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
- 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
- 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
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,
- Law is an (invisibly) gendered discourse in which a masculine, patriarchal
perspective is established as a purely objective, rational, neutral, and
- 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
- 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
- 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
| roll-call votes on feminist measures
|co-sponsorship of feminist measures
|feminist speeches from floor
|drafting and sponsorship of feminist bills
- 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.
revised January 2000
- 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
- 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 womens 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
Barbara F. McManus
Topics and Assignments