Should the Reasonableness Standard Be ‘Genderized’? Some Reflections from the Perspective of Personalism

The question of whether one ought to introduce a gender-based distinction within the so called ‘reasonable person standard’ does not have only theoretical character, for some courts did introduce this kind of distinction (‘the reasonable woman standard’) in the context of sexual harassment law, assuming as an established fact that women exhibit a lower threshold for perceiving sexual harassment than men do. The two most common objections against ‘genderizing’ the reasonableness standard are that it is apt to perpetuate gender stereotypes, and that it does not have a sound scientific basis. In this paper it is argued that the second objection is not plausible, but scientific theories (especially, evolutionary theory and neuroscience) which justify the claim about gender differences in perception of sexual misconduct also reveal gender differences in other mental dispositions or faculties as well, e.g., in attitude to risk, dominance assertion, or empathy. This seems to have the following normative implication: instead of limiting the reasonable woman standard only to sexual harassment law, one should, for consistency sake, either entirely abandon the idea of gender-differentiating the standard (if one endorses the first objection and/or if one assumes that the notion of ‘reasonableness’ is to be defined by the highest mental faculties which are incontrovertibly the same among men and women), or differentiate it in more legal contexts than only in sexual harassment law. It is argued in the paper that the first alternative, which amounts to adopting a personalist (i.e. based on philosophical view called ‘personalism’) interpretation of the reasonable person standard, is more convincing.