The Backstory to the Stubborn Persistence of Sex Discrimination in America

 

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Forty-four years ago, when Shirley Chisholm became the first woman, and the first African-American, to seek the Democratic Party’s presidential nomination, critics dismissed her campaign as quixotic. Today, Hillary Clinton could become the party’s flag bearer, surely a moment of triumphal progress. But, the journey from asterisk to possible nominee has not stopped male commentators in the media from criticizing Clinton for shouting too much and for smiling too little. As well, Clinton, a former First Lady, Senator from New York, and Secretary of State, has had to face condemnation from media outlets for not being inspiring enough. Then there is last month’s attack ad from Republican presidential hopeful, Donald Trump, that reduced Clinton to an annoying barking dog who is too weak to protect America’s national security interests. The ad not only dehumanizes Clinton, but it also reinforces a discriminatory attitude that women are unfit for leadership positions. This mindset, moreover, has long played a principal role in the shaping of American society, as it is of a piece with earlier judicial and political opinions that limited women’s rights on the basis that women were too feeble to exercise civic independence. In Mackenzie v. Hare (1915), for example, the United States Supreme Court not only upheld the Expatriation Act of 1907, an act that made an American woman lose her nationality status if she married a foreigner, but it also proclaimed the centuries-old belief that women needed men as their protectors to be “an ancient principle of our jurisprudence.”

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Although advances in recent decades have eroded the thrust of legalized sex discrimination, the idea that women’s civic autonomy should be restricted still exists in skeleton form. For example, women still encounter restrictions on their ability to access reproductive care. They still face a sexual stratification of the labor force that results in sex-based wage discrepancies and the limitations of their employment opportunities. And, they still have to deal with inconsistent court rulings that have not fully overthrown the authority of the federal government, or the states, from treating citizens differently on account of sex. In many ways, then, our society continues to place women in a secondary position that restricts their ability to participate as citizens on the same terms as men. To fully remove the societal barriers that continue to restrict women’s status, we need to first understand the back-story for the pernicious discrimination against women.

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The maleness of rights-bearing citizenship is an idea that has been deeply embedded in Western political thought. Like their Enlightenment predecessors, America’s founders imagined their new nation as a domain ruled by equally independent, male agents. In this gendered outlook, the idealized man, like the idealized citizen, exhibited freedom, responsibility, and the ability to govern. The civic republicanism that infused the American Revolution also followed the contention that active political participation should be limited to citizens who could demonstrate their civic virtue by bearing arms to protect the new republic. This belief, however, implicitly barred all women from full citizenship status, because early American political thinkers assumed that women were unfit for combat. As historian Mark Kann argues, at the time of the Revolution, most Americans connected men to productivity, reason, and self-control while linking women to seduction, manipulation, and dependency. Due to the influence of this mindset, the founders sought to insulate political society against the supposed unruliness of women.

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To be clear, early political leaders counted women, albeit only white women, as citizens of the country in the sense that they understood these women to be inhabitants of the new nation. Still, the status of being a rights-bearing citizen excluded all women. The legal basis for this exclusion derives from the English common law doctrine of domestic relations known as coverture. In essence, coverture submerged a woman’s civic identity into her husband’s identity. Coverture also denoted a system of sex-specific marital duties in which women were considered to owe their husbands services, such as childbearing and homemaking, and, in return, their husbands were to provide shelter and financial support for them. In short, coverture privileged the man/husband as the sole rights bearing person of the household and it implied that politically and economically the wife was absorbed into, and represented by, her husband.

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A dominant belief in early American society was that the majority of women married; consequently, coverture also stood for the legal process by which unmarried women became married women. As Nineteenth-century theologian, Horace Bushnell, put it: “What we have to say is, that all women alike are made to be married, whether they are or not.” If a woman did remain unmarried, it was assumed that she was reliant on male relatives for economic support and political representation, as the majority of political and cultural leaders presumed that women were naturally dependent on men. Thus, for a woman, marriage was the move from dependent daughter, or relative, to dependent wife.

UnknownIn treating women as “covered” by their husbands or other male relatives, coverture imposed several restrictions on women, which included their inability to hold property, to sue and be sued, to vote, hold public office, serve on juries, enter into contracts, draft wills, and control their earnings. The old law of domestic relations also placed sharp constraints on women’s right to control their bodies, as coverture developed from the principle that upon marriage the husband gained ownership of his wife’s body. Implicit in this notion was that the husband’s right to the services of his wife’s body exceeded all other obligations she might have held. The emphasis, then, on the self-governing individual wrapped in the notion of rights-bearing citizenship excluded women, because the old law of domestic relations denied women self-possession of their own bodies.

Beginning in the mid-nineteenth century, statutes enacted in the United States sought to reform the common law doctrine of coverture by giving a number of married women the capacity to enter into legal transactions. By 1850, for instance, many states had passed laws that allowed married women to hold property. Even so, these reforms did not fully liberate women from the restraints of coverture. During the industrial period, socioeconomic forces separated men’s work from the household setting. These same forces, however, gender-marked the work that most women continued to perform in the family sphere; as a result, women’s domestic labor became separate and distinct from market labor. While a number of the reforms did affirm married women property rights in the work she might perform outside of the household, many of the statutes continued to protect the presumed right of a husband to his wife’s services, specifically with regard to her domestic labor. In this manner, the reforms effectively preserved the tradition of sex-specific marital duties embedded in the doctrine of coverture.

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Elements of coverture also persisted in American legal thinking after the passage of the Reconstruction Amendments. Although the Fourteenth Amendment affirmed that all women were citizens in that they counted as inhabitants of the country, the courts still restricted the implications of the Fourteenth Amendment as it pertained to women’s rights as citizens. For example, the U.S. Supreme Court’s decision in Bradwell v. Illinois (1873) severely limited the amendment’s impact on women when it upheld the exclusion of Myra Bradwell from the Illinois bar. On the ruling, Joseph P. Bradley reasoned in his concurrent opinion that women’s legal standing did not confer upon them the privilege to engage in any and every profession, occupation, or employment in civil life. As a result, the Court further confined women’s official membership to the domestic realm of the country.

In the early twentieth century, new understandings of what the state owed its citizens perpetuated the distinction between men and women’s civic standings. As industrialization pushed more women into the workforce, policymakers decided that the state was obligated to provide workingwomen with protective measures in order to shield them from the ravages of capitalism. These measures included laws that specifically regulated the labor conditions of workingwomen by barring women from working at night, establishing maximum work hours, and prohibiting women from working in certain occupations.

Social reformers such as Florence Kelley of the National Consumers’ League (NCL) succeeded in establishing special labor laws for women by appealing to the dependent woman theory embedded in coverture. This theory justified the special treatment of women by calling upon the popular conception of women’s presumed physical weaknesses as well as their roles as mothers and caretakers of the household. When the U.S. Supreme Court embraced this view with its decision in Muller v. Oregon (1908), it essentially admitted sex-specific economic protection into federal practice. Specifically, in Muller, the Court upheld the constitutionality of an Oregon law that barred women from working in laundries for more than ten hours a day by asserting that there was a public interest in regulating the employment relations of women on the basis that all women were mothers or potential mothers. At a time when women in unprecedented numbers were entering the labor market, the Court’s opinion solidified the idea that women workers were weak, dependent, and incapable of enjoying the same economic rights as men.

From revolutionary-era republicanism to nineteenth-century democracy, the political realm officially excluded women. Yet, to portray women simply as victims is to deny their historical agency. As Florence Kelley’s social activism suggests, women constructed important roles for themselves that allowed them to contribute, even though informally, to the public sphere. This female activism aimed at reforming factories, slums, slave cabins, prisons, asylums, and brothels. In sum, these women provided important energy that fueled the voluntary associations and reform movements that became the precursors of state-dispensed social welfare.

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Many women also fought for the expansion of their rights, especially in relation to the franchise. In general, suffragists asserted that women were the equals of men in their natural entitlement to exercise the franchise. As such, their position challenged the traditional conception of the state as a collection of independent male agents. As a whole, moreover, the suffrage movement framed enfranchisement in terms of affirming women’s status as citizens. To a significant degree, then, suffragists consistently fought for the vote as a way to secure women’s standing as rights-bearing citizens.

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When American legislators finally moved to affirm women’s right to vote with the ratification of the Nineteenth Amendment in 1920, they did disrupt briefly the masculine model of rights-bearing citizenship. But, the Nineteenth Amendment ultimately failed to fully dislodge the long-established legal paradigm that had given men authority over women. For decades after federal woman suffrage, restrictions on women’s civic autonomy persisted in the law, including the denial of women’s rights to serve on juries and to hold a number of public offices. States also continued to maintain different laws for men and women with regards to the right to manage property and earnings, the right to contract, the right to control one’s domicile, the right to sue and be sued, and the right to work in certain occupations. These limitations continued because post-Nineteenth Amendment court cases restricted the potentially radical implications of the amendment so that women’s newfound status as electors did not command the recognition of other rights.

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Certainly, the renewed female activism of the mid-to-late 1960s and 1970s did produce several victories that helped to alleviate the sharper limitations on women’s societal position. For starters, the resurgence of the women’s movement contributed to the passage the Equal Pay Act of 1963, Title VII of the 1964 Civil Rights Act, as well as Title IX of the 1972 Education Amendments. The recharged female activism of the period also gave way to notable reforms in the common law tradition of domestic relations. By the late 1970s, for instance, most states had enacted legal changes that attempted to neutralize the sex-specific aspects of laws and practices relating to alimony, head of household status, domicile, as well as property and earnings rights.

But these achievements have not completely unseated a centuries-old outlook that continues to condition our dominant cultural consensus in such a manner that we still assign women a secondary societal position. Even now, American society predominantly frames women’s roles around their traditional duties in the home. This tendency ultimately perpetuates the sexual division of labor embedded in the common law tradition of domestic duties that expects women to focus on the family so that men are free to work outside of the home. In effect, the lasting influence of this notion reinforces the subordinate position of women when they do decide to pursue activities that extend beyond their conventional roles as wives and mothers. When, for example, women enter male-dominated fields they typically do so in junior slots where they often remain with lower salaries. Additionally, as scholar Sandra VanBurkleo has noted, the persistent belief that women are best suited to doing work that replicates their supposedly natural domestic functions still renders women’s work outside of the home as unskilled and amateurish. As a result, women continue to suffer from a significant wage gap that privileges men over women who are similarly situated but not identically employed, such as male janitors and female housekeepers.

images-1 copyThe present fight over women’s right to reproductive care also harkens back to a central tenet of the common law tradition of domestic relations: the denial of women’s bodily autonomy. In an effort to justify the strict regulations that are shutting down abortion clinics throughout the country, abortion opponents have continued to evoke the paternalistic notions that women are unfit to exercise self-ownership over their own bodies and that their bodies should be under the control of the state and/or their male relatives. Even though colonoscopies have a higher mortality rate than abortions, clinics performing colonoscopies are not held to the same level of regulation. Although the American College of Obstetricians and Gynecologist has insisted that abortion is one of the safest medical procedures performed in the United States, abortion opponents have not been deterred. As recently as March of this year, for example, abortion opponents argued before the Supreme Court in Whole Woman’s Health v. Hellerstedt that strict regulations on abortion clinics are especially necessary to protect women’s health and safety.

Unknown copyIn order to dispel the legacy of sex discrimination that continues to affect us today, we need to make significant changes that not only underscore the respect women deserve as persons but also reaffirm their autonomy as rights-bearing citizens. These changes include: ratifying an equal rights amendment to heighten the judicial scrutiny of sex discrimination cases; adopting measures that improve women’s ability to work outside of the home such as legislative guarantees of affordable childcare and paid parental leave; electing more women to public office to balance out the disproportionate number of men in our seats of political power; removing restrictions on women’s ability to access reproductive care; and creating educational initiatives to counteract the persistent objectification of women’s bodies in the media. These steps alone will not eradicate all the sexual inequities embedded in our societal fabric, but they are starting points for creating the deeper conceptual awakening that is needed to ensure that men and women can participate as citizens on the same terms.

5 thoughts on “The Backstory to the Stubborn Persistence of Sex Discrimination in America

  1. I love this. I so often rue the fact that history is left out of modern day arguments about politics. It was so interesting to read where the roots of so many of our gender biased laws, policies, and traditions originated from. I wonder how much will change as women become only more politically vocal, more active, and vote more women into female offices. I love the idea that we are even now beginning to challenge the assumptions that so many men have based on an assurance that they have always have the political, social, and economic power. One way is by electing a woman into the office of President! It’s taken a long time for us to overthrow the political system, but now, finally, I see hope in the fact that Hillary, despite the ridiculous and horrible smear campaigns against her, continues to win voters across America. Great work!

    • Thank you for the thoughtful response Brienne! And, I agree, electing Hillary Clinton as the first woman president would mark a tremendous victory in the ongoing struggle for gender equity.

  2. I love that this piece really gives some context for where we are today. It is so disappointing to here things like “whore” being thrown around in the political discourse and the presidential campaign or to accuse a woman of being swayed or “paid off” (but not a man). The “liberal” people who say them have no idea that there is such a strong history to this type of language and it is really not something that we have moved past. I agree the ERA really deserves to become law and maybe getting Hillary elected will do something to finally reduce the stigma of having a woman in power. Keep these posts coming- they make me smarter 🙂

    • Thank you for the great comment! Good point about the word “whore” being thrown around and the hypocrisy that is embedded in much of the attacks on Hillary. Thank you for reading and sharing your thoughts.

  3. This is a thoroughly lucid, engaging, and well=written piece.
    I am embarrassed to say that I never knew until now the origins of the stubborn reluctance to add girls’ and women’s equal treatment with males to the US Constitution! So, we owe it to “coverture”. Sigh.

    I am proud to know you, Rebecca. I wish you the best and hope that you will email me and express interest in linking arms with me and my National Equal Rights Amendment Alliance, Inc. just so you receive our sporadic national ERA updates. We 300 000 are now part of the ERA Coalition that includes Jane Fonda, Meryl Streep, Gloria Steinem, Terry O’Neil–we’ve teleconferenced=strategized for ERA twice this week.

    Please keep in touch. http://www.2PassERA.org We WILL do it this time!

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