Joanna L. Grossman & Linda C. McClain

Unfinished Business: Difference, Leadership, and Women's Equal Citizenship
Part One of a Two-Part Series

By JOANNA L. GROSSMAN & LINDA C. MCCLAIN


Monday, August 31, 2009

A flurry of recent events invites consideration of why gender still matters. To some, this may be surprising: If we are in what some call a post-identity age, in which one's sex, race, or ethnicity does not – or should not – matter, then why still speak about gender? In a series of two columns, we will argue that talking about gender is important for at least one fundamental reason: There is still a gap between ideals of sex equality and of equal citizenship and the reality of many women's lives. Growing attention to the persistence of gender inequality – both in the United States and (as we will discuss in Part II of this series of columns) globally -- provides a perfect moment for addressing, and working to close, that gap.

This is the central premise of our recently-published collection of essays, Gender Equality: Dimensions of Women's Equal Citizenship, which takes stock of the progress made toward the goals of securing gender equality and the equal citizenship of women and men, and also of impediments that remain. It develops strategies for better securing such goals and identifies new questions, theories, and perspectives to help shape further inquiries about both gender equality and equal citizenship.

In this series of columns, we will use a similar lens to consider contemporary debates – domestic and global – that illustrate the continuing salience of gender to law, politics, and society.

The Obama Presidency: A Move Beyond Identity Politics?

When Barack Obama was elected in November 2008, after winning a hard-fought battle with Hillary Clinton in the Democratic primary, many were ready to proclaim our arrival at a post-race society. As William Bennett remarked in election night media coverage, "I hope it closes a chapter in American history. The great stain. Obviously you don't change American history. The notion that some people say, well, if you're born black in this country there's just things you're limited from doing, this is the biggest job of all. Think of what you can say to children now. Every child of every race."

Hillary Clinton's near-success in obtaining the Democratic primary nomination and the choice of then-Governor Sarah Palin as the vice-presidential candidate on the Republican ticket also speak to the state of gender in our society, but, here, the message may be more complicated. Clinton's bid for the nomination, while ultimately unsuccessful, re-energized feminists and caused many people to grapple with the role of gender in politics and as an aspect of leadership. The battle between Clinton and Obama for women's votes reopened debates about essentialism, and revealed not only a generational divide among women, but also divides on the basis of other, often complicated, identity categories.

Trying to explain the disappointment, and even anger, that some women felt– and the resulting threats to vote for John McCain that some reportedly made– when Clinton lost to Obama, Susan Faludi wrote of "second place citizens" and the frustration that, 88 years after women's suffrage advocates secured the right to vote, women still hit the glass ceiling in reaching the highest political office.

The gender divides were tapped anew with McCain's selection of Palin as his running mate, in what Faludi described as an "unabashed bid" to court some of Clinton's alienated supporters. Palin invited women to support her candidacy to "shatter that glass ceiling once and for all." With headlines like "Feminist Template Obliterated" and "From Seneca Falls to ... Sarah Palin?," media commentators grappled with "what women want" and "the puzzling politics of gender." Could women who supported Clinton and felt taken for granted by their party simply "cross out 'Hillary' and write 'Palin,'" when Palin held a wide variety of beliefs that are at best inhospitable to gender equality, and at worst completely contrary to it?

In the end, despite the disappointment of many female Clinton supporters, exit polls indicated that women's votes clinched Obama's victory, with women perceiving Obama as speaking directly to women's economic concerns. And African American women's votes played a significant role in key battleground states. There is thus no doubt that President Obama's election is historic and carries undeniable symbolic power, particularly for Americans old enough to remember earlier civil rights struggles. When Obama himself refers to his life exemplifying the American dream, it is a reminder of the steady evolution in American history toward a more complete realization of founding principles about liberty and equality.

Perhaps the most credible view of the state of race and gender in our society is that the election of Obama signals the beginning of a new era in terms of racial equality and justice, rather than a sign that such goals have already been fully achieved. Obama, after all, was the only African American in the Senate when he was elected president.

And, in turn, Clinton's strong campaign does not elide the continuing underrepresentation of women in political office. Rather, it reveals both challenges to, and the persistence of, gender stereotypes that code political leadership as masculine. Faludi, for example, contended that by casting herself as a fighter and winning the support of white male voters, Clinton had "stepped across an unstated gender divide," but crossing this divide seems to be due to her success at being perceived as sufficiently tough and "man enough" for the job. Ironically, loosening of these stereotypes may come from what some have called President Obama's "unisex" presidency, which embraces a "feminine" managerial style emphasizing communication, inclusion, consensus, and collegiality.

Justice Sonia Sotomayor's Confirmation: A Contemporary Example of why Gender – and Ethnicity – Matter in Public Leadership

One important measure of the gender gap between men and women is their representation in high office (both elected and appointed). The problem of political representation, and of ambivalence about women in positions of political power, is by no means restricted to the United States. Women are underrepresented in the law-making bodies of the world's states. Indeed, according to the most recent Global Gender Gap report, there is still a "political empowerment gap" between men and women, measured in terms of "political decision-making at the highest levels." They are certainly underrepresented on the U.S. Supreme Court, to which only three women have ever been appointed, and no more than two have ever served concurrently.

The recent nomination and confirmation of Justice Sonia Sotomayor to the Supreme Court illustrates the tension between the sense of our being in a post-identity age and the sense that identity often still matters deeply. Sotomayor's endlessly-quoted statement in a speech -- "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white man who hasn't lived that life" -- brought issues of identity to the fore.

Why is it important that there be more than one woman on a nation's highest court? Why is it important that a Latino sit on the bench, when the Court has never before included a Hispanic justice? What difference does difference make?

Justice Ruth Bader Ginsburg, the second woman appointed to the High Court, recently gave an interview to Emily Bazelon in which she addressed such questions. When asked about Sotomayor's above-quoted statement, Ginsburg replied, "I'm sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table. All of our differences make the [judicial] conferences better. That I'm a woman, that's part of it. That I'm Jewish, that's part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me."

Justice Ginsburg also took on the equal representation issue, suggesting that having more than one woman on the Court had symbolic importance for the public's perception of the Court. As she remarked, "It just doesn't look right in the year 2009" for her to be the sole woman on the Supreme Court (which she became after Justice Sandra Day O'Connor retired in 2006).

Justice Ginsburg also expressed the belief that the lack of gender balance on the court makes a difference. During Judge Sotomayor's confirmation process, the media aired debates over what difference "difference" makes. (Joanna Grossman considers the relevance of gender on the Supreme Court amidst an earlier set of confirmation hearings here.) Justice Ginsburg recalled that although she and Justice O'Connor frequently disagreed, they were always in agreement in the Court's gender discrimination cases. (And studies indicate that this may be one area of difference between female and male judges.)

There is another reason, too, that diverse representation and life experience matter. Recollections by various justices – and legal scholars – suggested that the mere presence of a justice with a different life experience (such as Justice Thurgood Marshall, the first African-American justice) exerted a persuasive force. Justice Marshall's stories about experiences of racism and discrimination also broadened the knowledge of the Court, even though he was often in the dissent in later years, as the tide of the Court became more conservative).

Speaking of her own presence on the Court, Justice Ginsburg herself suggested that her male colleagues may not have initially appreciated, as she did, the humiliation experienced by a 13-year old girl subjected to a strip search when school officials thought she might be carrying prescription drugs. (Vikram Amar wrote on the case, Safford Unified School District v. Redding, for this site, and the Court did ultimately rule in the girl's favor.)

Justice Ginsburg also raised a similar point in dissenting from the Court's recent opinion in AT&T v. Hulteen, a case in which the majority failed to acknowledge the adverse consequences for women caused by pregnancy discrimination. On the tendency to see pregnancy as unrelated to gender, Justice Ginsburg quoted an earlier federal court opinion: "It might appear to the lay mind that we are treading on the brink of a precipice of absurdity. Perhaps the admonition of Professor Thomas Reed Powell to his law students is apt; 'If you can think of something which is inextricably related to some other thing and not think of the other thing, you have a legal mind.'" (The Court's ruling, and Justice Ginsburg's dissent, in Hulteen are discussed here.) Is it easier for women, than it is for men, to see that pregnancy and gender are inextricably linked?

In her confirmation hearings, Justice Sotomayor distanced herself from her famous "wise Latina" remark, explaining that she did not believe any group had an advantage in judging, and that "every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences." Moreover, she stressed that, as a judge, she is impartial and follows the rule of law. But her life experiences will no doubt inform her own experience as a justice and also enrich the experiences of her colleagues on the bench. Justices sitting in a bench together, as Justice Souter has observed, "are supposed to influence each other, and they do."

Regardless of whether her gender and ethnic identity influence her decision-making, the symbolic importance of Sotomayor's nomination and confirmation -- not only because she is a woman, but also because she is a Latina and a person whose life story embodies the American Dream -- is evident from the jubilant celebrations of her confirmation.

Of course, not all women think the same way, but the continuing gender gap in elected and leadership positions denies the opportunity for women's voices to be heard. In our book Gender Equality, several of our contributors take up the persistent gender gap in political leadership. They consider, for example, one strategy adopted in many nations to increase women's political participation: electoral gender quotas. These quotas, while sometimes criticized as discriminating against men, have been a key component in many countries to overcome barriers to women's office-holding. These contributors also consider why the United States has comparatively low women's rates of office-holding, despite robust formal legal and political commitments to sex equality.

Next Steps: The White House Council on Women and Girls

Gender inequality continues to warrant attention in the United States. Toward that end, President Obama announced, earlier this year, the creation of the White House Council on Women and Girls, to make sure that all federal agencies "take into account the particular needs and concerns of women and girls" and that they "are treated fairly in all matters of public policy." He referred to his earlier signing of the Lilly Ledbetter Fair Pay Restoration Act (discussed in a previous column) as one step, but noted that making progress on many more issues – including economic security, work/family balance, health care, and preventing violence against women -- would be an "important measure of whether we are truly fulfilling the promise of our democracy for all our people." The President stressed that these issues are not only "women's issues," but also "family" and "economic" issues.

The new Council is a small, but important step towards focusing anew on the lingering issues of gender inequality and unequal citizenship in the United States. As we will discuss in Part Two of this series, Secretary of State Hillary Clinton has begun a campaign to attain the same focus abroad. Indeed, she has stated that the Obama Administration has "as a signature issue the fact that women and girls are a core factor in our foreign policy."


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

Linda McClain, who has been a prior guest columnist for FindLaw, is a professor of law and Paul M. Siskind Research Scholar at Boston University. She discusses sex equality and family law issues in The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press, 2006).  Portions of this column are adapted from Gender Equality: Dimensions of Women’s Equal Citizenship (Cambridge 2009).

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