American women need legal tools to fight patriarchy. Women outside of the U.S. are pushing for and getting far reaching
gender equality guarantees, albeit appallingly unenforced, that put
American constitutional guarantees to shame. This is a revolution we
A revolution in the structure of legal guarantees to gender equality
in the U.S. will see the adoption of international treaty law and
engraft it to be above our constitution.
But this legal
revolution must be preceded by a revolution in the way we think. The
mantra our politicians chant is that somehow the United States has a
superior structure of rights and equality. They seem to believe that
laws have just come off track due to the right-wing appointments to the
U.S. Supreme Court and other correctable misadventures. That thinking
The fact is that gender equality is a right that
transcends national laws and constitutions and the cultural norms of
No one questions that American women enjoy a
higher standard of rights and freedoms than do most people in the
world, but these rights mainly arise from a patchwork of remedial
statutes, not from our constitution. The U.S. constitutions protections
for women’s equality now fall far short of international law standards.
Our constitution is simply not written in a way that requires the
government to take affirmative steps to eradicate systemic historic
Nondiscrimination on Sex In U.S. Faces Bumps and Turns
fact, it was not until the 1970s that the United States Supreme Court
even acknowledged that women have constitutional rights to
nondiscrimination. In the case of Reed v. Reed
in 1971, the high court made this important initial step by
invalidating a state law that mandated a preference for males over
females when appointing the administrator of an estate, finding it to
be a violation of the Equal Protection Clause of the Fourteenth
Amendment. Unfortunately, women’s equality rights have since developed
in a way that excludes from protection the vast majority of sex
discriminatory laws currently in place – those laws based on physical
differences between men and women, including abortion and other
How could this be? Well, the legal
reasoning goes like this: since only women get pregnant, denying women
abortions or, say, maternity benefits, is gender neutral since if men
could get pregnant they would be subject to the same restrictions.
Chief Justice John Roberts, in his then position as Deputy Solicitor
General, in the early 1990s’ clinic protest case of Bray v. Alexandria Women’s Health Clinic,
dismissed the very idea that anti abortion laws – no matter what their
effect on women – could ever be sex discriminatory and stated the idea
was wrong as a matter of law and logic.
Fortunately, on the
international scene, women are moving past this nonsense and securing
much stronger gender-equality guarantees.
For example, CEDAW
(Convention on the Elimination of All Forms of Discrimination Against
Women), the international treaty for women now ratified by 185
countries, broadly defines equality, requires all laws be examined for
their impact on women and imposes affirmative obligations on
governments to dismantle systemic gender discrimination.
CEDAWs broad equality mandates were cited by the constitutional court in Colombia as legal support when the court struck down
as invalid the Colombia criminal abortion law in 2006. Today, poor
women in Colombia are entitled to paid abortions even in Catholic
hospitals, a far cry from the rights enjoyed by American women.
CEDAW were fully implemented in the United States it would
revolutionize our rights. By requiring strict scrutiny of all laws that
have a differential impact on women, we could invalidate discriminatory
abortion restrictions and maternity-related insurance costs. Under
CEDAW, we could also sue the government to address the shameful fact
that there is only one woman on the Supreme Court, no women running the
Pentagon and a Congress with only 16 percent women.
U.S. Proposals Make CEDAW Worthless
So, where is the whole U.S. CEDAW ratification movement?
Not only has the U.S. not ratified CEDAW, but most supporters of
ratification, including new Vice President Joe Biden, treat its
ratification like voting for a national flower, taking pains to
reassure the public that ratification would not impose any new burdens
on the government. Of course, this is true, because with the full
support of the Democratic Congress and the women’s movement, the
version of CEDAW now pending in the U.S. Senate has been gutted to the
core by some eleven reservations, understandings and declarations
(RUDs). (A full listing of RUDs is available at thomas.gov
under Human Rights Treaties.) The support by liberal proponents of
CEDAW, including Nancy Pelosi and President Barack Obama, is not
qualified by the important distinction that the treaty should only be
ratified without reservations. These leaders, while well intentioned in
their efforts to ratify the treaty, do not realize that if passed with
the qualifiers currently in place, CEDAW will threaten the advancement
of equality rights globally.
The twisted sister CEDAW would
preclude women from challenging laws based on the physical differences
between men and women, including discriminatory maternity coverage or
criminal abortion laws.
The most deceptive RUD, unopposed by
CEDAW supporters, states, Nothing in this convention shall be construed
to reflect or create any right to abortion and in no case should
abortion be promoted as a method of family planning. This language is
touted as neutral or benign but is not. Drafted by the late Republican
Senator Jesse Helms, a vociferous opponent of abortion, this language
can and has been used as an anti-abortion weapon. Without the right to
govern decisions about their own bodies and health, women will never
achieve full equality.
Ironically, if the U.S. intention in
ratifying CEDAW is to send a supportive message to women globally, our
twisted sister version will, in fact, do the opposite. Although the
RUDs seemingly apply solely to American women, they eviscerate the core
of CEDAW, the definition of equality and provide legal authority to
those who want to undermine women’s rights.
of the United States isolationist stand on international law is atop
the wish lists of lawyers in the human rights legal field, engagement
via this gutted CEDAW poses even more danger than continued U.S.
isolation. The Senate should advise and consent to the ratification of
a clean CEDAW unencumbered by reservations. They should not ratify a
CEDAW that limits the full scope of women’s equality rights.
is no quick fix to undo the decades long erosion of women’s
fundamentally protected rights in the United States, both in real terms
and compared to a sea change in international equality guarantees.
Although the election of 2008 has created an unprecedented opportunity
for women, it must be accompanied by a revolution in thinking and
actions about how we want our legal future to evolve.
Yes, we can! And we must.
This article originally appeared on On the Issues.