Chapter 69: Civil Rights Case Study–Sex

“The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her.”

—Seneca Falls Declaration (1)

“The backlash against U.S. women is real. As the misconception of equality between the sexes becomes more ubiquitous, so does the attempt to restrict the boundaries of women’s personal and political power. . . Let this dismissal of a woman’s experience move you to anger. Turn that outrage into political power. Do not vote for them unless they work for us. Do not have sex with them, do not break bread with them, do not nurture them if they don’t prioritize our freedom to control our bodies and our lives. I am not a post-feminism feminist. I am the Third Wave.”

—Rebecca Walker (2)

The Condition of Women in the Early Nineteenth Century

Before we consider the women’s movement in the United States, we should be clear about the conditions that women faced for much of American history. Let’s take a snapshot of these conditions in the early part of the nineteenth century. Women could not vote or own property. Women were treated much like children were, in the sense that they could not sign legally binding contracts. Tradition and the laws of marriage held that men ruled over their wives and controlled whatever income they earned. Nor could women easily escape horrible marriages, as a divorce was extremely difficult to obtain. The so-called Cult of True Womanhood or the Cult of Domesticity held that women should be the moral cultivators of their children, should be devoted to their domestic duties, and should be morally pure, religiously pious, and submissive to men. Institutions of higher education would not admit women until Oberlin College became the first to do so in the 1830s. Even so, educational opportunities for women were limited until after World War Two. Women who worked out of the home were almost always relegated to low-paying factory work, or later, to low-paying office or classroom work. Moreover, they were banned by social custom, educational disadvantage, and professional discrimination from entering higher paying or prestigious professions like law, medicine, and business. Women were banned from religious leadership positions, and in some cases were forbidden even to speak in church. (3)

Overview of the Women’s Movement

The women’s movement has undergone three waves of activity. The first wave of feminism happened in the nineteenth century and early part of the twentieth century, and it focused on attaining the right to vote and other changes in the law. In the second wave of feminism, from the early 1960s to the early 1980s, activists worked to change the law, but also saw that de facto social discrimination was equally responsible for the oppression of women. The third wave of feminism began in the 1980s and appears to be a much more fragmented phenomenon. Third-wave feminists do seem to have in common a willingness to see and make connections between feminists and members of other oppressed groups. For instance, feminists share with many civil rights leaders and scholars their emphasis of intersectionality, a term that legal scholar and civil rights activist Kimberlé Crenshaw coined in 1989. Intersectionality refers to “the complex, cumulative way in which the effects of multiple forms of discrimination—such as racism, sexism, and classism—combine, overlap, or intersect, especially in the experiences of marginalized individuals or groups.” (4) Crenshaw wrote, “Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.” (5) Third-wave feminism is also concerned about the backlash against women, male violence, and harassment.

Establishing Political Equality

The women’s movement began in the late eighteenth century as women began to question the exclusion of half the human population from the principles espoused by natural rights philosophers—i.e., liberty, equality, and property. Perhaps most famously, Abigail Adams (1744-1826) wrote her husband, John, in 1776 to “Remember the ladies” in the deliberations over independence from Britain, and also that “If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.” John Adams wrote back, with respect to giving more consideration of female interests in the laws of the new country, “I cannot but laugh.” In 1792 England, Mary Wollstonecraft (1759-1797)—incidentally, mother of Mary Shelley, the author of Frankenstein—wrote the extremely influential book, A Vindication of the Rights of Woman, as an explicit attack on liberal theories that argued for liberty and equality only among men. She emphasized that women and men were both capable of developing their mental faculties through education, but that women were denied that opportunity. She wrote that, “to render . . . the social compact truly equitable . . . women must be allowed to found their virtue on knowledge, which is scarcely possible unless they be educated by the same pursuits as men. For they are now made so inferior by ignorance and low desires, as not to deserve to be ranked with them.” (6)

The American feminist movement supported, and received support from, the abolition movement that developed in the 1830s and 40s. Abolitionist leaders such as Frederick Douglass and William Lloyd Garrison spoke out against the second-class status of women. Frederick Douglass, for instance, attended the Seneca Falls meeting that produced the Seneca Falls Declaration in 1848. That convention was the creation of Lucretia Mott (1793-1880) and Elizabeth Cady Stanton (1815-1902), and the story is an interesting one. Eight years earlier, Mott and Stanton attended the World Anti-Slavery Convention in London as representatives of American abolitionist organizations, but the mostly male delegates refused to allow the female delegates seats. Due to that snubbing, the two women had to watch the proceedings from the balcony. That experience helped convince them that women, as well as slaves, were in need of emancipation. The Seneca Falls Declaration was modeled after the Declaration of Independence, asserting that, “all men and women are created equal,” and leveled a series of charges against men—that they have denied women the right to vote, the right to own property, education, employment opportunity, and that women are held to a different moral standard than men. Other American feminists—some present at Seneca Falls and others not—were also abolitionists. These included Sarah and Angelina Grimke, Margaret Fuller, Lucy Stone, and Sojourner Truth.

After the Civil War, the Republican-dominated Congress passed the Fifteenth Amendment to the Constitution, which guaranteed the right to vote regardless of “race, color, or previous condition of servitude.” There was some consideration of extending the right to vote to women, but most congressmen dismissed it out of hand. Feminists were outraged when the Fifteenth Amendment left women out, and they created two organizations to fight for the right to vote: The National Woman Suffrage Association and the American Woman Suffrage Association, which differed in their tactics. The two organizations merged in 1890 to form the National American Woman Suffrage Association (NAWSA). Carrie Chapman Catt (1859-1947), took over leadership of the Association from Susan B. Anthony (1820-1906). The struggle for women’s suffrage was a long and strident one. Feminists marched in parades, held demonstrations, gave speeches, wrote editorials, chained themselves to the gates of the White House, and went on hunger strikes in prison. The suffragettes were often attacked by angry crowds and suffered daily insults and criticism. They did make progress, however. Some Western states like Wyoming, Utah, Colorado, and Idaho granted women the right to vote before 1900. Between 1906 and 1920, NAWSA membership grew from less than 20,000 to two million, and a whole series of states granted women the right to vote. The Nineteenth Amendment to the Constitution, granting the right to vote regardless of sex, passed Congress in 1919 and was ratified by Tennessee in 1920, just barely giving it enough states to put it into effect.

Other Frontiers for Women’s Civil Rights

While passing the Nineteenth Amendment was the hallmark achievement of feminism in America, there have been numerous other successes as well. One partial success has been equality in the workplace. In 1890, 19 percent of women worked for pay outside of the home, typically as domestic servants, textile workers, food workers, and other low-paid factory workers. Where they held jobs similar to male workers, they were routinely paid less. Labor unions saw female workers as competitors and their presence in the workforce as suppressing male wages. In 1906, Samuel Gompers, president of the American Federation of Labor, said that “The wife as a wage-earner is a disadvantage economically considered, and socially is unnecessary.” (7) Women formed their own unions, such as the Women’s Trade Union League and the International Ladies Garment Workers Union. The first major female-led labor strike took place in 1909-1910 among low-paid garment workers in New York City. The strike collapsed when male garment workers went back to work in 1910. The next year, a massive fire broke out at the Triangle Shirtwaist Company. Because management had locked the fire escapes, 146 workers, mostly women, perished in the blaze. The Triangle Shirtwaist Factory Fire was a watershed in both the women’s movement and the worker-safety movement.

The role of women in the workplace was transformed by the labor requirements of World War II. As men flooded into the armed services, millions of women worked in arms factories doing skilled jobs that had never before been opened to women. In addition, thousands of women served in the armed forces in capacities ranging from nurses to pilots. (8) When the war ended and women were again displaced by men in the workforce, many women thought that this was profoundly unfair. Women continued to face discrimination in professional fields such as medicine, law, sports, and business. For instance, both Sandra Day O’Connor and Ruth Bader Ginsberg—who later became Supreme Court justices—faced discrimination in the law profession in the 1950s when they graduated from law school.

Many people argue that the second wave of feminism was launched by the 1963 publication of Betty Friedan’s The Feminine Mystique, in which she argued that women—especially educated women—were unfulfilled by the social requirement of subsuming their identities under their domestic duties as wives and mothers. The Civil Rights Act of 1964 explicitly outlawed employment discrimination, as we’ve mentioned in a previous chapter. This applied to sexual discrimination as well as racial and religious discrimination, and women have benefited greatly by having many professional doors opened. Discrimination persisted, however, in numerous ways. In 1976, the Supreme Court ruled that discrimination against pregnant women was not a form of sex discrimination that was forbidden by the Civil Rights Act of 1964 because not all women are pregnant. Congress responded in 1978 and passed the Pregnancy Discrimination Act, which banned discrimination “on the basis of pregnancy, childbirth, or related medical conditions” in medium and large sized companies. (9)

Alice Paul, of the National Women’s Party, first proposed an Equal Rights Amendment to the Constitution in 1923. It read as follows: “Men and Women shall have equal rights throughout the United States and every place subject to its jurisdiction.” The proposal languished for decades in the U.S. Congress, despite being reintroduced repeatedly. A later version did pass Congress. It read “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The Equal Rights Amendment was submitted to the states, but it came three states short of the three-quarters it needed to ratify and the deadline ran out in 1982. In 2020, Virginia became the thirty-eighth state to ratify the Equal Rights Amendment, but in the meantime, some states had rescinded their support for the amendment. Democrats in the House of Representatives pushed through a measure to retroactively eliminate the ratification deadline, but as of this writing, Republicans in the Senate refused to take up the measure and the Trump administration did not support it either. (10) If supporters of the Equal Rights Amendment want to see it pass, they may have to start over with Congress resubmitting it to all the states and setting an indeterminate clock for ratification.

All three waves of the feminist movement in the United States have been interested in establishing equality with respect to sexual relations between men and women. In 1876, the New Jersey Supreme Court made a ruling very typical in American history in the case of English v. English. The court ruled that Abigail English was not entitled to divorce her husband, John, even though he subjected her to battery and rape when she refused to have sex with him. It wasn’t until the 1960s that the feminist movement was successful in starting a serious discussion of marital rape, but as recently as 1975, every state had a marital exception for rape. It wasn’t until 1993 that all states finally dropped marital exceptions for rape in their statutory language. (11)

Bodily autonomy and access to contraception are also significant issues for American feminists. Margaret Sanger (1879-1966)—a nurse in New York City who ministered in the 1910s to poorly housed, poorly paid women who wanted to regulate their family size—defied the law to educate women about contraception. In 1914, she distributed her pamphlet, Family Limitation, which led to an arrest warrant from which she fled to Europe to avoid prosecution. In 1916 after charges were dropped, she returned to continue her work advocating for birth control into the 1950s. The birth-control movement was rejected by the medical establishment. Oral contraceptives were developed in the 1960s, and they revolutionized sexual relationships by giving women greater choices and control over whether and when to have children. States continued to try to limit access to birth control devices.

When its membership reached a critical mass of progressives, the Supreme Court helped turn the tide in favor of greater reproductive freedom. The Court ruled in Griswold v. Connecticut (1965) that married couples had a right to privacy with respect to reproductive issues, thereby striking down a Connecticut law that forbade anyone from selling contraceptive devices or instructing anyone on their use. This finding of a right to privacy was then used in Roe v. Wade (1973), which granted a fundamental right to terminate an unwanted pregnancy in the first trimester. The ruling granted progressively greater state power to regulate abortion in the second trimester, and even more state control in the third trimester. Most feminists defend the “right to choose” as essential to women taking their place alongside men in modern society and fear that a government that is strong enough to force a woman to carry a pregnancy to term against her will is strong enough to intrude itself into any sort of intimate medical or personal decision a woman or a man might want to make.

The resurgence of conservatism on the Court resulted in an about face for women’s reproductive freedom. In Planned Parenthood v. Casey (1992), the Court reaffirmed the constitutional right to choose abortion before fetal viability–that is, until about the 23rd week of pregnancy–saying that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” However, the Court in Casey opened the door to restrictions on abortion before viability if they did not constitute an “undue burden” on women. Conservative state legislatures across the United States then imposed a wide variety of restrictions on access to abortion providers, making it virtually impossible in some states for poor women to access abortion. In 2021 the Court went so far as to uphold a Texas law that allows any person to sue any other person who provides or helps facilitate an abortion from six weeks into the pregnancy, which is so early that some women don’t yet know they are pregnant. (12) Then the hammer fell in 2022 when, for the first time, the Court withdrew a right from Americans that it had previously recognized. In Dobbs v. Jackson Women’s Health Organization (2022), the conservatives reversed Roe and Casey and stated flatly that “the Constitution does not confer a right to an abortion” because it is not explicitly enumerated in the document and because the right to an abortion is not “rooted in the nation’s history and tradition.” Of course, the practice of abortion is deeply rooted in American (and world) history, and the fact that abortion was outlawed in the United States in the nineteenth century has something to do with the fact that women were forbidden from voting and being doctors at the time.

Third-wave feminism is broadening the base of the women’s liberation movement, which has traditionally—with exceptions, of course—been anchored by white, middle or upper-class women. Third-wave feminism has been most forcefully articulated by women from ethnic minority groups, who have intimately felt oppressed on account of their gender as well as their race. In 1992, the same year as the Clarence Thomas confirmation hearings, activist and writer Rebecca Walker exemplified this phenomenon when she coined the term ‘third wave’ in her Ms. Magazine article, “Becoming the Third Wave.” In addition, third-wave feminists have embraced the cause of lesbians and trans-gendered people. Another component of third-wave feminism consists of eco-feminists, who understand ecological degradation as being linked to the women’s oppression and the triumph of male-oriented exploitive behaviors. Philosopher Carol Hay summarizes the message of third-wave feminism:

“That sexism and racism and other forms of oppression like classism (discrimination against people of lower socioeconomic status) and ableism (discrimination against people with disabilities) and homophobia and transphobia are always interconnected, and as long as we continue to ignore these relationships we’ll only ever advance the interests of some women at the expense of others.” (13)

One of the most difficult obstacles to feminism today is the sense that leaders of the past already “solved” women’s problems. But feminist author Julie Zeilinger points out, “Unfortunately, sexism is alive and well—even if it may take a different form than concrete issues like being denied voting rights or limiting the ability of an unmarried woman to buy her own car.” (14) Feminists today note that women are still subject to verbal harassment and physical violence at the hands of men; that they are portrayed in the media as men’s playthings; that they are subject to moral double-standards not inflicted upon men; that many politicians seem to be on a crusade to control women’s bodies; that their aspirations are often not supported by educators. This kind of treatment is referred to by feminist writer Laura Bates as Everyday Sexism, and it’s very political in that it serves to make the public sphere—public streets, mass transit, workplaces, colleges and universities—hostile places for women. (15) With the Dobbs decision, bodily autonomy for American women is dependent on their state of residence and what personal resources they possess.

References

1. Seneca Falls Declaration.
2. Rebecca Walker, “Becoming the Third Wave,” Ms. Magazine. January/February 1992. Pages 39-41.
3. No author, “Women’s Rights,” US History.org. No date. Graham Warder, “Women in Nineteenth Century America,” Virginia Commonwealth University Library’s Social Welfare History Project. 2015.
4. Merriam Webster Dictionary.
5. Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” The University of Chicago Legal Forum. Volume 1989, Issue 1. Article 8. Page 140.
6. Mary Wollstonecraft, A Vindication of the Rights of Woman. London: Penguin Books, 2004. Page 216.
7. Quoted in Sharon Hartman Strom, Women’s Rights. Wesport, CT: Greenwood Press, 2003. Page 156.
8. Emily Yellin, Our Mothers’ War: American Women at Home and at the Front During World War II. New York: Free Press, 2004.
9. Pregnancy Discrimination Act.
10. Clare Foran, “House Votes to Eliminate Equal Rights Amendment Ratification Deadline,” CNN. Feburary 13, 2020.
11. Monica Steiner, “Marital Rape Laws,” Criminal Defense Lawyer. No date.
12. Jeevan Ravindran, “Explainer: What is the Texas Abortion Ban and Why Does it Matter?” CNN. September 3, 2021.
13. Carol Hay, Think Like a Feminist: The Philosophy Behind the
    Revolution. New York: W. W. Norton and Company, 2020. Page 14.
14. Julie Zeilinger, “3 Reasons ‘Feminism’ is not a Dirty Word,” Huffington Post. Posted 5/17/2012.
15. Laura Bates, Everyday Sexism. New York: St. Martin’s Press, 2014.