Is it Finally Time for the Equal Rights Amendment?

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official-blogger-2My latest post is up at InPowerWomen.com, but I’m pretty excited about how it turned out, so I’m going to add it here in its entirety. I’ve been posting over there about women, politics and media and was asked to contribute something for Women’s History Month. I hate to be the downer on the site, but considering how often Women’s History Month articles and events are very much about the successes of women, I thought it’d be beneficial to take a look at a time where things didn’t go so well.

Would love to hear your feedback, either here or on the InPower Women site.

The first Women’s History Week was observed in March of 1982. Just a few months later, one of the biggest disappointments of the women’s movement occurred as the Equal Rights Amendment expired when the ratification deadline came and went at the end of June. This Women’s History Month, after an election year where women’s issues were in the forefront and after the Violence Against Women Act finally passed after a long and hard fought battle, it seems appropriate to ask, do we still need an Equal Rights Amendment in the Constitution?

FROM AN IDEA, TO A MOVEMENT

The ERA was originated by the National Woman’s Party in 1923 to complement the 19th Amendment, which gave women the right to vote in 1920. The ERA was introduced in Congress officially in 1923 as the following:

Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.

The amendment was re-introduced and failed in every Congress until a reworded version finally passed both chambers in 1972. The final text reads:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

It was then turned over to states for ratification with a seven year deadline. After passage in Congress, the ERA needed to be ratified in 38 states. It only passed in 35. The deadline was extended until June 30, 1982, but ultimately failed to be ratified.

THE QUEST FOR EQUALITY

The ERA was supposed to fill the gap left by the so-called Equal Protection Clause of the 14th Amendment. Though the 14th protected “all persons born or naturalized in the United States,” it was adopted following the Civil War with racial discrimination in mind. And while numerous cases came before the Supreme Court seeking equal protection for women, women routinely lost up through the 1960s.

Women were told they had no constitutional right to practice law (Bradwell v. Illinois in 1873), vote (Minor v. Happersett in 1874), act as a bartender without her husband or father owning the establishment (Goesaert v. Cleary in 1948) or face a jury of her peers (Hoyt v. Florida in 1961), among others. Most of these decisions were rationalized that women were the “fairer or weaker sex” that needed protecting, as Ruth Bader Ginsburg wrote in 1979.

In 1971, things started to turn around. In Reed v. Reed, the court held unanimously that an Idaho law giving preferential treatment to men over women in estate administration appointments was unconstitutional under the Equal Protection Clause. Other cases began to follow suit.

IS THE ERA STILL NECESSARY?

Whenever discussions about the need for the Equal Rights Amendment come up, my mind immediately goes to this clip from “The West Wing” of Republican Ainsley Hayes discussing her opposition. And Ainsley makes some good points about being protected by the 14th Amendment. There are also plenty of laws on the books like the Equal Pay Act of 1963 and the Civil Rights Act of 1964, both of which banned discrimination on the basis of sex. Most recently, the ban against women in combat roles, which the ERA would have ended, has been lifted by the military. There’s still more work to be done, but given all the steps in the right direction, do we still need an Equal Rights Amendment?

In my opinion, sort of. In our current climate, I find it’s more imperative than ever to make it clear that women are entitled to the same protection as men under the United States Constitution, for two very specific reasons. First, we hear about new laws on a regular basis seeking to place limits on the right to privacy granted to women under the Equal Protection Clause in the landmark decision Roe v. Wade. That right to privacy is being chiseled away in states that now require an invasive trans-vaginal ultrasounds in order to obtain a legally protected abortion. If this right can be taken away, should women be worried about all their other rights as well?

But more importantly, we need to make clear that the Constitution applies to us all because there are justices on the current Supreme Court who believe in interpreting the Constitution based on the original intent of the framers. And the original intent of the 14th Amendment was not to protect women. In an interview in 2011, Justice Antonin Scalia said this about equal protection in the Constitution:

“You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”

Scalia suggests that legislation is sufficient to outlaw sexual discrimination. But with justices like him on the court, what are the chances a law like that would be upheld as constitutional? I don’t like those odds.

So, why do I say sort of? Well, because women aren’t the only group out there in need of constitutional protection. The current session of the Supreme Court will be hearing challenges to the Defense of Marriage Act and California’s Prop 8. Does the Constitution grant equal protection on the basis of sexual orientation? It certainly wasn’t what the original drafters of the 14th Amendment had in mind. And yet, the same 14th Amendment that may not cover women or homosexuals, does cover corporations, according to numerous cases decided by the court. So, where exactly is the line drawn?

Instead of fighting for an Equal Right Amendment just for women, let’s close all the loopholes. Let’s establish once and for all that if you’re a human being born or naturalized in this country, you’re a citizen. And that citizenship comes with all the rights and privileges outlined in the Constitution.

What about you? Do you think there’s still a need for the Equal Rights Amendment?

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Will a Record Number of Women in Congress Make a Difference?

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Check out my latest post for InPower Women!

With the Inauguration in the rear view mirror, it’s officially time for the 113th Congress and President Obama to get back to work. Women were big winners in the November elections and the current Congress set a new record for female members when officially sworn in earlier this month. That’s the good news. The bad news is that new records means that female representation in Congress jumped from a high of 17% to a new high of 18%.

But it sounds more depressing than it really is, as these infographics from Mother Jones indicate. Some fast facts:

  • 1 in 3 newly elected members is a woman
  • 184 women ran for Congress in 2012 and nearly half were elected
  • The state of New Hampshire will be sending an entirely female delegation to Washington with a female Governor at home
  • Four states are sending their first female Senators; Hawaii, Massachusetts, North Dakota and Wisconsin

And let’s not forget that there are now 20 women serving in the Senate, up from 17 in the 112th Congress.

Read the rest at InPowerWomen.com!

Women as Candidates, Women as Symbols

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I stole the title for this post from a recent event at the New America Foundation. If you haven’t been to their site or attended one of their event, I highly recommend. Not only are the topics incredibly thought-provoking (see: The Reoccurring Theme of Entitlement), but their panelists are terrific.

The most recent event I attended was their panel on Women as Candidates, Women as Symbols. The panel was moderated by Rebecca Traister, of Salon.com. While the event touched on a number of different issues about women in politics (and women as politics), the idea of women as candidates was an ongoing theme throughout the discussion. The panel was well-timed, too, happening shortly after the publication of Anne-Marie Slaughter’s article, “Why Women Still Can’t Have it All” in The Atlantic. The idea of women in high-powered positions was on everyone’s mind.

Again, the theme of entitlement came up as part of the conversation on why, when women represent 51% of the population in the U.S., the account for only 17% of Congress. GOOD put together the infographic to the right showing what Congress looks like now and what Congress would look like if it truly reflected the demographic breakdown. This is from 2011, so the numbers may not reflect the special election updates, but it’s a big majority of men. And a big majority of whites.

And a big part of that is not just that men feel more entitled to run for office, but that women feel under qualified and are under recruited. Michelle Goldberg, writer with Newsweek and The Daily Beast, and Jen Bluestein, from EMILY’s List, both mentioned the research of Jennifer Lawless during the panel. Studies have shown that when women run for office, they win at the same rate as men. One of the best known was conducted by the National Women’s Political Caucus in 1994 found that sex has less to do with the outcomes of an election than incumbency. And when women run for open seats, they are just as likely to win as a man. But they can’t win if they don’t run.

Lawless, along with her colleague Richard Fox, have researched why women don’t run for office. Their most recent paper, “Men Rule: The Continued Under-Representation of Women in U.S. Politics” highlights seven key factors in why women don’t run:

1. Women are substantially more likely than men to perceive the electoral environment as highly competitive and biased against female candidates.

2. Hillary Clinton and Sarah Palin’s candidacies aggravated women’s perceptions of gender bias in the electoral arena.

3. Women are much less likely than men to think they are qualified to run for office.

4. Female potential candidates are less competitive, less confident, and more risk averse than their male counterparts.

5. Women react more negatively than men to many aspects of modern campaigns.

6. Women are less likely than men to receive the suggestion to run for office – from anyone.

7. Women are still responsible for the majority of childcare and household tasks.

It’s a lot to tackle and Lawless and Fox do a great job of breaking their data. I highly recommend reading their analysis. There were so many great graphs to choose from, but the recruitment gap was particularly striking. Women are significantly less likely to be encouraged to run for office by political and non-political actors compared to men. Lawless and Fox surveyed men and women in positions that generally lead into political office; business leaders, lawyers, educators and political activists. Men were more likely to be recruited at all levels of government. 21% of men who responded said they’d been recruited for a local school board election, while only 18% of women had been recruited in similar ways. Get further up the government ladder, to statewide or federal offices, and the gap widens. Only 16% of the women surveyed had been recruited for state legislatures, while 24% of men had. And while 10% of men were recruited to serve in the House of Representatives, only 4% of the pool of highly qualified professional women were approached for the same job.

And recruitment is important, because even when specifically selected to participate in a survey because of their perceived qualification, women are statistically less likely to see themselves as qualified to run for office. One particularly amusing statistic from this study mentioned by Bluestein was that even among the men who did not think they were qualified to run for public office, “55% have given the notion of a candidacy some thought.” Again, that sense of entitlement.

While writing this, I mentioned the statistic above to my husband who suggested that perhaps it’s because young men grow up being told that they can be anything, even president. But while girls are told that they can have it all, family and a career, the reality doesn’t exactly measure up.

Closing the gender gap is about more than just increasing diversity in politics. It’s about issues that directly affect women being discussed and voted on by predominantly male politicians. Bluestein commented at the panel that “the safest time to be a women is when Congress is on recess.” She also mentioned that there has only been one day in this Congress where there have been no debates on “truly anti-women legislation.” I haven’t been able to find verification of that, but I wouldn’t be surprised. It seems nearly every bill up for debate has some sort of anti-abortion or anti-contraception amendment added. Recently, Senator Rand Paul stalled a vote on flood insurance — yes, flood insurance — in order to get his amendment on fetal personhood debated.

Sandra Fluke, who says she didn’t intend to become a combatant for women’s issues, made the point that the Republicans in Congress have managed to divorce many of these issues that directly affect women from women. Paycheck fairness becomes about tort reform. The Violence Against Women Act, which has been reauthorized and expanded twice since it was first enacted in 1994, has turned into a fight against gay people, even if the coverage is just as needed in the gay community as it is for straight women. And contraception and abortion are repeatedly turned into religious freedom arguments, despite the fact that different religions have different beliefs about abortion. (And, incidentally, the clip linked, of Michigan state Representative Lisa Brown, became a debate about the use of the word vagina, rather than abortion.)

But it’s also about more than just the issues that are being debated. It’s also about how things get done (or, in this Congress, don’t get done) and how successful the ultimate outcomes are. We can look at the business world for reference of how important it is to have women represented in positions of power. In 2012, only 18 companies in the Fortune 500 were led by women, the most ever. There has been a lot of discussion on why there aren’t more women leading companies or sitting on boards of directors, but there has been just as much research into how having women in leadership positions can affect a company. And the effect can be significant. InPower Women has put together an impressive collection of studies and research on women, leadership and business. For example, one study by Catalyst 2011 found:

Despite a rough economic period, Fortune 500 companies with three or more women in board positions created a competitive advantage over companies with no women on their boards in the following three areas:

  • Return on Sales: 84% advantage
  • Return on Invested Capital: 60% advantage
  • Return on Equity: 46% advantage

This study was conducted on financial results of 524 public companies, which demonstrated a sustained commitment to women in leadership, as measured by the presence of women on their boards for four of the five years analyzed. Previous studies in the series have also found a connection between gender diversity on corporate boards and financial performance.

Another really interesting study in the Harvard Business Review looked at collective intelligence and the number of women in groups. The graph below kind of speaks for itself.

Reading into the study a bit though, I found another key point from Anita Woolley, part of the team that conducted the research. She commented that social sensitivity is important in group performance and women tend to score higher on tests of social sensitivity than men. Having more women in groups leads to more listening, more constructive criticism and more open minds. Having more women in the political arena could lead to the same results, but rather than affecting a group or a business, women could affect change in their communities and the nation.

Looking at countless studies about the benefits of diversity, both gender and cultural, it’s hard to believe that more women aren’t inclined to run and more women aren’t recruited to run. But perhaps looking back at the second key point from the Lawless/Fox study, that the candidacies of Hillary Clinton and Sarah Palin “aggravated women’s perceptions of gender bias in the electoral arena,” can answer more questions about why women aren’t more inclined to run for office. So much of the coverage focused on the fact that they were both women, rather than their qualifications (or lack thereof). Consider how frequently the press on Clinton mentioned her pantsuits or her laugh. Meanwhile, Sarah Palin’s legs were a constant topic of conversation.

In an article late last year, Christina Bellantoni wrote about Michele Bachmann’s primary run. Bellantoni highlighted the ways in which Bachmann’s campaign differed from Clinton’s or Palin’s. While Clinton downplayed her role as a mother, keeping Chelsea largely out of sight except for a limited number of tightly controlled events, Palin paraded her children out on the campaign trail. Bachmann spoke about her role as a mother to emphasize her strengths as a woman and as a candidate. In some ways, Bachmann’s campaign was particularly unique because a significant proportion of her press coverage focused on her extreme views and the crazy statements she’s made during her time in office and on the campaign trail, rather than the fact that she was a woman. Not to say there wasn’t sexist coverage, though perhaps it was a bit more subtle. For example, a great deal of attention was paid to her severe migraines. Replace migraines with PMS and we’ve heard this story before. Also, as Michelle Goldberg pointed out on the panel, Bachmann’s views weren’t that much more preposterous than Rick Santorum’s and he came close to nabbing the nomination.

In November, women will not be sitting this election out. More than 223 women are still in the running for Congress. If half of those women win, Congress will be nearly 21% women, a four-point gain. There are still a number of primaries to come, so the number of women on the ballot in November is certain to shrink, but we could see an unprecedented number of women running. Will we start seeing headlines about 2012 being “The Year of the Woman” like we did in 1992 or 2008? Unfortunately, it’s already underway here (and here and here).

While it’s encouraging to see coverage of the important issue of gender disparity in politics, most of the coverage sets an impossibly high standard for women. Not all the women running for office will win (especially since women are running against women in some races) and if women are just as likely as men to win elections, they’re also just as likely to lose. While we’re almost certain (I hope!) to see an uptick in the number of women serving in Congress, we’re still not getting anywhere close to equal representation. When that happens, write all the “Year of the Women” headlines you want. I’ll just be happy to see it happen.