Gender Equality: Devil in the Details
Monday 30 August 2010
Perhaps one of the biggest impediments to women's equality in the United States is a pervasive, persistent and too-common myth: it's all been done. It's a cruel trick, as if the exhortation to girls that they can do anything is turned on its head into a "fait accompli" by mere affirmation and repetition. The struggle for women's equality, we are somehow led to believe, is all but passé, as unnecessary as a typewriter, as "dead" as feminism, even when evidence to the contrary is right in front of us.
"There is certainly still work to do. You're still in a situation where women make 77 cents on the dollar, where any review of EEOC (Equal Employment Opportunity Commission) charges or any scan through Westlaw (legal research service) would show you that there continues to be discrimination at work, at school. We still have work to be done to assure equality," said Fatima Goss Graves, vice president for education and employment at the National Women's Law Center in Washington D.C. "Whether they are able to label it as discrimination or not, most people are able to identify inequities at school, at work."
Yet, the overt may be easier to pinpoint than the subtle. In testimony in July to support the nomination of Elena Kagan to the U. S. Supreme Court, Marcia D. Greenberger, co-president and co-founder of the National Women's Law Center, recounted the case of a 13-year old girl who was strip searched at school to see if she was hiding ibuprofen, a matter that came before the Supreme Court in 2009: "At oral argument, Justice Ginsburg, then the sole woman on the Court, described the humiliation and indignity a teenaged girl would have suffered by being forced to strip and even shake out her underwear in front of school officials. A number of male Justices questioned why it was so traumatic -- one thinking back, for example, to experiences in locker rooms as a 13-year-old male." The court ultimately ruled in favor of the girl, noted Greenberger, due "at least in part to the perspective that Justice Ginsburg brought."
Greenberger has been at this work of trying to secure women's rights as long as the existence of Title IX, the 1972 law that said educational institutions could not discriminate by gender. (See sidebar.) As a young lawyer she accepted a short-term assignment with the Center for Law and Social Policy (CLASP) in D.C. to analyze whether there would be enough work for a women's rights lawyer. Yes, she reported, and soon, she was heading the Women's Rights Project, which, in turn, evolved into the National Women's Law Center. It now has a staff of 60, an annual budget of $7.5 million (according to the 2008 annual report) … and the calls keep coming in.
"Our intake volume is high. There is no way that we can represent all of the people. We're not sitting around fiddling our thumbs," said Graves.
Staff members monitor government policy, testify to Congress, issue public alerts, lobby and litigate for the advancement of women and girls and working families in four core areas -- employment, education, family economic security, and health and reproductive rights. "There are a lot of laws in place, and the question is how they are applied," said Graves.
Bush Fights for 1930s
Unfortunately, the George W. Bush administration answered that question by trying to squeeze the life out of women's equality in a thousand shreddings and shroudings, refusing to enforce existing laws, failing to staff women's policy programs, removing information from public access, selecting judges indifferent or hostile to women's equal rights. Efforts to conceal the shifts were often obscured, as well: one slap down of women's athletic opportunities was announced late on a Friday evening after the news cycle had slowed to a dribble for the weekend.
"We saw a pretty serious rollback on equality in the Bush administration. We slid back during those years. There was a series of steady attacks and they continued," said Graves.
After only four years of the Bush presidency, the organization released a 77-page report: Slip-Sliding Away. It details some of the most egregious assaults on the laws meant to protect women against discrimination.
Such as? The Department of Education suddenly archived its guidelines on sexual harassment. The Department of Labor removed materials on narrowing the wage gap from its website. The Department of Justice dropped cases challenging sex discrimination in employment. The Labor Department repealed a rule to help employees obtain paid leave for childbirth or adoption. The Department of Education refused to investigate the exclusion of women from math and science programs. Women's Educational Equity, which helped schools comply with equal opportunities, was eliminated, even though funded by Congress. Emergency contraception was shoved into a stalled approval process, despite support of scientific panels. Low and moderate-income women didn't stand a chance of benefiting from tax cuts, but did felt the resulting slash of social service programs.
"Actions with harsh effects on women are occurring almost completely 'under the radar,'" the report said. "And their low profile is no accident: these initiatives and positions are so out of touch with the views and aspirations of most American women – and men – that they would never be tolerated if subjected to public scrutiny."
One debacle offers a vivid example of regulatory dirty tricks. In 2002, Bush's Secretary of Education, Rod Paige, set up a commission to reevaluate Title IX rules, with the seeming intention of weakening women's athletic opportunities and shifting the funding to men's sports. ("Since Title IX was passed in 1972, it has been a source of extraordinary opposition and resistance by many," said Greenberger.) The commission made damaging recommendations that could have resulted in annual losses of 50,000 athletic participation opportunities and $122 million in scholarships for women, according to the law center.
One devious recommendation was to change the way that women's athletic participation is measured in colleges so that instead of using the campus population as a guide to divide up sports programs, women's sports opportunities would be determined by the number of women (but not men) who responded to an email survey. Women who failed to reply – and email response is generally low -- would be deemed uninterested, and the funds could be shifted to men's athletic programming. Objections by two commissioners who supported women's opportunities, soccer star Julie Foudy and swimmer Donna DeVarona, were drowned out, and Paige would not even include their protestations in a minority report.
Public objections still arose against this loopy loophole, stopping Paige – but only temporarily. He backed down. Then, after the mid-term elections in 2005 the rule was quietly put into place by Paige in form of a regulatory "clarification." The public and the media were blindsided. Not until April 2010 could the standard be returned to its pre-Bush formulation when the Obama administration finally reversed it.
The Girls Are Not All Right
The devil really is in the details, as the cliché goes. These fiddly regulations, arcane language, collection and analysis of statistics are boring compared to the energizing movement moments: marching side-by-side under banners for liberation or even zipping email petitions to some member of Congress. "The conversation about data might not be a very exciting part of civil rights. But it really matters. It determines who gets paid attention to," said Graves.
Or, more clearly, who does not get attention. This is precisely, she said, how the skewed idea that girls are doing better than boys has been allowed to gain currency.
"There is a misperception that all girls are doing fine in school," says Graves, "but the data doesn't support that -- especially when you look at race and gender together. Forty-nine percent of Native American girls, 43 percent of African-American and 41 percent of Latinas fail to graduate with their peers. There are very high pregnancy rates. We know that the treatment of pregnant and parenting girls is inconsistent, that there are schools that refuse to allow them to participate. When an article says "boys only"or "girls only," it misses the point – that lots of girls are not succeeding. You need to take a more nuanced look at girls and subgroups of girls, and then success by gender is limited. You can't buy into 'girls are doing fine,' and move on. You need to look at the data."
Looking at the data, women's advocates are pursuing concrete changes. Some are successful. In 2009 "gender" was included in a new federal hate crimes law; in 2010 the White House announced a multi-agency equal pay task force. Graves hails a provision in the 2010 health care reform that, for the first time, prohibits sex discrimination in health insurance. Left out of the mix, however, is abortion, which was, for all practical purposes, nixed from the legislation by creating convoluted provisions about how consumers must pay for abortion coverage, and closing off aid for the economically strapped and, in July, for patients in high-risk pools.
Just as there is no single law on gender discrimination in the U.S. (see sidebar), there is no single measure of success. Problems persist. Pregnancy discrimination claims continue to rise. There are issues about securing equal and equitable pay, ending sexual harassment on the job, stopping gender violence in homes and on the street, securing paid family leave, dealing with cyber-snooping and bullying, safeguarding the jobs of breast-feeding mothers, securing access to abortion and contraception, redressing changes that lead to unacceptable stereotyping in single-sex schooling, ending the poverty that disproportionately harms women.
Hard to envision is the opposition to women's equality: "There is not one set of groups. There are those that have an interest in maintaining the status quo. But not one group," said Graves, adding lightly, "If so, it might make it easier."
For whatever reason, the U.S. is well behind other industrialized countries in policies that support parents and working families. And, Graves noted, while 185 nations have ratified CEDAW (the Convention on the Elimination of Discrimination Against Women), the U.S. stands with Iran, Sudan and a small minority of countries that hasn't.
The reality is that it may take another spate of 38 years, and others after that, to reach gender equality or to secure full human rights for women. Although the road to equality turned out to be longer than most imagined and the surfaces more rocky to navigate, it will take the constancy of pragmatists and strategists to make truisms of the mantras of girls and the dreams for a just society. "I don't think 'equality' is separate or apart from 'human rights,'" said Graves. "Language matters a lot less than the critical outcomes."
Cindy Cooper, managing editor, is an independent journalist in New York and has a background as a lawyer.
Equality Under the Law
No single law prohibits gender discrimination in the United Staes. Women were not mentioned at all in the U.S. Constitution by the founding fathers and first became part of it in 1920 when the 19th Amendment gave women suffrage. For the first century or two of the nation's history, the all-male justices on the Supreme Court upheld laws and practices that flatly discriminated against women – and there were many, including laws preventing women from practicing law, using birth control, serving on juries and being the executor of an estate.
Nondiscrimination against women began to gain new currency in the 1960s. Congress passed the Civil Rights Act of 1964, specifically prohibiting sex discrimination in certain employment under Title VII. The Supreme Court began to apply the Due Process and Equal Protection clauses of the 14th Amendment to sex bias, striking down laws that discriminated against women without a reasonable basis, a lighter touch than the strict scrutiny applied to race-based challenges. The Supreme Court also recognized a zone of privacy in the Constitution and struck down laws that rendered contraception illegal and made abortion a crime in all circumstances.
An Equal Rights Amendment, while proposed, was never added to the U.S. Constitution. Instead, a patchwork of other laws was passed to address women's equality, most notably, Title IX of the Education Amendments of 1972, prohibiting sex discrimination in education, including in athletic opportunities. The Pregnancy Discrimination Act of 1978 was passed after disastrous decisions from the Supreme Court, and Congress adopted Equal Credit, Fair Housing and Equal Pay laws, and states also passed laws, some more expansive, against gender discrimination. At the same time, Congress allowed loopholes – for example, limiting employment claims to firms of 15 employees or more, and excluding religious institutions from compliance with non-discrimination laws.
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