Supplementary Notes: Women, Law, and Politics

Women and Law

Equal Protection of the Laws: Section 1 of the Fourteenth Amendment to the Constitution states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

• Strict Scrutiny: Any law or regulation which classifies people on the basis of a “suspect classification” is subject to strict scrutiny, which means that the burden of proof is on the government to prove that this classification is not just rational, but also necessary for the public good (“serves a compelling public interest”).
• Suspect Classification:
  • Do people in this class have an inherent trait?
  • Is this trait highly visible?
  • Has this class of people been disadvantaged historically?
  • Has this group historically lacked effective representation in the political process?
• The Supreme Court has thus far officially included as “suspect” only classifications based on race, religion, or national origin, though classifications based on sex are sometimes unofficially treated as suspect. The standard for examining classifications by sex is usually termed “intermediate or heightened scrutiny.” Had the Equal Rights Amendment passed, it would have officially included sex among the suspect classifications.

Insights from Zillah R. Eisenstein. “The Engendered Discourse(s) of Liberal Law(s).” The Female Body and the Law. Berkeley: University of California Press, 1988. 42-78.

Law is a form of discourse, midway between the “real” and the “ideal,” which both constructs and reflects the social and political realm.

• Law is not just specific regulations; it is also an interpretive language that establishes expectations of what is considered legal, honorable, rational, and objective.
• Law is an (invisibly) gendered discourse in which a masculine, patriarchal perspective is established as a purely objective, rational, neutral, and natural norm.
  • Law recognizes duality (right or wrong, guilty or innocent, win or lose) rather than diversity.
  • Social law, constructed according to “natural law,” sets up sex (which is assigned moral, practical, and psychological meanings) as the primary way to classify persons.

Legal notions of equality of men and women are full of tensions and contradictions, particularly those associated with the following two conflicting standards:

• Special Treatment: Women are classified by sex, as different from men. When this standard prevails,
  • “Real differences” are alleged to justify differential treatment; women are not considered as “similarly situated” to men.
  • This may work to the advantage of women (as in affirmative action laws or the provision of special training programs for women) or to the disadvantage of women (as in “protective” legislation that excludes women from certain tasks or occupations on the basis of their biology or concepts of their nature).
• Sameness: Women are treated as the same as men, as exactly like men (though men are always the defining standard). When this standard prevails,
  • Legal equality takes no cognizance of social and economic inequalities (e.g. no-fault divorce laws assume men and women have equal earning potential).
  • Women disappear in the classification system (e.g., it is not considered sexually discriminatory to give special privileges to veterans because the classification is between “veterans and nonveterans”; no attention is paid to the fact that the combat exclusion until very recently made it impossible for women to become veterans).

Women and Politics

Insights from Karen L. Tamerius, “Sex, Gender, and Leadership in the Representation of Women.” Gender Power, Leadership, and Governance. Ed. Georgia Duerst-Lahti and Rita Mae Kelly. Ann Arbor: University of Michigan Press, 1995. 93-114.

Tamerius argues that women in political office represent the interests of other women more effectively than men do; hence it is essential that more women run for and get elected to public office. Although a number of studies have found that there is not a significant difference in how men and women vote on women's issues in the legislature, there is a need for new analytical tools to measure the effect of sex/gender on representation.

• Counting roll-call votes does not effectively measure the difference the sex/gender of the representative makes (emphasizes masculine concern with enactment rather than process)
• Measuring other legislative activities demonstrated that the more effort and personal commitment an activity demands, the greater the disparity in participation by men and women with regard to feminist legislation. Tamerius conducted a study of the activities of legislators over the course of a year (p. 108); according to her data, the more effective and demanding the activity in support of feminist measures, the higher the percentage of women:

  Type of Activity	% Women	% Men
  roll-call votes on feminist measures	52%	48%
  co-sponsorship of feminist measures	66%	34%
  feminist speeches from floor	75%	25%
  drafting and sponsorship of feminist bills	92%	8%

• In this study, the 24 congresswomen were also more active overall in the 1989-90 Congress than the 24 congressmen matched in party, seniority, and ideology; the women co-sponsored 2421 more bills (56%), gave 900 more speeches (59%), and sponsored 254 more bills (64%) than the men did.

Tamerius hypothesizes that gender differences in experience (rather than innate sex differences) explain this disparity.

• Attitudes: Gender differences in experience prompt women to give greater support and commitment to alleviating problems faced by other women because they understand them better, assign a higher degree of severity to the problems, and tend to feel a special responsibility as women
• Resources:
  • Awareness: their own lives or their association with other women bring these problems to their attention; they are much more likely to view a wide-ranging series of concerns as “women’s issues” than men are
  • Expertise: their gendered experiences as women may give them more information on the best way to resolve the problems faced by women