By Remicard Sereme
Malcolm X, later quoted by Beyoncé in her documentary Homecoming, once said, “The most disrespected person in America is the black woman. The most unprotected woman in America is the black woman. The most neglected woman in America is the black woman.” I believe that this can also be argued to be true in France. It is linked to the fact that slavery, which can be broadly defined as the condition in which one human being was owned by another, and colonialism, the belief in and support for the system of one country controlling another, are an integral part of both the United States’ and France’s history. The enslaved and the colonized were people of color, including black people, and the masters were white. This historical legacy has widespread consequences on the treatment of people of color in both countries. Indeed, slavery was conceptualized and justified on the basis of a complete denial of the enslaved people’s personhood. For example, in 1705, the General Assembly of Virginia held that “All Negro, Mulatto and Indian slave shall be held, taken, and adjudged to be real estate, in the same category as livestock and household furniture, wagons and goods.” Similarly, Article 44 of the Code Noir – an edict enacted by the French King Louis XIV in 1685 to define the rights of the masters over their slaves in the French colonies in the Americas – granted slaves the status of household furniture by stipulating that “Déclarons les esclaves être meubles et comme tels entrer dans la communauté, n’avoir point de suite par hypothèque, se partager également entre cohéritiers […]” In this paper, I will take a particular interest in the use of legal tools to subordinate black women, i.e treat them as less important than white women and black men, in both countries. It will allow me to analyse the effect of this denial of personhood on black slave women and how it continues to have an important impact on black women’s lives in contemporary French and American society.
I argue that, in both the United States and France, the law has been historically used as a tool to subordinate black women, first through slavery and then through unequal legal protection, making them vulnerable in two societies where they are subjected to racist and sexist biases. However, black women have not been content with their devalued status and fought to gain rights as autonomous political and legal subjects by carving a space for themselves within both countries. To establish this, I will start by analysing how the law was used to construct black women subordination within the system of both countries (I), and then I will focus on how black French women and African-American women use the law, and other means, to push back and reshape the two countries’ systems in order to carve out a space for themselves as autonomous political and legal subjects (II).
I. The legal construction of black women subordination in France and in the United States
Slavery is, undoubtedly, an essential part of both black French women and African-American women’s histories. Indeed, it is the point in time in which they massively and forcibly came into contact with France and the United States, thus inscribing their histories within the national histories of both countries. Black women made up between 40% and 49% of the captives taken from the Gold Coast which were brought to early America in the late 17th century. Although not all women of African descent were enslaved in these territories, their legal status as free women was far from being immutable. For example, in French Louisiana, free blacks could be returned to slavery or be sold if they had been convicted of certain crimes and couldn’t pay their legal fines. In both French and British territories in early America, the law was instrumental in shaping the legal status of slaves and thus justified and legalized the slave system. In this part, I will analyse how the law was used to conceptualize the black female slave (A) and then study how this legal conceptualization still has impacts on black women’s lives in French and American society (B).
A. Conceptualizing the black female slave
During slavery, the legal principle of partus sequitur ventrem, meaning progeny follows the womb, was established in both British colonial America and French colonies. For example, Article 12 of the Code Noir stipulated that “children who will be born from a marriage between slaves will be slaves and will belong to their mother’s master, not their father’s, if the spouses have different masters.” As a consequence, the black female slave was legally conceived as a sexual object and a breeder.
The black female slave as a sexual object
The first consequence of the legal principle of partus sequitur ventrem is that it allowed white men legal, social and psychological freedom to sexually exploit female slaves as they were not held responsible for their offsprings. Rape and sexual coercion were an integral part of the female slaves’ lives. They endured coerced sex with masters, overseers and other white authorities. They didn’t have any legal recourse as they were legally objects and objects could not be raped. Furthermore, they were their master’s properties and thus the masters could do with them as they pleased.
The black female slave as a breeder
The second consequence of partus sequitur ventrem is that it encouraged owners to view the fertility of their enslaved women as a form of market capital. Terms like “breeding slaves”, “childbearing women” or “too old to breed” were used to describe individual women in slave markets. It was also a common occurrence that slaves who refused to choose a man and bear children had men forced upon them by their overseers or masters, often white men because mulattoes could be sold at a higher price.
Although slavery ended in the United States, and France no longer has colonies, this conceptualization of the black female slave has lasting impacts on the lives of black French women and African-American women today.
B. Black women in contemporary French and American society
Black French women and African-American women are far from being a homogeneous group. Each group has their own specific issues linked to their national context and, of course, each individual black woman in both countries are faced with a multitude of different difficulties. Indeed, the fact that slavery was practiced within the territories of the United States while it was practiced in French colonies, therefore outside of the national territory, has an important influence on the construction of national identity, and thus the space for black women in this narrative, in both countries. For example, while African-American women are greatly impacted by negative stereotypes on the female slave, French black women tend to be outrightly ignored and erased out of the French national narrative, they are a non-object of thought. However, one legacy of slavery in both their lives is the hyper-sexualization of their bodies which can then translate into a significantly high-rate of sexual violence against them.
The hypersexualization of black women’s bodies
In Ain’t I a woman: black women and feminism, bell hooks argues that “the significance of the rape of enslaved black women was not simply that it deliberately crushed their sexual integrity for economic ends but that it led to a devaluation of black womanhood that permeated the psyches of all American and shaped the status of all black women once slavery ended”. During slavery, sexual exploitation of enslaved black women in British colonial America was justified by the argument that they were the initiators of sexual relationships with men, and thus emerged the stereotype of black women as sexual savages and sinful temptresses. Similarly, in the French colonial narrative, black women were conceived as “easy, lascivious, promiscuous, perverted and therefore insatiable”. These stereotypes survived the end of slavery and decolonization and have significant impact on these women’s lives till this day.
In the United States, a recent study by the Institute for Women’s Policy Research found that more than 20% of black women are raped during their lifetime, which is a higher share than among overall women in the country. A recent report published by the Georgetown Law Center found that black girls are perceived as less innocent and more adult-like than their white peers. This perception follows them into adulthood. As a consequence, black girls and black women are seldom seen as victims. They become easy targets for abuse. Furthermore, black victims are routinely criminalized as we can see by the two famous cases of Cyntoia Brown and Alexis Martin, two black underage victims of sexual violence who killed their abusers while defending themselves. They were both tried as adults, although they were respectively 16 and 15 years old, and sentenced to life in prison in the first case, and 21 years in prison in the second. This shows how the stereotypes imposed upon black women in the United States since slavery has tremendous impact on their lives in contemporary American society.
In France, black women’s bodies are routinely animalized and hyper-sexualized, they become an exotic fantasy. In an interview with the online media Slate, Anna, a French black woman, explained how from when she was 15, her and her friends all heard at least once from a man “J’ai toujours voulu essayer une noire”, meaning “I’ve always wanted to try a black.” Rokhaya Diallo, a well-known black French activist, corroborated this idea in her Podcast Kiff ta Race, a podcast which addresses racial issues in France. In an episode entitled “La geisha, la panthère et la gazelle”, she brought up the subject of racial fetishization of minority women’s bodies, including the black female body, in France. By linking this subject to the current debates on Muslim women’s rights to wear a veil in public spaces, she argues that racial domination is in someway constructed through access to minority women’s bodies and that the debates on the veil are not so much about french laïcité as they are about access and control over women’s bodies, especially the ones from racial minorities in France.
A law forbidding the dissimulation of faces in the public space was passed in October 2010, with this intent in mind. Indeed, the letter of the law is gender blind but in its application, it mainly affects women, more particularly Muslim women. The government didn’t try to hide its agenda when passing this law and clearly stated that its aim was to forbid Muslim women from being able to wear a niqab, a veil covering the whole face except the eyes, on the French territory. This law perfectly illustrates how the law is sometimes used as a tool to subordinate minority women.
The stereotype of the black female slave as inherently sexually loose and immoral has led to the hypersexualization of black women’s bodies in both France and the United States. However, these two groups of women aren’t homogenous and the conceptualization of the black female slave has impacted them in ways that vary according to the two national contexts.
The assault on African-American women motherhood
Black female slaves endangered British Colonial America’s patriarchal structure based on the notion that women were innately the physical inferior of men. They could both labour the fields, which was conceived as a male characteristic, as well as bear children and take care of domestic matters, which was conceived as solely a woman’s duty. Therefore, their mere existence challenged the basis of patriarchal rule in American society. Sojourner Truth, one of the leading figures of the abolitionist movement, argued as such in front of the Second Annual Convention of the Women’s Rights Movement in Ohio in 1852:
“Look at me! Look at my arm! … I have plowed, and planted, and gathered into barns, and no man could head me—and ain’t I a woman? I could work as much as any man (when I could get it), and bear de lash as well—and ain’t I a woman? I have borne five children and I seen ’em mos all sold off into slavery, and when I cried out with a mother’s grief, none but Jesus hear—and ain’t I a woman?”.
White American patriarchs therefore argued that black female slaves weren’t really women. The idea of true womanhood was constructed around the white, delicate, pure, motherly white woman thus denying black female slave’s womanhood. As black female slaves weren’t women, they couldn’t be legally construed as mothers either. Furthermore, due to their slave status, their children belonged to their masters and they could be sold and used as per the latter’s wishes and they couldn’t do anything about it.
This denial of black motherhood still has consequences on African-American women’s lives in contemporary American society.
Indeed, a 2017 story from the New York Times highlighted the bias against black mothers in the foster care system. A nationwide study conducted by the Department of Health and Human Resources in 1994 found that “black children were more likely to be taken from their homes than white children, even when the type and severity of the alleged abuse were the same”. This fact is still true nowadays. Lawyers and other professionals who represent families refers to this situation as the Jane Crow phenomenon, inspired from the Jim Crow laws which emerged after slavery and segregated blacks from whites in the country. The Jane Crow phenomenon specifically targets parents who have few resources, predominantly black and Hispanic women, criminalizing their parenting choices. Black mothers are perceived as inherently negligent and abusive, therefore they are constantly under the threat of losing custody of their children. Scott Hechinger, a lawyer at Brooklyn Defender Services, explained that “There’s this judgement that these mothers don’t have the ability to make decisions about their kids, and in that, society both infantilizes them and hold them to superhuman standards”. In other words, black mothers are inherently perceived as bad mothers, therefore the most devastating remedy is inflicted upon them at the slightest incident, as is illustrated by the stories featured in the New York Times article. For example, a woman’s child was placed in foster care because she wandered to the other side of the street to go to her grandmother’s house, while her mother was in the bathroom. She was later released and the charges against the mother were eventually dropped but it left long-lasting impacts on both of them. The lawyer illustrated this double standard by explaining how “In another community, your kid’s found outside looking for you because you’re in the bathtub, it’s ‘Oh, my God’” — a story to tell later […]. In a poor community, it’s called endangering the welfare of your child.”
The invisibilization of black women in the French public space
Black French women are faced with a problem which is very specific to the French colonization model. As slavery wasn’t practiced directly in the metropolis but in overseas territories of the former French empire, this has allowed the country to turn a blind eye to its colonial history. The French Republic prides itself on being colorblind and treating all its citizens equally. The French Constitutional Council has recognized Equality as one of the fundamental constitutional principles of the Republic and statistics based on race are forbidden by the law. However, this equality is theoretical rather than factual. By adopting a colorblind stance, France is erasing the specific experience of its colored population and is effectively choosing not to see them. Black people in general, and black women in particular, are invisibilized in French society. They are constantly reminded of their “foreign” status by the frequently asked question “Where are you from?” This status of being “other” is further emphasized by the lack of representation of black French women in the media and in politics. Only three black women are members of Parliament, black women make up only 5% of the models appearing on the covers of French magazines like Grazia and they seldom appear in French movies. The system is constructed so as not to take their specific experiences into account. In Féminisme décoloniale, Françoise Vergès argues that racialized French women are confined to jobs which purposefully invisibilize them. They are the cleaners and the caretakers and this work must remain invisible. “Il ne faut pas que nous soyons conscient-es que le monde où nous circulons est nettoyé par des femmes racisées et surexploitées”.
The conceptualization of the black female slave as a sexual object and a breeder led to black women being some of the less protected people in both French and American society. The law has been an instrumental tool in both this conceptualization and perpetuating black women’s fragile position in both societies.
However, black women haven’t contented passively with their devalued status and fought to gain rights as autonomous political and legal subjects by carving a space for themselves within both countries.
II. Black Women and their struggle for equality in France and the United States
“We realize that the only people who care enough about us to work consistently for our liberation is us”. This extract from A Black Feminist Statement by the Combahee River Collective is an accurate illustration of black women’s struggles for equality in both France and the United States. Both countries have been historically built on a white patriarchal system which devalues women and people of color. Black women are in the difficult position of being both women and black, they soon realized that “being on the bottom, we would have to do what no one else has done: we would have to fight the world”. Therefore, that’s what they did and continue to do. African-American women and black French women have developed several tools to understand their experience, analyse it and take action to fight for their liberation. In this second part, I will first focus on how black women in both countries reclaimed their identity as black and as women through the Black Feminist movement (A) and then show how they used, and still use, the law to fight racism and sexism, two oppressive systems which constantly intertwine to put a limit on who they can be (B).
A. All the women are white, all the blacks are men but some of us are brave: Black Feminism in France and the United States
In Black Feminism: Anthologie du féminisme africain-américain 1975-2000, the French philosopher Elsa Dorlin refers to Black Feminism as a political movement, within feminism, which defined gender domination without ever isolating it from the other structures of power, like racism or classism”. This movement was born in the 1970’s in the United States as a way for African-American women, and women of color in general, to organize and “combat the manifold and simultaneous oppressions that all women of color face.”
Black Feminism in the United States
The Cambridge Dictionary defines liberation as the word “used to refer to activities connected with removing the disadvantages experienced by particular groups within society”. One of the examples provided to explain the word is the Women’s Liberation Movement. Indeed, France and the United States being both patriarchal societies, i.e “societies in which men hold the power and women are largely excluded from it”, French and American women have had to, and still continue to, fight for their rights to be recognized as men’s equals and obtain the same legal treatment, such as equal pay. However, France and the United States having also been built on racism, i.e “prejudice, discrimination or antagonism directed against a person or people on the basis of their membership of a particular racial or ethnic group, typically one that is a minority or marginalized,” the women’s liberation movement wasn’t exempted from these prejudices. For example, in the United States, African-American women were instrumental in advocating for women’s rights to vote at the beginning of the suffragist movement; however, white women’s racism led them to push black women out of the different organizations because they refused to associate themselves with former black female slaves on the basis that they weren’t really women and lacked morals. Therefore, Feminism in the United States was built on the needs of white women, rather than on the needs of women, in general.
Liberation is also associated with the Civil Rights movement in the United States, which promoted black liberation. Unfortunately, this movement was not exempted from sexism either. Within the black liberation movement, women were asked to take a back seat and support black men as a way for them to regain their masculinity because black women had been painted by the racist white patriarchy as “ball-busters” and the cause for black men’s loss of masculinity as they were the ones earning money as they tended to be more employed than black men. However, their higher rate of employment was not synonymous with any power over their lives, and even less over the black family structure. They were employed in cleaning and caretaking jobs at white people’s houses where they faced a high level of sexual harassment and were routinely humiliated. bell hooks argues that the idea that black women were at the head of the black family, thus going against the patriarchal system and castrating black men’s masculinity, was a myth invented by the white patriarchy to devalue black womanhood and turn black men and black women against each other.
As a consequence, neither feminist movements nor black liberation movements were fighting to liberate black women and were addressing their specific struggles. Therefore, black women had to fight for their own liberation and thus conceptualized Black Feminism, which allowed them to adopt critical thinking and understand the ways in which racism and sexism intertwine to determine their social realities.
France and the United States being two very different countries, although comparable, the European realities of black french women are not the same as those of African-American women. Therefore, while using the theoretical basis of American black feminism, French black women developed their own feminism, based on their living conditions in the French context: Afrofeminism.
Afrofeminism in France
“I was at the school of advanced studies in the Social Sciences […] okay! I learned some things about feminism and the Black Women’s Coordination wasn’t one of them. So my history, me, my identity, when do I write it? On what foundation? You all have yours; and us?” This outburst from Sharone Omankoy, the founder of the Mwasi Collective, the main afro-feminist organization in France, during a round-table exchange on feminism and postcolonial critiques organized at University Paris 8, is very representative of the ideas behind afro feminism. She mentions how one of the few black women feminist organization in France was erased from the history of feminism in the country, leaving black French women without any trace of their past struggles and legacies to build on. Afrofeminist activists question the limits of french mainstream feminism which is constructed as fighting for all women, when in reality it is based on the experiences and the needs of white women. They highlight the fact that the only reference to black women in the french feminist discourse is as the immigrant, the foreigner whose legal status imprisons her in the category of “the other”.
One of the most important contributions of Afrofeminism to black French women’s identities is the notion of “afropéanité”. The Martinican specialist in Colonial and Postcolonial studies, Silyane Larcher, argued that it allows a young French generation with African ancestries to name a personal and collective identity, defined by the double-belonging, without hierarchy, to both Europe and Africa. By imposing, in the very language, the fact of a legitimate belonging of colored french people in the national experience, this concept symbolically reverses the social denial of citizenship so common in France, and manifested through the omnipresent question “Where are you from?”.
However, a common critique of Afrofeminism is that it essentializes the multiple and heterogeneous identities of “black women ” who are, in reality, far from being a unified social group. Indeed, Silyane Larcher refers to Afrofeminists as “a new generation of French women with African ancestries, often poor, but educated […] who are stubbornly trying to assign a collective identity to a diversity of experiences of gender and racial domination in an aracial French Republic”.
Patricia Hill Collins, one of the leading authors of Black Feminist thought, wrote that “the power of a free mind consists of trusting your own mind to ask the questions that need to be asked and your own capacity to figure out the strategies you need to get those questions answered”. Through Black Feminism and Afrofeminism, black women in both France and the United States affirm their identities as subjects rather than objects of thought and use critical thinking in order to conceptualize their realities and take care of their own liberation.
B. For the race in general and black women in particular: Black women’s use of the law to fight against racism and sexism as well as their intertwined effects
Although often erased from history, black French women and African-American women have been very active in the fight against racism and sexism in both countries. Even though the laws are routinely used as a tool to subordinate them, black women in both countries have found ways in which to use the law to fight against the very system which oppresses them. Three ways in which they succeeded in doing so is through legal recognition of past harms in France, the use of test cases to fight against segregation laws during the Civil Rights movement in the United States and the conceptualization of “intersectionality” as a legal tool to denounce the inadequacy of anti-discrimination law to address the specific issues that black women face due to the combined effect of racism and sexism.
Legal recognition of past harms in France
In May 2001, Christiane Taubira, who later became the French minister of Justice and the only black woman to ever attain such a high position in the French government, introduced a law “aiming to recognize the slave trade and slavery as a crime against humanity”. Through this law, she argued for the recognition of the sufferings caused by slavery and to put an end to the invisibility of the victims of the slave trade. Although it excluded the idea of reparations, this law is symbolically very powerful because it is a way to put France face to face with its history. For Christiane Taubira, “Commemorating slavery – and not just its abolition – is a manner of recognizing the black part of the French citizenship” and it is very important because it is an ongoing issue in French society.
Christiane Taubira is also a significant symbol of representation. That is very important because, as discussed earlier, black French women are made to be invisible in the public space. As the only black french woman who became minister of justice, she recognized in an interview “ I am at a place where it is inconceivable that I be, I am breaking down the prejudices within those that watch us and the inhibitions within ourselves”.
The use of test cases to fight segregation laws during the Civil Rights movement in the United States
Another way in which black women, in the United States, have used the law to fight against the racist system which oppresses them is through test cases during the Civil Rights movement. One famous example of this strategy is Rosa Parks. Indeed, she is very well known for having refused to get up on a segregated bus which got her arrested and launched the Montgomery bus boycott. Rosa Parks is often presented as an old woman who was just too tired from work and didn’t want to get up. However, that isn’t the case. David Ikard, a professor of African American and Diaspora studies at Vanderbilt University, argued that this pacified account of Rosa Parks’ story is part of the magical negro trope, a white supremacist tool which “turns black political radicalism into white fairy tales of racial inclusion and cooperation.” In reality, Rosa Parks was only 40 years old and a Civil Rights activist, member of the National Association for the Advancement of Colored People (NAACP). In her autobiographical article, she writes that “The only tired I was was tired of giving in”. When she asked the officer who came to arrest her “Why do you push us around?” he answered “I don’t know, but the law is the law and you’re under arrest”. After being released, she decided with her friend and fellow member of the NAACP, who was a lawyer, to make her case a test case so they could change the law. She explains that “The point of making mine a test case was to allow me to be found guilty and then to appeal the conviction to a higher court. Only in higher courts could the segregation laws actually be changed, because the judges in the local courts were not going to do anything to change the way things were”. The Montgomery bus boycott lasted more than a year. On 13 November 1956, she won her case and the segregation of Montgomery buses was declared unconstitutional.
The conceptualization of intersectionality as a way to put into question the effectiveness of anti-discrimination law
Finally, the American law professor Kimberle Crenshaw, a black feminist, has conceptualized the legal notion of “intersectionality” in order to denounce the way that anti-discrimination law is conceived in the United States and its inadequacy to provide legal remedy to black women. Intersectionality can be defined as “the complex, cumulative way in which the effects of multiple forms of discrimination (such as racism, sexism, and classism) combine, overlap, or intersect especially in the experiences of marginalized individuals or groups.” In both the United States and France, anti-discrimination law is based on prohibited grounds of discrimination such as race, gender, sexual orientation or religion. Crenshaw argues that this system is very ill-fitted to provide legal remedy to black women, who are discriminated against on the basis of both gender and race at the same time. She uses the metaphor of a traffic accident in which black women are hit at an intersection by two cars at the same time. Doctors can only help them if they know which car hit them and caused the damage, however they were hit simultaneously by the two cars so that is not possible to figure out. As a consequence, black women are left bleeding and dying at the intersection. This concept is fundamental to conceptualize systemic discrimination within the law and find a solution to address the limits of anti-discrimination law which are highlighted by intersectionality.
We can, therefore, conclude that the law has been historically used as a tool to subordinate black women in both France and the United States, denying them full access to their rights in both countries and thus granting them limited personhood. However, African-American women and black french women have found the means to critically understand their devalued position within the system, find its origins and fight to liberate themselves through black feminism, while using various legal tools to fight against the combined effects of racism and sexism which limits their agency. By doing so, they are carving a space for themselves within both countries.
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