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Notes
* The author would like to thank Davina Cooper, Marie Fox, Didi Herman, Sally Sheldon and members of the Gender, Sexuality and Law Group (Department of Law, Keele University) for comments on earlier drafts of this paper. The author would also like to thank Jo Dunston for her research support. The author gratefully acknowledges the assistance of Chloe Mason and Worksafe Australia, and the support of the Nuffield Foundation through its Small Grants Scheme.
1 www.sonypictures.com/cthv/metropolis.
2 Widely considered the first great science-fiction film, Metropolis has generated a rich literature across a number of disciplines. See, R.L. Rutsky, “The Mediation of Technology and Gender: Metropolis, Nazism, Modernism,” 60 New German Critique 3 (1993)
; A. Huyssen, “The Vamp and the Machine: Fritz Lang’s Metropolis,” After the Great Divide: Modernism, Mass Culture, Postmodernism (Bloomington: Indiana University Press, 1986) ; A. Huyssen, “The Vamp and the Machine: Technology in Fritz Langs Metropolis,” 24–25 and New German Critique, 221–237 (1981–1982); R. Dadoun, “Metropolis: Mother-City — “Mittler” — Hittler,” trans. Arthur Goldhammer, 15 Camera Obscura 149 (1996); and T. Gunning, Metropolis: The Dance of Death, The Films of Fritz Lang: Allegories of Vision and Modernity (London: British Film Institute Publishing, 2000) .3 For a discussion of the multiple ways in which technology may gender spaces, see, J. Wajcman, Feminism Confronts Technology (Cambridge: Polity Press, 1991)
.4 Examples of this work include: M.E. Becker, “From Muller v. Oregon to Fetal Vulnerability Policies,” 53 University of Chicago Law Review 1291 (1986)
; G.J. Annas, “Fetal Protection and Employment Discrimination — The Johnson Controls Case” 325 New England Journal of Medicine 740 (1991) ; R. Segal, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” 44 Stanford Law Review 261 (1992) ; and E. Draper, “Fetal Exclusion Policies and Gendered Constructions of Suitable Work,” 40 Social Problems 90 (1993) . For a discussion from an Australian perspective, see, Q. Bryce and C. Mason, “The New Protectionism — A Dialogue,” National Women’s Conference, University of Canberra (1990) (Canberra: Write People, 1990) ; also, Q. Bryce and M. Chalmers, “Protectionism v. Paternalism,” paper presented at Women, Management and Industrial Relations Conference, Macquarie University, Graduate School of Management, Sydney, 3–4 July 1991.5 M. Thomson, “Employing the Body: The Reproductive Body and Employment Exclusion,” 5(2) Social and Legal Studies 243 (1996)
.6 Human Rights and Equal Opportunities Commission v. Mount Isa Mines Ltd & Ors, 118 A.L.R. 80 (1993).
7 As noted by Gunning, “In Metropolis allegory, as well as the theme of the mechanical, lies on the surface, with the science fiction genre serving simply as the modern genre most attune to the allegorical mode.” Gunning, supra note 3 at 54.
8 Id., at 62.
9 P. McGilligan, Fritz Lang: The Nature of the Beast (London: Faber and Faber, 1997), p. 110
.10 Id., at 55.
11 T. Elsaesser, Metropolis (London: British Film Institute, 2000), p. 26
.12 Lang deploys the figure of the cyborg within an allegorical technological future that is menacing. Others, however, have seen the cyborg in a quite different light. Most influen-tially, Donna Haraway has argued for a recognition of the transformative potential of cyborg politics. Haraway provides a “cyborg myth … about transgressive boundaries, potent fusions, and dangerous possibilities that progressive people might explore as one part of needed political work.” D. Haraway, “A Cyborg Manifesto: Science, Technology, and Socialist-Feminism in the Late Twentieth Century,” in Simians, Cyborgs, and Women: The Reinvention of Nature (London: Free Association Books, 1991), p. 154
. See also, M. Thomson, “eXistenZ Bodies/Boundaries/Bioports,” 21 Legal Studies 325–343 (2001) . For a more general consideration of the positive potential of theoretical engagement with questions of gender and technology, see, S. Woolgar, ed., Feminist and Constructivist Perspectives on New Technologies, Special Issue of Science, Technology, and Human Value (1995).13 S. Greenfield, G. Osborn, P. Robson, Film and the Law (London: Cavendish, 2001), p. 24
.14 J. Denvir, Legal Reelism: Movies as Legal Texts (Urbana: University of Illinois Press, 1996), p. xii
.15 R.K. Sherwin, When Law Goes Pop: The Vanishing Line between Law and Popular Culture (Chicago: University of Chicago Press, 2000), p. 5
.16 M. Aristodemou, Law and Literature: Journeys From Her to Eternity (Oxford: Oxford University Press, 2000), p. 10
.17 Id., at 9.
18 See, M. Thomson, Reproducing Narrative: Gender, Reproduction and Law (Aldershot: Ashgate, 1998), pp. 119–121
.19 See, e.g., Muller v. Oregon, 208 U.S. 412, 421(1908).
20 See, e.g., People v. Charles Schweinler Press, 214 N.Y. 395, 108 N.E. 639 (1915).
21 C. Daniels, “Between Fathers and Fetuses: The Social Construction of Male Reproduction and the Politics of Fetal Harm,” 22 Signs 582 (1997)
.22 Office of Technical Assessment, Health Hazards in the Workplace (1985) p. 3.
23 W. Williams, “Firing the Woman to Protect the Fetus: The Reconciliation of Fetus Protection with Employment Opportunity Goals Under Title VII,” 69 Georgia Law Journal 641, 658 (1981)
.24 § 176(1).
25 V. Pratt, “Address to National Occupational Health and Safety Commission Lead Forum, 9 August 1990,” printed in “Discrimination Against Women in the Lead Industry: Occasional Papers from the Sex Discrimination Commissioner,” 5 Human Rights and Equal Opportunities Commission, Australia 9, 13 (1990).
26 Page v. Freight Hire (Tank Haulage Co.) Ltd, I.R.L.R. 13 (1981).
27 See, e.g., U.S. Nuclear Regulatory Commission, Nuclear Regulatory Guide, 8.13 (1975).
28 Wright v. Olin, 697 F.2d 1182; Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir.1984); UAW v. Johnson Controls Inc., 886 F.2d 871 (7th Cir.1989).
29 59 U.S.L.W 4209 (1991).
30 Whether Johnson Controls proves to be the final word on the legality of these policies is questioned by Alison Grossman. A.E. Grossman, “Striking Down Fetal Protection Policies: A Feminist Victory?” 77 Virginia Law Review 1607 (1991)
.31 Draper, supra note 4.
32 See, Boureslan v. Arabian American Oil Company et al, 111 S. Ct. 1227.
33 At the time of Worksafe’s consultation document, the lead industry employed approximately 12,000 people in Australia. Of these only 7% (under 900) were women. See, “Submission to the National Occupational Health and Safety Commission in Response to Lead: A Public Discussion Paper,” reprinted in “Discrimination Against Women in the Lead Industry: Occasional Papers from the Sex Discrimination Commissioner” 5 Human Rights and Equal Opportunities Commission, Australia 19, 20 (1990).
34 This conference was convened with the objectives of identifying changes that should be made to restrictive legislation, regulations and awards in order to eliminate discrimination against women in employment, and agreeing on a firm timetable for the implementation of change. Id., at 27.
35 Id., at 19.
36 C. Winder and C. Mason, “Lead Standard Saga Continues,” 10(1) Journal of Occupational Health Safety 34 (1994)
. As Pratt notes, at an ILO meeting of experts on special proactive measures for women and equality of opportunity and treatment held in 1989, attention was drawn to the vastly differing approaches in developing countries compared to Western European countries, US, Canada and Australia. Most of these latter countries had moved from a situation where various protective measures had existed to one where the measures were repealed or extended to men after determination that such measures were inconsistent or incompatible with legislation and/or international obligations providing for equal opportunities and treatment between men and women in employment.’ Pratt, supra note 26 at 13.37 The standard proposed a maximum blood level for any worker of 60ug/1 00ml. P. 15(24). This is of course significantly lower than the maximum of 80 ug/100ml maximum set by the UK Lead Regulations.
38 National Occupational Health and Safety Commission, Lead: A Public Discussion Paper 19.3, 19.5(b), 19.5(c) (iv). (Canberra: 1990).
39 Office of the Status of Women, Submission to Worksafe Australia on the Proposed National Lead Control Standard and National Code of Practice, August 1990 (copy held on file with Worksafe and the author), p. 1.
40 By virtue of s.44 of the Sex Discrimination Act 1984, HREOC has the authority to except employers from the provisions of the Act. Section 44 had been introduced with the objective of allowing the economically viable phasing in of non-discriminatory work practices. The use of exemptions was aimed to be “extraordinary and as limited in their scope and duration as possible.” Bryce and Chalmers, supra note 4 at 3. Section 44 authorises the commission to exempt employers for periods not exceeding five years upon such terms and conditions as it considers appropriate. Use of s.44 had been made in relation to work done by Broken Hill Associated Smelters (BHAS, the largest smelter in the world and the only producer of primary refined lead in Australia) at its Port Pirie plant. The successful use of this provision — the “BHAS model” — in dramatically reducing overall lead levels at the plant and changing discriminatory working practices was used as a model for reform by HREOC. See, e.g., Bryce, “Protection v. Paternalism,” supra note 5 at 12–18. See also, The Broken Hill Associated Smelters Pty Ltd. v. The Human Rights and Equal Opportunities Commission, Australian and New Zealand Equal Opportunities Law and Practice 92–302 (1990).
41 M. Kingston, “Is Equality A Health Risk?” The Age, December 12, 1991
.42 Mount Isa, supra note 7 at 86.
43 These differences and the Full Court’s development of discrimination jurisprudence is discussed in C. Flanders, “Human Rights and Equal Opportunities Commission v Mount Isa Mines,” 13 University of Tasmania Law Review 430 (1994)
.44 As Judge Lockhart stated: “When a body such as the commission is performing a statutory function it has an obligation to examine other relevant law. It may be necessary to interpret statutes, including the SD Act, for this purpose. In determining its proposed standards and codes of practice relating to occupational health and safety matters in this case the commission should do no more than this. It must not contravene the SD Act, but it must recognise its presence and alert relevant persons, particularly employers to it and its pitfalls.” Id., at 106.
45 Id., at 108.
46 Flanders, supra note 43 at 438–9.
47 Winder and Mason, supra note 36 at 3.
48 R. Collier, Masculinity, Law and the Family (London: Routledge, 1995), p. 193
.49 Whilst the relationship between labour and capital is perhaps the most transparent of the film’s many narratives, there is a strong irony in the films apparent sympathy with the subjugated labour force. As Patrick McGilligan details, Langs directorial style displayed certain parallels with the oppressive Frederson’s style of governance. The film employed 37,633 performers. Of the approximately 25,000 extras, 1000 men were taken from the Depression bread queues and had their heads shaved for the Tower of Babel scene, many were stripped to the waist in the Berlin winter hauling rocks into the mouth of Moloch, the city’s giant furnace. Still others swam for their lives as the catacombs were flooded by Fredersen. Treated more like props, extras were also at times thrown into violent mob scenes, or made to stand in cold water for hours. Such treatment was not, however, reserved for extras. When Maria, the actress Brigitte Helm, was burnt at the stake, Lang used real flames. It should also be noted that at 5.3 million marks the film proved the most expensive German film of the time, leaving the UFA studios financially dependent on Hollywood corporations. Gunning, supra note 3 at 53.
50 M.A. Doane, “Technophilia: Technology, Representation, and the Feminine,” in M. Jacobus, E Fox Keller, S. Shuttleworth, eds., Body/Politics: Women and the Discourses of Science (London: Routledge, 1990), p. 167
.51 Q. Bryce, “Address to National Occupational Health and Safety Commission Lead Forum, 9th August 1990,” printed in Discrimination Against Women in the Lead Industry, supra note 34 at 2.
52 Pratt, supra note 25 at 15.
53 Id., It is worth noting that these policies limit women’s industrial and economic participation in a number of ways. In excluding women from certain areas of employment they limit possibility both directly and indirectly. The indirect effects are at times as significant as the direct. As a result of exclusion, women may be denied promotion due to lack of relevant experience. As Valarie Pratt notes, “While many jobs in the managerial and supervisory structure of companies are not lead-risk, familiarity with the processes employed at plant level tends to be valued criterion for selection in supervisory jobs.” Id., at 11. If women constitute a limited percentage of the workforce employers may tend to be resistant to providing facilities for them. This may include facilities related to safety as well as those such as workplace childcare. The absence of women will also reinforce male predominance in sectors that are already perceived as male. Id., at 11–12.
54 See, I. Tyler, “Reframing Pregnant Embodiment,” and M. Shildrick, “Monsters, Marvels and Metaphysics: Beyond the Powers of Horror,” in S. Ahmend, J. Kilby, C. Lury, M. McNeil, B. Skeggs, eds., Transformations: Thinking Through Feminisms (London: Routledge, 2000), pp. 288, 303
. See also, M. Shildrick, Embodying the Monster: Encounters with the Vulnerable Self (Sage: London, 2002) .55 Daniels, supra note 21 at 582.
56 See, e.g., Thomson, supra note 18 at 125–126.
57 Collier, supra note 48 at 218.
58 Affirmative Action Agency, “Submission to the National Occupational Health and Safety Commission on Discussion Paper on the Control and Safe Use of Lead at Work,” 30 August 1990, p. 3 (Copy held on file with Worksafe, Sydney and the author).
59 National Health and Medical Research Council, Report of the 103rd Session, Hobart, June 1987 (Canberra: Australian Government Publishing Service, 1987).
60 National Health and Medical Research Council, Lead in Australians, Summary statement of the 115th session of the NHMRC, 2 June 1993 (Canberra: NHMRC, 1993).
61 “OSHA News,” 6 Job Safety and Health 2 (December 1978).
62 Froines, Baron, Wegman and O’Rourke, “Characterization of the Airborne Concentrations of Lead in U.S. Industry,” 18 American Journal of Industrial Medicine 1 (1990)
.63 See, supra note 58 at 20.
64 Encyclopaedia of Health and Safety at Work, Law and Practice II (London: Sweet and Maxwell, 1993), 4–1101, 4998/283 (eds., volume).
65 See, supra note 61.
66 This is also the same for the United Kingdom’s Lead Regulations where although women are excluded where blood levels may exceed 40ug/100 ml, men can face exposures levels up to 80 ug/100ml.
67 Affirmative Action Agency, supra note 58 at 3. In terms of cardiovascular impairment (lead leads to long term effects on blood pressure that results in morbidity and considerably shortens life expectancy) Chris Winder notes that there is now a documented association of lead and cardiovascular impairment in white men aged between 40 and 59. He notes that the effects of lead in this area occur in the range of 10ug/1 00mls or less. As he notes:
Applying the principles of exclusion of susceptible groups, as outlined in the [initial] Worksafe Lead Code, it would appear that this population group are at significant risk and should (hypothetically) be excluded from exposure to lead, especially at work. While such a scenario might be held up to ridicule on empirical grounds, I fail to see why the exclusion of women on the grounds of reproductive sensitivity does not.
68 Id
69 Occupational Safety and Health Standard, 43 Fed. Reg. 54, 388 (1975).
70 M.L. Lindbohn, M. Sallmen, A. Antilla, H. Taskinen and K. Hemminski, “Paternal Occupational Lead Exposure and Spontaneous Abortion,” 17 Scandinavian Journal of Work Environment Health 95 (1991)
.71 C. Assennato, R. Molinini, C. Paci et al, “Sperm Count Suppression Without Endocrine Dysfunction in Lead-Exposed Men,” 42 Archive of Environmental Health 124 (1987)
. See also, C. Winder, “Reproductive and Other Chromosonal Effects of Occupational Exposure to Lead in the Male,” 3 Reproductive Toxicological Review 221 (1989) .72 I. Lancranjan, H.I. Popescu, O. Gavanescu, I. Klepsch and M. Serbanescu, “Reproductive Ability in Workmen Occupationally Exposed to Lead,” 30 Archive of Environmental Health 396 (1975)
. See, also, Winder, supra note 71.73 A. Hricko, Working for Your Life: A Woman’s Guide to Job Health Hazard (Berkeley: Health Research Group, 1976)
, c-8, c-9. Occupational exposure to lead and the effects this can have on offspring should not be treated in isolation. Residential areas near plants using or processing lead are often contaminated with lead. An Australian study published in the year of the Mt Isa litigation, for example, revealed that a substantial number of children living in communities near to the Pasminco Metals-Sulphide lead and zinc smelter in New South Wales exceeded the maximum blood lead level of 10ug/ 100ml set by the National Health and Medical Research Council (NHMRC). The number of children exceeding this level ranged from 57% to 85%. J. Galvin, J. Stephenson, J. Wlodarczyk, R. Loughran, G. Waller, “Living Near A Lead Smelter: An Environmental Health Risk Assessment In Boolaroo and Argenton, New South Wales,” 17 Australian Journal of Public Health 373 (1993) . See also, T. Threlfall, N. Kent, P. Garcia-Webb, E. Byrnes, P. Psaila-Savona, “Blood Lead Levels In Children In Perth, Western Australia,” 17 Australian Journal of Public Health 379 (1993) .74 J. Mason and R. Simon, “Effects of Lead on Mammalian Reproduction,” in V. Hunt, ed., Work and Health of Women (1979), pp. 172–4
.75 Affirmative Action Agency, supra note 58 at 4. The Agency notes that “Insofar as there is a demonstrable difference in reproductive effect it is between pregnant women and others, not between men and women.”
76 Office of the Status of Women, supra note 39 at 3.
77 Daniels, supra note 21 at 602. In terms of research on the effects of lead on male reproductive health, the situation was stated by Dr. P. Hammond at a Worksafe Forum on lead in 1990 in the following terms:
In the case of exposure in the male, the database is pretty much limited to studies of workers with exposures that mainly exceed permissible occupational standards currently in place in the US. Moreover the information from these studies is too limited to make any judgement beyond the ability to fertilize women. An additional limitation is that no studies have been reported that assess possible toxic effects of paternal lead exposure on the prenatal and postnatal development of the conceptus.
78 Daniels, supra note 21 at 608.
79 Mount Isa Mines, supra note 6 at 107.
80 Id., at 33. It should, however, be stressed that throughout the period of consultation HREOC continually stressed the harm posed by lead to both sexes and to foetal health via the occupational exposure of both sexes:
The discussion Paper omits significant and relevant information that should have been taken into account in the development of the Proposed Standard… . A … [notable] deficiency in the Public Discussion Paper is the application of selective science to public policy. For example, the Discussion Paper addresses “foetal protection” but deals only with the adverse effect from exposure of women workers.
81 See, Mount Isa Mines, supra note 6.
82 Similarly, the only other point at which male reproductive health is considered, is when it is recognised that “There appears to be some controversy as to the relative degree of risk created by industrial exposure to lead of fertile men on the one hand and fertile or breastfeeding women on the other.” Id., at 93.
83 886 F.2d 871, 889 (7th Cir. 1989).
84 59 USLW 4209, 4211 (1991). The majority concluded that “It is no more appropriate for the courts than it is for individual employers to decide whether a woman’s reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the woman as hers to make.”
85 Collier, supra note 48 at 220–1.
86 To locate this both historically and intertextually, see, e.g., Thomson supra note 18.
87 For a discussion of such imagery in the film see, Rutsky, supra note 2.
88 It is interesting to note that the film was shot in the Australian outback precisely for its barren and arId.landscape. Unfortunately, however, the filming was plagued by unseasonal rain. The techniques used to remove the rain from the film left the landscape even more bleached, harsh and inhospitable than before.
89 C. Springer, Electronic Eros: Bodies and Desire in the Postindustrial Age (London: Athlone, 1996), p. 56
.90 See, Gunning, supra note 2 for a discussion of the many possible, though contradictory, readings of the film.
91 See, M. Thomson, “Legislating for the Monstrous: Access to Reproductive Services and the Monstrous Feminine” Social and Legal Studies 401 (1997)
.92 Huyssen, supra note 2 at 70.
93 Thomson, supra note 91.
94 Springer, supra note 89 at 151. It is worth recognising not just the relationship between women and technology that Maria appears to embody, but also the relationship between women and the city. As Doreen Massey notes:
The whole notion of city culture … has been developed as one pertaining to men. Yet within this context women present a threat, and in two ways. First there is the fact that in the metropolis we are freer, in spite of all the also-attendant dangers, to escape the rigidity of patriarchal social controls that can be so powerful in a smaller community. Second, and following from this, women have fared especially badly in western visions of the metropolis because they have seemed to represent disorder. There is fear of the city as a realm of uncontrolled and chaotic sexual licence, and the rigId.control of women in cities has been felt necessary to avert this danger.
95 Haraway, supra note 12 at 152.
96 Springer, supra note 89 at 152.
97 As Springer notes referring to the catacombs:
these twisting paths leading through dark caverns create a feminised space, a metaphor for the womb, reinforcing the film’s construction of Maria as a maternal figure and evoking female sexuality. This feminised space exists far below the surface of the earth because, in psychoanalytic terms, female sexuality has been deeply repressed in the city of Metropolis.
98 Or, as Gunning more graphically notes, Maria is “[a] charismatic performer who excites upper-class young men to acts of violence against themselves and each other and working class audiences to orgies of destruction against machines.” Gunning, supra note 2 at 82.
99 Sheldon, “Reconceiving Masulinity” Journal of Law and Society (1999), p. 142.
100 Daniels, supra note 21 at 609.
101 M. Gatens, “Towards a feminist philosophy of the body,” in B. Caine, E. Grosz and M. de Lepervanche, eds., Crossing Boundaries: Feminisms and the Critique of Knowledges (Sydney: Allen and Unwin, 1988), p. 62.
102 M. Gatens, “Corporeal Representation in/and the Body Politic,” in R. Diprose and R. Ferrell, eds., Cartographies: Poststructuralism and the Mapping of Bodies and Spaces (Sydney: Allen and Unwin 1991), p. 84.
103 Id.
104 Id., at 82.
105 E. Grosz, Volatile Bodies (Bloomington: Indiana University Press, 1994), p. 9.
106 J.E. Bertin, “Reproductive Hazards in the Workplace” in N. Taub and S. Cohen, eds., Reproductive Laws for the 1990s: A Briefing Handbook (Rutgers: State University of New Jersey Press, 1988), p. 207
.107 HREOC, supra note 33 at 37. Yet ultimately, discussions of the parity of risk to both sexes, and to foetal health from exposure to either parent prenatally, moves only so far. Such a strategy, whilst essential, acts to obfuscate a number of the factors that, interestingly, are both more determinant of foetal health and for which we have collective responsibility:
talk about comparability of male and female risks perpetuates the misguided focus on individual causality and direct attention away from the more profound social determinants of parental and fetal health — good nutrition, good health care, and a clean and safe environment.
108 Gatens, supra note 102 at 81.
109 Id., at 84.
110 M. Warner, Publics and Counterpublics (New York: Zone Books, 2002), p. 8
.111 Id., at 14.