Sex, Culture, and Justice: The Limits of Choice (28 page)

1. Nussbaum,
   Sex and Social Justice,
   124.
   

   cal liberalism requires that individuals are equal in the political sphere: that men and women have equal citizenship rights. What is unclear in the writings of both Nussbaum and Rawls, however, is the extent to which equality in general and gender equality in particular must per- vade other spheres. On the one hand, it is sometimes argued that gen- der inequality in religions, cultures, and associations is acceptable so long as it is compatible with equal citizenship. Thus Rawls writes that the principles of justice ‘‘do not apply directly to the internal life of churches’’
   43
   and other associations (the examples he gives are universi- ties and the family) so that, for example, ecclesiastical positions do not have to be allocated democratically or according to the difference principle. He does not explicitly say whether church and other posi- tions must comply with equality of opportunity; Nussbaum concludes that they must not and that gender discrimination is permitted. Thus she argues that political liberalism asks religions ‘‘to accept the political equality of women as citizens,’’ but claims this position is entirely com- patible with allowing the Catholic Church to employ only men as priests, for example.
   44
   Since women are still able to vote, to leave the Church, and to enjoy other rights of citizenship, gender discrimination is permissible in the priesthood. If the role of equality in political liber- alism is limited in this way, then what is required to justify a ban on
   fgm
   is an argument to the effect that
   fgm
   prevents women from en- joying equal citizenship rights. Nussbaum provides no such argument; indeed, it would seem easier to argue in these terms against the male- only priesthood than against consensual
   fgm
   , for the former and not the latter has a direct bearing on women’s ability to participate in the religious structures that determine the course of their own lives and the interface between those structures and the state.
   

   On the other hand, Rawls is at pains to point out that political liber- alism does not abandon women to pervasive gender inequality in the family. He states categorically: ‘‘It may be thought that the principles of justice do not apply to the family and that therefore they cannot secure equal justice for women and their children. This is a misconcep- tion.’’
   45
   It is a misconception because the principles of justice place
   

2. Rawls,
   Justice as Fairness,
   164.
   

3. Nussbaum, ‘‘Plea for Difficulty,’’ 109.
   

4. Rawls,
   Justice as Fairness,
   163. See Nussbaum’s similar statement in
   Sex and Social Justice,
   10.
   

   significant constraints on associations even though their fundamental focus is political:
   

   When political liberalism distinguishes between political jus- tice that applies to the basic structure and other conceptions of justice that apply to the various associations within that struc- ture, it does not regard the political and the nonpolitical do- mains as two separate, disconnected spaces, as it were, each governed solely by its own distinct principles. Even if the basic structure alone is the primary subject of justice, principles of justice still put essential restrictions on the family and all other associations. The adult members of the family are equal citi- zens first: that is their basic position. No institution or associa- tion in which they are involved can violate their rights as citi- zens.
   46
   

   In other words, no association can perpetuate gender inequality if to do so would prevent gender equality in the political sense. Rawls’s ar- gument suggests that since the political and nonpolitical spheres are interconnected rather than disconnected, political liberalism might re- quire rather more extensive gender equality than could be secured by equal formal citizenship rights. Indeed, in a discussion that he seems to recognize is frustratingly brief, Rawls suggests that the goal of gen- der equality is so important that it might require state action
   over and above
   the principles of justice:
   

   Since property-owning democracy aims for full equality of women, it must include arrangements to achieve that. . . . If we say the gender system includes whatever social arrangements adversely affect the equal basic liberties and opportunities of women, as well as of those of their children as future citizens, then surely that system is subject to critique by the principles of justice. The question then becomes whether the fulfillment of these principles suffices to remedy the system’s faults. I
   

   shall not try to reflect further on the matter here.
   47
   

5. Rawls,
   Justice as Fairness,
   166. 47. Ibid., 167–68.
   

This excerpt suggests that it is appropriate for a politically liberal state to aim for the ‘‘full equality’’ of women, critiquing ‘‘whatever social arrangements’’ undermine that. If the role of equality within political liberalism is this extensive, then it certainly is open to political liberals to argue for a state ban of
fgm
. Such a ban, though, would involve the state making judgments of the value of different ways of life in terms of their accordance with gender equality, rather than leaving such judg- ments up to individuals. In other words, it would be to undermine individuals’ second-order autonomy to choose ways of life that might cast them as inferior. Second-order autonomy would give way to equality.

If we do move in this direction, we shall have to depart significantly from second-order autonomy in other areas in which Nussbaum wants to maintain the priority. The same reasoning, that we should intervene in practices which are linked to male domination, applies to the West- ern beauty norms, which, for the purpose of state action, Nussbaum exonerates. Many Western images of the ideal female body are unam- biguous in their portrayal of women as vehicles for male pleasure. Much pornography, including soft porn and the topless ‘‘Page 3’’ mod- els of British tabloid newspapers, emphasizes women’s availability and submission to men. Nussbaum herself makes this argument, in a sear- ing passage that is splendidly resonant of radical feminist revolt in its analysis but disappointingly resonant of political liberal indifference in its conclusion:

What
Playboy
repeatedly says to its reader is, Whoever this woman is and whatever she has achieved, for you she is cunt, all her pretensions vanish before your sexual power. For some she is a tennis player—but you, in your mind, can dominate her and turn her into cunt. For some, Brown students are Brown students. For you, dear reader, they are
Women of the Ivy League
(an issue prepared at regular intervals, and a topic of intense controversy on the campuses where models are sought). No matter who you are, these women will (in mastur- batory fantasy) moan with pleasure at your sexual power. This is the great appeal of
Playboy
in fact, for it satisfies the desires of men to feel themselves special and powerful. . . .

Playboy,
I conclude, is a bad influence on men. . . . I draw no legal implications from this judgment.
48

The connection between the images in publications such as
Playboy
and breast implants is evident in plastic surgeon Randolph Guthrie’s book aimed at encouraging and reassuring women who are consider- ing breast implants. Guthrie insists that most of his patients do not want to look like the ‘‘large breasted sex bombs’’ you might find in the pages of
Playboy.
Yet this is what Guthrie does when a woman who wants breast implants so as to look ‘‘normal’’ visits his surgery: ‘‘I ask the patient to go out and buy some Victoria’s Secret catalogs or
Playboy
magazines and find pictures that show breasts that look best to them and to bring them to the office. . . . I then take the magazine pictures that they have given me and tape them up around the walls of the operating room so that the surgical team understands the end result that we’re after.’’
49
This strategy is astonishing. Guthrie tells the reader that all good cosmetic surgeons should show prospective patients ‘‘be- fore’’ and ‘‘after’’ photos of previous operations. Those photographs, one might think, would make ideal source material—as well as depict- ing a range of actual, non-airbrushed breasts, they are also examples of what Guthrie can actually achieve with his scalpel. But it is not from those photographs that he asks women to select their ideal breasts. Instead, he asks them to look at photographs of underwear models or at pornography. Many women are uncomfortable with looking at pornography, and would find it embarrassing at best and humiliating at worst to be asked to share their favorite pornographic pictures, the pictures in which they imagine themselves, with an unfamiliar male authority figure. (In the United States, approximately 85 percent of plastic surgeons are men, and 90 percent of patients are women;
50
Guthrie gives an idea of the kind of man one might expect when visit- ing a cosmetic surgeon when he notes: ‘‘As likely as not, the plastic surgeon your doctor recommends is a golf partner.’’)
51
Add to this pic- ture of humiliation the fact that Guthrie’s patients feel that their bodies

1. Nussbaum,
   Sex and Social Justice
   , 235–36.
   

2. Guthrie,
   Truth about Breast Implants
   , 38–39.
   

3. Virginia Blum,
   Flesh Wounds,
   87.
   

4. Guthrie,
   Truth about Breast Implants
   , 33.
   

   are subnormal, and the fact that they have explicitly rejected the ideal of the ‘‘large-breasted sex bomb.’’ Finally, imagine the operating theater. Imagine being sedated to undergo a serious and painful procedure surrounded by
   Playboy
   pin-ups. From factory floor to hospital floor: it seems that feminists have made less progress in securing unoppressive space for women than we might have hoped.
   

   Should we not, then, combine Nussbaum’s critique of
   Playboy
   with her arguments about
   fgm
   and make illegal cosmetic surgery which women undergo so as to qualify for inclusion as a
   Playboy
   or Page 3 model, or so as to look like such models, or so as to attract men who have been aroused by such models? Remember, Nussbaum believes that objections 5 to 8 against
   fgm
   are sufficient for a ban. But all of these objections apply to breast implants.
   

   Breast implants are reversible to an extent (objection 5), but breasts which have had implants removed do not return to their original ap- pearance, as plastic surgeon Andrew Skanderowicz describes: ‘‘In my experience, breast implant removal is rare . . . if you’ve had your im- plants for a long time, you may find your breasts end up smaller and droopier then they were originally. This is because the implants will have stretched your skin and it’s normal for breast tissue to shrink as you get older.’’
   52
   John Byrne describes the appearance of one woman who had implants removed: ‘‘Where her breasts had been, there were now just slight ridges of folded, discolored skin—like deflated balloons that had held air for a long time. The wrinkled skin supported nothing. . . . Her nipples were inverted, caved into her chest because there was no longer any breast tissue left to support them. . . . She didn’t recognize the person in the mirror, the frightened and pitiful woman whose trembling body was forever disfigured.’’
   53
   Removing breast implants is much more difficult than inserting them. During implantation, a relatively small incision is needed since the implant can be folded during insertion. This cannot happen during explanta- tion, so there is more bleeding from the deeper and larger cuts.
   54
   As a result of these complications, many plastic surgeons are simply unwill- ing to perform operations to remove breast implants without replacing them with new ones, and surgeons who do perform explantations have been ostracized by colleagues.
   55
   

5. Andrew Skanderowicz’s answer to ‘‘How Are Breast Implants Removed?’’ 42.
   

6. John A. Byrne,
   Informed Consent
   , 3. 54. Ibid., 158.
   

1. Ibid., 150–56. In the United Kingdom in 2004, 9,731 women had their first cosmetic
   

   To avoid the disfigurement of removed breast implants, it is not enough simply to leave the implants alone. Implants must be main- tained by repeated surgery throughout the woman’s life. The British Department of Health advises that ‘‘breast implants do not come with a lifetime guarantee. They are likely to need replacing with consequent further surgery and expense. A young woman who has implants may expect to have further operations in her lifetime to maintain the bene- ficial effects of the implants.’’
   56
   

   The combination of the limited lifespan of implants, the disfigure- ment of breasts which have had implants removed, and the likelihood of complications (discussed later) puts many women into a distressing trap, as ‘‘Caroline,’’ a victim of failed implants, reports: ‘‘You can’t just stop in the middle of things and say: ‘I’m not going to do this any more.’ . . . You can’t go back. You can’t just say that after an implant has been taken out, ‘I’m not going to do this.’ Of course, you think about it, but it’s impossible because then there you’d be with one big breast and one small one. That would be a real life sentence. So you just have to keep going.’’
   57
   Breast implants, then, are neither truly re- versible nor a permanent, trouble-free ‘‘improvement.’’
   

   Breast implants also may cause lifelong health problems (objection 6). Opinion on the safety of breast implants is very mixed, and the history of their regulation is turbulent. Silicone implants were invented by the Dow Corning Corporation, and first marketed in 1963. Implants were used on women for decades before any regulation or adequate safety testing, as the following report by the U.S. Institute of Medicine details:
   

   Until 1976, when the ‘‘Medical Devices’’ law was passed, there was no federal regulation of implants. . . . In 1988, the FDA [Food and Drug Administration] categorized silicone breast implants as requiring stringent safety and effectiveness stan- dards and later required premarket approval applications from manufacturers. On April 10, 1991, the FDA issued a regulation requiring manufacturers of silicone-gel-filled implants to sub-
   

   

   breast implants and 961 women had replacement implants, but only 36 women had breast implants explanted (i.e., removed and not replaced with new ones) (UK Breast Implant Regis- try,
   Annual Report 2004
   ).
   

2. United Kingdom, Department of Health advisory leaflet,
   Breast Implants.
   

3. Davis,
   Reshaping the Female Body
   , 147.
   

   mit information on their safety and effectiveness in order for the devices to continue to be marketed. In 1992, the FDA banned most uses of silicone-filled implants because the man- ufacturers had not proved their safety. In 1993, the agency no- tified saline implant manufacturers that they, too, must submit safety and effectiveness data, although these implants were al- lowed to stay on the market. . . . [S]ilicone breast implants were widely used before there was any requirement for the safety and effectiveness of medical devices.
   58
   

   Dow Corning did perform a limited study of implants in dogs. How- ever, its implants were used on women before the results of the survey were known. Even once the study was finished it was far from com- plete, as Silas Braley, in charge of promoting implants for Dow Corn- ing at the time, describes: ‘‘There were no tests for implant materials either on the material or on the patient, or on the animal. All we could do was put it in and look and see what happens. There were no stan- dards. There were no protocols. There was nothing.’’
   59
   In the United Kingdom, only silicone gel and saline-filled implants are permitted, and in September 2003 the Department of Health reclassified breast implants to ‘‘the highest risk category for medical devices.’’
   60
   

   Although silicone implants are now used in both the United King- dom and the United States, many women claim to have suffered seri- ous illness as a result of their implants. Perhaps the most remarkable example of such a story is that of Colleen Swanson. She had her sili- cone implants removed in 1991, after seventeen years, and it is her appearance after removal that Byrne describes above. The reason that Swanson had her implants removed was not unusual. Like the 410,000 women awarded a $4.23 billion global settlement against silicone im- plant manufacturer Dow Corning Corporation, she suffered a range of symptoms, including migraines, numbness of the limbs, a frozen shoulder, joint pains, loss of appetite, diminished sex drive, body rashes, and chronic fatigue.
   61
   What is unusual about Swanson’s case is
   

4. Grigg et al.,
   Information for Women,
   4.
   

5. Byrne,
   Informed Consent
   , 49.
   

6. United Kingdom, Department of Health, ‘‘Health Minister Lord Warner Welcomes New Safety Measures for Breast Implants.’’
   

7. Byrne,
   Informed Consent
   , 234, 156.
   

   that her husband, John Swanson, was a loyal lifelong employee of Dow Corning, the company which provided her implants. Still more re- markably, he was the only permanent member of Dow Corning’s Busi- ness Conduct Committee, responsible for the company’s ethical and social responsibility policies, and so he was in charge of ensuring that the company behaved responsibly. It is understandable, then, that for years the couple had absolute faith in the company. Only their growing realization, based on Colleen’s debilitating illness, that the company had not properly tested the implants and was failing to ensure the safety of the thousands of women who had them finally shook that faith and led John to resign.
   

   While there is controversy about the role of breast implants in the conditions that women such as Colleen Swanson report, there is no doubt that breast implants have side effects. In 1997 the U.S. House of Representatives commissioned the Institute of Medicine (
   iom
   ) to undertake an extensive study of the safety of breast implants, surveying medical research, industry reports, and public testimonials. The study was published in 2000. It found that local complications—those that occur in the breast itself—are the ‘‘primary safety issue’’ with implants. Such complications, they report, ‘‘can cause discomfort and, in some cases, considerable risk. . . . [They] occur often and may themselves prompt additional medical procedures, including operations. . . . [A]l- though breast surgery has a low risk of death, many complications can occur when implants are removed, revised, or replaced.’’
   62
   

   Perhaps the most serious and common local complication is capsu- lar contracture. Contracture occurs when the body forms a thick layer of scar tissue around the implant. This tissue then hardens and con- tracts, like a fist closing around a tennis ball, as the body attempts to isolate and remove the foreign body. The British Department of Health (
   dh
   ) informs women considering implants that 10 percent of women suffer from contracture, ‘‘causing the implant to deform, become hard and, in some cases, painful.’’
   63
   The
   iom
   ’s description of ‘‘severe’’ con- tracture, in a document aimed at women considering implants, is that ‘‘the breast is firm, hard, tender, painful, and cold. Distortion is marked.’’ The
   iom
   finds that this ‘‘severe’’ form of capsular contracture
   

8. Grigg et al.,
   Information for Women,
   10–11.
   

9. United Kingdom, Department of Health, ‘‘Breast Implants.’’
   

   affects not 10 percent of women but
   100 percent
   of those who have silicone implants for twenty-five years, and that complications ‘‘can be serious.’’
   64
   

   Contracture is not the only predictable side effect. Up to one in twenty women suffer scars that are ‘‘red, or highly-coloured, thick, painful and . . . take several years before they improve.’’
   65
   All women are likely to have painful nipples for three to six months following surgery, according to the
   dh
   . The
   iom
   reports that ‘‘a majority of women do experience pain after implant surgery, and this pain may be long-lasting.’’
   66
   Ironically, although pain and immobility of the arm are more than twice as common when the implant is placed under rather than over the chest wall muscles, the majority of implants are now submuscular so as to lessen the chances of severe contracture.
   67
   

   Implants may also rupture, cause ‘‘creasing, kinking, vertical ripple folds and rippling in the breast,’’ look or feel ‘‘unsatisfactory,’’ and bleed or become infected.
   68
   According to the
   iom
   , rupture may be caused by anything from a car accident or biopsy to a ‘‘tight hug’’ or, ironically again, by medical procedures to break up contracture (essen- tially involving a surgeon squeezing the already painful breast ex- tremely hard so as to break the scar tissue and, sometimes, the implant itself ). Rates of rupture, the
   iom
   reports, are unknown: studies report anything between 0.3 percent and 77 percent of implanted women. Saline implants can also deflate: the
   iom
   found that between 1 and 3 percent would do so in the first year of implantation, and that ‘‘this percentage would rise steadily with time.’’
   69
   

   All implants ‘‘interfere with the ability of x-rays to detect the early signs of breast cancer, either by blocking x-rays or by compressing the remaining breast tissue and impairing the ability to view any changes which may indicate breast cancer.’’
   70
   Breast implants may remove the capability for certain forms of sexual pleasure (objection 7): one in seven women suffers ‘‘permanent loss of nipple sensation.’’
   71
   

10. Grigg et al.,
    Information for Women,
    15.
    

11. United Kingdom, Department of Health, ‘‘Breast Implants.’’
    

12. Grigg et al.,
    Information for Women,
    19.
    

13. Ibid., 19, 8. See also Guthrie,
    Truth about Breast Implants
    , 11.
    

14. United Kingdom, Department of Health, ‘‘Breast Implants.’’
    

15. Grigg et al.,
    Information for Women
    , 14.
    

16. United Kingdom, Department of Health, ‘‘Breast Implants’’; see also Grigg et al.,
    Infor- mation for Women.
    

17. United Kingdom, Department of Health, ‘‘Breast Implants.’’
    

    Overall, when reading the literature on breast implants, one gets the distinct impression that they simply do not work very well. This conclusion becomes unsurprising once one reflects on the difficulty of getting the body to accept even useful foreign objects such as trans- planted organs, and on the galling lack of safety tests performed before their introduction. Real women have been the guinea pigs, and the results have not been promising.
    

    Breast implants, then, are guilty of all the objections that Nussbaum makes to
    fgm
    on consenting adults. We have just seen the evidence for objections 5 to 7, and Nussbaum herself argues that the images which breast implants attempt to replicate are unambiguously linked to gender hierarchy (objection 8).
    72
    Surely, then, if we were to follow Nussbaum’s recommendation to ban
    fgm
    even when performed on consenting adult women in sterile, clinical conditions, we should also ban cosmetic surgery of the type described. Surely, a political liberal who prioritizes second-order autonomy would not be able to ban either. Nussbaum hints at the key to the issue under objection 1 to
    fgm
    .
    

    She argues that
    fgm
    is distinct in being directly forced, but recognizes that the issue is not clear-cut for Western beauty norms: ‘‘The choices involved in dieting are often not fully autonomous: They may be the product of misinformation and strong social forces that put pressure on women to make choice[s], sometimes dangerous ones, that they would not make otherwise. We should criticize these pressures and the absence of full autonomy created by them. And yet the distinction between social pressure and physical force should also remain salient, both morally and legally.’’
    73
    Here Nussbaum has reached the heart of the matter. We would still be worried about an adult woman who con- sented to undergo
    fgm
    under conditions of relative safety because we would be worried about the context that had led her to want such a thing. We would ask ourselves what pressures she had faced in coming to her decision, what she believed about the world in order to conclude
    

18. Other feminists agree. Sheila Jeffreys criticizes harmful Western practices such as cosmetic surgery, arguing that such practices are advocated for and practiced by ‘‘those groups who occupy a despised social status, such as women’’ (‘‘‘Body Art’ and Social Status,’’ 410). Alkeline Van Lenning criticizes Jeffreys’s account, but agrees that ‘‘some examples of body modifications, like almost all cosmetic surgical procedures, are intended to bring the body closer to the dominating beauty ideal’’ and that, moreover, this beauty ideal ‘‘is embed- ded in a system of male-dominated values and practices’’ (‘‘The System Made Me Do It?’’ 551, 547).