A Theory on Gendered Effects of Insecurity, Or Why Men Tweet Their Penis Pix

@RHRealityCheck

Last Mother’s Day, news had just broken that then-Congressional Representative Anthony Weiner had tweeted a picture of his erect penis to a woman, thinking the tweet was private. The blogosphere immediately erupted in debates over the relative merits of women over men, the moral weight of adultery (Weiner is married), and the need for public officials to stop thinking they understand new media.

For me, however, a central question raised by the event was never fully addressed: what is it with men and photos of their erect penises?  

In the 12 months that have passed since the Weiner incident, I have received unsolicited penis pictures from several men I wasn’t dating, didn’t plan on dating, and in some cases didn’t even really know.

And I am not alone. Only just this week, a friend of mine received an erect-penis picture via text from a coworker who said he had intended it for his girlfriend but had thumbed in the wrong number.

In fact, a quick poll of those of my (male and female) friends who cared to answer the question shows that un-solicited penis pictures are not all that uncommon. Interestingly, the women I asked all said they had never sent photos of their genitalia to anyone. Absent more representative polling (and somehow I don’t think this question has ever made it into a survey), let’s just say for now that men are more likely to take and send photos of their genitalia than women.

The question is why? And... so what?

Here’s my theory.

Men and women are taught to deal with social situations differently. Men and boys are overwhelmingly taught to depend on themselves, to be direct, and to celebrate their physical strength. Women and girls, on the other hand, are taught the value of social coherence and politeness, and are often not encouraged to celebrate their bodies at all. Whether these are innate sex differences or acquired characteristics is an open question, but socially, for most people, and in varying degrees, the sciences agree that gender (i.e. learned norms), if not sex (i.e. biological distinctions), makes a difference.

This is the framework that makes a man more likely than a woman to think a photo of an erect penis is a good way to communicate something positive about a man’s body. And it is the same framework that makes a woman more likely than a man to worry if she is overweight or unattractive (which according to prevailing norms often is seen as synonymous).  

Like most internalized behavioural patterns, the difference is the starkest when the individual feels threatened.

In the context of an inter-personal relationship this means — to be slightly clichéd about it— that men are more likely to react to insecurity by reasserting their physical superiority (“You have never seen a bigger dick than mine!”) and women are more likely to react by begging for approval (“Does this dress make my ass look big?”). Both proclamations get old fast, not least because anyone who’s ever been on the receiving end of either knows there is only one appropriate answer, regardless the truth: “Of course not.”

But even if you transplant this dynamic to a professional or other public arena, these somewhat primitive reactions are problematic. Men are more likely to assert their superiority — despite and often because of any insecurity they might feel — whereas women are more likely to phrase statements as declarations of submission — despite being experts in their field and sometimes precisely because they are.

This very real gender difference is at least partially at fault when it comes to companies and society more generally valuing women’s work less than men’s: women, themselves, tend to play down their own value.

To be sure, there is no research on the relation between penis pictures, gendered social cues, and how it relates to job performance and pay rates. Moreover, I am certainly not trying to blame women for the discrimination they suffer. And I don’t believe any of these tendencies are universal, absolute, or inevitable.

However, there is more than enough science to support the existence of gendered reactions to threats and insecurity, and to point out the different ways in which boys and girls are taught to think about and enjoy their bodies, even today.

Perhaps more to the point, male (sexual) aggression — even when solicited, welcomed, and enjoyed — is part of a gendered framework that, if imposed in a general and mechanical manner, hurts us all. In fact, research shows that gendered norms make men much less likely than women to seek medical or other help for physical and mental health issues, with very real consequences for their health and happiness.

So, gals, next time you put on your favourite dress, ask yourself how you feel, not how someone else might think you look. And guys: if you find yourself about to snap a picture of your junk, ask yourself if that really is your best side, and if you wouldn’t rather be known for who you are.

Is Criminalization of HIV Transmission Effective? Swedish Case Reveals Why the Answer is No

@RHRealityCheck

Earlier this month, a 31-year-old woman in Sweden was sentenced to one and a half years in prison for having unprotected sex without disclosing to her partner beforehand that she is living with HIV.

Even a perfunctory news search reveals that this is not the first time the Swedish justice system has applied criminal sanctions to potential HIV-transmission. In January, a 20-year-old man was sentenced to eight months in prison for having unprotected sex without disclosing his status. In December 2006, a 34-year-old woman got two months, and in January 2003, a 32-year-old woman one year. All of these sentences also required the person living with HIV to pay monetary damages to their former sex-partners.

For anyone who cares about human rights from a health and discrimination angle, these cases raise multiple red flags.

For starters, consensual sex between consenting adults should, in principle, never be subject to government control or regulation. Moreover, the criminalization of HIV transmission has multiple negative outcomes. It leads to distrust in the health and justice systems; it can discourage people from seeking to know their HIV status; it adds to the stigmatization of those living with HIV; and it is ineffective in bringing down HIV transmission.

In fact, UNAIDS (the Joint UN Programme on HIV/AIDS) recommends that governments limit criminal sanctions for HIV transmission to cases where all of three conditions are met: the person charged 1) knows he or she is living with HIV; 2) acts with the intention of transmitting the virus; and 3) actually transmits it. UNAIDS also recommends that cases of such intentional HIV-transmission should be tried under generic criminal provisions for bodily harm or assault, and not under HIV-specific provisions.

Public health and human rights activists are clear on this. That is why the Swedish Embassy in France was defiled with paint-filled condoms in protest against the 2003 ruling. And that is also why my own reaction to the ruling was to declare it “bad” over twitter, a statement that was re-tweeted several times.

A closer read of the cases highlighted in the Swedish media, however, leads me to reconsider, at least in part. 

If the media-accounts are accurate, the Swedish government has, in fact, partially followed UNAIDS recommendations. The convicted individuals all knew their HIV status and the cases were brought under general criminal law provisions on grave assault, physical abuse, and attempt to cause physical harm. So far so good.

The two remaining questions — intent and actual transmission — are more difficult to gauge.

Consider this.  

In most of the cases, the convicted person either has multiple convictions over several years for the same thing, or the conviction is based on multiple unprotected sexual interactions with different partners without disclosure. It is perhaps valid for prosecutors to ask if, absent proof of intent which is hard to produce, the fact that an individual living with HIV repeatedly and knowingly exposes someone else to a deadly virus shouldn’t count for something.

Further, actual HIV transmission may not be the only harm caused. The 20-year-old convicted man was charged with having unprotected sex with eight women, none of whom ultimately ended up HIV-positive, though they all claimed to have suffered severe emotional trauma as a result of the experience. In cases of domestic violence we often ask prosecutors to consider emotional distress as real harm, so why require actual transmission in order to prove harm in this case?

Then again, consider this.

The 20-year-old man was born HIV-positive and is being charged as an adult also for those unprotected sexual encounters that occurred when he was a teenager. He was initially placed in solitary confinement, seemingly because of his HIV status.

Also, one of the convicted women alleged she had been raped.  The male partner produced evidence to the contrary and she later withdrew the allegation. Nevertheless, coercion and fear is highly relevant when it comes to decisions about how and when to disclose HIV status. Research indicates that many women in fact are reluctant to disclose their HIV status because they quite legitimately fear abuse.

And with regard to actual harm caused, it is at least possible that the ramped-up attention to the cases have contributed in some part to the severity of the emotional distress of the sex partners.

It is, of course, reckless to knowingly expose anyone to real danger, also through potential HIV-transmission, even if the danger ultimately does not materialize. This is a notion the UNAIDS recommendations to a large extent fail to acknowledge.

But the highly publicized use of the criminal law in Sweden to punish those living with HIV for being timid about their health status does not make it easier for anyone to disclose. So perhaps the real question with regard to any government’s approach to HIV transmission should not be whether it follows UNAIDS recommendations, but rather if it is effective.  An educated guess says, not so much.

Cameron Government Versus European Court of Human Rights: A Time to Not Act

@HuffPostUK

On 18-20 April, European leaders will come together in Brighton, United Kingdom, to decide the future of the European Court of Human Rights. The importance of this meeting - and the potential for damage - cannot be overstated. For over 50 years, the European Court on Human Rights has helped define state obligations and individuals rights in jurisprudence that is readily cited in national and regional courts worldwide.

Over the years, the Court has clarified that states cannot criminalise same-sex relations, must provide pre-emptive protection to prevent domestic violence from happening in the first place, and has to make access to legal abortion effective, including by providing services. That's in addition to the many cases dealing with the absolute prohibition of torture, equal access to justice, and compensation for discrimination and abuse.

Of course, the court has not been perfect. A key reason for this has been its unequal application of the so-called 'margin of appreciation', a legal concept that is meant to allow governments some room to determine how they plan to fulfil a specific human right within their territory, while not relinquishing the most basic concept behind human rights: that they are universal and apply equally to everyone.

The court has used this concept, among other things, to abdicate responsibility on sex education and broadening access to necessary health care. And while it is absolutely true that human rights are not implemented in a cultural and historical vacuum, it is also true that if the main adjudicator of what is right and what is wrong adopts a relativist and overly subjective approach to making that determination, the very idea that human dignity can be protected is at stake.

In Brighton this week, the UK and some other governments will actively seek to broaden the application of the 'margin of appreciation'. In fact, these governments are so hell-bent on hampering the European Court of Human Rights' ability to determine when they have violated the dignity and livelihood of those living in their territory that they hope to prevent cases from reaching the court in the first place, by giving "margin of appreciation" a meaning it never had.

So far, the court has deferred to governments through the 'margin of appreciation' only when a case has reached the level of substantive discussion, and not in its determination of whether an individual is allowed to bring a case or whether the subject matter is within the court's jurisdiction.

In other words, even where the court has given states wider wiggle-room to limit human rights than one might desire, the individual whose rights were at stake had her or his day in court.

In advance of the Brighton meeting, the UK government has circulated a proposal that would require the court to defer overly to national courts, even before it looks at a case at all. The proposal urges the court to refuse to hear most cases in which the national court has already applied the European Convention of Human Rights in its deliberations.

It is easy to imagine a situation where a national court is unaware of the proper application, status, and scope of legislation and precedents its judges have limited experience with. But more damningly, the proposal undermines the very objective of the European Court of Human Rights: as an additional forum of appeal for human rights issues that may not have been adequately considered at home.

If this proposal is adopted, the UK would have succeeded in limiting oversight of its own human rights practices (and there are any number of issues that merit review). The UK would, however, also have succeeded in significantly weakening an institution that helps--even if at times imperfectly--to uphold standards celebrated worldwide as necessary and just.

All eyes should be on Brighton this week to ensure that the European Court of Human Rights is allowed to do its job: hold governments to their promise to protect the human rights of all.

Deserving vs. Undeserving? Everyone "Deserves" Human Rights

@RHRealityCheck

Most of the issues highlighted during this year’s run-up to the US presidential election are framed in terms of separating the deserving from the undeserving. Abortion for rape victims, but not those who want to have sex. Immigration for the politically persecuted, but not those who move across borders because they need to find a job. Marriage benefits for those who have sex with the right people in the right way.

This debate misses the point in two key ways.

At the most basic level, the issues at hand are basic human rights and not dependent on who "deserves" what: we have a right to access to abortion, health care, work, and freedom and movement because we are humans, not because we deserve it.

But also as a political process, it is ineffectual to focus policy debates on whether or not specific people deserve the services and public goods they clearly need.

I was reminded of this the other day as I was boarding a plane and the flight attendant asked me about the meaning of my t-shirt which read: “Immigration is the sincerest form of flattery.”

"But does that mean you are for it or against it, though,” he asked. I was stumped for words.

Immigration is a reality, just like so many other issues people insist on declaring themselves “for” or “against.” Abortion, adolescent pregnancy, sex outside marriage, sex work, identifying as lesbian, gay, bisexual, transgender, or intersex… the list could go on.

None of these issues is fringe. One in three women in the United States will have an abortion by the age of 45. Every year, 750,000 girls between the age of 15 and 19 get pregnant in the United States. Ninety-five percent of all Americans have sex before they get married (or have sex and may never get married). While it is difficult to estimate the number of sex workers, the National Task Force on Prostitution estimates that over one million people in the United States have worked as sex workers. And a 2011 study shows that almost 9 million adults identify as lesbian, gay, bisexual,transgender, or intersex, i.e. about 4 percent of the US population. As for immigration, very few people in the United States do not trace their ancestry—even their recent ancestry—to immigration.

But more to the point, none of these issues will change through declaring them good or bad. The focus for a policy maker should be how to generate policies that most effectively guarantee the maximum level of welfare and human rights-enjoyment for everyone. And from that perspective, whether someone is “deserving” or not is irrelevant.

Abortion and adolescent pregnancy numbers depend on access to comprehensive sex education and contraception. Choices about sex work and immigration to a large extent depend on available work and whether individuals are able to provide for themselves and their families in any other way. And those who believe they can change someone’s sexual orientation or gender identity just by saying they “don’t believe in homosexuality” are more delusional than most. Even those who make a career out of not believing in homosexuality can’t change their own (completely legitimate) sexual orientation.

There is, of course, an enormous difference between the issues high-lighted here: some are medical procedures, some life experiences, some innate traits. However that may be public policy on health, sexuality, immigration, and employment should not be designed to punish us for being who we are or for doing what we feel we need to do, but rather make sure everyone is equally empowered to make the best choices for themselves.

Coleman v. Court of Appeals of Maryland: A Warning to Women

@RHRealityCheck

Last week the U.S. Supreme Court held that states cannot be sued for denying workers sick leave. An employee of the Maryland state courts, Daniel Coleman, had sued for monetary damages after he was fired for requesting time off to take care of his health.

States generally cannot be sued for damages, but one exception is in cases that involve unconstitutional treatment, including discrimination. While the case decided on Tuesday therefore was framed in terms of state sovereignty, the Court’s very understanding of discrimination was at stake.

The majority opinion handing down last Tuesday should be a warning to women: the Supreme Court most definitely does not have our backs.

Here’s how.

US federal law protects the right to sick and family leave (unpaid leave either to take care of yourself or of a family member such as a spouse, an elderly parent or a newborn child) through the Family and Medical Leave Act (FMLA).

In 2003, in the context of family leave-related discrimination against a state employee of Nevada, William Hibbs, the Supreme Court detailed the congressional intention behind the FMLA as predominantly a desire to overcome gender-based discrimination. Indeed, the 2003 ruling was very clear: “The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.”

At the time, the Court held that employees of the state of Nevada were entitled to seek monetary damages for infringements of the family leave part of the FMLA. The Court felt that absent such due process guarantee, government officials would somehow lose their constitutional right not to be discriminated against on the basis of sex. The final opinion was narrowly focused on the family leave provisions of the law because those were the provisions at stake in the case at hand, but prior to last week’s case, it seemed reasonable to apply the court’s conclusions in the 2003 case to the FMLA as a whole.

Last week’s ruling limits that precedent by concluding that the U.S. Congress didn’t have gender-based discrimination in mind when it enacted the sick leave protections of the FMLA.

The court’s analysis is based on technical considerations of what evidence Congress had before it when it enacted the FMLA—“Congress made no findings, and received no specific testimony” that women might face discrimination for taking more sick leave than men.

But the result is a decision that essentially says that sick leave—taking care of oneself—is fundamentally different from family leave—taking care of someone else—in that it does not depend on gender differences or stereotypes. This is an erroneous conclusion.

Had the Court argued that men and women take equal amounts of long-term sick leave—which is true—the majority opinion in last week’s Coleman case would at least only have been a selective reading of the facts, not a retrograde interpretation of discrimination laws. However, the Court argued that even though the denial of sick leave might have a disproportionate impact on women, denying anyone the protection of such leave still does not constitute discrimination. Such a conclusion flies in the face of international human rights law and even US legal definitions of disparate impact as discrimination.

It is ironic that this sentence was handed down the same week new research on health insurance was published, showing that women still pay more than men for the same health plan. Private insurers justify the price differential by reference to the fact that, all other things being equal, women need more medical care than men, notably due to our ability to bear children and recommended routine health visits related to our reproductive organs.

Of course, PAP smears and prenatal check-ups do not automatically translate into time off or sick leave, though as most of us know, they generally do. The Court majority opinion glosses over this fact by noting that most states have other protections that allow women time off to take care of their health. Again the Court majority inexplicably insists that the denial of a right that disproportionately affects women qua women is not discrimination, all the while reaffirming the fact that the differential impact is real.

None of the three female justices of the Supreme Court held with the majority. Justices Ginsberg, Kagan, and Sotomayor were joined by Justice Breyer to resoundingly disagree with the majority opinion in Tuesday’s ruling in the Coleman case. These four Justices rightly noted that “[i]t would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a stillborn baby."

Indeed, it makes no sense as a matter of effective policy or legitimate legal analysis.

It does, however, make the same warped sense as the many recent state initiatives to simultaneously curb access to contraception, abortion, and child benefits. The message last week’s majority opinion for the Supreme Court seems to send is that women matter only as incubators and care-givers and not as equal citizens in a modern democracy.