The Structure of Women’s Movements

Nan D. Hunter from Georgetown University Law Center lays out a brilliant explanation of the different waves and tentacles of the women’s rights movement from 1920-1964. (In Search of Equality for Women: From Suffrage to Civil Rights, Nan D. Hunter, Duquesne Law Review, Vol. 59, 125-166; https://scholarship.law.georgetown.edu/facpub/2390 https://ssrn.com/abstract=3873451) As a lawyer, she focuses on the uses of law as a strategy (or a tool as I say) and litigation as one of the tactics. She also shows the value of different perspectives and why they are best working together than fighting each other.

Triangle or Arch?

She describes the existing edifice as a triangle caging in women. One side is the state concerned with things like voting, jury duty, being able to sue in court. The clash in this arena is women’s access to the levers of power and the protections, such as they are, from the state.

Another side of the triangle is the family that concerns itself with property, children, and sexual autonomy including birth control, abortion, and adultery. One clash in this arena is over who should pay – should the parents be solely responsible or should the state provide supports.  Nixon vetoed the childcare bill in 1971 because he viewed it as communist to have someone else raising your child. That of course relegated women to the home to do that care.

The third side of the triangle is the economy that concerns itself with distribution of jobs, wages, conditions of work, and benefits. A similar clash here is whether the employer, the union, or the state should be the arbiter and guarantor of baseline protections.

Architecturally, there appears to be some disagreement on whether an arch or a triangle is the strongest architectural form. But the basis of their strength is different:  the triangle can withstand pressure because of the broad base that carries the load, the arch distributes the weight of the structure so that no one section is bearing too heavy a load. In the triangle scheme, the base distributes the load but also receives the most weight and thus must be strong to withstand the pressure for the rest to remain intact. In the arch scheme, the weight is distributed along the entire structure, so no one place feels inordinate pressure. It’s more networking, the natural way women do things – a growing web not a static structure.

Three theories:  sameness, difference, liberty

As Hunter lays out, three basic arguments to support women’s rights during that time were “we are all the same and should be treated the same, women and men are different and should be treated differently,” or “privacy and liberty apply equally to women in all spheres.”

The equal pay proponents focus on the “sameness” argument.  When we do the same job, when we have the same skills, when we have the same education, when we achieve the same results, we should be paid the same. Price Waterhouse and the Lilly Ledbetter Act are two examples of the success of that argument. Another area where “sameness” is argued is in the “state” side of the triangle – government duties and benefits should be the same for all citizens under the law.  An example of a success there is in  J.E.B. v. Alabama ex rel T.B. Supreme Court  (1994) that held that preemptory challenges of women as prospective jurors is unconstitutional. The 19^th amendment fixed the mistake in the 14^th and said women should be treated the same for voting; the 28^th amendment (ERA) will fix the mistake in the 14^th and say that women should be treated the same under the law.

But some say, what about the military, that’s government. The military argument slides over into the “differences” theory. When war was hand to hand fighting, due to the average genetic size and strength differences in women and men, it mattered. That is no longer the case. The military today is very high tech and women in every position have proven to be every bit as good as the men. In fact, women have been found to be better in certain conditions e.g. they are now preferred in space because their smaller bodies fit better and maneuver better in a small spaceship. They are also preferred in some tactical situations because they are not frightening to the local populace, so they receive a nonviolent response. On the other hand, they may terrify the enemy e.g. Isis fighters could not believe it was Kurdish women attacking and beating them. To be killed by a woman means to them that they go to hell. Nazi soldiers in the Warsaw ghetto uprising were astonished to see women fighting them. Their hesitation gave the women that extra moment needed.

The “differences” argument has largely been made in connection with the labor movement fight for decent working conditions for women. Mueller v. Oregon regarding hours of work is an example of that. But that argument has also resulted in so called protective laws that often were only protective of men’s jobs. In the last of the early cases, Goesaert v. Cleary (1948) the court said that a law that refused to license women to be bartenders unless they were the wife or daughter of the owner of the bar could withstand the rational relation test because that familial relationship might protect the women from some of the harm that could come to women bartenders e.g. sexual advances on the barroom floor. Of course that did not protect waitresses in the same bars that they could not be bartenders in. A bartender behind a solid oak bar is much better protected and not in reach of the men’s groping hands as are the waitresses on the floor. But it did of course protect the better paying jobs for men.

Current day issues using the “differences” argument include fast food workers being given constantly changing work schedules so they cannot make childcare arrangements and remedies for the women who were forced out of their jobs during COVID because the schools and childcare facilities closed.  Since women remain the primary child caretakers, the responsibility falls on them not the men.

The issue is not “work” per se  – women have always worked. Farmwives work; ranch wives work; poor women work; women enslaved worked; immigrants work. The issue is the type of work allowed and the pay and respect given.

The third arm of the triangle is the family. This remains the longest and the most dominant battle. Because women give birth and men do not, actual biological differences matter e.g. everything to do with pregnancy and the child. Pregnancy and birth do not have any comparators among men i.e. they are unique to women. Griswold v. Ct. and Roe v. Wade are examples of this approach. But sexual autonomy for women remains highly contested and the tension between a privacy right and a liberty right is crucial as is now blindingly obvious in Dobbs v. Jackson Women’s Health.

Making a legal argument focused on privacy means that the right as Justice Douglas said is not explicitly stated in the Constitution but is derived from all that surrounds it. We need privacy to have liberty i.e. if no one knows what I’m doing or who I’m doing it with, then no one can interfere with me. We use window shades and shower curtains and shut off our video cameras on a zoom so others cannot see our space and we are at liberty to do what we want. This is illustrated in the 4^th Amendment where it says the government cannot enter and search through our private papers, home, and effects except under certain conditions nor can soldiers be housed in our homes (Article III). Some argue that privacy is necessary for personal dignity. That is clearly not thought of this rogue supreme court.

Liberty means being free as defined by doing what you please, no physical restraint, and the power of choice. Thus some argue that “privacy” is really “liberty” and should have been argued that way in Roe v. Wade but others differ and say that there is nevertheless a historically and conceptually coherent notion of privacy, distinct from liberty, carved out by the constitutional privacy cases (Inness, 1992; Schoeman, 1992; Johnson, 1994; DeCew, 1997). These arguments were ignored by the current court.

Some argue that privacy is related to our personal issues and protects liberty because we have the freedom to define ourselves and our relations to others. Some say liberty is broader and privacy is a subset that is more personal. The right to travel from state to state, a liberty right, is a far different right than the right to prohibit the government from interfering with your own decisions about your body such as contraception use, abortion choice, sterilization (Buck v. Bell, 1927) and vasectomies (Skinner v, Oklahoma 1942, striking down a statute mandating sterilization for those who commit three felonies). Privacy is about an “individual interest in making certain kinds of important decisions” (Whalen v. Roe 1977).

Since “family” originated when women and children were the property of men, the battles have been very long indeed. Not until the mid-eighteen hundreds in the U.S. did woman have any civil existence. Before that, men owned women’s property, her wages, even her clothes and especially her children. She could make no decisions, could sell no property even when it was left to her, could sign no contracts, and often could not get a divorce. Women could not get a credit card in her own name until 1974 when the Equal Credit Opportunity Act passed Congress.

The “Married Women’s Property Acts” that were passed in the mid-eighteen hundreds were in fact done to protect men’s property from creditors – by transferring it to their wives. Women did not get custody of children on an equal basis until the 1970s and then for only one decade.  After that, and until today, men win custody more often when they seek it. (Author paper) This is what the current court wants to return women to.

Women remain today as the main caretakers of children. This necessarily implicates the ability to work and support yourself. We penalize women for motherhood by interrupting career paths, not paying them for their work, and giving them no governmental or social supports. It will not be even worse with forced pregnancy and birth.

What’s the best theory?

Women have fought the legal battles for equality for a very long time as well. As Hunter points out from 1911-1967, 25% of the legal arguments were framed as “difference” arguments and were more apt to lose. From 1869 to 2000, a period of 131 years, women brought ten cases under the Fourteenth Amendment and men brought nine. Of the ten that women brought, they won six and lost four; thus women have a 60% chance of winning. Of the nine that men brought, they won seven and lost two; thus men have a 78% chance of winning. Even the fight for women’s rights benefits men more than women.

According to Hunter, in state courts and state legislatures, equality arguments lost but more often prevailed in federal courts. Family courts rejected the equality arguments because of the “women’s nature” mystic. They used the “difference” argument against women as it was used in the labor context.  Since women are “different” the courts must protect women from their own rights.

The difference between litigating or legislating these issues is that courts must give reasons for their decisions and legislatures do not. Legislators may give speeches, but they often have little to do with the real reason for their vote. A lost case in court can be appealed one or two times but then it can’t be brought up again. In legislatures, an issue can lose year after year after year and keep coming up until it passes. The average new statute takes seven years to pass. The 19^th amendment (voting) took 82 years and the 28^th amendment (ERA) took 98 years.

The belief in “domesticity” or “women’s nature” has infected all strands of argument. From 1869 to 2000, nineteen cases were brought about women’s rights under the Fourteenth Amendment. The Bradwell (1869)challenge brought one year after the 14^th amendment was passed focused on privileges and immunities not equal protection. The court found that being a woman was sufficient reason to disqualify Myra Bradwell from being licensed as an attorney and the privileges and immunities language in the 14^th Amendment changed nothing.

Another of the shibboleths used in the “differences” arguments is that women must be restricted from certain jobs because they aren’t as physically strong and can’t lift as much.  OSHA standards for wo/men are 51 pounds with both hands under ideal conditions. Even pregnant women up to 20 weeks can lift 36 pounds. Mothers lift and carry children who on average weigh 20 pounds by one year; 26 pounds by two years; 40 by five years; and 50 by seven years. No one complains about that. Women are also known for being the “bearers of burdens” the world over often using “head carry” or tumpline (a heavy load suspended from the head).

When a woman’s “nature” made her an advantage, corporations cared nothing about her welfare e.g. smaller bodies or more dexterous hands meant she toiled in cotton mills and textile factories in horrific conditions for terrible pay. Children too. It wasn’t concern for women; but greed – just as it is today.

One irony of the “differences” argument is that women had to argue the differences in biological sex to get women’s rights at all. Now we are doing it again as the trans movement threatens to obliterate sex-based rights thus undoing all we have accomplished with the women’s rights movements.

After property and custody, the third rail of the “family” arm is sexual autonomy.  It was commonly known that married men had affairs, but women were not allowed.  Men had pre-marital sex, but women were not allowed.  Men controlled birth control with condoms but women, who paid the price sometimes with their lives, were not allowed. In the sexual autonomy lawsuits, women were often the defendants i.e. criminal cases were brought against women for educating about or providing birth control and the defense was based on free speech e.g. Comstock law violations and was often successful.  Griswold v. CT (1965) is an example.

Abortion was a non-issue for most of societal development but left to women’s determination until the church and right wing decided to use it as a wedge issue. It has been a hot button issue since.  Litigation worked better than legislation with Roe v. Wade as an example though the case and its progeny still leave largely male doctors who have no practical experience in pregnancy or childbirth in charge of women who do. Some lawyers argue now that it would have been better to bring that case on “liberty” grounds rather than “privacy” grounds. Armchair quarterbacking is much easier 48 years on than trying to win the case and save countless women’s lives and futures. Both birth control and abortion need to be solidly in women’s hands as women are who it most effects. The Dobbs v. Jackson Women’s Health decision put that control into the hands of five unrelated men and one woman with Handmaid style beliefs.

International Structures

One way to look at these competing arguments is to look at the differences in the United Nations Convention on Civil and Political Rights (UNCCPR) and that on Economic and Social Rights (UNCESR).  The U.S. has signed the UNCCPR but not its optional protocol that allows a complaint to be brought. The U.S. has not signed UNCESR at all.

UNCCPR with its focus on political and civil rights has articles on self-determination; non-discrimination; equal rights; the right to life for those living; that no one shall be subject to torture or cruel, inhuman or degrading treatment or punishment including medical or scientific experimentation without consent; no slavery or servitude; liberty and security of person (primarily in arrest/criminal trial context); treatment with humanity and dignity; freedom of movement;  no interference with privacy, family or home; freedom of thought, conscience, religion, expression, assembly, and association; right to marry freely only with consent and to have a family with equality of rights and responsibilities within that family; name and nationality; to vote; take part in public affairs; and run for office.

These political and civil rights should never be dependent on sex so the “equality” argument prevails. The 15th amendment says:  The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.  The 19^thAmendment says:  The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.  The 28^th amendment (ERA) says: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. These rights are negative rights i.e. everyone has them equally by birth, no one give them to you, you are born with them, and the government’s job is to see that no one interferes with that or takes it away.  Clearly that was ignored in Dobbs.

Practical difficulties exist for people with disabilities, or those living in rural areas or speaking a different language, but these are not related to sex. Differences in running for office that are related to sex i.e. stereotypes, disrespect, raising money, and even violence also exist but the law should not be one of those obstacles.

Equality under the law means women can sign contracts as well as men, women who commit crimes are tried under the same rules as men, women should own the product of their own work the same as men and have the same right to custody of their children. Discrimination exists in application of these laws but that is not the fault of the law, it’s the fault of the people.

Social, domestic, and labor rights are covered by UNCESR that talks about self-determination and non-discrimination based on sex, race, language, religion, wealth, social group, foreign national status, or anything else. These are positive rights in that the state has a duty to act to ensure and provide these rights.

Other topics in UNCESR include a right to work in a just and favorable condition, a fair living wage, and leisure time; ability to form trade unions; social security; consensual marriage to whom you choose; basic standard of living and freedom from hunger, right to health including healthy environment and medical care; right to education and primary education should be free and compulsory; and the right to share in community’s arts and sciences and have your contributions protected.

This convention also includes “difference” provisions in that they must protect pregnant women before and after birth including paid maternity leave, and the state must protect children from exploitation. The government’s job is to ensure that everyone has these positive rights at some basic level according to the economic development of that country.

The positive rights that a person has under UNCESR should be provided by both the institutions of state and the economy. For example in the U.S. theoretically companies provide for health insurance for the employed while the government provides for the unemployed. Companies provide you a paycheck for your basic living while working but when disaster strikes e.g. COVID, the government provides in terms of unemployment, food stamps, and health care. These systems are far from perfect but are examples of how the institutions can work together rather than fight each other, as the arms of the triangle support each other. The family and economy arms of the triangle are starting to see how they can work together as the battle heats up for a fair exchange for one’s labor – whether at work with the “Fight for $15” movement or at home with the movement for paid housework.

https://www.shethepeople.tv/finance/paid-housework/

The “difference” argument is dependent on sex because of historical patterns and existing conditions. In comparison, race does not exist in any scientific way. There is only one race – humans – and we have known that for a long time. But the designation of “race” was created to label certain persons to justify slavery. So though “race” does not exist in science, the stereotyping and discrimination created by the labeling exists and must be fought. Likewise for “gender.” It too does not exist but is simply the designation of roles and behavior at a certain tune that the power structure says is appropriate for fe/males. Like “race,” it has no material reality but is a mechanism to justify the control of women. The definition of “gender” changes over time and culture so cannot be relied upon as the arbiter of discrimination or “difference.” But sex does exist as biological and physical differences between the female and male of the species and remains the battleground.

Other theoretical approaches

Other theoretical approaches have been used to argue for women’s equality as well.  One approach is referring to women as a “minority.”  But they are not. Women outnumber men numerically so can’t be considered a minority except in power positions.  If they are white, they have white privilege as well in certain countries that separates them from women of color.  If they are wealthy, they have that privilege over the poor everywhere.

Another approach has been to analogize the treatment of women to the treatment of people of color using the Fourteenth Amendment which was first envisioned and outlined by Pauli Murray. That strategy was adopted by Ruth Bader Ginsberg at the ACLU Women’s Rights Project and was having success until it all came tumbling down in U.S. v. Virginia (1996) written by Justice Ruth Bader Ginsberg. The U.S. argued and the court agreed that restricting entrance to the Virginia Military Institute to males violated the equal protection clause. The “exceedingly persuasive justification” standard was used for the third time, the first time for women. But Ginsberg completely reversed the movement toward considering sex as a suspect category like race by saying:

“The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967). Physical differences between men and women, however, are enduring: “The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.”

Had she insisted on sex as a suspect category, she would have lost the votes for her position, and we would have gone back to the rational relation standard which would have been a true disaster.  In fact, most of us would agree that a community of exclusively women is different from a community of women and men, but that should not preclude equal rights under the law.

Another approach has been choice – “I didn’t choose to be a woman so you shouldn’t punish me for that.” There are numerous stories of women over history who masqueraded as men because women were not allowed to practice certain occupations – doctors, military leaders, engineers, priests, and popes etc.  Lesbians and women of color also say – “I didn’t choose this attribute so don’t punish me for this accident of fate.” The “trans” ideology that you can choose your sex and change it from time to time destroys this argument. If I don’t like the strictures put on me because I’m a woman, I can just change into a man. But I don’t want to be a man; I want to be accepted for who I am and not have to cut up and poison my body to change into what someone else defines as acceptable.

A fourth approach has been that women have a claim for justice because of forced subordination to power structures. That argument is closer to a class-based argument. Class analysis comes in many different flavors e.g. the political regime is shaped by the social class structure; another is that micro level effects correlate with and shape macro level effects; social class is defined by life chances and the market sets the chances and limits according to what the person brings to it; others define it as the owner versus the worker class; or by the modes of production that in turn influence all the other systems. Again, like the “minority” analogy, differences on the ground among women make this approach very difficult to apply. Women living in wealthy circumstances have both a different response from the power structures and a different impact on it. Wealth is often correlated with race, geography, and family inheritance so accidents of birth often separate women who should be working together. To see a great example of how it could work, watch the movie “Made in Dagenham” where you see factory women, the factory owner’s wife, and a woman in Parliament team up.

Conclusion  

What is clear is that no one argument works for everything – as usual. The battle for women’s rights cannot address just one side of the triangle without taking in all the other perspectives. Just like there is no single concept of woman, there is no single concept of women’s equality or women’s struggle.  As Audre Lorde said, “There is no thing as a single-issue struggle because we do not live single-issue lives.”

That’s not to say a person or movement can’t focus on one area. That is the only way we can do it. The battlefield is so vast if we tried to focus on it all, we would soon lose our way. I can’t be an expert in everything. But as women do, we need to collaborate rather than compete with our battles in labor, family, and the state. We need to distribute the weight of the oppression and the energy needed for the battle. I have heard many people lament that the women’s movement would be so much stronger if we would all band together around one issue and one strategy.  I disagree. Not only will it never happen because of the differences among women, but it’s a bad idea. Hierarchal structures are more fragile than distributed structures; smash the top and it crumbles. With a distributed structure, like the arch, web, or networking, it is more durable especially when fighting against an enemy with far more power and weapons. Guerilla groups have known this for centuries. It’s the guerilla war strategies in a distributed structure we need to fight the entrenched patriarchy.