Photo credit: The Guardian

On June 10, 2016, a little-heralded court ruling challenged one of the most powerful, pervasive, enduring and taken-for-granted practices in western culture. On that day, an Oregon judge granted Jamie Shupe’s petition to identify as neither male nor female, but rather as gender non-binary. According to Shupe, “After a historic court ruling, I am free. … My court victory has broken a gender binary that many said could not be dismantled. … As a transgender person who was forced to live as a male for nearly 50 years, and who then electively lived as a female for the following three years to alleviate my gender dysphoria, I have discovered that I am healthiest and best served by not being forcibly classified as either male or female against my will. … I am not ashamed of who I am. I was not born into the wrong body. My genitals are not a birth defect. And I am not to be sterilized by psychiatry and a medical establishment that has run amok.”

The Oregon ruling goes far beyond the more hoopla-generating ordinances (dis)allowing transgender people the right to use public bathrooms matching their gender identity. It even goes beyond the June 2016 ruling requiring California prison officials to allow transgender inmates access to “female-oriented commissary items” such as scarves and necklaces, and making California the first state to pay for an inmate’s sex reassignment surgery.

The decision to legally recognize Jamie Shupe’s “non-binary” gender status knocks out the foundation upon which the entire structure of gender inequality rests.

From the Mouths of Babes, and Their Teachers

Two decades ago, together with my family, I spent a year conducting ethnographic fieldwork in an island village in Okinawa (more on that below.) As an anthropologist who studies women’s lives, I initially was drawn to Okinawa because it is the only place in the contemporary world where women are the official leaders of the mainstream religion. Not a sect, cult, order or heresy, the women-led religion has been an integral and respected part of Okinawan life for centuries.

Priestesses in full garb ritually holding cups of sake

Priestesses in full garb holding ritual cups of sake.

My interest in Okinawa deepened when I learned that Okinawans are among the healthiest and longest-living people in the world, with Okinawan women enjoying a particularly long life-expectancy. (You can read more in my book Women of the Sacred Groves: Divine Priestesses of Okinawa.)

A month or so after we returned home from Okinawa, our four year old daughter announced that she is “dumb.” Baffled (to my maternal eyes she is perfect) I assumed that one of the mean kids in her nursery school must have called her a bad name. But no, she explained, it wasn’t a kid. She herself realized she was dumb because “I don’t know opposites.” The other kids in her nursery school, she told us, knew the correct responses to the “opposites’ song” but she hadn’t learned opposites in her Okinawan nursery school.

What is this “opposites’ song”? we asked her.

b5332870e225bf5ad5fbccd81150fdffShe chanted a few examples of a simple rhythmic call and response: The teacher calls out “up” and the kids sing back “down.” The teacher’s “night” is to be answered with “day” and “black” with “white.” The teacher calls out “mommy” and the kids are supposed to sing back “daddy.” The correct response to “boy”? “Girl.” All the kids know the “opposites’ song,” she told us, and they like to show off the correct responses.

Hold on here, I thought to myself. How are boys and girls opposites? As a mother of three boys and one girl I can vouch for the fact that all my kids have eyes (and tears), ears (and ear infections), mouths that laugh and scream, tushies that produce poop, and belly buttons where their little bodies formerly were attached to the umbilical cord. In fact, the differences between the boys and girl were far less obvious or significant than the differences between the oldest gregarious and energetic boy and the second shy and quiet boy.

Nor are mother and father are opposites. We had just spent a year in which my husband was the primary caregiver and homemaker while I was out exploring the Okinawan village. The previous year I had been the primary caregiver and homemaker while my husband worked in high tech. And over both of those years, hadn’t both of us fed the kids, changed diapers, cuddled crying babies and helped the older kids with homework? How could mothers and fathers be opposites? We both were parents fully engaged in raising our children in a loving and healthy environment; it’s not as if one was a parent and the other an anti-parent!

It had never occurred to my daughter that mother and father are opposites until her teacher taught and repeated the “opposites’ song”. (It also never occurred to her that she was dumb until she realized that she was missing an important category of cultural knowledge that all of the other children had already acquired.) As my daughter learned in her nursery school, teachers, like parents and other formal and informal sources of learning, have enormous power to shape the way we think – even to shape how we perceive the world.

The Okinawan nursery school, I concluded, had not done my daughter any disservice by not teaching opposites. Quite the contrary, her new nursery school was doing all of us a disservice by drilling children in the quite unfactual notion that the world is made up of dichotomous and opposing forces. It is that world-view, I have come to understand, that undergirds prejudice, discrimination and structural violence.

Binaries Run Amok

da5ed4e743392874ff94e856e53015e3Anthropologist Claude Levi-Strauss (1963) famously argued that there must be some sort of structure in the human brain that causes us to perceive the world in binaries: us and them, friend and stranger, good guys and bad guys. In the first wave of feminist anthropological critique, Sherry Ortner (1974) built on Levi-Strauss’s model and  argued that male dominance is universal because in all human societies women are more associated with nature (pregnancy, birth and lactation) while men are associated with the opposite of nature; that is, culture. And just as culture conquers nature through tools, agriculture and human settlements, men (as a class) universally conquer women.

Half a century later, these schemas may sound preposterous. Not even the most advanced brain imaging technologies have managed to locate Levi-Strauss’s binary “structure.” Nor have decades of gender-informed ethnographic fieldwork confirmed Ortner’s hypothesis regarding the universality of the “female is to male as nature is to culture” notion. Rather, we’ve learned that brains are far more complex and gender organizations are far more diverse than mid-20th century social scientists could have guessed.

But while Levi-Strauss and Ortner were wrong about the universality of binaries, they were on target regarding their power. Differences that are envisioned as being absolute are particularly compelling: binary distinctions leave no gray area, no room for doubt, no room to recognize commonalities, and no room to negotiate. The construction of two and only two sexes or genders leads to cultural understandings in which men and women are not only essentially different but also antithetical and mutually exclusive types of beings. A popular form of this kind of thinking is represented in books like Men Are from Mars, Women are from Venus in which men and women are characterized as species from different planets who need an interpreter in order to learn how to communicate with one another! While I certainly don’t blame this particular book for centuries of gendered economic and political inequalities and gendered violence, I do believe that that there are real dangers in efforts to reinforce, justify or prove that male and female stand in binary opposition to each other.

The “boy” “girl” binary was not the only insidious and false dichotomy the kids in my daughter’s pre-school were taught to chant. They also learned that “black” and “white” are opposites. Of course, we can look at any random gathering of people on the street and know that not only are skin colors a continuum rather than a dichotomous characteristic, but that there aren’t any actually white or black people: ebony and ivory describes a keyboard, not skin color. Yet, by construing race as a binary we easily tack on a plethora of other binary characteristics: black and white echo dirty and clean, bad and good, stupid and smart, them and us, sinner and saint, terrorist or law-abiding citizen. And that’s where all the trouble starts.

As Jamie Shupe learned over a lifetime of living first as a man and then as a woman, if people or things don’t quite fit into the binary categories, social forces exert power to force them into the binary structure, pretend that they don’t exist, or even eliminate them. Indeed, genocide depends on those in power convincing enough people that there is an essential, absolute divide between “us” (superior humans) and “them” (non-humans or inferior humans who, by virtue of that inferiority, should die).

Shupe’s courageous statement clarifies that punishing non-gender conforming people through formal institutions – transgender people in America experience particularly high rates of incarceration and informal practices – transgender people in America suffer particularly high rates of rape is part of the same falsely dichotomous worldview as fixing (curing) them of their “gender dysphoria” through therapeutic interventions to fix their brains and medical interventions to fix their bodies.

Okinawa

How would a world that is not divided into gender binaries look? In the Okinawan village of Henza, where I carried out fieldwork in the 1990s, I caught a few glimpses.

At the haari community boat race, a man in women’s clothing stood at the edge of the pier next to the mayor. Eager to understand this gendered twist, the next day I tried to ask villagers who he was. But first, I first had to dedicate quite a bit of time to clarifying to whom I was referring.

Susan: Who is that man who was wearing a woman’s dress at the boat race?

Villager: What man?

Susan: The man with the woman’s dress.

Villager: Oh, there was a man with a woman’s dress?

Susan: Yes, the man in the bright red dress, blond wig, and padded bra. You know, the man who stood right up in front of the entire audience at the edge of the dock and danced with the Master of Ceremonies during the climax of the race.

Villager: Oh, you mean Mr. Miyagi.

Susan: That’s right. Who is he?

Villager: A bus driver.

Susan: Why does he wear women’s clothes?

Villager: He likes to make people happy at festivals.

Susan: Does his wife mind that he wears women’s clothes?

Villager: Oh, his wife, she is the one with the garden next to your house.

Susan: Well, what do people in the village think of a man who wears women’s clothes?

Villager: He likes to make people happy at festivals.

Susan: Were there traditionally men who wore women’s clothes at festivals?

Villager: I don’t think so, I don’t know.

 

A similar conversation ensued after the san gatsu (third month) ritual, where I noticed a man wearing a woman’s bodice and a long red loincloth between his legs.

Susan: Who is he?

Villager: Mr. Arakaki.

Susan: Who is Mr. Arakaki?

Villager: He is a schoolteacher.

Susan: Oh.

Villager: But that isn’t why he wore those clothes. Teachers don’t have to wear those clothes.

Women enjoying usudeku group

Women enjoying usudeku group.

 

A somewhat different conversation with the same underlying theme took place at a neighborhood usudeku dance gathering. Many Henza women belong to one of three usudeku groups that practice and then perform elaborate traditional dances at the annual obon festival. Although these typically are all-women groups, I noticed an elderly (92 year old) man had joined one of the groups. He was pointed out to me by several women telling me with pride that there are many very old people in their group (all the others, of course, were women). His age rather than his gender is what elicited comment in this all-women’s group.

The women also told me that at san gatsu (third month) festival he dresses up in women’s clothes and makes merry for the people in the old age home. I asked why and was told, “Because he likes to, and because he has his late wife’s clothes. He put on make-up and a complicated kimono by himself. He has pictures. His wife died when she was 71 years old [tragically young, by Okinawan standards]. She did usudeku until she was 65, and he used to like to watch it.” At this point he joined the conversation: “Because my wife died, I take her to the san gatsu by wearing her clothes.” He and the women made it clear that by wearing his wife’s kimono he was not being outrageous but rather, in his own quiet manner, demonstrating or embodying the continuity between men and women, and between life and death.

These dialogues are a lesson in how not to do anthropological fieldwork. It is a great credit to Henzans that they were able to withstand my persistent efforts to put words into their mouths and to force them to share my own cultural categories. Clearly, the notion of a man wearing women’s clothes is not interesting to Henza villagers. No one remarked on it without my asking, no one drew my attention to it at the festivals, no one even realized who I was asking about until I repeated my question several times, and no one understood why I was interested in asking about this topic. Whereas to my western eyes these men were crossing gender categories, in the eyes of villagers they simply wore clothes that usually are worn by women but that have no inherent or permanent gendered attributes. What we in the West label as “cross-dressing” or “transvestitism” (and find funny, entertaining or abhorrent – depending on the person and the situation) is not a recognizable cognitive category in Henza.

What Does It All Mean?

American scholars have argued that transvestism ultimately reinforces gender divisions. In the West, when a man dresses like a woman and passes, he is gender-bending. If he really wants to pass, he needs to submit his body to surgical and chemical interventions. And if he does not pass, or if he deliberately shows a male trait (such as hair on his chest), the bizarre incongruity of his appearance strengthens the belief that the two genders are polar opposites. An individual who mixes the wrong gender with the wrong sex thus draws attention to the “naturalness” of the gender-sex association and the “unnaturalness” of detaching that association. Unless the situation is very contained (such as in a drag show), the obvious transvestite makes people uncomfortable, as evidenced by the hysteria over the idea that people can use the public restroom corresponding to their gender rather than the sex marked on their birth certificate.

In Okinawa, in contrast, gender is loosely constructed; it is not naturalized or supernaturalized; it is not enforced by powerful institutions or drilled by nursery school teachers. A person who usually is thought of as a man dressed in clothing that usually is worn by women presents no paradox, challenges no world-view, is given no label or diagnosis, invokes no strong emotional reaction, and does not risk punishment.

Okinawan drums typically are decorated with a three stroke swirl; not a binary yin-yang

Okinawan drums typically are decorated with a three stroke swirl; not a binary yin-yang.

The absence of a rigidly binary gender ideology in Okinawa precludes the development of rigidly binary gender dominance. Okinawan women do not suffer from threats and fears of sexual violence (except at the hands of American military personnel) that shape women’s lives in the West. Okinawan women do not experience lower social status, poorer access to resources or any of the other aspects of subordination experienced by women in many or most parts of the world. The fact that women are the priestesses in Okinawa does not grant women moral control over men. And Okinawan women live longer than any other women in the world.

When I think about the violence that transgender and other gender transgressing people experience in America, I wonder what Jamie Shupe’s life would have been like in Henza rather than in the United States. We have yet to see the implications of the Oregon Court’s ruling in Shupe’s favor – it may well be over-turned or ignored. But with that ruling, for the first time in a very long time, I can glimpse the possibility of a chink in the immensely strong fortress of drilled “opposites.”

 

rp_jews-purim.jpg

The Jewish holiday of Purim starts this evening and continues throughout the day tomorrow. Something of a cross between Halloween and Carnival (though more toned down than either), Purim is one day in the year in which Jewish children and adults are encouraged to wear costumes. While I’m sure there will be a few fabulously funny and innovative outfits at my synagogue tonight, I know – even before seeing them – that most of the little girls will be dressed as princesses or brides while quite a few of the adult men will be dressed as women. Coming on the heels of Mardi Gras, Purim has me thinking about why so many cultures feature costuming practices that draw attention to gender.

To begin with, it’s useful to make some sort of distinction between clothing and costuming, though these categories certainly overlap. When I dress up in a tailored blazer to go to court I feel that I’m putting on a costume although that blazer was purchased at Macys – not at a costume store, and similar blazers are fairly standard items in the wardrobes of professional women today. Yet I do see something of a difference between clothing that is mostly functional (we wear it to keep warm, protect our skin from the sun, keep our bodies clean or dry, avoid being arrested for indecent exposure, or warding off unwanted interpersonal contact) and costumes that we intentionally don for their symbolic value with the conscious intention of drawing attention, reactions and interpretations.

Like all symbols, costumes are multivocal or multivalent, suggesting multiple meanings to the dresser, the wearer, and the viewers.

As a Jewish American mother, for many years I served double duty as a dresser for Purim and for Halloween. At first I consistently dressed my babies and toddlers in gender neutral “cute” outfits. At an age in which they were too young to notice or care I pushed back against gender stereotypes but embraced age stereotypes (cuteness) by dressing them as un-sexed teddy bears, bunny rabbits, and that ultimate cross-cultural costume: the Purim pumpkin.

As soon as they were old enough to care, my children demanded gendered costumes. My daughter, like all of her friends, dressed as a princess, a fairy or the Biblical Queen Esther (happily for my wallet, these are basically interchangeable costumes) for nearly a decade. Her costumes challenged age norms (she dressed as a young woman, not a little girl) but magnified gender with make-up, jewelry and long skirts that made running and climbing impossible.

My sons went through a brief cowboy, policeman and soldier stage (they later told me that they didn’t care about the costumes but they wanted the guns that we normally did not permit in our pacifist household.) But for most of their childhood and early teen years they wanted to dress as a hyper-masculine super-hero.

Not just any super-hero. My eldest son in particular would begin planning his Purim costume a good four months in advance. Over that time he’d consider, play around with and even stress over whether he would be Superman or Spiderman. Perhaps the tenth time he woke me up at night to talk about the heavy decision weighing on his heart I realized what was going on in his mind: He cared so much about his costume because the decision of being Superman or Spiderman really was about being Superman or Spiderman – a decision of existential importance. Would he be able to climb the outsides of buildings or would he be able to fly? My son helped me see a deeper cultural truth: Costumes are transformative. For that reason many religious traditions use costuming and masks for ritualized existential transformations in which the costume wearer becomes – embodies or is possessed by — the god or the spirit.

Once boys reach their later teens and adulthood and (assumedly) become too sophisticated to think that they truly will be transformed by their costumes, many turn to dressing up as women. Blonde wigs, high heels and mini-skirts are sure-fire recipes for getting a laugh at Purim, Halloween and Carnival masquerades. (Of course, cross-dressing limited to the privacy of one’s own bedroom is likely to be interpreted as pathological or at least bizarre.) At these same events it is rare to see adult women wearing “men” costumes. A woman can masquerade as a particular male profession or identity (fireman, Elvis) but dressing in “men’s” clothes simply means wearing normative clothing in a culture in which male is normative and female is “special” or “other”. Masculinity lacks much of the ‘artifactuality of the feminine’. In fact, a woman wearing generic men’s garments (slacks, button down shirt) at a Purim or Halloween party would likely be asked why she isn’t wearing a costume! This is what Peter Tokofsky calls the ‘asymmetry of cross-dressing’.

Costumes conceal identities and free us to do things we wouldn’t normally do (for example, flirt, get drunk) AND free other people to do things TO the costumed one (I think here of the behavior of “straight” men at a drag show). Embracing that sort of freedom, many cultures practice what anthropologists call rituals of reversal; that is, rites in which, for a prescribed amount of time, social roles and norms are turned topsy-turvy. Classic anthropological wisdom goes like this: In repressive and strictly hierarchical cultures tensions build up. Rites of reversal are an opportunity for everyone to blow off steam for a few hours or days at the end of which most people will feel relieved to go back to the ‘natural’ social order. In her work on Mardi Gras, Carolyn Ware argues that “when men dress up as women they reaffirm masculinity by ridiculing the feminine and therefore ratify the social order.” Chaos is fun for a little while, but few of us want to live out our whole lives in a drunken Mardi Gras parade.

Costumes can elevate (as in the case of the Superman costume) but they also can degrade. A number of years ago an anthropologist colleague in Israel observed the Purim costumes of ultra-orthodox Jews whose religious beliefs demand extensive gender segregation and limit leadership roles to men. In the ultra-orthodox neighborhood of Mea Shearim she noticed a pattern of men dressing as women and women and girls dressing as inanimate objects. In this scene, unlike in the Superman scenario, costumes moved people down an existential level.

For some of these ultra-orthodox girls the cumbersome de-humanizing Purim costumes were good practice for wedding costumes that, for some groups, include a long opaque veil wrapped around the bride’s head hiding her face from the audience, covering her eyes and making her dependent on others to lead her around. I see much the same process of existential transformation in the extreme coverage of women’s bodies and faces demanded by ISIS and other extremist and ultraconservative religious groups:  Full body and face coverings erase markers of individuality, turning the wearer of the costume into a symbol to be “read” by others (for modesty, piety and moral status) every moment of every day in every setting and situation.

image

feature image via thebluedolphins.blogspot.com

A few days ago I listened while Francesca, a woman I’ve come to know during a decade of working with criminalized women, ranted about “the bitch” over at the welfare office who refused to give her food stamps. According to Francesca, “the bitch” didn’t believe that Francesca had not received the letter telling her that she needed to re-certify her eligibility. This, I thought, is a systematic problem: Access to vital services typically is tied to having a permanent address. As a consequence, the ability to receive services is linked to a level of financial stability that the people who most need these services are unlikely to have. Since Francesca had not had a secure place to live for over a decade, it’s no surprise that the letter didn’t reach her. But for Francesca, at least at that moment, the systemic problem was not on her mind. Rather, she focused her attention on “the bitch” who, so it seemed to her, wanted Francesca and her children to starve. Never one to hold back, Francesca had “let the bitch know what I thought about her” before she stormed out of the office.

Francesca is a fabulous raconteur and as I listened to her retelling of the food stamp office story I shared her outrage, and probably would have joined her had she proposed a return trip to yell at “the bitch”. But when I had the luxury of some time to think over what she’d told me I realized of course, that the welfare worker had no authority in this matter: However much she liked or disliked, sympathized with or looked down on women like Francesca, she was not authorized to give food stamps to someone who had not re-certified her eligibility.

Over the years Francesca has confronted two other “bitches” in my presence. One was a hospital nurse who “refused to let me see the doctor.” The other was a parole officer who told her that if she didn’t keep up restitution payments on an old crime committed by her ex-husband she would be sent to jail. Both times Francesca barraged the “bitches” with pleading, tears and finally curses. I don’t know if they felt fear, anger or shame (probably a combination of all three), but I do know that they are placed in untenable situations like this on a daily basis.

As the public face of social services, they face the despair and rage of people trying to maintain a sense of dignity – albeit sometimes in ways that backfire — in a culture that treats food and housing and freedom as commodities rather than as human rights. Perceived (mistakenly) as the gatekeepers to food, medicine and freedom, the “bitches” Francesca confronts are targets for the anger of hungry, sick, homeless, battered and poor clients who cannot access the help that they need, especially in this era of cutbacks in social services.

In popular culture, “Type A” men drop dead from heart attacks brought on by the stress of their powerful positions. Yet a weighty body of literature shows that the most severe job strain is not characterized by high levels of authority but rather by low levels of authority coupled with high levels of responsibility. Workers tasked with keeping people alive while lacking power over the necessary resources and policies to do so are especially likely to suffer poor health, chronic physical and mental distress, and greater risk of death.

The hundreds of thousands of women who predominate in the lower and middle rungs of the health and social service professions live with the heavy responsibility of granting or denying access to potentially life-saving goods and services to desperate women like Francesca. Deflecting the anger that should be directed at the (usually male, certainly higher paid) policy makers, administrators and supervisors, they are stuck enforcing rules that they have no power to shape or change.

The “bitches” at whom Francesca vents her (righteous) anger are butts of nasty comments about government bureaucrat “fat cats” though they often earn salaries that are barely above minimum wage. As women they most likely carry the double load of paid employment and house / wife / mother work – the impossible task of trying to raise healthy, well-adjusted children in a world of violence, air pollution, aggressive consumerism and 24/7 headsets. It’s likely that they themselves have applied for – and perhaps been denied – food stamps; that they have children or siblings struggling to pay court fees in order to stay out of jail; and that they too can’t get the kind of medical attention that they need.

I’m not sure how I’ll react the next time Francesca blows up at a clerk or a caseworker. I’d like to think that I’ll be able to persuade everyone concerned that the real enemy is not the woman on the other side of the desk but rather the powerbrokers who keep them there. But in truth, I’ll probably be so wracked with feeling both responsible for keeping Francesca in line and powerless to ameliorate her situation that I’ll come down with a migraine.

 

yes-means-yes-ca

A shorter (and much pithier) version of this essay was published today in the Washington Post.

California’s SB967 – better known as the “yes means yes” law – clarifies the contours of sexual consent. For universities to receive state funds, they must now employ an “affirmative consent standard.” That means that both parties must actively, consciously and voluntarily agree to engage in sexual activity.

“Yes means yes” addresses both the high rate and the particular nature of sexual assaults on college campuses. According to studies one in five college women have been sexually assaulted. College victims are especially likely to be raped by someone they know and / or while incapacitated by drugs or alcohol. And they are less likely than women in the general population to define their experience of sexual assault as “rape” or to report assaults to law enforcement authorities. Because most campus rapes are not carried out by self-conscious criminals who set out to commit sexual assaults, SB967 makes use of the opportunities offered by a college setting to reduce sexual violence through education rather than solely through punitive actions.

Critics have argued that this measure will be impossible to implement on the grounds that “consent” is too difficult to gauge, that it constitutes government intrusions into the privacy of one’s bedroom, that it unconstitutionally presumes guilt, and (I assume mockingly) that it will require all men to tape video cameras to their genitals in order to prove that women continue to consent throughout the entire sexual encounter.

Concerns regarding the nature and feasibility of consent are not new, and fortunately for California and other states considering similar laws, these concerns have been thoroughly and successfully addressed in other settings. As the former Chair of the Institutional Review Board (the body that reviews the ethics of research involving human subjects) at Suffolk University, I have seen how well-developed, refined and extensively evaluated protocols for informed consent in human subjects research contain real protections for vulnerable populations as well as the flexibility to allow research to thrive.

Clearly, there are differences between research and party settings in terms of the business-like atmosphere of research interactions versus the recreational atmosphere of college interactions, the clarity with which the roles of researcher and subject versus the roles of college class mates are defined, and the amount of planning that goes into research versus a party.

But there are significant similarities as well. In both settings everyone involved may assume that all parties to the interaction have everyone’s best interests at heart and that there are no or minimal risks to participation. It is these kinds of assumptions — both by researchers and by subjects — that led to tragedies such as the Tuskegee syphilis experiment in which rural African American men were given free meals (and burials) for participating in the study, but were neither told that they were infected with nor were they treated for syphilis and to the need for subsequent restrictions on human subjects’ research.

Protocols for protecting human subjects recognize the power differentials inherent in the relationship between researchers (in possession of knowledge, institutional backing, monetary resources and access to goods and services such as new medical treatments) and human subjects. Gendered interactions similarly are inherently unequal given the greater incomes, financial assets, political power, physical size and strength of men, as well as the far greater likelihood that women (nearly one in five) have been raped at some time in their lives.

If regulations, whether for human subjects’ research or for sexual consent, at times seem tedious, we acknowledge that past injustices and current inequalities legitimately demand heightened scrupulousness in ensuring true, informed consent. Informed consent does not mean reading off a list of bureaucratic legalese. To the contrary, it entails authentic conversation regarding the roles of all participants.

How would this play out in a college setting?

Just as a researcher cannot acquire informed consent from a comatose or cognitively impaired subject, “yes means yes” requires that all parties to a sexual encounter are conscious and sufficiently sober to give meaningful consent. Consent does not necessarily need to be verbal – it can be indicated by a vigorous nod of the head or by moving in closer to the partner to the interaction. But it can never be assumed simply by the absence of aggressive resistance.

Along the same lines, it is the responsibility of the researcher to share with potential subjects all information needed to make an informed decision, and to clarify that the subject heard and understood that information. In terms of “yes means yes,” this principle translates into the responsibility of potential sexual partners to disclose information such as HIV status, the existence of other committed relationships, or actual motivations behind the encounter (for instance, whether the encounter is part of a fraternity initiation ritual).

Researchers are required to present potential subjects with a real choice regarding participation; we are not permitted to offer substantial monetary incentives and we are not allowed to withhold access to services or resources for those who do not wish to participate. The responsibility of researchers to refrain from badgering, tricking, or threatening subjects or potential subjects directly translates to the college setting where potential sexual partners should be trained to avoid pressure such as “If you don’t have sex with me I’ll tell people you’re a frigid bitch and you’ll never be invited to another party” or trickery such as inviting a first year student to a “cool” frat party with the intention of plying her with alcohol and manipulating her into a sexual encounter.

Particularly relevant to colleges, researchers are required to inform and remind human subjects that they may leave the study – with no negative repercussions and no need to justify or explain their decision – whenever they wish. In terms of SB967, a kiss really can just be a kiss and both parties to the kiss can walk away without threatening or humiliating accusations of “leading me on.”

In human subjects’ research, as in sexual encounters, no law will change the behavior of those few individuals truly intent on hurting others. While the initial push for human subject’s research regulation came about in response to the horrific Nazi medical experimentation on powerless victims, I don’t believe that the best ethics board in the world could have stopped Nazi doctor Josef Mengele.

Along the same lines, I do not believe that SB967 will stop a perpetrator who consciously sets out to assault a fellow college student. It will, however, educate the many men who do not wish to be abusers on how to assess their own behavior and interactions. It will empower the many women who are not sure whether they really can say “no,” or if the unwanted sexual encounter really was “rape” to report and confront harmful actions and policies. And it will obligate colleges to provide compulsory and meaningful training in gender equity to women and men.

In human subjects’ research the bottom line is that we educate researchers to make honest and intelligent efforts not to exploit or cause harm to others, and we acknowledge that in the heat of the moment (yes, researchers do get passionate) we might be tempted to use our status or power to coercively. As a community of well-intentioned scholars, we welcome the guidance on how to minimize the risk of doing so. In that light, it’s hard to see why there has been so much opposition to “yes means yes.”

Read more here on why “yes means yes” is good for women and men.