Catharine A. MacKinnon

American legal and feminist theorist

• Born: October 7, 1946
• Place of Birth: Minneapolis, Minnesota

A pioneer in the development of feminist legal theory, MacKinnon formulated the argument that sexual harassment was a form of sex discrimination now part of American law. She also worked against pornography by arguing that what is depicted in visual pornography as rape, coercion, and torture, actually occurs as rape, coercion, and torture in the making of the pornography.

Early Life

Catharine A. MacKinnon was born in Minneapolis, Minnesota, to George E. and Elizabeth V. (Davis) MacKinnon. George was a leading figure in Minnesota politics during Catharine’s childhood, serving as an adviser to the Dwight D. Eisenhower and Richard M. Nixon presidential campaigns, a U.S. congressperson from Minnesota, and a Republican nominee for governor. He also was appointed by President Nixon to serve on the US Court of Appeals for the District of Columbia.

MacKinnon was the valedictorian of her high school class. She attended Smith College, as had her mother and grandmother, and graduated magna cum laude in 1969 with a bachelor of arts degree in government. She went on to study at Yale University, where she did graduate work in political science before being accepted at Yale Law School. She received her law degree in 1977 with the help of a National Science Foundation Fellowship, and was awarded a Ph.D. in political science from Yale in 1987. While at Yale, MacKinnon created the first course in the university’s women’s studies program, and was active in radical politics, working with the Black Panthers, and in the campaign against the Vietnam War.

While still a law student, she conceived her now-famous argument that sexual harassment is a form of sex discrimination. Her book Sexual Harassment of Working Women (1979) is considered the definitive work on the subject. MacKinnon grew interested in the issue after learning that an administrative assistant at Cornell University, to avoid a supervisor’s sexual harassment, resigned when she was refused a transfer; she subsequently was unable to collect unemployment benefits because it was judged that she left her job for personal reasons.

While feminist legal theory has become a firmly established part of the curriculum at most American law schools, such was not the case when MacKinnon first began developing the legal theory. The basic premise of feminist legal theory, as advanced by MacKinnon and others, is that the law, as a social institution in a male-dominated (patriarchal) society, reflects the viewpoints, and represents the interests, of men rather than women. According to MacKinnon and other feminist legal scholars, laws against rape are based on men’s conceptions of what constitutes consensual sex, obscenity laws reflect men’s conceptions of offensiveness, and so forth.

During the 1980s, MacKinnon was a guest lecturer at a number of leading universities, including Chicago, Harvard, Stanford, and Yale. Despite widespread acknowledgment of the significance of her work, however, MacKinnon was not offered a full-time professorship until 1990, when she became a tenured professor at the University of Michigan Law School.

Life’s Work

In Sexual Harassment of Working Women, MacKinnon presents her analysis of sexual harassment, an analysis that was taken up by a US court of appeals in Barnes v. Costle (1977), and thus provided the theoretical basis for rulings that sexual harassment is an offense that transgresses the law. MacKinnon’s basic idea was simple: Sexual harassment is a kind of behavior to which a person is subject because of her (or his) gender, and therefore it is a form of discrimination under Title VII of the Civil Rights Act of 1964, which forbids differential treatment in the workplace based on one's race, sex (gender), religion, or other classification.

Barnes was a landmark decision: For the first time, a high-level court went on record opposing the popular notion that harassment is an inevitable fact of life, and that for the law to try to protect against such treatment is equivalent to tampering with the laws of nature. A typical feature of pre-Barnes cases, as documented by MacKinnon, was the courts’ insistence that what plaintiffs had argued was abusive treatment was merely a normal expression of male sexuality (“boys will be boys,” in effect), where “normal” is assumed to mean something like “natural.” Another typical feature of such cases was the courts’ assumption that harassing behavior was a feature of the unique dynamics of the relationship between two individuals, rather than as a pattern that was made possible by the fact that the harasser is in a position of power vis-à-vis the harassed and so should be seen as an expression of that power.

Thus, MacKinnon’s argument, basically endorsed by Barnes, involved two steps: recognizing that certain typical expressions of male sexuality may be abusive despite their being typical, and recognizing the workplace as an environment in which men will tend to harass women because they have the power to do so.

Although the Barnes ruling was significant, feminists such as MacKinnon considered its definition of what constituted harassment—basically, “sleep with me or you’re fired” or variations of this sort of quid pro quo—was too narrow. Then, in 1986, the US Supreme Court unanimously decided, in Meritor Savings Bank v. Vinson, that harassment as a legal offense is committed whenever unwanted sexual remarks or behaviors create a “hostile environment” for workers. MacKinnon was part of the plaintiff’s legal team in this case. She wrote Vinson’s brief to the Court, helped her attorney prepare for oral argument, and appeared as co-counsel before the Court. What was at issue was whether Title VII covered only tangible losses such as if an employee were fired for not sleeping with the boss, or whether psychological damage was also covered. Vinson’s employer conceded that her supervisor harassed her by fondling her, for example, but that such behavior was not illegal. MacKinnon’s argument was again quite simple: Does the court require that a person “bring intensified injury upon herself” quit or be fired “in order to demonstrate that she is injured at all?” The Court responded unanimously: No.

In Harris v. Forklift Systems (1993), the Supreme Court took a further step along the course charted by Vinson, when it decided unanimously that the criteria for deciding whether a hostile environment exists should depend on the quality of the environment specifically, on whether it could be reasonably perceived as hostile or abusive and not on the psychological or other effects it has on its victims. Otherwise, a harassed individual who did not break down under the pressure of harassment would, in effect, be punished for having summoned the emotional resources to survive the experience. This argument is basically the same as the “intensified injury” argument MacKinnon made in the Vinson case.

Starting in the early 1980s, MacKinnon was involved in a campaign against another expression of male-dominant sexuality perceived by many as harmful to women: pornography. In her work on the subject, she noted that in the video age the harm done is direct and immediate: What is depicted in visual pornography as rape, coercion, and torture actually occurs as rape, coercion, and torture in the making of the pornography. MacKinnon implied that there are at least two reasons why most people fail to recognize this obvious fact about pornography (and why, as a result, her views on the subject were considered outrageous by many commentators). First, pornography depicts women as enjoying what is done to them. Second, even if they are not enjoying themselves, it is assumed that these women are participating voluntarily. To take the second assumption first: MacKinnon argued that women are in most cases coerced into making pornography by their boyfriends or pimps or drug suppliers (who may, of course, be the same person). Once this coercion becomes apparent, the first defense of pornography falls by the wayside: If one can be forced to make pornography, one can be forced to appear to enjoy it. Furthermore, MacKinnon argued that pornography is an indirect cause of tangible harms to women in the sense that abusers and rapists are often inspired to abuse and rape by the scenes of abuse and rape they have seen, and been turned on by, in pornography.

In the mid-1980s, MacKinnon and feminist writer and activist Andrea Dworkin embarked on a campaign to make it possible for victims of pornography to sue their victimizers. In the fall of 1983, MacKinnon and Dworkin framed a civil anti-pornography ordinance for the city of Minneapolis, Minnesota; it was passed by the city council, but was vetoed by the mayor before being passed and vetoed again. In 1984, a similar law was passed by the city of Indianapolis in Indiana, and was signed by the mayor, William Hudnut. This ordinance was struck down by a district court shortly thereafter, and the district court’s decision was upheld by a federal court of appeals in 1986. It agreed with the lower court that the ordinance violated the First Amendment guarantee of free speech even while conceding, for the most part, pornography's harmfulness to women. In 1992, the Canadian supreme court accepted an equality approach in deciding an anti-pornography suit, influenced by MacKinnon and Dworkin’s principles. When in 1994, the two were accused of encouraging the censorship of books about gay and lesbian sex, they had to issue a vigorous denial in a press release. The issue of censorship continued to plague their approach, however.

Despite these legal setbacks, MacKinnon continued to campaign tirelessly against the pornography industry, and over the years, she further refined her argument against pornography. In her 1993 book, Only Words, she continues to treat pornography, like harassment, as sex discrimination, and points out the tension between the First Amendment guarantee of free speech, which has so far protected the pornography industry, and the Fourteenth Amendment guarantee of equal protection of the laws, which MacKinnon believed ought to apply to victims of pornography. In this book, however, she adds a new argument, which would, if accepted, resolve this tension, at least in the case of pornography: While the defenders of pornography assume that pornography is “merely speech,” the reality of pornography is what it does. She explained to a reporter for England’s Guardian newspaper in 2006,

Pornography affects people’s belief in the rape myths. For example, if a woman says “I didn’t consent” and people have been viewing pornography, they believe the rape myths and believe the woman did consent no matter what she said. That when she said no, she meant yes.

For MacKinnon, pornography desensitizes people and promotes violence.

MacKinnon’s anti-pornography arguments led to frequent attacks against her and her position in the press; reviews of Only Words in major publications ranged from the politely dismissive to the crude and badgering. The review that appeared in The Nation was so abusive that it elicited a written protest from MacKinnon’s publisher. She was ridiculed by Katie Roiphe in her book The Morning After: Sex, Fear, and Feminism on Campus (1993) as an “anti-porn queen.” Many feminists opposed MacKinnon’s “obsession” with pornography, which they claimed diverted attention from more significant issues of economic and political equality (though MacKinnon believed these issues were all related), and depicted women as helpless victims in need of protection by the state (as if demanding equality does not normally involve seeking protection from the state, as in the case of civil rights legislation).

Since 1993, MacKinnon had been involved in publicizing the sexual atrocities perpetrated by the Bosnian Serbs as part of their ethnic cleansing campaign. She also provided legal assistance for the victims of these atrocities. As co-counsel in Kadic v. Karadzic, the first case to recognize rape, forced prostitution, and forced impregnation as acts of genocide, she helped secure a $745 million settlement against the plaintiff, Bosnian-Serb leader Radovan Karadžíc. In addition, she has advised on laws affecting women in Mexico, Japan, Israel, and India, and she was co-director of the Lawyers Alliance for Women (sponsored by Equality Now), an international nongovernmental organization.

MacKinnon’s books include Feminism Unmodified (1987), Toward a Feminist Theory of the State (1989), In Harm’s Way: The Pornography Civil Rights Hearings (1997, edited with Dworkin), Sex Equality (2001), Women’s Lives, Men’s Laws (2005), Are Women Human? And Other International Dialogues (2006), and Women's Lives in Men's Courts: Briefs for Change (2007). In Are Women Human?, MacKinnon argues that in most cultures women still are treated as things and as property, and that rape laws, written from a male point of view, continue primarily to protect men. Few legal systems recognize rape as a suppression of equality and as a violation of human rights. Many countries that have formal gender equality laws are simply practicing a “smart trick” to remain inequitable. She has worked to expose instances of such injustice, and has cited, for example, the case of women from foreign countries smuggled into the United States for work in brothels. MacKinnon continued to publish books and articles in the 2010s and 2020s, including Butterfly Politics: Changing the Law to Advance Gender Equality (2017) and Gender in Constitutional Law (2018), a three-volume collection of scholarship that she edited. In 2019 she released Butterfly Politics: Changing the World for Women, With a New Preface.

MacKinnon also maintained that the killing of women by men is a form of terrorism, although it is unrecognized as such. The international picture for women and their rights remains grim, but there has been some progress. MacKinnon praised Sweden, for example, in its redefinition of prostitution in 1999, as male violence against women, and for making the buying of sex a crime (but not the selling of it).

MacKinnon became the Elizabeth A. Long Professor of Law at the University of Michigan. She also taught at the Osgoode Hall Law School in Toronto, Canada; the University of Basil in Switzerland; Columbia University; and Princeton University’s Institute for Advanced Study. She was the James Barr Ames Visiting Professor of Law at Harvard University for 2023 to 2024. She also became a popular speaker on college campuses and at academic conferences, and she was widely regarded as a charismatic teacher who profoundly influenced an entire generation of law students, not to mention influencing the law itself.

From 2008 to 2012, MacKinnon worked as the first Special Gender Advisor to the Prosecutor of the International Criminal Court in The Hague. She often worked with NGOs like Equality Now and the Coalition Against Trafficking in Women.

In 2022, the American Philosophical Society awarded MacKinnon the Henry M. Phillips Prize in Jurisprudence.

Significance

MacKinnon profoundly changed American culture and legal theory with her work in defining sexual harassment as illegal harm and in developing pornography laws that recognize pornography as a harmful act and not merely protected speech. That the law began to recognize certain expressions of sexuality (especially male heterosexuality) as violating women’s dignity and women’s rights was considered a development as astonishing as court decisions striking down segregation laws during the mid-twentieth century.

Bibliography

Antoniou, Laura. "Defending Pornography." Gay & Lesbian Review Worldwide 19.6 (2012): 23–24. Print.

Cornell, Drucilla. Transformations: Recollective Imagination and Sexual Difference. New York: Routledge, 1993. Print. A respectful yet critical assessment of MacKinnon’s analysis of sex inequality. Situates MacKinnon’s views within the context of contemporary feminist theory.

Echols, Alice. “The Dworkinization of Catharine MacKinnon.” Shaky Ground: The Sixties and Its Aftershocks. New York: Columbia UP, 2002. Print. In a book that assails common assumptions about the 1960s, Echols gives a sometimes waspish critique of MacKinnon’s development as a feminist. She especially deplores MacKinnon’s “gloomy depiction of women” and suggests that her rhetoric has become strident and less effective. At the same time, she acknowledges MacKinnon’s import to women’s legal rights.

Fineman, Martha A., and Nancy S. Thomadsen, eds. At the Boundaries of Law. New York: Routledge, 1991. Print. This collection of essays in feminist legal theory includes detailed analysis of MacKinnon’s work.

Lacayo, Richard. “Assault by Paragraph.” Time, January 17, 1994. Print. Provides an account of MacKinnon’s war of words with book critic Carlin Romano, whose review of Only Words opened with a provocative statement about rape that offended MacKinnon deeply. Although brief, this article does provide insight into MacKinnon’s thesis concerning the representation of an assault as inciting real acts of discrimination and rape.

MacKinnon, Catharine A. Are Women Human? And Other International Dialogues. Cambridge: Harvard UP, 2006. Print. MacKinnon ponders the transnational status and treatment of women, concentrating on areas where their oppression is most marked and neglected by international law and arguing how the law can be changed to protect women’s human rights.

MacKinnon, Catharine A. "Dominant Power Does Not Control Everything." Interview by Emily Newburger. Harvard Law Today, 8 Sept. 2022, hls.harvard.edu/today/dominant-power-does-not-control-everything/. Accessed 17 June 2024.

MacKinnon, Catharine A. "Substantive Equality: A Perspective." Minnesota Law Review 96.1 (2011): 1–27. Print.

MacKinnon, Catharine A. Women’s Lives, Men’s Laws. Cambridge: Harvard UP, 2005. Print. A collection of works written by MacKinnon between 1980 and 2005. Based on clients’ cases, they address such matters as sexual abuse and harassment as a matter of inequality, the redefinition of rape based on the experiences of women, and the harmfulness of pornography.

Rhode, Deborah L. Justice and Gender: Sex Discrimination and the Law. Cambridge: Harvard UP, 1989. Print. A prominent law professor at Stanford University, Rhode surveys a wide range of issues bearing on women and the law. Includes pertinent discussion of MacKinnon’s views on harassment and pornography.

Schussler, Aura. "The Relation Between Feminism and Pornography." Scientific Journal of Humanistic Studies 4.6 (2012): 66–71. Print.

Stoltenberg, John. Refusing to Be a Man: Essays on Sex and Justice. 1989. Rev. ed. New York: UCL P, 2000. Print. Stoltenberg, a leading anti-pornography and feminist activist, presents a detailed discussion of the Minneapolis civil rights ordinance drafted by MacKinnon and Andrea Dworkin. Discusses how the ordinance came to be written, how its provisions were expected to be implemented, and why the issues raised by this ordinance remain central to the struggle for gender equality.

Sunstein, Cass R. Democracy and the Problem of Free Speech. New York: Free, 1993. Print. A professor at the University of Chicago, Sunstein is a widely respected expert on constitutional law. Because it contains a detailed argument that is in close accord with MacKinnon’s position on pornography, Sunstein’s work provides a noteworthy signal of the gradual mainstream acceptance of MacKinnon’s views.

Williams, Melissa S., and Stephen Macedo, eds. Political Exclusion and Domination. New York: New York UP, 2004. Print. Collection of papers presented at the annual meeting of the American Society for Political and Legal Philosophy in 2001. Includes MacKinnon’s paper “Genocide’s Sexuality.”