How Britney Spears’ Conservatorship Highlights the Role of Guardianship Law in Women’s Oppression

A 13-year-long nightmare finally ended for pop icon Britney Spears on November 12 when a Los Angeles court terminated the conservatorship that had controlled Ms. Spears’ life since she was 26. #FreeBritney movement activists rejoiced alongside the now 40-year-old star and lit up social media with a proclamation of what they had achieved: #FreedBritney.

A conservatorship — or “guardianship,” depending on state law ​​— is a legal mechanism by which the state deprives an individual (the conservatee) of the power to make certain decisions about their life and grants that power to another person (the conservator). A judge can grant the conservator control over the conservatee’s estate (their finances), their “person” (decisions about their daily life), or, in Ms. Spears’ case, both. Ms. Spears’ conservator controlled everything from the color of Spears’ cabinets to whether she could have children.

Conservatorships are supposed to be granted when individuals lack the mental capacity to make decisions on their own behalf. But Ms. Spears’ conservatorship continued years after her high-profile struggles with mental health in 2008 and despite her own objections to her conservator’s abusive treatment. Experts have also speculated that the conservatorship was established to control her image and not because of any actual mental incapacity.

Whether or not that’s true, Ms. Spears’ story places conservatorships squarely within a long history of disability being used to justify women’s oppression — conceptualized, of course, as altruistic “protection.” About 1.3 million Americans remain subject to conservatorships today, and while disability rights advocates have worked to reduce this number, feminist activists and scholars have largely overlooked the specific role conservatorships have played in women’s inequality.

Guardianship law can be traced back to ancient Rome, when the equivalent of a conservator could be appointed to manage the property of single women and others who were not considered competent to manage property. Its gendered nature carried over to 13th century England, where the king was considered “father and guardian” of his kingdom and charged with taking care of subjects incapable of taking care of themselves. This responsibility, which was really more about controlling property and lives than “caretaking,” was eventually distributed to agencies and private citizens, forming the basis for modern guardianship law. The colonial United States had its first guardianship law on the books by 1641, and despite several waves of reform, modern guardianship law has remained strikingly similar in theory and practice.

Many problems with modern guardianship law stem from its gendered history — specifically, the way capacity was and is defined and determined. Capacity is the central consideration in establishing a conservatorship: A court must find that the conservatee lacks the capacity to make their own personal or financial decisions. But capacity is not a fixed, objective concept in the legal or medical field. As social and cultural values and circumstances shift over time, so does the line between capacity and incapacity. Because of its emphasis on capacity, guardianship law provides the state with the perfect system to maintain and justify women’s oppression by characterizing them as disabled.

Despite changes in its definition, women have consistently been found to lack mental capacity simply by virtue of their sex. In the 19th century, women were diagnosed with mental illnesses like insanity and hysteria for failing to conform to gender norms or being “overly emotional.” In some states, a husband could even unilaterally commit his wife to an asylum. Diagnosis and commitment marked women as mentally incapable of managing their own lives and affairs, which justified their confinement by the patriarchal state acting as both “protector” and oppressor.

This same disability narrative was used in arguments opposing women’s suffrage. Suffrage opponents claimed that women’s lack of mental stability and their “temperamental disabilities” made them unfit for political participation. In any case, the argument went, women had their husbands to vote for them — to protect them and supposedly act in their best interest. Once again, the state positioned itself as women’s protector while functioning as their oppressor.

The idea that women are inherently incapable has been a prominent justification for their exclusion from handling not only their own personal lives, but also other “public sphere” matters. In the landmark gender equality case Reed v. Reed, the Supreme Court of the United States struck down an Idaho law requiring the father be preferred over the mother in cases where both sought appointment as administrator of their deceased child’s estate. But the Supreme Court of Idaho had upheld the law just a year earlier in 1970, reasoning that “nature itself ha[d] established the distinction” at issue. Contrary to later language in the opinion indicating that men are “better qualified” to act as administrators, this language left no room for interpretation: Men are better at handling an individual’s estate not only because of potential educational qualifications, but also because of “nature itself.” Still today, women are much more likely to be seen as inherently incapable of succeeding at stereotypically male endeavors. Female politicians are particularly ensnared in this narrative.

So, what does this history mean for conservatorships? Conservatorship data is not tracked nationally, which means we don’t have numbers indicating whether women or men are more often conservatees. But women’s long history of oppression — masquerading as protection — through incapacity narratives suggests that women may be particularly likely to be subject to unnecessary conservatorships, and particularly susceptible to abuse by their conservators. Scholars acknowledge that capacity determinations are still highly subjective and thus highly susceptible to gender bias under the prevailing “reasonable man” standard. If the standard for capacity is set at a reasonable man, how can women ever reach it?

Even with the abysmal lack of data, celebrity cases may be instructive of gender bias in conservatorships. Notable cases of male celebrities subject to conservatorships include Randy Meisner, who requested his conservatorship, Casey Kasem, whose conservatorship was established after he was diagnosed with Parkinson’s, and Mickey Rooney, whose conservatorship was granted in tandem with a restraining order to stop financial and physical abuse he endured from his wife and her son.

Whether or not Ms. Spears was truly incapable of making decisions about her finances, career, and life for all those years, her story should give us pause. Disability, both real and imputed, has been used to justify women’s oppression for over a century, and guardianship law provides the state with the ideal system to maintain the status quo. While scholars have advocated for everything from clearer standards for determining incapacity to complete abolition of the system, most agree that reform is desperately needed. But if gender continues to be left out of the conversation, women may very well remain stuck in the same narrative for years to come. For now, we can celebrate the fact that on November 12, a court ruled that Britney Spears’ life is finally her prerogative.