Gendered law: A discourse analysis of labor legislation, 1890-1930

This dissertation studies the discourse of legal scholars and reformers, exploring the ways in which their assumptions about gender shaped their arguments in relation to shorter hours and minimum wage laws. Examining seemingly abstract terms such as freedom contract and citizenship, this work shows how laissez-faire legal scholars employed a discourse embedded with gender assumptions, linking manhood, work, and citizenship to ideals of individualism and competition, to argue against legislation for men. Yet logical inconsistencies arose when they tried to use these concepts, especially citizenship, to deny women protective legislation. In contrast, paternalist legal scholars concentrated on the needs of the public welfare, asserting that legislation would enable men to become better fathers, husbands, and citizens. Reformers and progressive legal scholars united to gain labor legislation for women in particular. Employing a discourse of maternalism, they argued that shorter hours and good wages preserved women for motherhood and protected their morality, thus benefiting the nation. Although this strategy worked well for hours laws, it foundered in arguments for wage legislation, especially as labor studies reported that some women supported entire families on their meager wages. The idea of the female breadwinner did not fit well with the primary identification of wage earning women as daughters and mothers. Reformers\u27 language of motherhood also fell apart as a rationale for securing legislation when women gained the vote. Some feminists began to challenge sex-specific legislation on the grounds that it kept women from attaining full equality with men, fomenting a division among feminists and reformers that remains with us today: the equality-versus-difference-debate. Although most activists could not reconcile this debate and ended up either supporting equality or difference, social researcher and reformer Mary Van Kleeck, an avid supporter of labor legislation, moved beyond the biologism of difference and instead focused on the commonalities that workers shared, especially in their opposition to employers. Rather than divide male and female workers, and design special legislation for each, Van Kleeck moved toward a non-gendered view of women in the workforce and focused on the idea that all workers had a right to labor legislation in exchange for their productive relation to the state