Sex-Role Equality
Professor Barbara Babcock joined the faculty last year after serving as director of the Public Defender Service for the District of Columbia. She is active on the Criminal Law Council of the American Bar Association and is on the Executive Committee of the National Legal Aid and D.efender Association. Professor Babcock is writing a book on sex discrimination, to be published in the spring of 1974 by Little, Brown & Company. She teaches courses in women and the law and civil procedure. She has spoken to numerous organizations on the legal struggle for sex-role equality. Following is a partial text of one of those speeches.
One of the most interesting aspects of what we should properly call the renewed struggle for sex-role equality is the extent to which it has been led by lawyers and the focus it has had on the law as an instrument for social education and change. At the very moment when people have despaired of finding even simple justice in the courts, and when the Chief Justice cautions young lawyers about believing too much in the efficacy of litigation to bring about social reform, the women’s movement has made rather amazing gains through the use of 4 the law. Perhaps the most amazing is the most recentthe decisions in Doe v. Wade and Roe v. Bolton, the abortion cases. As little as five years ago, it would have seemed utterly unbelievable to predict that a decided majority of the Supreme Court would invalidate the antiabortion laws of 50 states. The majority decision is not written in terms which all feminists would necessarily applaud. The court seems to be far more concerned with the rights of doctors to prescribe appropriate treatment for their patients than with the rights of women to control their destinies. But, this cavil aside, no one can deny that the decision arose from a nationwide litigation campaign which was inspired and directed by women who viewed this as a key issue for the current movement. Literally hundreds of cases of all kinds were brought across the country, with cooperation among people of differing abilities and interests, but united in the idea that there must be access to abortion if women were ever to be truly equal. The attacks on abortion laws in all their forms were varied and creative. In Connecticut, for instance, there was a mammoth class action joining as plaintiffs 1,000 women of all interests and places in life. Some actions were, of course, defenses for doctors who had performed abortions, or counselors who had aided in giving advice. Others were brought by women who sought abortions and had been refused. These cases, their variety and notoriety, created a climate of opinion, a receptivity to the issues-in short, had an educative effect which allowed and, I would suggest “caused” is not too strong a word, the recent opinions, again, a truly astounding accomplishment, brought about through the law and in a very short time.
Title VII
It is equally indicative of the energy and sensitivity of women and their lawyers that the first Title VII case to reach the Supreme Court was not a race or national origins case, but was brought by a woman. Title VII of the Civil Rights Act, as you know, forbids employers and unions whose business partakes of interstate commerce, from discriminating in hiring, advancement, placement or discharge on the basis of race, sex, religion, or national origin. In Florida Ida Phillips applied to Martin Marietta Company for a job in an electronics assembly plant and was told that her application would not be considered because she had pre-school age children. There is no evidence in the record that men with preschool age children would be similarly disadvantaged. But, you see, the stereotypical notion is that women should be home with the children, or, if they must work, they cannot be efficient because it is they, not husbands or others, who would be responsible for the children during the working day. But the very essence of Title VII is that decisions about hiring and firing are not to be made on the basis of stereotypical notions about all women, all Blacks, or all Native Americans, and their traits, because this is the essence of discrimination. Rather, the law directs that employment decisions be made according to the attributes of the particular person. Again, though the Supreme Court’s language in the Ida Phillips case was not exactly a clarion call for equality of opportunity, the result advanced its cause. The Court remanded the case in order for the company to demonstrate that the presence of pre-school age children in the home is so disabling to women on the job as to substantially affect the company’s business-a matter of proof which was virtually impossible, and which the Court presumably knew was impossible.
The current Title VII case that most interests me is one brought against a firm which is a scion of the New York legal establishment. The woman alleges that she interviewed for a summer job and was refused when three of her male classmates, two of whom had records and recommendations markedly inferior to hers, were accepted. She further states that her interview consisted of a discussion of the place of women in the firm, which was in trusts and estates, fine detailed work that women are good at. Starting from these simple facts, a very large case has been constructed and brought on behalf of the class of women who have been and are being discriminated against by the firm. The defendants are resisting the suit with their powerful legal resources. Preliminary skirmishing included the firm’s declaration that the case could not be a class action, since not one other person had come forward to join the single plaintiff. But the judge in the case was a wise woman-Constance Baker Motley-who responded in effect that in this kind of suit, willing plaintiffs are hard to find. It takes much courage to put yourself and your rejection on the line, because ultimately the defendant’s response will be that the woman was not hired because she was not qualified. And indeed, one of the firm’s allegations in early motions in this case was to say that the standards for choosing professionals are too indefinable to be subject to review. This contention was also rejected by Judge Motley, and as the suit continues on to trial, it could well become a landmark.
Equal Rights Amendment
Another example of the use of the law to educate and to change in the face of powerful opposition and the force of history is the passage by Congress, and at least 28 states, of the Equal Rights Amendment. Consider the fact that the Amendment has been introduced in every session of Congress since 1943. Consider the cumbersome process of Constitutional amendment. Consider the prestige and determination of the opponents, including Senator Ervin of North Carolina and Professor Freund of Harvard Law School. Again, quite aside from whether you personally like the Amendment, understand it, or think it a fit instrument for achieving equality, you must admire the sheer accomplishment.
The point is not that litigative and legislative change are the only or even the best routes to social reform, but that it is one upon which the current women’s movement has focused, and has done so with great success. And, I think that the accomplishments of feminists in the legal arena are a good illustration of the educative effect of the law on society. The increasing acceptance of the idea of women’s rights has grown partly from important cases and legislation such as those I have discussed. And in turn, acceptance of the ideas of societal women’s rights reinforces the decisions of courts in a range of areas and creates an atmosphere in which the decisions will be accepted and implemented.
Most of all, what I want to convey through this brief account of history, and through some words about the importance of these recent cases, and of the passage of the Equal Rights Amendment, is the respectability and substantiality of the women’s rights movement in the 1970’s in this country. The belief that the movement is silly-to be laughed at by men, and blushed over by women-that it can be characterized by its most radical fringes, is a real problem which the women’s movement, unlike the civil rights movement, has had to face. There were certainly negative reactions to the civil rights movement, but no one ever thought it was a laughing matter.
I think that we will continue to see much of the battle for sex role equality being fought in the courts and legislatures; and this is not only because of the successes of the recent past in these forums, but especially because of the impact present generations of women lawyers will have. The women’s movement in law schools is one of the most exciting aspects of the larger picture. The story is first one of numbers-12,172 women in law school last year out of a total of 101,664 law students-compared to 3,000 women out of 64,000 in law school in 1968. And simple numbers do make a difference in atmosphere and in reality. To everyone in the law school the difference between 6 and 30 women in the class is a palpable difference, but most especially it is different for the women involved. Very shortly after their numbers increased, law women were heard from in new ways. They wanted scholarships previously available only to men opened to women; they wanted their schools to do more than accept the women who were as good as men and had the temerity to apply to law school, they wanted the schools to spend money and energy recruiting women. They wanted placement offices to deny interviewing privileges and support to employers who discriminated on the basis of sex-and more, they wanted the schools to reach out affirmatively and develop jobs for women in a field traditionally riddled with discriminatory practices. And finally, they wanted the curriculum to express their new interest in their own history, and in the emerging legal specialty of sex discrimination. These are all issues that have been raised and fought through in varying degrees in law schools across the country within the last decade.
The course in sex discrimination often entitled Women and the Law has developed rapidly, from its inception at student behest at New York University Law School just four years ago, to this fall when it is being taught at 50 law schools. Three books whose exclusive subject matter is sex discrimination are in the final stages of publication by two major publishers: Little, Brown and West. The courses have usually been student generated. Students have petitioned faculty curriculum committees to add the course and have aided their schools in finding someone to teach it. And as the teacher of the first such course at Yale and at Georgetown Law Schools, I can attest that there is nothing quite like teaching turned-on students what they regard as their course. I am often asked whether there are any men in these courses, and sometimes the question irritates me because the tone of it is that the presence of men will somehow validate the otherwise questionable subject matter. But assuming a query free of such overtones I will tell you that the course is usually about a third men, and that at many schools men have been among the instigators of the course.
Students are quickly taking what they learn in the classroom into the field. Law firms and collectives specializing in sex discrimination cases are in existence in New York, Philadelphia, Washington D.C., Cleveland, and San Francisco-and more are in the planning stages.
I have spoken here today about the history, the present substantiality, and the future of the women’s rights movement-without, as you may have noticed, seeking to convince you that it is a good thing, or to win your assent to its causes. This is mainly because I don’t know what I would say to accomplish such an end. The movement is all of the descriptive words that are conjured up by the word: broad, on-going changing, forceful, and from what I have seen, people are caught up in it-or join it-not through argumentation, but from some connection made through their own experience, or the reflection on some past experience.
Life in the new day when women have equality of opportunity won’t be heaven; but in the women’s movement are many mansions. There is room for people of varying persuasions-and much work to do.