careful defense of the view that women ought to be excluded and exempt from combat because of the differences between men and women. In rejecting this argument I have not claimed that there are no differences between the sexes (beyond the obvious anatomical and physiological ones). Nor have I claimed, as the social constructionists do, that none of the differences are attributable to biological variation between the sexes. If that were true, it would be easier to argue that the discrimination is unfair. Instead, I have made the harder case. I have argued that even if there are some biologically based differences between the sexes, conscripting and sending into combat only males is unfair discrimination.

I have not argued that the differential military burdens of males and females are fully explained by unfair discrimination. Some of the difference may be explained, for example, by relatively free choices. It is the case, however, that unfair discrimination is rampant in this area. Moreover, even if Professor Browne’s argument were sound, it would not warrant the exemption of women from conscription into some national service other than combat. And if, as I have argued is the case, his argument is unsound, the wrong extends far beyond that to the burdens of combat which only men are forced into. Moreover, the use of gender stereotypes to pressure men into volunteering is also morally problematic. This is because such stereotypes go beyond whatever biological differences there might be between the sexes. They coerce men to do what they would otherwise not elect to do. After all, there would be no need to pressure men into enlisting and fighting if they would do it anyway.

Being pressured or forced into combat is among the most severe disadvantages that men suffer. Yet I have had to argue at some length to show that the imposition of these disadvantages is unfairly discriminatory. This is because weighty matters lie in the balance. If incorporating women in combat is as threatening to military effectiveness as Kingsley Browne suggests, then it is a move that may not be undertaken lightly, where the war being waged is a just one. By contrast, no such important matters countervail the other disadvantages that men and boys experience. Accordingly, it is easier to show that these disadvantages are wrongfully inflicted.

Men, we saw in Chapter 2, are much more often the victims of violence than are women. Men constitute the majority of victims of violent crime. In times of conflict, (non-combatant) men are often killed in much greater numbers than women.

Given men’s elevated risk of suffering violence, it is ironic that the phrase “gender violence” is so often treated as synonymous with “violence against women (and girls).” The term “gender violence,” or its variant, “gender-based violence,” is unclear. Some people have suggested that all violence is gender violence.62 On that view, it clearly cannot be the case that only violence against females is gender violence. However, if all violence is gender violence then the term “gender violence” is a redundancy. It thus seems best to understand gender violence as a subset of violence. One could, of course, simply stipulate that the relevant subset is “violence against women,” but that seems arbitrary and, insofar as gender violence arouses special concern, also sexist. Clearly gender violence must have something to do with gender or sex. One reasonable view is that it is violence that is caused or legitimated by (either conscious or subconscious) ideas about gender. Alternatively, it might be understood as violence that disproportionately affects one sex. However, “male” is also a gender or sex and thus it is hard to see how at least some violence against males is not also gender violence.

Why then is the phrase “gender violence” typically used in a way that excludes the gender that is most affected by violence? Why do we hear frequent public calls for an end to “violence against women” (or “women and children”) but not for an end to “violence against men”? And if a call for an end to “violence against men” sounds a little too concerned with one sex (in the way that similar calls for an end to violence against women does not to many ears), why are the calls not instead for an end to violence against anybody? Why might it be thought that targeting males for violence is not unfairly discriminatory?

“The perpetrators are men”

One possible answer is that men constitute the majority of perpetrators of violence against both men and women. That, it might be said, is why the calls to end violence, are addressed to men. Violence, it might be said, is a male problem, even if the victims are both male and female. But one problem with this response is that the call is for an end of violence against women, rather than for an end to violence by men. Its focus is on the victim and not the perpetrator. If males are more commonly the victims, then the focus only on the female minority of victims is inappropriate. Moreover, even if one does focus on perpetrators, it is strange to ignore female perpetrators, of whom there are a significant number. Indeed, in the case of violence against children women constitute a substantial proportion if not a majority of the perpetrators.

In any event, when men (or women) are the victims of violence, it does not really matter whether the perpetrator is of the same sex or a different sex. What matters is that they have been attacked. The suggestion that it is other men who have attacked them can be seen to minimize the wrong only if we (inappropriately) blur the distinction between the identities of the particular men, failing to distinguish between the perpetrator and the victim, and instead identifying them both simply as “men.” This is really no better than the person who minimizes the violence suffered by blacks in American inner cities or South African townships, for example, by saying that it is perpetrated by “other blacks”.63 Indeed, if there were frequent and exclusive calls for the end of violence against whites in such places where blacks are disproportionately the victims of violence, the prejudicial character of this thinking would be abundantly clear.

To this last point, some will respond that whereas blacks have a long history of being discriminated against, the same is not true of men. For this reason, it might be said, a special concern about violence against whites would be worse than a special concern about violence against women. There are a least four problems with this response.

First, there is a much longer and more damaging history of violence against men than there is against women and thus in this limited regard focusing on violence against women is like focusing on violence against whites. Second, discrimination against males is not restricted to their being disproportionately the victims of violence. There are, as I am arguing, numerous other instances of discrimination against males. Third, even if one thinks that there are other ways in which women are worse off than men, or blacks are worse off than whites, it is true that men are like blacks (in the relevant contexts), in being the greater victims of violence. Finally, even if a special concern with violence against whites were worse than a special concern with violence against women, it does not follow that focusing on violence against women at the cost of attention to violence against men is at all acceptable. Thus, at the very least the imagined example of a special concern about violence against whites can be seen as an (exaggerated) analogy to highlight the problem with attending only to violence against women.

“Men are better able to defend themselves”

There is another possible answer to the question about why there is more attention to violence against women than there is to the problem of violence against men. According to this answer, men are better able to defend themselves. They are less vulnerable, it might be said, and thus in less need of protection. Among the errors in this response is the slippage to which I referred earlier. Let us assume that men are, in general, bigger and stronger than women. We can even assume that they are not only more able but also more willing to defend themselves. It is a massive inferential leap from here to the claim that men are sufficiently more able than women that they can successfully defend themselves against the actual attacks on them. Indeed, the fact that so many more men are the victims of murder, for example, is an indication that men (on average) are not sufficiently capable to defending themselves against murder.

Consider an analogy. Let us imagine that dogs are attacked, maimed and killed more often than rabbits. Somebody notes that dogs are subjected to more abuse than rabbits and asks why there is so much attention to “violence against rabbits” and none to “violence against dogs.” Supporters of the rabbits reply that dogs are better able to defend themselves than are rabbits. That claim might be true, but it is still the case (in my supposed example) that neither dogs nor rabbits are able to defend themselves against the sorts of assaults from which dogs are disproportionately the victims. The greater capacity of dogs to defend themselves is thus entirely beside the point.

It might be suggested, in response, that while men may not be able to defend themselves against male perpetrators, they are at least able to defend themselves against their wives in the domestic context, which is often the focus of campaigns to end violence against women. This suggestion is also flawed. First, violence is no more acceptable just because the victim has some capacity to defend himself. Second, contrary to the stereotype, men are not always able to protect themselves against female assailants, particularly if the latter are using some kind of weapon. Third, why should domestic violence receive greater attention than other forms of violence that are often more serious? (Sometimes domestic violence leads to death, but murder outside the domestic context is much more common and males are the main victims of murder.)

Given that there is already a norm discouraging violence against women, it is actually men who, all things considered, are more vulnerable to violence. This is because one’s vulnerability is a function not only of one’s defensive capacity but also of the likelihood that one will be attacked.

There is, to be sure, some violence against men that is justified (just as there is some violence against women that is justified). If one is attacked, for example, it is permissible to defend oneself, violently if necessary. If more men are perpetrators of violence, more of those who suffer violence at the hands of defenders will likely be male too. But this surely accounts for a relatively small proportion of all victims of violence. More often than not, aggressors prevail over their victims and do not suffer from violent self-defense by their victims.

Insofar as a violent attack is not warranted, the victim is wronged by the violence. It is no coincidence that males constitute the majority of victims of violence. It is because there are stronger social norms discouraging violence against women. Even if one thought that females were less capable of defending themselves and thus required some additional social protection, it is still the case that the social norms more than compensate women for any defense disadvantage they might have. The net effect is that men are unfairly disadvantaged. There is no good reason for this sexist feature of society.

“Men pose a greater threat”

There is a third line of argument that seeks to deny that the disproportionate amount of violence to which men are subjected is inappropriately discriminatory. This particular argument can apply only in some situations in which men are the primary victims of violence. The argument says that because males pose a greater threat to opposing forces in a conflict, they are legitimate targets. More specifically, men of fighting age, even if they are not combatants or not known to be combatants, might in reality be combatants or they are potential combatants. There is, it is said, thus a rational basis for targeting and killing them in what is said to constitute a pre-emptive strike.

There are many problems with this line of argument. While there might be some cases in which young males are potential enemy combatants, this cannot explain anything like the full extent of situations in which males are singled out for violent treatment. Most obviously, it does not apply to most cases where men are the victims of ordinary violent crime. In such cases the victims are not potential enemy combatants. The possible exceptions to this are those male victims who are themselves gang members and thus pose an implicit threat to members of opposing gangs.

The argument’s clearest application is to non-combatant male victims of violence in situations of war and similar conflicts. But even in such cases, the category of “young men of fighting age” is often treated very elastically. Older men are also killed, even when it is clear that they are no longer capable of combat,64 and boys are killed because they will become young men of fighting age.65 Sometimes even neonatal boys are not exempt. Consider, for example, the Rwandan genocide of 1994, in which Hutus “were determined to seek out and murder Tutsi boys… They examined very young infants, even new-borns, to see if they were boys or girls. Little boys were executed on the spot.”66 Older boys were also “relentlessly hunted down. Many mothers dressed their little boys as girls in the hope — too often the vain hope — of deceiving the killers. The terrified boys knew exactly what was happening.”67 This is not to deny the many female deaths in the Rwandan genocide, but only to note that males were most at risk.

Young men, although of fighting age, are killed even if it should be clear to their killers that they do not pose a threat or, at least, not a sufficiently imminent or likely threat to warrant killing them. The OSCE report on Kosovo, for example, noted that in most cases young men “seem to have been killed simply because they were male and young enough to join” the Kosovo Liberation Army.68

Moreover, there are conditions when selecting out young males for killing is wrong even when they are more likely to be (potential) enemy combatants. These are conditions in which the threat young males pose can often be neutralized by taking them captive rather than killing them. Unarmed civilians who are merely potential combatants can easily be captured instead of being summarily executed. Indeed, they often are executed immediately after being apprehended, which shows that capture was possible. Execution need not follow. And even in those very rare circumstances where killing a civilian is the only way to neutralize the threat he poses as a potential enemy combatant, it is not necessary also to torture him prior to killing him.

In any event, many potential enemy combatants would be justified in taking up arms because one’s own aggression against them is unjust. In such cases, it would be wrong to kill them. For example, when armed resistance commenced against the 1971 Bengali genocide, the Pakistan army began to

There is clearly no (objective moral) justification for first targeting males in genocidal assaults on the grounds that they might be more inclined to resist.

Finally, it is worth noting the “snowball effect” of male disadvantage. Being male is first grounds for being forced or pressured into combat. It thereby becomes grounds for being singled out as a potential combatant. There are, of course, comparable cases of a snowball effect of female disadvantage, but whereas some feminists make much of these cases, they ignore the male cases. Yet there is no less reason to attend to the cascading of male disadvantage.

Two kinds of discrimination

None of the reasons usually proffered to explain the greater concern about violence against women can explain why so little attention is given to the problem of violence against males. Given that the great majority of victims of violence are males and that violence against males is (at least usually) no more justified than violence against females, we should conclude that the almost exclusive attention to violence against women is inappropriate.

There is a difference between one sex suffering the bulk of some evil and this being the product of unfair sex discrimination. Sometimes it is not a person’s sex itself that makes him or her more susceptible to some evil. Instead, it is some other attribute that is shared disproportionately with others of his sex. Thus, Adam Jones notes that while males were the majority of victims of the Stalinist purges, they were not singled out because they were male, but rather for other attributes.70 It just so happened that the overwhelming majority of those with those attributes were male. This does not mean that the purges were not “gendered,” and he suggests that that aspect of the mass killings is worthy of attention. It means only that there was no targeting of males qua males. Insofar as we do not treat such cases as cases of sex discrimination, we should offer equivalent judgments of those cases where although females constitute the majority of victims of some evil this is not because they are female.

That said, there are very many cases where males are selected for, or not protected from, violence because they are male, and these cases are sufficient to demonstrate that males suffer sex discrimination in this area. In other words, even if some of the violence males suffer is not because they are males, much of it is.

There are actually two interrelated forms of discrimination here (and in some of the other instances of disadvantage). First, people are less inhibited from committing acts of violence against males than against females. Second, when violence is inflicted on males, other people take it less seriously. The latter partly explains the former. In other words, it is partly because violence against males is taken less seriously that some people are more inclined to perpetrate violence against males, and other people are less inclined to prevent it. But the failure to take violence against males seriously not only contributes to the greater violence against males but also constitutes a further harm in itself. Being discriminated against is bad enough. Not having the fact of this discrimination recognized compounds the wrong and may constitute a further form of discrimination.

Corporal punishment is an increasingly controversial practice. As we saw in Chapter 2, it has historically been inflicted by the military on soldiers and sailors, by the courts on criminals, by schools on pupils and by parents on their children. In some countries it continues in all these contexts, while in others it has been banned in all situations. In most places, however, it is legally permissible in some but not other contexts. The question whether it is legally permissible is not the same as the question whether it is morally permissible. Those who think that corporal punishment is always wrong (or even always wrong in a given context) will be committed to saying that inflicting it on males (in the relevant context) is also wrong. If a wrong is systematically inflicted on one sex but not another, then those on whom it is inflicted are the victims of sex discrimination. That is all that need be said to prove to categorical opponents of corporal punishment that its infliction on males but not females, or its greater infliction on males, is wrongful discrimination.

But what about those who think that corporal punishment is sometimes morally permissible?71 Is there any justification, according to such a view, for the disadvantages that males suffer with regard to corporal punishment? A few arguments have been advanced in support of an affirmative answer, but none is satisfactory.

“Males are more badly behaved”

One of these arguments is that boys and men are more badly behaved than girls and women, and thus deserve the higher rates of corporal punishment that they experience.72

Even if we assume the truth of the premise, this claim fails to justify all the sex differences in the administration of physical punishment. It might explain why boys and men are subject to more corporal punishment even when it is permitted for both sexes. However, it does not explain why there is a prohibition on the physical punishment of females in some places. If females commit fewer acts that are thought to be deserving of physical punishment, then the implication is that they would receive such punishment less often. The implication is not that they would never receive it. Put another way, the claim that males are more badly behaved is insufficient to explain why physical punishment of females is sometimes prohibited where it is permissibly inflicted on males. Even if, contrary to fact, females never did those things for which males are physically punished, a prohibition on corporal punishment of females would not be warranted. There is no need to prohibit a form of punishment that females would never do anything to do deserve.

Where physical punishment of females is permitted, the argument that males are more badly behaved than females does not explain why females receive physical punishment less often even when they commit the same offenses as males. And it does not explain why the corporal punishment females do receive is often milder than that meted out to males for the same offenses.

A further problem is that, as we saw in Chapter 2, boys often have been physically punished for “violations” such as making spelling or mathematical mistakes, which cannot plausibly be thought to deserve punishment of any kind and certainly not corporal punishment. Much of the physical punishment inflicted on boys cannot be explained by their worse behavior. Instead it is explained by the alacrity with which people resort to hitting boys.

Finally, it is entirely possible that inappropriately hitting boys actually encourages some of the bad behavior for which boys are physically punished. In saying this I am not offering the common argument often advanced against all corporal punishment — that “violence breeds violence.” Instead of saying that physical punishment always causes inappropriate conduct in those punished, I am suggesting that inflicting physical punishment too frequently or too harshly can have counterproductive effects. This claim is much more plausible than the more extensive claim that corporal punishment always has such effects. As it happens there is some preliminary (although not conclusive) evidence that harsh discipline does explain some poor conduct in boys.73

“Corporal punishment is not as damaging to males”

A second justification sometimes advanced for inflicting corporal punishment more readily or only on males is that it is said to be less damaging to them than it is to females. For example, it might be claimed that males have a higher pain threshold or can tolerate more pain or that they are less psychologically hurt by physical punishment. Boys (and men), it might be said, can take corporal punishment better than girls (and women).

To reject this argument, it is not necessary, as some think, to deny that there are differences between the sexes. There is evidence of male and female sex hormones leading to sex differences in pain, with females being more sensitive to it.74 The problem with invoking this evidence to support the conclusion that corporal punishment should be inflicted exclusively or disproportionately on males is that this involves over-interpreting the evidence and making inferential leaps.

Whatever differences in pain there are between the sexes they are statistical rather than categorical. It is not the case that every female is more sensitive to pain than every male. The claim is a generalization rather than a universalization. To inflict corporal punishment on the basis of a person’s sex is thus to treat him as a member of the sex to which he belongs rather than as the individual he is. Those concerned about unfair treatment of women certainly are, or should be, allergic to treating people on the basis of generalizations about their sex. This is not only because it is unjust but also because treating people this way will often be to the disadvantage of females. Jobs requiring greater height and strength, for example, could be restricted to males because “females are shorter and weaker than males.” Even many conservatives recognize that treating people on the basis of characteristics of their group can, at least sometimes, be wrong. They might think that there are select cases where discrimination on the basis of group characteristics is permissible. However, because they think that there are other cases in which it is not permissible, it is insufficient simply to point to generalizations in order to justify treating all members of one group differently from all members of another group.

Moreover, the differences in pain thresholds and tolerance that we see between the sexes are not fully attributable to biology. Even those who recognize that there are biological differences also acknowledge that socialization plays a role.75 Boys are discouraged more than girls from complaining about pain. Reports of pain are often seen to be “unmanly,” whereas there is no comparable disincentive to females complaining of pain. This means that the differences in pain reports probably exaggerate the differences in the perception of and sensitivity to pain. The extent to which boys and men underplay the pain is not a reliable indicator of how much less it affects them than it does girls and women.

Next, whatever biological differences there may be in pain perception and reactivity, these are relatively minor. In other words, it is not the case that girls do feel pain but boys do not. Nor is it the case that stimuli that are very painful to girls are much less painful to boys (if they are less painful at all). The differences appear to be relatively modest. Both males and females feel pain. Moreover, there is much that we do not (yet) know about sex differences in pain. For example, we do not know for sure whether the differences are linear — that at every level of increasingly noxious stimuli females feel more pain. What we do know is suggestive that the differences actually diminish as the pain becomes more severe.76 This is obviously relevant to the severe pain that can be inflicted by at least some forms of corporal punishment.

For these sorts of reasons it is a mistake to infer from the fact that there are some sex differences in pain that it is acceptable to inflict pain on males but not on females. Those who cannot see the mistake should consider the following. Although females are generally more sensitive to pain, their “pain thresholds increase throughout late pregnancy and abruptly just prior to parturition.”77 Does this fact justify the withholding of analgesia from women in childbirth? Those who make inferential leaps from biological generalizations about differences in pain perception might be committed to the affirmative answer they probably do not wish to give. But an affirmative answer is absurd. Women giving birth might feel less pain than they otherwise would if they had not undergone the hormonal changes in late pregnancy, but it certainly does not follow that they are not experiencing considerable pain in parturition. The same logic applies to the pain experienced by males in corporal punishment.

It is also worth noting that pain, along with psychological distress, is not the only negative feature of some corporal punishment. Flesh-lacerating canings and whippings, for example, are physically very damaging. I do not know of any evidence that male flesh is less prone to laceration, but even if it were, any beating that is severe enough to have this effect exceeds whatever protective effect there might have been.

A common assumption is that if inferences about the acceptability of corporal punishment can be made from sex differences (whether biological or social), the conclusion is that it is boys and not girls on whom it may be inflicted. But if one is drawing conclusions, there is a case to be made for drawing the opposite one. One of the problems with inflicting corporal punishment on boys or men, particularly in environments where there is pressure for them to prove their manliness, is that a macho attitude can be developed towards physical punishment. It has not been uncommon for schoolboys and soldiers to brag about their capacity to bear canings or lashings.78 One important consequence of this is that corporal punishment’s deterrent capacity for males can sometimes be diminished. Insofar as this dynamic is not operative with girls and women and they fear corporal punishment both more than other punishment and more than boys fear corporal punishment, it may actually be preferable to inflict it on females rather than on males. Its deterrent effect on females may be greater. It is, of course, also possible that inflicting it equally on females and males could have the effect of making it a less macho punishment and thus increasing its deterrent effect on males. However, the macho attitude could still creep in if girls acted more fearful of and pained by being hit, because there would then still be pressure on males not to act like girls and women.

That said, inflicting corporal punishment in a gender-blind way would go some way to breaking down stereotypes about males and females. By treating males and females equally it would reject an exaggeration of whatever average sex differences there might be.

We saw evidence in Chapter 2 that males are disadvantaged in significant ways by the lesser respect for their bodily privacy than for that of females. For example, we saw that the courts in the United States have given much more weight to the interests of female prisoners in not being searched or viewed naked by male guards than they have to the interests of male prisoners in not being searched or viewed naked by female guards. International guidelines on the minimum standards for treating prisoners prohibit female prisoners being supervised by male guards, but are silent about male prisoners under female guard. We saw that the privacy of male conscripts was invaded in ways that would be unimaginable if they were female. And we saw that male public toilets are structured to give urinating men less privacy than urinating women.

It is clear that males and females are being treated differently. Can these differences be justified objectively? In other words, are the disadvantages that males experience with regard to bodily privacy the product of unfair discrimination or can they be explained in other ways?

Most of the time, the discrepant treatment of males and females in this area is not even noticed. When this is the case no attempt is made to defend it. However, some (but not all) of the courts that have ruled on the question of cross-gender prison supervision have attempted to argue that there is no inconsistency. Only some of these arguments could also be employed with reference to other contexts in which male privacy seems to be less respected. I shall consider the various arguments and their possible applications. In doing so, I shall show that they all fail. Indeed, the arguments of the courts seem like rationalizations of an antecedent prejudice about the variable importance of female and male bodily privacy.

My aim is not to conduct a legal analysis — to determine which courts have provided the correct legal interpretation. Unlike the courts, I am not interested in whether their reasoning is legally sound. Even when judges accurately interpret the Constitution and legislation and follow precedent, their arguments show only what the law says. It does not tell us whether the law should be that way. Thus, it is possible that males have a weaker legal claim to privacy than females. However, that carries no more weight than the fact that women had no legal claim to vote before they were enfranchised. Instead I am interested in whether there is a moral, rather than a legal justification for the differential treatment of males and females. My aim, in examining the courts’ arguments, is to determine whether they could be used to show that there is a moral justification for the different treatment.

“Women have a greater interest in bodily privacy than do men”

It should come as no surprise that some people have tried to defend the different treatment by arguing that women have a greater interest than men in bodily privacy. This argument has application to all the contexts I have mentioned, but it has been discussed explicitly in the context of cross-gender prison supervision. For example, in Jordan v. Gardner, the Court of Appeals, following the District Court, stated that “physical, emotional and psychological differences between men and women may ‘well cause women, and especially physically and sexually abused women, to react differently to [pat-down] searches… than would male inmates subjected to similar searches by women’.”98

This argument suffers from a number of problems that should by now be familiar. At the outset it hardly seems sufficient, in justifying quite serious invasions of a man’s privacy, to claim that women “may well” be more adversely affected by such invasions. Speculation is not sufficient. One requires evidence. Nor can we take the outward reactions of males and females as decisive evidence of the actual effect on them. This is because we know that males are encouraged to exhibit greater toughness and to be sexually less reticent. There are thus pressures on males not to reveal how they feel about invasions of their bodily privacy. It is remarkable that notwithstanding this, so many men have lodged complaints. Yet when men have complained, the courts have been less likely to take them seriously, claiming in one case that the male “inmates had not shown sufficient evidence of pain.”99 It seems that unless men show their pain in the way women do, their legal complaints that they are suffering extreme psychological distress are simply not taken seriously — and even then they may not be.

However, let us assume, for the sake of argument, that women would be more adversely affected by cross-gender searches and observations while naked. That is a generalization. Even if more women than men would be especially badly affected, there will be some men who will be more adversely affected than some women. Indeed, there is good reason to think that at least some of the men bringing these cases fall into this category. Now, perhaps it will be suggested that the courts find it reasonable to treat men and women on the basis of generalizations about each sex. However, it is clear that they find this reasonable only when it redounds to female advantage or male disadvantage. When females are disadvantaged by generalizations about their sex, the courts are explicit in rejecting this reasoning. For example, in finding for female guards in an equal opportunity suit in which they sought access to a fuller range of positions, the Court in Griffin v. Michigan Department of Corrections asserted that a “woman should be evaluated and treated by an employer on the basis of her individual qualifications and not on the basis of any assumptions regarding the characteristics and qualifications of women as a group.”100

The foregoing is also relevant to considering those prisoners who have been victims of sexual abuse. It is entirely plausible that they could be more adversely affected by pat-down searches and strip searches. And it could well be that there are disproportionately more victims of sexual abuse among female prisoners than among the female population in general. The same could well be true of males. Imprisoned males may be disproportionately likely to have been sexually abused (if not before they came to prison, then since they were incarcerated).

Now it is true that more female than male victims of sexual abuse are abused by people of the opposite sex (even though the differential, as we saw in Chapter 2, is not as great as is commonly thought). However, it does not follow that all women should be treated on the basis of how a subset would be affected. Moreover, it is curious that the courts give absolutely no thought whatsoever to the possible effects of strip searches and body cavity searches by male guards on those male prisoners who were victims of homosexual sexual abuse. Such searches are sometimes a security necessity, but probably not as often as they are actually performed. In addition, the way that they are conducted can be more or less sensitive to male prisoners, especially those who are the victims of sexual assault, yet the courts have been rather cavalier in defending the performance of these searches in full view of other prisoners, for example.101 Nor can we assume that the heightened effects of invasive searches on male victims of homosexual assault are present only when the guard performing the search is male. The court never considers the possibility that male victims of homosexual assault, having been “feminized” by male assailants, may feel even worse for now undergoing comparable treatment by a female. It is an open question whether there is any such effect, but the failure to consider the possibility stands in stark contrast to the sensitivity the courts show to female victims of sexual assault.

Even if it we assume both (a) that women are more adversely affected by being searched and viewed naked by guards of the opposite sex; and (b) that it is appropriate to treat men and women on the basis of generalizations about their sex, it still would not follow that the invasions of privacy are permissible for male prisoners but not for female prisoners. It could be insufficiently bad for female prisoners to warrant ruling in their favor, even though it would be worse for them than for male prisoners. Alternatively, and more plausibly, it could be sufficiently bad for male prisoners to justify ruling in their favor, even though it were not as bad as for female prisoners.

“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 Thus, when the courts find that male inmates being viewed naked by female guards is acceptable because it is infrequent and casual, from a distance, or only via purportedly indistinct images on a monitor,107 male inmates are already being discriminated against, even if not by the courts alone. And where the courts have been asked to rule on prison policies that do not protect female inmates in this way (or do not do so as much as they could), they have tended to impose protections on the privacy of female inmates.108

As it happens, however, whether males are being viewed infrequently, casually, from a distance or via indistinct monitors actually makes no difference to whether the courts rule in their favor. Even when male inmates are (regularly) strip searched or body cavity searched by female guards, the courts have ruled against the male inmates.109

Thus, female inmates are protected from even incidental and brief observation by male guards while they are naked, while the courts refused to protect male inmates from being subjected to regular strip and body cavity searches by female guards.

In justifying the practice of female guards searching male prisoners, the courts have sometimes referred to the professionalism of the female guards.110 The professionalism of male guards is rarely mentioned, but when it is, it is only to say that it is insufficient to justify a search of a female prisoner (even if she is fully clothed).111

Nor does distinctly unprofessional conduct by female guards lead the courts to find in favor of male inmates. Keith Somers sued female guards who, in violation of prison policy, conducted regular visual body cavity searches on him. He alleged that during these searches and when they monitored him while he showered, they pointed at him and made jokes among themselves.112 A magistrate judge and then the District Court denied the guards qualified immunity from the suit. The guards appealed this decision and the Court of Appeals reversed the judgment. That is to say, it ruled in favor of the female guards and against the male prisoner. This decision was based not on an alternative finding of the facts, which do not seem to have been in question, but rather on a point of law. The Court of Appeals construed the question before it narrowly — whether “at the time of the alleged conduct, a male inmate had clearly established Fourth or Eighth Amendment rights to be free from routine visual body cavity searches and shower viewing by female guards.”113 The Court concluded that he did not.

This is odd. The Fourth Amendment right protects against “unreasonable searches.” It is hard to see how a search prohibited by prison policy could be deemed a reasonable search, particularly given that the policy prohibiting female guards from performing routine visual body cavity searches on male prisoners is a reasonable one. The Eighth Amendment protects against cruel and unusual punishment. The courts have regularly found that female inmates have an Eighth Amendment right against much lesser invasions. It thus appears discriminatory to deny males protection against much more severe invasions. The Court was aware of this and thus explicitly attempted to show that, contrary to appearances, there was no real inconsistency. However, the arguments it raised to this end are ones that I have considered above and rejected.114

Another way in which United States courts have attempted to justify the judgments they make in particular cases is by appealing to the level of security required in a given prison context. The rationale here is that the greater the security need for a search the more it would take to show that a particular search is unreasonable.

There is, of course, a distinction between whether a given kind of search is reasonable and whether the same search conducted by somebody of the opposite sex is reasonable. Given that the security requirements themselves could be met fully if cross-gender supervision were not permitted, appealing to security needs in order to justify cross-gender searches requires also explaining why the security needs should be met by cross-gender supervision. This is typically done by appealing to equal employment opportunities. I shall consider that argument later.

For now it is noteworthy that the courts invoke the security consideration selectively. Where there are greater security issues in cases involving male prisoners, then this is invoked to justify the greater invasion of privacy.115 Similarly, when there are lesser security issues in cases involving female prisoners, then the courts appeal to this to show that the invasions of privacy are unreasonable.

However, when the courts have considered cases including female maximum security prisoners, they have not invoked security considerations to justify greater invasions of female privacy by male guards.116 Similarly, in the case of a male who had not yet even been convicted of a crime, and was instead a pre-trial detainee, the court failed to rule in his favor against being viewed naked by female guards.117 Because one is legally innocent until proven guilty, the court failed to protect an innocent man who complained about being viewed naked by female guards.

There is an even more glaring inconsistency in judicial reasoning about the bodily privacy of male and female inmates. As noted before, female prisons, even before matters come to court, tend to have at least some mechanisms in place to protect the inmates from the view of male guards while the prisoners are in states of undress or using the toilet. For example, they are permitted to cover the windows on their cell doors for fifteen minutes while using the toilet or changing. Translucent screens protect them from male view while showering.118 Although male prisoners are occasionally afforded such protections, typically they are not. They are not entitled to cover their cell windows and are not given screens or curtains to protect them from the view of female guards. Yet, in offering their judgments against affording males the same protections as females the courts are quick to remark that male prisoners who are concerned about their modesty could protect themselves “by adjustment of their own habits.”119 More specifically: “The use of a covering towel while using the toilet or while dressing and body positioning while showering or using a urinal allow the more modest inmates to minimize invasions of their privacy.”120 But it should be obvious that such mechanisms are as open to female inmates as to male ones. Of course, they do not protect males from strip searches and body cavity searches, which simply cannot be undertaken without violating the bodily privacy of the prisoner. However, if the suggested measures are adequate for males, then they should be so for females, too. And if they are not adequate for females there is no reason to think that they are adequate for males. When the courts make these suggestions to males while they add to the formal protections female inmates have, they unfairly discriminate against males.

Equal employment opportunity

A recurring theme in legal cases concerning cross-gender prison supervision is that of equal employment opportunities. Both male and female guards have argued that excluding them from positions and tasks that compromise the privacy of opposite sex inmates limits their own equality of employment opportunities. The courts have tended to sacrifice the privacy interests of male inmates to protect the employment opportunities of female guards. However, they have tended to rule in favor of male guards’ equal employment interests only insofar as these are compatible with preserving the privacy interests of female inmates.

Most courts have at least recognized that there is a conflict between the privacy interests of inmates and the employment opportunity interests of guards. However, one court in finding for female guards rejected the male inmates’ arguments that their privacy be respected, because the latter view was “based on stereotypical sexual characterization that a viewing of an inmate while nude or performing bodily functions, by a member of the opposite sex, is intrinsically more odious than the viewing by a member of one’s own sex.”121 The court claimed that this assumption cannot withstand scrutiny.

If this claim where applied consistently, it would apply as much to female inmates being viewed, strip searched and body cavity searched by male guards as it applies to naked male inmates being viewed and searched by female guards. Yet the courts do not make the claim that there is no difference between female inmates being viewed naked by male or by female guards. They always take the viewing by male guards to be worse. Thus, to say that cross-gender viewing is no more odious than same-gender viewing only when it is naked males who are being viewed is another manifestation of male bodily privacy being taken less seriously. It is also evidence for my earlier claim that the courts are engaged in rationalization of prejudice rather than in honest reasoning.

The fact that the courts are inconsistent on this matter tells us nothing about how the inconsistency should be fixed. There are at least two options. One could agree that being viewed naked by non-intimates of the opposite sex (without one’s permission) is no worse than being viewed by non-intimates of the same sex, and then apply this equally to males and females. Alternatively, one could claim that the cross-gender viewing is worse and then apply that equally to males and females. Which is correct?

Any viewing of a person in a state of undress without that person’s consent is an invasion of bodily privacy. This is true irrespective of whether the observer is the same or another sex. The severity of the invasion varies depending on a number of factors including the degree of undress, the duration of the exposure, the number of people who observe the exposure and the sensitivity of the exposed person to being exposed. With regard to the last-mentioned, the shyer somebody is about being exposed, the worse the exposure is. Most people are shyer about being naked in the presence of (non-intimates) of the opposite sex. Thus, at the very least, most people will experience cross-gender exposure as worse. That should certainly be something the courts — and the rest of us — consider. But how much weight is given to this should depend both on how reasonable it is to be shyer about being exposed to people of the opposite sex and on the extent to which even unreasonable preferences should be considered.

In general (but not without exception) it is reasonable to be shyer about being bodily exposed to people of the opposite sex. This is because bodily modesty is partly a function of how others will perceive one’s exposure, and of how one imagines that they will perceive it. If the viewer has a sexual interest, whether psychological or physiological,122 the invasion is greater than if the viewer has no such response. The chances that somebody of the opposite sex will have a sexual interest of some kind are much greater than the chances that somebody of the same sex will. Even where people of the opposite sex have an outwardly professional response to one’s exposure, one might wonder whether they have some sexual interest or arousal in addition. This is because the presence of a professional interest and demeanor is not incompatible with other interests. Thus, as a generalization, cross-gender exposure is worse.

It is a generalization because sexual interest is obviously not always heterosexual. In a significant minority of cases, the sexual interest is homosexual. In such cases, the severity of the exposure to somebody of the same sex is comparable to that of exposure to people of the opposite sex. It is interesting that even though we are today much more aware of the prevalence of homosexuality and of the fact that somebody’s being homosexual may not be visible to others, the implications of this are suppressed. For example, if bodily exposure to homosexuals of the same sex as oneself is comparable to exposure to heterosexuals of another sex, one should presumably want comparable protections of bodily privacy from exposure to each.123 Yet single-sex toilets and change rooms make no such accommodation, and most people do not seem to be perturbed by this. Instead, they seem to be in denial that some of those sharing these toilets and change rooms with them may be viewing them in the same way that a heterosexual member of the opposite sex would.124 It is not clear to what extent we should consider this irrational denial and to what extent we should ignore it.

Sexual interest might not be the only relevant factor making cross-gender exposure more troubling. I leave open the question whether exposure of body parts not possessed by the person viewing them justifies greater shyness.

We should conclude that exposure to somebody of the opposite sex is generally worse. Part of this is attributable to the fact that exposure to people of the opposite sex feels worse to most people. It is worse in that way, even if the perception is not as accurate as it could be. The sex of the viewer is, at least in part, taken as a proxy for his or her sexual orientation. The perception would be more accurate if it also took sexual orientation into account.125 But the use of a person’s sex is still a more accurate guide to the level of invasion than is a policy of ignoring the sex of the person viewing the nudity of others.

Having concluded that being viewed naked by people of the opposite sex is generally worse than being viewed by people of the same sex, we need to determine how this should be weighed against the interest of guards (and potential guards) in employment opportunities. More specifically, have the courts been justified in prioritizing the employment opportunities of female guards over the privacy interests of male prisoners, even though they have not prioritized the employment interests of male guards over the privacy interests of female inmates?

One important argument defending the apparent inconsistency is this. Most prisoners are male. If women were to be restricted to guarding female inmates only, they would have many fewer opportunities than would male guards. In other words, respecting the privacy interests of male prisoners impacts more on female guards than respecting the privacy interests of female prisoners impacts on male guards.

One way of challenging this argument would be to compare the proportion of female prisoners to the proportion of females who are or want to become prison guards. If females are equally under-represented in both categories, then female and male guards may have equal, even if different opportunities. If that were the case, the argument would not get off the starting blocks. However, let us assume for the sake of argument that the opportunities for female guards would be more limited than the opportunities for male guards if cross-gender supervision were prohibited or restricted. There are a few reasons why it would still be unclear that males and females may be treated differently.

First, while female guards would bear a greater cost in employment opportunities than would male guards if cross-gender supervision were prohibited or restricted, male prisoners bear a greater privacy cost than female prisoners if cross-gender supervision is permitted. In other words, each policy has a disproportionate impact on one or other sex. Some might suggest that the rights of guards should be prioritized over the rights of prisoners because the prisoners are being punished. If hardships are to be borne, they should be borne by those who are being punished.

But this brings us to additional problems with the asymmetrical treatment of male and female guards and prisoners. It does not explain why pre-trial male detainees have had their privacy interests sacrificed for the sake of the employment opportunities of female guards. Moreover, while convicted prisoners forgo some of their privacy rights in being convicted of an imprisonable offense, they still retain a truncated right. (The courts have recognized this, although they tend to protect a truncated right to privacy only if the inmates are female.126) Being viewed by a guard of the opposite sex is made no less intrusive just because that guard’s employment opportunities would be restricted if she were prevented from viewing the prisoner naked. If a prisoner has a right not to be viewed naked by a guard of the opposite sex, then the right to equal employment opportunity is simply moot. Nobody has a right to employment that violates the rights of others. Thus, the prior question is whether the prisoner has a right not to be viewed naked by guards of the opposite sex. If he does, then the guard does not have a right to a job that involves viewing him naked, even if that restricts her employment opportunities.

However, what if one rejected this reasoning and claimed that whether or not a prisoner has a right not to be seen naked by a female guard depends in part on her employment opportunities? First, one would need to realize that the same would have to be said of female prisoners if it turned out that the employment opportunities of male guards were negatively affected. I doubt very much that, faced with such a situation, the courts, given their current bias, really would sacrifice the bodily privacy of female inmates. It is easy for them or their defenders to say that they would rule differently, but we see nothing in their reasoning that would lead us to think that this is true.

For example, privacy interests of prisoners and employment opportunity interests of guards are not always in conflict. As we saw earlier, the courts have found ways to protect the privacy of female prisoners while not significantly compromising the employment opportunities of male guards. However, they have made no such efforts on behalf of male prisoners. The overwhelming evidence is that the privacy of male prisoners is taken less seriously and regarded as less important. Indeed, those who countenance the greater invasions of male privacy often say as much. They think their view can be justified, but I showed earlier that it cannot be.

If the tables were turned and males were protected from unwanted invasions of bodily privacy in the way that females now are, and females were as unprotected as males currently are, we can be sure that feminists would be denouncing this as another manifestation of sexism against females. They would be right to do so. But, given the way things actually are, we should conclude that the failure to have due regard for the bodily privacy of males is unfairly discriminatory.