Forty years ago, the American Civil Liberties Union (ACLU) board of directors determined that women's rights should be the organisation's highest priority. Then executive director Aryeh Neier, created the ACLU Women's Rights Project and named Ruth Bader Ginsburg as the first director. Since then, Ginsburg has become a justice on the United States Supreme Court, and the Women's Rights Project (WRP) has won many landmark court decisions, achieved significant legislative successes, and shifted public awareness and understanding of women's equality.
Yet many of the struggles that Ginsburg and her colleagues at WRP fought in the 1970s, we continue to fight today. Indeed, the top priorities of WRP in its first decade remain our priorities four decades later: pregnancy discrimination, women's role in the military, and single-sex education based on gender stereotypes.
Ginsburg and her colleagues - like others in the "second wave" women's movement of the 1970s - recognised that economic security was necessary for women's autonomy and independence. They identified employment discrimination as a primary source of women's inequality. Accordingly, an initial target of both litigation and legislative advocacy was unequal employment opportunities.
In order to overcome this obstacle, Ginsburg and her colleagues knew they would have to dismantle the powerful stereotype that the world of work belonged to men while women's place was in the home. Thus began the effort to unseparate the "separate spheres" of work and family life. Critical to bridging this divide was overcoming the vast gulf of pregnancy discrimination. Society at large in the 1970s viewed women's primary roles as wife and mother. Barefoot and pregnant was where women belonged.
FIRED FOR BEING PREGNANT
Indeed, it was common practice for an employer to fire a woman as soon as the employer learned the employee was pregnant. For example, one of the early cases that WRP litigated was Cleveland Board of Education v. LaFleur, in which the Supreme Court struck down a policy requiring pregnant teachers to go on mandatory leave midway through their pregnancies.
Eradicating pregnancy discrimination, however, proved to be an uphill battle. In the 1970s, the ACLU participated in a pair of cases in which the Supreme Court held that pregnancy discrimination was not sex discrimination under the Constitution or under Title VII of the Civil Rights Act, because the discrimination was against “pregnant persons”, and both women and men could be not pregnant.
In response to these Supreme Court decisions, the ACLU led a coalition of women’s groups that successfully lobbied Congress to amend Title VII by enacting the Pregnancy Discrimination Act of 1978 (PDA) to make clear that indeed Congress considered discrimination against pregnant women to be sex discrimination.
Unfortunately, today many employers and courts still seem not to understand that pregnancy discrimination is sex discrimination. A number of courts around the country have ruled in favor of employers who refuse to make minor modifications to jobs for pregnant women, even though they routinely provide such accommodations to other employees who are similarly temporarily unable to perform all aspects of their jobs.
In the case of Peggy Young v. UPS in the 4th Circuit, we filed a friend of the court brief on behalf of numerous women’s rights organisations, arguing that the law required UPS to offer temporary accommodations for a pregnant package driver, in light of its policy of offering such accommodations for workers injured on the job, workers who lost their driving licenses, and workers covered by the Americans with Disabilities Act.
The Court of Appeals ruled in favor of UPS and held that requiring employers to provide similar accommodations for pregnant workers would elevate pregnant employees to “most favored nation” status. Court decisions like Young have prompted women’s rights organisations to go back to Congress, which introduced a bill called the Pregnant Workers Fairness Act to make clear that employers may not refuse to accommodate pregnant workers.
Advocates are also responding to bad court decisions by trying to fix the problem of pregnancy push-out at the state level. The ACLU of Maryland and others, including Peggy Young, successfully pushed for enactment of a law that will help ensure that pregnant workers in Maryland can no longer be forced off the job. Similar bills have been introduced in New York, Iowa, Illinois, and Maine. Other states, including Michigan, Connecticut and California already have such protections.
WELL PAID WORK… FOR MEN
A second aim of the Women’s Rights Project and the broader women's movement of the 1970s, was to integrate women into traditionally male jobs. Although women began entering the paid labor force in greater numbers in the 1970s, they were still excluded from certain jobs considered “male occupations.”
These jobs typically involved some degree of physical strength and also served to protect the public, such as police and firefighters. These jobs also, not coincidentally, are well paid. Chief among these male-dominated occupations was and still is the military.
In its early days, WRP set its sights on integrating women into the military. For example, in the 1973 Supreme Court case, Frontiero v. Richardson, Ginsburg argued that servicewomen should receive the same military benefits as servicemen. At that time, servicemen could claim their wives as dependents and receive benefits automatically, while servicewomen had to prove that their husbands were dependent on them for more than half of their support.
The Court ruled that military benefits given to service members’ families cannot be given out differently because of sex. In a landmark ruling, the Court held that classifications based on sex are inherently suspect, because of our nation’s “long and unfortunate history of sex discrimination,” and must therefore be subjected to close judicial scrutiny.
Notwithstanding the significant successes of Ginsburg and her colleagues, the military today remains a bastion of masculinity. Women make up only 14 percent of the armed forces and are excluded entirely from more than 200,000 positions, including entire career fields and combat schools and training programmes.
Until recently, this exclusion was explicitly mandated by a federal policy referred to as the “combat exclusion policy.” In November 2012, WRP, along with the ACLU of Northern California and the law firm of Munger, Tolles & Olson LLP, filed a lawsuit challenging the policy on behalf of four women who had engaged in combat in Iraq and Afghanistan, and the Service Women’s Action Network (SWAN).
In January of this year, just before the government’s answer to our complaint was due, then Secretary of Defense Leon Panetta announced that the policy would be lifted. He informed the military branches that they had until May 15 to submit plans detailing how they would proceed with lifting the ban and integrating women into their service. We are now monitoring the military’s implementation to ensure that women are actually fully integrated into all military positions (and the military training schools).
EDUCATION REINFORCING STEREOTYPES
Finally, a third target of Ginsburg and her colleagues’ efforts to ensure women’s full equality was education, and specifically, single-sex education that was based on and reinforced gender stereotypes.
Just as stereotypes about women’s inherent nature and proper role as wife and mother limited their employment opportunities, so, too, stereotypes about the way girls are and should be limited their educational opportunities. In this way, “separate spheres” of work and family life for men and women were reinforced and women’s exclusion from male preserves of power and influence was cemented.
Advocacy against sex-separated public education grew out of the ACLU’s advocacy against racially segregated education. After the Supreme Court ruled in Brown v. Board of Education that states could not segregate schools on the basis of race, many southern states opened single-sex schools so as to keep white girls “safe” from black boys.
This tactic was at first challenged on race discrimination grounds, exposing the sex segregation as a subterfuge that did not further any legitimate educational purposes. The ACLU played a key role in questioning the assumption that separate-but-unequal sex segregation could ever serve a legitimate educational purpose and in developing the legal theory that the exclusion of women from elite educational institutions was in and of itself a harm that could be addressed under the Supreme Court’s emerging sex discrimination jurisprudence.
The ACLU first advanced this theory in two cases in Louisiana filed by ACLU attorney Jack Peebles, based on arguments developed by Ginsburg and her colleagues at WRP. Noting that single-sex education was based on the desire to educate boys in the manner most appropriate to their male strengths and in the skills necessary for their careers as men, and girls in the manner most appropriate to their female nature and in the skills necessary for their futures as wives and mothers, the ACLU emphasized that “sex segregated schooling perpetuates sexual stereotypes, and sexual stereotypes are in many ways as harmful to men as to women” - an argument we still make today.
Ginsburg later assisted in a challenge to the exclusion of girls from an elite all-boys’ school in Philadelphia, arguing that such male-only institutions “impede women’s opportunities to establish themselves in academia, business, the professions, and politics as fully equal to men” and “retard progress toward a society in which women and men stand together as full and equal partners.”
These same stereotypes underlie the rise in sex separated education in public schools around the country over the past decade. Sometimes the stereotypes are subtle, with supporters of single-sex programmes pointing to the “black boy crisis” in public education, while ignoring the ways in which our education system leaves girls of color behind as well.
Yet often the stereotypes are blatant, with proponents asserting that boys need to be allowed to move around the classroom and should be talked to sternly so they will respect the teacher’s authority, while girls should be spoken to softly, encouraged to take their shoes off during class, and never given time limits because they don’t think well under pressure.
Last year, WRP launched our Teach Kids, Not Stereotypes campaign, which through litigation, advocacy, and communications has been hugely successful in persuading school districts to cease or not start single-sex programmes based on gender stereotypes. Thus far, we have settled two lawsuits in Louisiana and are on the verge of settling one in West Virginia. We have also persuaded school districts to stop single-sex programmes in at least 12 schools through demand letters, open record act requests, advocacy, and negotiation.
While the women’s movement has made incredible strides over the past 40 years, there is still much to be done to dismantle the gender stereotypes that obstruct the path to full equality.
We continue to strive for a world in which every adult, whether female or male, has an equal opportunity to pursue whatever job she or he desires and is capable of handling, and every child has equal access to the best education available, based on her or his individual capacity and interests, without being subject to different teaching methods and materials based on her or his sex.
For a more in-depth examination of the accomplishments of the Women's Rights Project under Ginsburg's leadership and all that remains to be done to combat gender stereotypes download a copy of Fighting Sex Stereotypes in the Law: Reflections on 40 Years of the ACLU’s Women’s Rights Project.