A Vision of Sex Equality Under the Law: Today and Year 2000

by Rebecca Eisenberg

an essay written for a Harvard Writing Competition

May, 1993

No area of law should, or most likely will, see as much change by the end of the millennium as laws affecting the equality of the sexes. "Over the next quarter century," stated renowned Harvard Professor of Constitutional Law Laurence H. Tribe, "feminist legal theory is likely to be the most fertile source of important insights into the law." This prediction can be attributed to the fact that the law traditionally has seen the world through male eyes. As such, it has often been blind to injustices inflicted upon women. A primary thrust of the feminist legal movement is to expose sexist biases in the law, in order to reveal the status quo to be discriminatory, rather than "neutral," "natural," or "just." Once a lawmaker or judge recognizes the status quo as a product of socially constructed gender disadvantage, and recognizes the many ways in which the law ignores the reality of women's lives, then present legal doctrines are revealed to be discriminatory, and affirmative transformation of the legal system becomes a reasonable step towards equality. We are seeing that change beginning today.

Feminist insight into the law is indeed a welcome development; for, in terms of sex equality today, women have a long way to go. Globally, women do 65 to 75 percent of the world's work and produce 45 percent of the world's food. Nonetheless, women hold only 10 percent of the world's income and own 1 percent of the world's property. Women and children comprise the vast majority of the world's poor; such is the case regardless of wealth of the individual nation. When women attain status, it is typically through their connection with a man (which are often arranged without any input on their behalf). Worldwide, women are subjected to gender-based violence such as rape and battery, at epidemic levels, and even as an instrument of "war." While women are raped, assaulted and killed on the streets, they are no safer at home. Even in the United States, as many as half of all married women have reported some form of violence on the part of their husbands. And the number of murders of teenage women by their teenage boyfriends is rising at rates that are said to outpace the increase in any other crime. Across the globe, as accounts of atrocities against women continue to emerge, it is reasonable to conclude that women fare well almost nowhere. In India, as many as twenty-two million women have been reported "missing" -- with a likely answer being that they were set on fire by their husbands. At this rate of violence, it seems that women will be lucky if they survive to see the turn of the millennium.

Throughout history, women have never passively accepted their subordinate status; rather, they have actively campaigned against it. Today, as in the past, women struggle to point out inequities waged against them. The difference now is that, slowly, women have been able to force men to listen. In industrialized nations, women are entering higher education and the workforce in rates that outpace men. Women are being elected to office, and appointing other women to government posts. Women are writing, lecturing, researching, lobbying, rallying, and voting. Women are destroying old institutions, and replacing them with new structures, new perspectives, and new laws. While defenders of the status quo are formidable opponents, it seems clear that, sooner or later, something has to give.

This essay will examine many of the present problems that women face worldwide, in order to set out, in summarized form, one vision of a feminist legal plan of action for today and for the turn of the millennium. Although it is difficult, if not impossible, to describe a world where benefits and burdens are not allotted on the basis of sex, we can ascertain a part of the future picture by examining some present trends. Because numbers as wells as pictures often speak louder than words, I have compiled a collection of statistics that vividly portray many of today's problems that should no longer go ignored. Laws that allow and promote the equality of women should have their biggest effect in four overlapping realms: in the workplace, on the streets, in the home, and in ownership of the self. If nothing else, in all four realms, by the year 2000 the law should acknowledge these problems to be real; and through that crucial insight, significant inroads should be achieved.

Across the globe, the workplace is an arena that has consistently been subject to government regulation. Today we are beginning to see laws and national governments beginning to address the complaints of working women, as well as those of working men. Although throughout history women have always worked -- in the fields, in the sweatshops, in the kitchens, in the bedrooms (or brothels) -- women have universally received little or no pay. "Women's work" has usually been synonymous with long hours, no prestige, little control, and no chance for advancement. The tasks women have been hired for in the workplace have typically resembled those that they perform unpaid in the home: cleaning, cooking, caring for young children, and caring for their male bosses. Today, even in the United States, it is sex segregation in the workplace, perhaps more than any other isolatable factor, that accounts for the wage differential that keeps women as a group in the lowest socioeconomic classes. More than 80 percent of all full-time working women hold jobs that pay less than $20,000 a year, while less than 40 percent of men are paid so little for working full-time. The vast majority of these working women hold dead-end female-dominated jobs, as secretaries, administrative "support" workers, and salesclerks. Even among jobs that involve identical skills and rely upon identical degrees of education and experience, such as "secretary," "librarian," and "computer data analyst," the larger the percentage of males in the workforce, the higher the salary for that profession will be.

Fortunately, the cultural and social values that place a higher price tag on "men's" than "women's" work are neither biological nor inevitable. As more women are becoming aware of and angered by their lack of workplace opportunity, they are demanding greater options, as well as that a greater value be placed on the contributions that women make to society, regardless of the nature or locality of the work they perform. The work of caring for children is gaining in respectability; hopefully, by year 2000, it will be performed in larger numbers by men as well as women who are acknowledged, valued, and, ideally, compensated for their efforts.

In larger numbers, women are beginning to break into occupations that have traditionally been reserved singularly for men. Still, they find that once in the profession, they face barriers in the form of lower wages and harassment. In the United States, when divided up by profession, women earn only a fraction of what men earn -- in 1991, the national average remained at a mere 71 cents for a man's dollar. Female financial managers earn 59 cents for each dollar earned by their male counterparts, and female physicians earn a mere 54 cents for each dollar earned by a male physician. In general, women with college degrees still earn less than men with only high school diplomas. And women who graduated high school earn less than men with no more than an eighth grade education. Women of color fare worst. On average, African-American women earn 59 cents for a white man's dollar, and Latina women earn a mere 54 cents for a white man's dollar. And all women, regardless of race, are vulnerable to sexual harassment, a problem that is said to affect 90 percent of all working women and has been the cause of the loss of millions of dollars due to lost wages, counseling, and replacement costs when women are forced out.

Sex-discrimination in employment is beginning to be addressed with remedial legislation such as the Equal Pay Act, which guarantees that compensation not be computed on the basis of sex, and with innovative legal remedies, such as comparable worth, which is designed to ensure equal pay for jobs of equal responsibility and tasks. These remedies have attained a few court victories, and would be guaranteed greater victory under supportive legislation being proposed in many jurisdictions, many of which may be approved by the year 2000. Furthermore, women continue to attempt to break into traditionally male-dominated professions such as the police force, fire-fighting force, and the trades such as construction. Although the barriers against these women are significant, dedicated attorneys are fighting to establish and enforce affirmative action programs for women, as well as to fight discriminatory hiring practices which have consistently guaranteed men the best and highest-paid jobs by simple reason of their gender. Laws against sexual harassment are beginning to be enforced -- a legal remedy that was not even available in the United States until 1986.

Finally, workplaces are beginning to be restructured to accommodate both men and women in their efforts to combine work and family. These changes will have a profound affect on the lives of women, who have traditionally been saddled with task of raising children, often with little or no meaningful contribution from the government or by men. Attempting to raise a sufficient income in order to support their families has been a formidable challenge to women who find that employers can be quite hostile to mothers who strive to support their children by working outside of the home. In the recent past, pregnant women have found themselves fired upon requesting leave for childbirth, and the vast majority of the world's employers do not allow leave, let alone paid leave, for breast feeding or raising a child. Left with little opportunity to obtain gainful employment, and few options for child care if they do, millions of women and children have been sentenced to a life of government dependence and poverty.

Recently, however, we have begun to see the beginnings of a workplace revolution in industrialized nations, which seeks to accommodate both men and women in their attempts to combine work and family. In the U.S., the Pregnancy Discrimination Act of 1978 for the first time made workplace discrimination against pregnant women illegal sex discrimination in employment. President Clinton recently signed into law a Family and Medical Leave Act, which guarantees all parents, male and female, unpaid time off from work in order to have a child or care for a family member. Countries such as Sweden have experimented with innovative methods of providing government-subsidized child care for all of the nation's children, rather than leaving the exhausting job of raising children in women's hands alone.

The turn of the millennium should also see the beginnings of a re-evaluation of traditional structures of the family, which have often worked to women's detriment. Traditional laws of marriage, for example, have served to erase female existence. When a man married a woman, the couple became one person -- the man. Everything produced by a married woman -- her income and property, as well as her children -- legally belonged to her husband. The reasoning was simple: a married woman could not own property because she was property -- property of the man who owned her. Legally, this was justified by the "tradition of the common law;" culturally, this was justified as the law of "nature, God, and man" (as circular as that reasoning may appear). It was also considered sufficient that one person in each family could represent the interests of that family to the State, that person being the man. A husbands would be trusted to take care of his wife's interests, as well as those of the children. After all, they were his chattel.

Slowly, married women have begun to win the right to own property, to engage in contractual relations, and to cast a vote. In most industrialized countries, husbands no longer own their wives. Still, the traditional family structure remains far from egalitarian.

As head of the family, husbands had the authority to make all decisions, and enforce them by whatever means available to them. They also had the authority to discipline their wives and children, as well as rape their wives (a law that exists in many states today). But limits did arise, such as the "rule of thumb:" a man could not beat his wife with any instrument larger than his thumb. Anyone who thinks that wife-beating has decreased today should take a look at the statistics: "more American women -- rich and poor alike -- are injured by the men in their life than by accidents, muggings, and rape combined." In 1992, the American Medical Association declared "men" to constitute a major threat to women's health. As many as 35 percent of all female visits to emergency rooms are caused by domestic assault. Leaving their batterers usually is not an option for these women; a majority of the women killed by their husbands or boyfriends are killed immediately after they attempt to leave home. And pregnant women bear particularly badly: according to the March of Dimes, an organization dedicated to the welfare of children, more birth defects are caused by the battering of women during pregnancy than by all of the diseases put together for which children are usually immunized.

In awareness of the sexist (and sometimes life-threatening) nature of traditional marriage structure, women are beginning to marry at later ages, if they choose to marry at all. Still, women who have opted out of the institution of marriage have found themselves to be cut off from access to much of the world's power. Traditionally, women who have chosen not to marry have been stigmatized, denied government benefits such as tax breaks, and burnt at the stake as nonconformist "witches." With barriers in the workforce that keep them out of lucrative jobs and guarantee them a lower salary then their male co-workers, women are often forced into dependency relationships with men out of economic need. Those who try to "go it on their own" often find themselves in the same place as millions of others of the world's women: in poverty. It makes one wonder: if heterosexuality and marriage are so "natural," why does society work so hard to coerce women into it?

By the year 2000, we should see greater changes in legal and cultural family structures, making room for new notions of egalitarian families premised on commitment and care, rather than coercion. The notion of "family values" is beginning to change into one that values more than merely the power of the husband. In several cities, domestic partnership laws are emerging, that allow women and men in non-traditional, non-heterosexual relationships access to government benefits. Police are beginning to crack down on men who batter their wives, regardless of whether the victim chooses to bring charges. And women continue to fight back -- to sign up for self-defense classes, to buy and carry guns, and to attempt to divorce their abusers and begin on their own. Adequate enforcement of restraining orders, as well as police response to calls for help can mitigate the terror in which much of our world's population of women is forced to live, on account of their "family." By the end of this century, there should be less of a need for police protection altogether, if these efforts at curtailing domestic violence succeed in making it an embarrassment of the past, rather than a curse of the present.

The millennium should also bring greater success to women who are seeking to reclaim safety on the streets, as well as in their homes. The problems currently faced by women who try to enter the public sphere are not trivial. Not only are women subjected to dress codes from which men are exempt (such as wearing shirts on hot days, which is no small matter), but, in some countries, women are not ever allowed in public without men to accompany them. Around the world, women who attempt to step out from their homes are subject to harassment; street "hassling" may range from "hey, bitch!" to "you're just a piece of meat to me!" These remarks are not insubstantial; they serve to remind women of their subordinate status based on gender, a status that subjects them to sex-based violence and rape.

Slowly, women are beginning to be believed when they speak out about the violence they endure. Currently, as many as 44 percent of all American women report having been raped at least once in their lifetime, many of whom report being raped multiple times. Government agencies confirm these statistics: while the homicide rate in the United States is decreasing, sex-related murders of women almost tripled between 1976 and 1984. In general, rape and other violence against women are increasing at rates as high as four times the overall crime rate. One factor contributing to this epidemic might be the outpouring of violent pornography of women -- literature and photographs portraying women beaten, bruised, tied up, and hung from trees, sold for the sexual entertainment of men. The pornography business, now a 12 billion dollar industry, is larger than the television and print media industries combined. Many women are forced into the industry, either as a direct result of kidnapping, or by more subtle means of economic coercion. Drive-by rape vans have been reported in some cities, whereby women are dragged from the street and raped, while a video camera records the event. These movies are sold as underground "adult entertainment." With such dangers lurking at every avenue, it is clear that women currently have much to fear when they venture out of their homes.

Fortunately, violence against women can be addressed by legal means. Perhaps most crucial legal changes are those in the treatment of women who report having been raped. Women are campaigning actively against legal systems that often put their past histories and moral character on trial; systems that proclaim that if they have ever consented to intercourse with a man, they might have consented to their alleged rape, or that if they kissed a man, or wore "provocative' clothing, they might have "led him on" and waived their rights to say no to intercourse. Women are combating the persistent myth that when women say "no" they really mean yes. They have challenged the definitions of "force" and "consent," and demanded that their perspective be valued in determining whether a rape occurred. In some areas, they have succeeded; rape victim shield laws have begun to emerge which remove at least some of a woman's past sexual history from a jury's scrutiny.

Laws that stand on the books are also beginning to be enforced in ways that do not treat women as potential complicitors in their own victimization. With persistent pressure placed on them, police and prosecutors are beginning to take women's complaints of victimization as seriously as those who report non-sex-related offenses. Like victims of muggings, women who are raped should not be accused of having "asked for it." As larger numbers of women are entering federal and state judiciaries, standards for the evaluation of victim behavior, such as the infamous "reasonable man," are slowly being replaced with that of the "reasonable woman," or reasonable rape victim. Sex crimes against women are beginning to be recast as civil rights violations -- crimes against women because of their gender. In some countries, such as New Zealand and Canada, laws are emerging which criminalize pornographic materials that degrade women and subject them to violence. Such laws have been upheld based on equal rights amendments, and thereby properly expose the discriminatory nature of rape and gender-based assault. These laws are essential steps in creating cultures where the public realm is safe for all individuals regardless of gender.

Perhaps even more critical than access to public streets and economic resources is women's quest for legal ownership and control of their own bodies. Restriction of access to birth control and abortion, coupled with laws that permit men to rape their wives, have traditionally created a situation of forced (and perpetual) pregnancy for many of our world's women. Historically, sexuality has been a province reserved for men, with men acting as aggressors and women as the objects of their pursuit. Yet, across the globe, women are fighting to reclaim their bodies and their sexuality as a central means of gaining autonomy from the male culture which controls them.

Women's bodies have also been subject to cultural control in a manner that has exceeded men's. In some countries, women are forced to cover themselves completely in order to appear in public. In others, women are encouraged to wear makeup and pursue an ideal body shape -- as if they are not complete persons without such modifications of their natural states. The harms that flow from these cultural forces are not trivial; worldwide, women suffer from crises in self-confidence, and eating disorders affect more than half of the female populations in many industrialized nations. It seems inevitable that, once societal value is placed on women that extends beyond ways in which women can be used as means of pleasing men, women will increasingly gain pride in, rather than shame of, their bodies.

Cultural control of women has traditionally been viewed from a liberal-autonomy perspective -- as if women freely choose to bind their feet, to paint their face, to shave hair from most parts of their bodies where it grows biologically, to starve themselves to death. Throughout history, women have rebelled against these controls, only to be called dykes, bitches, old maids, or burnt at the stake as witches. Women who have conformed have often found that they are taken less seriously because of it; after all, who would elect a Barbie doll or a Playboy Bunny to be President? Women have been left in a catch-22: assume a subordinate position in the patriarchy, or assume none at all -- hardly what a person would reasonably call "choice." Realization of these cultural forces has led to a reemergence in feminist anger across the globe.

Because of its subtle nature, the battle to reclaim women's bodies as their own might be the most challenging to fight through legal means. But positive laws are beginning to arise in odd places -- nudity statutes that allow both men and women to walk topless on beaches send a positive message to women that they should be no more ashamed of their bodies than are men. Ordinances that specifically allow women to breast-feed in public send a message that women's biological processes and powers are respectable rather than inappropriate and embarrassing. Laws that prohibit employers from requiring female employees to wear skirts allow women to protect their bodies from the cold, as well as from access by men. Even more crucially, cultural traditions such as female circumcision -- or clitoridectomy -- are being recast as bona fide human rights violations.

Women are fighting for, and gradually gaining, greater control over their reproductive capacities. Forced sterilization of women -- rampant in many of the world's less developed nations -- is beginning to be recognized as an inappropriate means of population control. Women continue to fight for their rights to obtain birth control, abortion, and other reproductive health care. These battles take place outside abortion clinics, in courtrooms, and in the halls of congress, where women are no longer allowing male governments and individual men to conscribe the course of their lives.

It is perhaps unrealistic to assume that all of these legal and cultural changes will have come about by the turn of the millennium. Nonetheless, if a greater number of people begin to become aware of, and take seriously, the problems facing women today, women have succeeded in the first step of their battle towards the promised land of freedom and equality. In the future, women should be free to define themselves and their lives, without having their lives defined for them. Women should be free to gain meaningful employment in any field in which they excel, without any "handicap" of gender. Women should be free to choose relationships based on mutual love and trust, rather than based on fear and dependence. Women should be able to live their lives free from violence, both inside their homes and on the streets. Women should be free to control their own bodies, in a world which values, rather than punishes, their ability to give birth.

What would a world look like where all people were equal regardless of sex? It would be a world flourishing with diversity; a world with more than two genders, or none at all. It would be a world where individual characteristics such as generosity, intelligence, or creativity would be valued above singular characteristics such as male or female. It would be a world where young girls and young boys could grow up knowing that they all had chances of obtaining social status, economic independence, and, perhaps, a family if they choose. Today, many of these transformations of society seem unimaginable. But innumerable women and men world-wide, including myself, are willing to dedicate our lives to see that this revolution succeeds.

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Copyright 1996 Rebecca Eisenberg mars@bossanova.com