Julie Suk —
On May 30, 2018 the Illinois legislature voted to ratify the ERA. Thirty-seven states have now ratified the sex equality amendment to the U.S. Constitution, just one state shy of the three-quarters required by Article V to validly amend the Constitution. Legal commentary following this news is primarily focused on questions about the amendment’s legitimacy, such as the status of post-deadline ratifications and attempted rescissions, the constitutionality of ratification deadlines for amendments, and the validity of legislation eliminating the deadline. But it is equally important to contemplate how the ERA could change the political economy of gender inequality. It can be more than a symbol that locks in the sex discrimination law we already have. We can take some inspiration from feminist constitutionalism around the world to imagine a twenty-first century ERA that catalyzes new gender-equal infrastructures, particularly for biological and social reproduction, compatible with a sustainable and more humane political economy.
European constitutions adopted after World War I and World War II included explicit guarantees of equality between men and women. Women participated as “founding mothers” in the constituent assemblies that adopted these constitutions. In addition to gender equality clauses, these twentieth-century European constitutions included provisions that obligated the state to protect mothers. If constitutional equal rights for women require the elimination of sex discrimination, the special protection of motherhood may appear problematic because it treats women and men differently, and can entrench traditional gender roles. But throughout the world, the constitutional package of sex equality and motherhood protection enabled alternative paths for organizing social reproduction beyond the gender-unequal separate spheres tradition. The mass decline in the male population occasioned by the two world wars drove constitution-makers to embrace the protection of motherhood, not only as a way of reproducing the nation, but to confront the reality that, in the absence of family wealth, single women would have to combine breadwinning and caregiving.
In Germany, for instance, legislatures and courts understood the motherhood protection clause as requiring “Mutterschutzgesetz,” a statute guaranteeing paid maternity leave to women workers, protecting pregnant workers from dismissal, and accommodating pregnant workers’ jobs. In Italy, the constitutional protection of motherhood motivated similar statutory pregnancy protections as well as paid hours off for breastfeeding. These protections for working mothers reduced some of the excesses of the twentieth century workplace, by enabling women to stay employed as the biological demands of reproduction temporarily limited their ability to work.
On the other hand, protections for mothers also undermined the pursuit of full gender equality. Throughout Europe, some part of mandatory leave is compulsory for women who are pregnant and give birth. Legislatures imposed restrictions on women’s work, and courts validated them in the name of protecting mothers’ reproductive roles until the 1990s. Maternity protections are perceived by employers as raising the cost of employing women, thereby incentivizing hiring discrimination against women.
In the United States, by contrast, legal feminists were divided after suffrage over woman-protective labor legislation and its compatibility with the ERA. Brandeis wrote his famous defense of woman-protective labor legislation in Muller v. Oregon for Florence Kelley, the social feminist who headed the National Consumers’ League. Kelley opposed the ERA, and Alice Paul, the suffragist author of the 1923 ERA, viewed the special protection of working mothers as a threat to full equality. Many working-class feminists also opposed the ERA on the grounds that it would invalidate hard-fought labor protections for women. HERE leader Myra Wolfgang famously called Betty Friedan “the Chamber of Commerce’s Aunt Tom” for supporting the amendment.
In the 1990s and 2000s, many European countries added further gender equality amendments to their constitutions. In Germany, for example, in addition to the 1949 guarantee of equal rights between women and men, an additional clause added in 1994 upon reunification stated, “The law shall promote the actual implementation of equal rights between women and men and eradicate disadvantages that now exist.” Since then, European legislatures and courts have extended motherhood protection to fathers in various ways. In 2007, Germany adopted a paid parental leave statute, inspired by Scandinavian countries, that guarantees 12 months of parental leave to the two parents of a child. While it is up to the two parents to determine who takes leave and how much each parent takes, the law authorizes an additional two months of leave to couples who share the leave between each other. The German Constitutional Court has recognized these initiatives to encourage fathers to do more caregiving as legislative implementation of equal rights between women and men, pursuant to the 1994 constitutional gender equality amendment. At the European level, the Court of Justice of the European Union (CJEU) has held, invoking European equal treatment law, that working fathers should have the same right as working mothers to breastfeeding time off when it is provided by national law. More recently,
It remains to be seen as to whether the expansion of maternity protection to fathers will significantly disrupt entrenched gender roles in social reproduction. Despite the availability of paid parental leave to fathers in Europe and unpaid parental leave to fathers in the United States, existing studies of take-up rates indicate that mothers are far more likely to take parental leave. In Germany, the rate of pay for childcare benefits is tied to the salary of the parent taking leave, creating incentives for the higher earner to take. Even in Scandinavian countries, where it is common for fathers to take some leave, they tend to take significantly less of it than mothers. Most paid parental leave regimes offer less than 100% wage replacement, and even when 100% is offered, the pay is capped at either a fixed amount or an amount slightly above the average national salary. Thus, high-income dual-earner families have more money to lose when the higher earner (often the father) takes leave. Furthermore, across all social classes, including working class families, cultural norms of masculinity centered on breadwinning may cause employers to frown upon working fathers who take leave, and discourage fathers from becoming primary caregivers, even if public policy were to enable the option. Even with the option of paid parental leave for both parents, the privatization and outsourcing of care often codes the activity of social reproduction as women’s work.
It’s also not clear that these new rules extend to same-sex couples and parents. In theory gay and lesbian parents would be able to access most of these parental leave regimes, but in reality, some European countries make it difficult to legally recognize gay parent-child relationships by prohibiting legal adoption, making it difficult to terminate parental rights of biological mothers, and limiting the number of legal parents to two. (To say nothing of countries where surrogacy or same-sex marriage are illegal.)
Section Two of the ERA now being ratified authorizes legislative enforcement of constitutional gender equality. I argued previously on this blog that the law of gender equality should be understood as dismantling and replacing gender-unequal structures of social reproduction. Legislative enforcement of the ERA should focus on public and collective solutions to the problem of gender-unequal social reproduction. Indeed, in the early 1970s, ERA proponents also supported legislation establishing universal childcare, which Congress passed in 1971 but which President Nixon vetoed shortly before Congress adopted the ERA in March 1972.
Increasing mothers’ role in the workforce and fathers’ role in caregiving is important, but will occur within the gendered dynamics emanating from the concentration of social reproduction in private households and families. A sustainable gender-equal infrastructure for raising the next generation will require public institutions that provide affordable and high-quality childcare and education to all, led by committed civil-servant professionals of every gender. Public care and education can reduce the opportunities to exploit the largely underpaid female class of caregivers in the private sphere. Public support for child-rearing would promote gender equality by being available to all children, not only those in traditional heterosexual marriages. Public childcare would bring together children from a range of twenty-first century family situations, such as same-sex marriages, single or unmarried parenthood, and care by extended family. It can create a shared experience of early childhood across the divides of parental income and inherited wealth. At its best, the gender-equal infrastructure of social reproduction is also an engine of social integration.
Julie Suk is Professor of Law at Benjamin Cardozo School of Law, Yeshiva University.