Women's Rights in Theory and Practice

May 21–22, 2002

Summary of a meeting held by fifty litigators and legal theorists from law schools and universities around the country to discuss the current status of gender equality law and the kinds of litigation and scholarship that might be useful to improve public policy in this area.

The meeting included theorists from universities such as Harvard, Pennsylvania, Arkansas, Loyola-Los Angeles, Illinois, Yale, New England, Pittsburgh, Miami, CUNY, Rutgers, Brooklyn, Northwestern, Georgetown, American, and Columbia, and representatives of major litigating organizations and agencies (the NAACP Legal Defense and Educational Fund [LDEF], NOW LDEF, Mexican-American LDEF, ACLU Women's Rights Project, ACLU Reproductive Freedom Project, National Women's Law Center, Women's Law Project, Institute for Women's Policy Research, National Partnership for Women & Families, Connecticut Women's Education and Legal Fund, California Women's Law Center, Equal Rights Advocates, National Employment Law Project, National Health Law Program, AFL-CIO, and the Civil Rights Division of the Department of Justice).

A three-hour session on employment focused on the need to change the paradigm for litigation in this area from gender equality to economic equity. Practitioners felt the absence of an overall litigation strategy for dealing with the problems of, for instance, the many women on welfare who work in retail and restaurant industries; the relatively few women in the construction industry (2 percent to 2.5 percent); women in sweat shops; pregnant workers; workers with sick family members; and workers making the transition from welfare to work. There is a need to change the overall workplace stereotype of a two-parent family with default male and female gender roles: for example, 42 percent of the 35,000,000 workers who have used the Family and Medical Leave Act since its passage in 1996 are men. Similarly, pregnancy must be recognized as being as much a part of "the way people are" as such already-recognized realities as the need of workers for a lunch break, bathroom breaks, and time to sleep and engage in leisure activities. It is also necessary, however, to define not "what women need" but "what women in various situations need."

An evening session examined the problems implicit in the New Federalism (federal courts striking down congressional regulatory statutes and the use of private remedies in such statutes as a violation of states' sovereignty) and the possibilities inherent in international human rights instruments. The implications of the New Federalism for current federal statutes and the power of Congress are not fully appreciated by legislators (e.g., the Supreme Court struck down part of the Violence against Women Act in spite of Congress's findings that such violence has an impact on economic life); nor are the implications of the New Federalism's restricted access to the courts and the minimization of the private right to seek enforcement of civil rights laws as they apply to racial minorities, women, and people with disabilities. The agenda presented by international human rights instruments is to seek Senate ratification of treaties such as the Convention to Elimination All Forms of Discrimination against Women, which have greater rights protections than domestic law; application of international norms to areas such as gender violence; and state responsibility for signed treaties as a positive obligation. Unlike current U.S. law, the international human rights agenda opposes privatization of public responsibility for the basic utilities of life.

A second three-hour session was devoted to violence against women. The very success of gender equality advocates in putting domestic violence on the national agenda has had the unintended consequence of leading the public to think of victims of gender violence as women unable or unwilling to help themselves, thus decontextualizing and depoliticizing the threat of violence that is a pervasive social pattern and ignoring the interrelationship among violence, poverty, and employment. If women are perceived as unable to act in their own best interests, it becomes logical for the state to control areas such as child care and welfare. Given the lack of economic resources that makes it difficult for many victims of gender violence to extract themselves from violent situations, perhaps the environmental impact model should be followed so that every federal proposal is examined to see whether it will help or hinder an effort to put material resources in the hands of women. Immigrant women are particularly at risk of domestic violence and require a comprehensive strategy of protective orders, child custody and support, legal representation in separation and divorce proceedings, temporary public benefits, and safety from the threat of deportation when they report violence. Eighty percent of the women in prison today experienced violence as children and/or adults; most have never been employed or taken advantage of public services.

Because "everything we do is about incrementalism," a third session on poverty and welfare was devoted in part to an analysis of welfare as a behavior modification program. Among the statistics cited was that 40 percent of Mexican-Americans are foreign-born and that 75 percent live in poverty. Given the antagonism of the federal government, including the federal courts, to the claims of poor women on public support systems, greater attention should be paid to litigating in state courts on the basis of state constitutional guarantees. Similarly, cases that will not be decided favorably might nonetheless prove to be an important vehicle for public education and for stimulating legislative reform on the state level.

A short roundup session stressed the importance of having brought theorists and litigators together and the need at future conferences for greater participation by legislative aides, community organizers, and public educators.

Philippa Strum, director, U.S. Studies 202-691-4129