This is a post by Federico Arena (University of Girona).
When someone utter stereotypes like “Girls are not good at mathematics” or “Mapuches are usually drunk” we intuitively sense something wrong with what has been said. The reasons for the negative evaluation of stereotypes are linked to the varieties of harms that they may cause to the stereotyped people. Indeed, such statements often express inaccurate beliefs that are the result of the imposition to certain groups of discriminatory social relationships and inegalitarian hierarchies. Besides, stereotypes are resistant to change and produce a kind of epistemic laziness in people who use them: people tend to discard or distort evidence in order to keep their stereotype.
The effects of stereotypes may also have an impact in the legal domain. In fact, there is a broad consensus that stereotypes represent a serious obstacle to access to justice, in all its manifestations. For instance, in its General Recommendation No. 33/2015, the CEDAW Committee notes that legal procedures, jurisprudence and legal practices are often based on norms and stereotypes that end up preventing women from fully enjoying the rights recognized by the Convention.
In the legal context, stereotypes may produce negative effects in several ways. First, they may hide behind norms that may at first sight seem not only harmless but also beneficial for the stereotyped group. Thus, for instance, in the case Moritz v. Comm’r, Ruth Ginsburg (lawyer who would later become Judge of the US Supreme court) argued in favor of the right of a single man to financial assistance as his mother’s sole caregiver: a right which, by law, belonged only to a widowed or divorced woman. Laws of this kind, Ginsburg argued, harm women even if it were true that most of them take care of children or the elderly. By fueling the gender stereotype according to which women are responsible for performing family care, the rules that grant certain rights only to women who perform family care favor a structural social inequality. Second, stereotypes may affect the assessment of evidence. For instance, stereotypes often play a significative role in the way in which judges assess the credibility of the victim testimony in cases of gender violence. A frequently used stereotype in this context is the one known as “strategic woman”, according to which women accuse their partners of rape in order to obtain an economic advantage, such as keeping the family home. On the basis of this stereotypes, the testimony of victims of gender violence are often discredited.
Legal scholars and philosophers have proposed different strategies to deal with stereotypes. Among them, perhaps the most widespread, is the one that proposes to analyze stereotypes as generalizations, since they function in the same way. Thus, it is claimed that given that generalizations such as “Products with the label ‘Gluten Free’ do not contain gluten” may be assessed on the basis of the statistical information, the same statistical criterion may be used to assess the accuracy of stereotypes, like the one regarding the behavior of victims of sexual assault. Therefore, a distinction should be made between two kinds of stereotypes: those that have and those that do not have statistical support.
Even if the statistical criterion may improve our understanding of how stereotypes work, there is a growing discomfort with some of its applications, given that it does not seem to capture the variety of harmful effects produced by stereotypes. In a recent publication I have focused on two such effects. On the one hand, what I have called the pragmatics of stereotypes, that is, the effects and implications that follow from their use, whether or not they have statistical support, and, on the other hand, the masking of individuality: using stereotypes to interact with a person implies, even when they have statistical support, not treating them as an individual, but treating them as a simple member of a group. For instance, even if the stereotype according to which “Women are in charge of childcare and housekeeping within marriages” may have statistical basis, to assume on that basis that a particular woman devotes her time to those activities, even if increases the probabilities of a correct attribution, would nevertheless mask her individuality. However, it has not been easy to flesh out what it means to treat a person as an individual and not as a mere member of a group. The difficulty here is that it seems that generalizations are at some point inevitable in order to identify the traits of an individual. In the text I have recently published I try to offer some arguments on behalf of the distinction between information based on generalizations and information that may be gathered by direct interaction with the individual. This answer still leaves open the question of whether we should treat people as individual in all interactions with them or whether, on the contrary, there are cases in which people must be treated as members of a group. I have not gone into this question in depth here, I have simply tried to offer arguments in favor of the fact that, in cases where the duty is present, it is possible to satisfy it.
To read more about this, check out my article, “La pragmática de los estereotipos y el enmascaramiento de la individualidad. Obstáculos para el acceso a la justicia” which appeared in M.C. Barranco y F.J. Ansuátegui Roig (eds.), Cultura jurídica y barreras en el acceso a la justicia, Tirant Lo Blanch, Madrid, 2024, 123-152. The preprint version of the article can be freely accessed here.
Federico Arena is an Independent Researcher at the National Scientific and Technical Research Council (Conicet) of Argentina and is currently a BIAP’s Postdoctoral Research Fellow at the University of Girona. He is a legal philosopher and has interests in legal theory and the relevance of stereotypes in legal reasoning. In recent years, he has been working on how to avoid the negative effects of stereotypes in legal reasoning. His work within BIAP is devoted to the analysis of how stereotypes and bias may affect the assessment of evidence within legal processes.
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