Consider, for example, the differential treatment of male and female prisoners, most especially in the context of cross-gender supervision. Many countries require that prison guards are the same sex as the prisoners they are guarding. There are exceptions to this trend, and the United States is one notable case. Male guards are found in female prisons and female guards are found in male prisons. In some cases, guards who are not of the same sex as the prisoners are restricted from some functions within the prison in order to protect the prisoners from undue invasion of their bodily privacy by guards of the opposite sex. Often these measures do not grant complete protection.
Four kinds of legal challenge have been raised against these arrangements:
(1) Male prisoners have objected to female guards searching their bodies or being able to view them in states of undress.
(2) Female prisoners have objected to male guards searching their bodies or being able to view them in states of undress.
(3) Male guards have objected, on equal opportunity grounds, to being excluded from certain positions or functions in female prisons.
(4) Female guards have objected, on equal opportunity grounds, to being excluded from certain positions and functions in male prisons.
In general the courts in the United States have given much more weight to the privacy interests of female inmates than they have to the privacy interests of male inmates.184 Concomitantly, in balancing privacy interests of prisoners against employment interests of guards, the courts have put greater weight on the interests of female guards relative to male prisoners than they have on the interests of male guards relative to female prisoners. Privacy interests of female prisoners prevail over employment interests of male guards, but employment interests of female guards prevail over privacy interests of male inmates.
For example, when a male prisoner petitioned against the practice of female guards conducting pat-down searches of fully clothed male prisoners, including the groin area, the court ruled against the petitioner,185 yet when female prisoners challenged a policy that permitted male guards to perform clothed pat-down searches, the court ruled in favor of the prisoners.186 Similarly, when male guards appealed a District Court judgment against their complaint of sex discrimination because they were barred from select positions in a women’s prison, the Court of Appeal ruled against them. The court said that excluding male guards was “reasonably necessary to accommodate the privacy interests of the female inmates.”187 However, when female guards had previously lodged the same kind of complaint, the court did not accord much weight to male privacy interests and ruled in favor of the guards.188
In cases where courts have ruled that male guards may continue to supervise female prisoners this is because arrangements have been made to protect the privacy of the prisoners to a considerable degree.189
There have been some exceptional court rulings, where the privacy interests of female prisoners have been treated in the same way as those of male prisoners,190 but there do not seem to be any cases where the privacy interests of female prisoners have been treated less seriously than the same interests of male prisoners. Where the (lower) courts have been as sympathetic to male privacy interests as the courts typically are to female privacy interests, their rulings have been overturned by higher courts.191
It is strikingly clear that male inmates are much more likely to be subjected to cross-gender supervision invasions of their privacy than are female inmates. When they seek injunctive relief or damages from the courts, they are less likely to receive a favorable response from the courts. This is a considerable disadvantage.
Nor does this attitude seem to be localized to the United States, one of the few countries that allows cross-gender prison supervision.192 The “Standard Minimum Rules for the Treatment of Prisoners” adopted by the first United Nations Congress on the Prevention of Crime and the Treatment of Offenders and subsequently approved by the Economic and Social Council in 1957 and again in 1977, displays a clear gender bias. Rule 53 reads as follows:
(1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.193
In other words, the Rule explicitly prohibits male guards from supervising female inmates, but there is no rule prohibiting female guards from supervising male prisoners.
Nor is it the case that male privacy is valued less only if the males in question are prisoners. Some military personnel undergo SERE training, which is aimed to equip soldiers, who are at high risk of capture by the enemy to survive (if their aircraft is downed or they find themselves otherwise missing in enemy territory), to evade capture, to resist the enemy and to escape if captured. Part of this training can involve techniques for dealing with being searched. The training thus involves strip searches, inspection of the genitalia and body-cavity searches. In the Australian Army, female soldiers perform these searches on male soldiers in the training exercises, but male soldiers do not perform them on female trainees.194
In apartheid-era in South Africa, there were two in-takes of (male) conscripts per year. These inductions were regularly featured on the television news of the government-controlled South African Broadcasting Corporation. The visual footage would show the young conscripts arriving in their civilian clothes, bidding farewell to their families and then being paraded around in their underwear while they were weighed and measured and while they waited for their medical examinations. It is inconceivable that the nightly news would have entered into a changing room of 18-year-old females and filmed them, without their consent, in their bras and panties, and then aired the footage on national television.
Then, consider the configuration of single-sex toilets. Whereas males are provided with urinals, which are relatively exposed, females have stalls. Now, it is true that males also have stalls and thus males are not forced to use urinals. Nevertheless, the space taken up by urinals reduces the availability of stalls and there are social pressures on some males to use the more exposed facilities. Women often claim that because stalls take up more space, the queues for women’s toilets are longer and they are thus disadvantaged. That may be true, but the point to note is that, contrary to what many feminists think, the disadvantages are not all in one direction. Could we imagine, in contemporary western societies, replacing some of the stalls in women’s toilets with more closely spaced, but unpartitioned toilets, à la ancient Rome, in which women could urinate, only entering the stalls if they need to perform other functions?195 While a woman who has to remove her trousers to urinate may be more exposed to other women than a man who has only to unzip his fly, a woman in a dress would be less exposed than the man. Our current practices are so entrenched that people rarely see how odd they are. Men are expected to urinate in the presence of other men, but women are not similarly expected to urinate in the presence of other women.
184
For surveys, see Rebecca Jurado, “The essence of her womanhood: defining the privacy rights of women prisoners and the employment rights of women guards,”
189
See, for example,
192
Canada is another, but male prisoners have been similarly disadvantaged there. See
193
“Standard Minimum Rules for the Treatment of Prisoners,” adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977. Online at http://www2.ohchr.org/english/law/pdf/treatmentprisoners.pdf (accessed January 6, 2010).
194
Martin van Creveld,
195
In ancient Rome,