Systems, Not Men: Producing People in Charlotte Perkins Gilman’s Herland

When Curt Muller required his female employees to work shifts in excess of ten hours at the Grand Laundry in Portland, Oregon, it is unlikely he thought he was threatening the future of the human race. However, when he received a fine for overworking the women in his laundry and contested the fine’s constitutionality before the Supreme Court, the Court’s Justices would argue that the matter of women’s labor hours brought to the fore precisely this issue. As the first decade of the twentieth century opened, labor reformers and captains of industry waged numerous battles over labor hours and conditions. Because stories of women and children suffering on factory floors gained sympathy for the labor movement and sold newspapers, cases concerning women and minors typically led the way for other labor regulations. In the Supreme Court’s 1908 ruling on Muller v. Oregon, the Court found that a woman’s special reproductive function could take precedence over the freedom of contract established by the due process clause in the 14th Amendment.

Muller is notable not just because it took an important first step in limiting the demands employers could place upon workers, but also because it flew in the face of Lochner v. New York (1905), and thus established a precedent for the different treatment of men and women under the law. In contradistinction to Lochner—which found that the state could not legislate a maximum number of labor hours for male bakery workers without violating the 14th Amendment—in his delivery of the Court’s opinion, Justice Brewer noted that although not all women are mothers, it is not unconstitutional to enforce a maximum number of labor hours for women because “the well-being of the race” justifies “legislation to protect her from the greed as well as the passions of men.” Therefore, Justice Brewer notes, “The limitations which this statute [48 Or. 252] places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all.” The rhetoric in Brewer’s opinion makes at least two important conversions: the first, the conversion of all women to mothers; the second, a conversion of mothers to incomplete legal persons—persons who cannot fully exercise the right to contract their labor. In other words, if the ability to contract one’s labor is a measure of legal personhood, Muller v. Oregon presupposes that the protection of women and the “wellbeing of the race” requires the legal limitation of this particular measure of personhood because as representative persons (mothers of the race), women can never be the same kind of legal persons that men are.

Concerns about the right to contract one’s labor and definitions of personhood frequently intersected in the American Progressive Era. In his reading of Muller Daniel Rodgers notes, “From the beginnings of the protective labor legislation movement, the assumption that women and children belonged in a separate, special category of workers had been central” (239). One need only envision the horror of 146 women burning alive or jumping to their deaths during the Triangle Shirtwaist factory fire of 1911 to understand the public concern about working conditions for women. Popular fiction and film from the century’s first decade, including Theodore Dreiser’s Sister Carrie (1900) and the white slavery film Traffic in Souls (1913), added a salacious undertone to the physical risks female workers faced by drawing attention to the unscrupulous men who might prey upon working girls. Furthermore, women may have been especially vulnerable to labor exploitation because union organizers typically overlooked female laborers in their organizing efforts. As Alice Kessler-Harris explains, out of all women “engaged in industrial occupations” in 1910 only 1.5 percent of these women were in unions (92). With women thus isolated from the labor movement, sex-based legislation like Muller, paternalistic as its tone might be, may have been an important inroad to labor reform for the female workers who were going largely ignored by the American...