Gender Equality Attempts Through the Decades
American women today have more opportunities than many women around the world. We hear this all the time. Then comes the “but.”
American women make less money than men. Wives and mothers are overly burdened with childrearing and domestic chores. The so-called “glass ceiling” is still firmly in place, particularly in the political arena. Those few female political candidates of any party, who are able to garner the required vast sums of money to run for office in this country, also must face sexist remarks from their male counterparts and the influential media. Women’s right to make medical decisions surrounding their reproduction atavistically is becoming more restricted, even to the point of putting women at risk. And it is well entrenched in American jurisprudence that women can be prevented from taking leadership jobs in religious institutions – based solely on their gender.
In other countries, women and girls also suffer from a multitude of harmful, and even cruel, cultural practices, e.g., genital mutilation, child marriage and early pregnancies, restriction of movement. All women are vulnerable to domestic violence and rape. Attempts at securing gender equality in this country, and around the world, have met with successes and failures over the decades.
In the United States, in 1920, American women finally won the basic right to vote, with the ratification of the Nineteenth Amendment by three-quarters of the states. Although women were the last group to gain the right to vote, the battle for women’s right to vote began in the mid-1800s. In 1875, in Minor v. Happersett, the United States Supreme Court held that states were not required to allow women to vote. Ratification of the Nineteenth Amendment faced stiff opposition from states’-rights advocates, the liquor lobby, and companies that believed they would have to pay higher wages to women if they gained the right to vote. In fact, opposition was so fierce that the Nineteenth Amendment was decided by a single vote. The suffrage movement hinged on the vote of Harry Burn, a 24-year old Tennessee legislator, who switched his vote from “no” to “yes,” in response to a letter from his mother who urged him to vote for women’s suffrage!
The Nineteenth Amendment is the only right that specifically addresses gender equality in the Constitution.2 Supreme Court Justice Antonin Scalia, in 2011, claimed that the Constitution does not specifically protect females from gender discrimination – except for the Nineteenth Amendment’s protection.3 In other words, an “equal rights” amendment to the Constitution is necessary to ensure females enjoy the same rights as males.
Equal Rights Amendment4
The Equal Rights Amendment (ERA) was passed in both the Senate and the House of Representatives in 1972, as the proposed Twenty-seventh Amendment to the Constitution. However, it had been discussed since 1923, when it was introduced at the Seneca Falls celebration of the 75th anniversary of the 1848 Women’s Rights Convention. The ERA was sent to the states for ratification, with an extended deadline for ratification to 1982. The ERA 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.
Opposition soon began to organize against ratification of the ERA, and the Amendment failed to pass by three votes. Again, states’-rights groups claimed that the ERA was a federal power grab. Business interests, also raised their voices, claiming that the passage of the Amendment would cost them money.5 Fundamentalist religious groups organized opposition to the ERA. There was a concern that abortion and same-sex marriage rights would be encouraged and strengthened. It is interesting that while same-sex marriage is gaining support – without an equal rights amendment – abortion rights are being threatened.
Although both the Democratic and Republican parties had included the ERA in their platforms, the Republican Party, in 1980, withdrew its support for the Amendment. The ERA was reintroduced in Congress in 1982, and has been in session since that time.
Without an “equal rights” amendment in the Constitution, women regularly, and men occasionally, have had to fight long, expensive legal battles in an effort to prove their rights are equal to those of the other gender.6 The US has not moved beyond the assumption that males hold rights and females must prove that they hold them, as demonstrated by the last major Supreme Court decision, in 1996, on gender discrimination, regarding the admission of women to the Virginia Military Institute.78 Furthermore, those statutes and case law that have produced advances in women’s rights could be ignored, weakened or reversed.9
We are seeing such results today. The so-called “Blunt Amendment” was recently introduced into the Senate.10 This bill, which failed to pass by a small margin, would have allowed any employer (religious or otherwise) the right to opt out of federal mandated health insurance coverage, for example, for contraceptives.1112 In the first three months of 2012, state legislators have introduced almost a thousand bills related to reproductive health and rights in 45 of the 46 legislatures that have convened during the year.13 Although access to contraceptives and abortions is grounded in individual state laws, the many restrictions that are being placed on these rights by Congress and state legislatures could render the rights ineffective.14
While the United States has failed to include gender equality in its Constitution, it was a founding member of the United Nations, which was established in 1945.15 In the UN Constitution, the United Nations Charter, equal rights are enshrined.16 The United Nations is comprised of 193 countries – the member states – most of the world.17 The UN considers the goal of gender equality universal – having the same meaning in every country.18 Member states, including the United States, do sometimes act in ways that indicate that they have different views on what this means and/or how to achieve gender equality. Of course, there are interests in every country who actively reject the idea of gender equality. Despite set backs and slow progress, the UN continues to work to bring about more rights and better conditions for women and girls.
The Convention on the Elimination of All Forms of Discrimination Against Women
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a human rights treaty created under the auspices of the United Nations, came into force in 1981.19 The Convention has been described as the “Bill of Rights” for women.20 As of May 1, 2012, 187 states have ratified or acceded to it.21 Earlier international conventions on specific rights of women exist, but because of the persistence of widespread discrimination against females, the UN formulated CEDAW, which provides for a comprehensive solution to the global problem of gender inequality.22
The Convention is the culmination of more than 30 years of work by the United Nations.23 In its approach, CEDAW covers three dimensions: civil and legal rights of women; reproductive rights; and the impact of cultural factors on gender relations.24 The legal status of women receives the broadest attention in the Convention.25 CEDAW is the only human rights treaty to mention family planning, affirming that women have the right to decide the number and spacing of their children and to have access to the information and means to enable them to exercise this right.26 Special measures for maternity protection, as called for in the Convention, should not be considered discriminatory.27 In other words, women who choose to bear the future tax-paying citizens should have access to necessary resources. Reflecting the realities of modern society is not asking more for women. The fact is that men’s concerns have been the focus of human culture, and equality demands that women’s needs be lifted out of secondary status.
CEDAW states parties are required to report regularly, at least every four years, to the Committee on the Elimination of Discrimination against Women, established in 1982, on their progress towards meeting the standards of the Convention.28 The Committee, composed of 23 experts, monitors the national measures taken by states to comply with CEDAW and reviews their performance in implementing the Convention.29 No penalties or sanctions are lodged against states that are not fulfilling their obligations under the Convention – other than public criticism.30
The Optional Protocol to CEDAW came into force in 2000, and, as of May 1, 2012, 104 countries have ratified or acceded to it.31 The Optional Protocol allows individuals or groups of women to submit claims of violation of their rights directly to the CEDAW Committee.32 The Committee has powers of inquiry into situations of grave or systematic violations of women’s rights; however, a state can opt-out of the inquiry procedure.33
Of the 193 United Nations member states that have not adopted the Convention are: Iran, Palau, Somalia, South Sudan, Sudan, Tonga, and the United States.34 The United States signed the Convention, under the Carter Administration in 1980, and it was sent to the Senate for ratification.35 During the 30 intervening years, the Senate, which must ratify CEDAW by a two-thirds vote (67 votes), has never voted on CEDAW.36 The Convention continues to languish in the Senate Foreign Relations Committee.
While virtually every country has adopted the Convention, states parties have attached a number of reservations, understandings, and declarations (RUDs) to it, some of which are viewed as contrary to the “object and purpose” of CEDAW.37 The Senate Committee has attached 11 RUDs to the Convention.38 The RUDs range from assurances that women will not be paid mandatory maternity leave or be paid wages using comparable worth adjustments – to underlining the fact that the CEDAW Committee recommendations are advisory and could not legally compel the US government to take any action.39 Conservative groups also worry that ratification of the Convention would result in fewer restrictions on pregnant women to obtain abortions.40
Has CEDAW positively changed the lives of women and girls in those countries that have adopted the Convention, in spite of RUDs? The impact has been mixed. In April 2010, the Dutch High Court declared that the exclusion of women from the electoral list of a political party (in this instance, the Orthodox-Reformed Party Staatkundig Gereformeerde Partij, SGP) was contrary to CEDAW, and that the Netherlands was obliged to take effective measures to ensure that women could fully participate in political parties.41 In Turkey, CEDAW was used to rescind a government policy that required female students to undergo virginity examinations; in Tanzania, the High Court cited CEDAW in overturning law that prevented daughters from inheriting clan land from their fathers; and, in Columbia, courts have cited CEDAW in their rulings providing legal remedies for female victims of domestic violence.42 Citing CEDAW ratification, an Australian court upheld the country’s Sex Discrimination Act.43
On the other hand, a review of the legislation and constitutions of ten Pacific island countries that have adopted CEDAW revealed “a uniformly low level of legislative compliance” with the Convention across a range of areas.44 Equal right to education for females as guaranteed by CEDAW has not occurred in Pakistan.45 Gender disparities persist in the country, due largely to religious fundamentalism that advocates the subjugation and seclusion of women.46
UN Entity for Gender Equality and the Empowerment of Women47
In July 2010, the UN General Assembly established the UN Entity for Gender Equality and the Empowerment of Women (UN Women), replacing four underfunded UN offices devoted to gender equality. The new office’s goals are to eliminate discrimination against women and girls; the empowerment of women; and the achievement of equality between women and men. In order to achieve these goals, the new office will support inter-governmental bodies, in their formulation of policies, global standards and norms; help member states to implement these standards; and, hold the UN system accountable for its own commitments on gender equality.
UN Women was established after four years of negotiations that nearly ended in gridlock after UN member states split on its mission.48 What emerged was an office – not a more powerful UN agency – with an operational responsibility to run programs on the ground when countries want them, and a policymaking arm to ensure women sit at the center of the UN’s work.49
The new office also has experienced problems with its financing, which has not come close to the $1 billion needed for the startup phase.50 The United States, which played a key role in lobbying for the new office, was criticized for giving only $6 million in 2011.51 The State Department, whose budget covers the United Nations, explained that they were doing the best they could, given the “congressional realities.”52
Equal rights is the goal
Considering the ancient roots of the female’s unequal place in society, it is not surprising that change comes slowly – in spite of the obvious humanity and fairness of gender equality. Those who believe that full gender equality should be the enforced law of the land in every country must remain diligent and energized. Eliminating restrictions on females and providing equal opportunities to half the earth’s population would result in dramatic progress. While superior societies would be the happy outcome, equal rights for women and girls is reason enough.
- 1. Unless otherwise indicated, information under this section is taken from “The History Behind the Equal Rights Amendment,” by Roberta W. Francis, available at: http://equalrightsamendment.org/era.htm.
- 2. See “Why We Need the Equal Rights Amendment,” available at http://equalrightsamendment.org/why.htm.
- 3. Id.
- 4. Supra note 1.
- 5. The insurance industry was one such industry lobbying against the ERA.
- 6. Supra note 2.
- 7. Id.
- 8. Pursuant to the decision in this case, prohibition of gender discrimination is not as strongly enforceable as that of racial discrimination.
- 9. Supra note 2.
- 10. N.C. Aizenman and Rosalind S. Helderman, The Washington Post, “Birth control exemption bill, the ‘Blunt amendment,’ killed in Senate,” March 1, 2012, available at: www.washingtopost.com/national/health-science/birth-control-the-blunt-amendment-killed-in-senate/2012/03/01/glQA4tXjkR_story.html.
- 11. Id.
- 12. Ironically, some religious institutions are dropping their health insurance rather than comply with federal mandated health insurance coverage.
- 13. Rachel Benson Gold and Elizabeth Nash, State policy trends: Abortion and contraception in the crosshairs,” April 13, 2012, available at: www.rhrealitycheck.org/article/2012/04/13/state-policy-trends-abortion-and-contraception-in-crosshairs.
- 14. Supra note 2.
- 15. See www.un.org.
- 16. Id.
- 17. Id.
- 18. Id.
- 19. Id.
- 20. Id.
- 21. Id.
- 22. Id.
- 23. Id.
- 24. Id.
- 25. Id.
- 26. Id.
- 27. Id.
- 28. Id.
- 29. Id.
- 30. Tina Johnson, ed., CEDAW Made Easy, Question & Answer Booklet, United Nations Development Fund for Women (UNIFEM), 2004, at 19, available at: www.unifem.org/attachments/products/CEDAWMadeEasy.pdf.
- 31. Supra note 15.
- 32. Id.
- 33. Supra note 30, at 21.
- 34. Supra note 16.
- 35. Madeleine Giansanti Cag, The International Lawyer, Chicago: Spring 2010, Vol. 44, Issue 1, p. 415-418.
- 36. Id.
- 37. Supra note 15.
- 38. Nora O’Connell and Ritu Sharma, Human Rights Brief, “Treaty for the Rights of Women Deserves Full U.S. Support,” Washington College of Law, Vol. 10, Issue 2, 2003, at 2. See web site: http://digitalcommons.wc1.american.edu/cgi/viewcontent.cgi?article=1405&context=hrbrief.
- 39. Id.
- 40. Id.
- 41. Human Rights Treaty Division Newsletter, “The Cases of the Dutch High Court and the US Supreme Court,” OHCHR publication, No. 8, April-June 2010, at 25, available at: http://www2.ohchr.org/english/bodies/treaty/docs/HRTD_NewsletterNo.8.pdf.
- 42. Nora O’Connell and Ritu Sharma, supra note 38, at 1.
- 43. Zonta International, “Convention to Eliminate All Forms of Discrimination Against Women (CEDAW),” March 2003, available at: www.zonta-district11.org/ZICEDAWCommitmentMar2003.pdf.
- 44. Vedna Jivan and Christine Forster, Melbourne Journal of International Law, “Challenging Conventions: In Pursuit of Greater Legislative Compliance with CEDAW in the Pacific,” Melbourne: October 2009, Vol. 10, Issue 2, p. 655-690, available at : www.austlii.edu.au/au/journals/MelbJIL/2009/34.html.
- 45. Jennifer T. Sudduth, Journal of Law and Education, “CEDAW’s Flaws: A Critical Analysis of Why CEDAW is Failing to Protect a Woman’s Right to Education in Pakistan,” Baltimore: October 2009, Vol. 38, Issue 4, p. 563-592.
- 46. Id.
- 47. Unless otherwise indicated, information under this subsection is taken from the official United Nations web site. See www.un.org.
- 48. Gayle Tzemach Lemmon, The Daily Beast, “Michelle Bachelet Has a Mission,” September 12, 2011, available at: www.thedailybeast.com/newsweek/2011/09/11/michelle-bachelet-has-a-mission-to-help-the-world-s-women.print.html.
- 49. Id.
- 50. Id.
- 51. Id.
- 52. Id.