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Gender-Neutral Treatment - The Equal Rights Amendment

Sunday, 01 March 2015 00:00

Patricia Arquette (and All U.S. Women) Need ERA Now

Written by Wendy Murpy | WE News
Patricia Arquette at 2015 Oscars Patricia Arquette at 2015 Oscars ABC/Craig Sjodin, Disney|ABC Television Group on Flickr, under Creative Commons.

Now that Arquette has called out the naked emperor, the question is, who will provide the leadership to harness the groundswell of energy released by her battle cry? This is the moment to push for the ERA.

Patricia Arquette's call for women's equality during her acceptance speech at the Academy Awards earlier this week provoked a rousing response from the audience. Meryl Streep nearly jumped out of her seat with applause. I cheered too, all alone in my living room.

That people reacted so vigorously is a powerful indicator that Arquette touched on an issue people care deeply about, but is not getting the attention it deserves in society.

Indeed, most people aren't even aware that women are not fully equal citizens in this country. Think about that.

A nation where public officials routinely criticize other countries for their barbaric treatment of women is functioning under the authority of a Supreme Court that has shamelessly declared women not fully equal citizens under the 14th Amendment. It has done so by declaring in a series of notorious decisions that when women's equal protection rights are violated--and even when they endure explicit sex discrimination--it's up to the courts only in limited circumstances to provide redress and put a stop to the unequal treatment.

When courts do step in, the analysis applied is much less rigorous than when the very same courts analyze the exact same constitutional violations and overt discrimination on the basis of race, national origin and immigration status. Let me put a finer point on that: The United States Supreme Court has interpreted the Constitution as allowing women to be treated as second-class citizens.

Women experience second-class treatment in many ways, including unequal pay as noted by Arquette, but the most important expression of inequality occurs in the form of physical and sexual abuse because gender-based violence is the most severe expression of sex discrimination.

The suffering women endure from violence is not well understood as a political problem because the two-party system has not framed it as such, even though violence on the basis of race, for example, is well understood as a political concern. The two-party system has successfully controlled and divided women, and has rendered violence against them invisible, as a political matter, simply because party leaders have chosen not to frame the problem as a relevant political concern for women.

Equality First, Statutory Remedies Second

Generally speaking, party leaders propose statutory "women's rights" initiatives, rather than addressing the need for constitutional equality. For example, dominant ideas in the recent past have included pay equity and funding for contraception, rather than proposals to support passage of the Equal Rights Amendment. Yet without equality first, legislative initiatives are meaningless because they can't be equitably enforced, as a constitutional matter, in the courts. Moreover, legislative initiatives sap women's energy and force advocates to spend their time pushing crumbs around on a half-empty plate, rather than fighting for the far more important goal of constitutional equality at the baseline.

Now that Arquette has called out the naked emperor, who will provide the leadership to harness the groundswell of energy released by her battle cry? Who will resist the disabling power of the two-party system and bring women and men together, as a collective force, to demand full equality now? Who has the guts to refuse congressional crumbs and to stand firm on the platform of "equality first?"

No matter how many state and federal laws are passed purporting to guarantee things such as equal pay, no actual equal pay is possible until women are fully equal human beings in the United States, and where their rights are enforced exactly on par with all other protected class categories, such as race and national origin.

To that end, Arquette should consider creating a non-corruptible nonprofit foundation whose primary goal is the development of a new taxonomy of "political gender" to address not only women's pervasive inequality, but also the most harmful consequence of that inequality; the growing epidemic of gender-based violence.

Domestic violence, including child abuse and unwanted sex, occurs with shocking frequency in the United States. These are public crimes, codified in criminal codes in every jurisdiction and listed alongside bank robbery and homicide, yet they are rarely reported to public officials, much less addressed in criminal courts.

As an anti-violence activist for many years, I've watched as established women's and victims' groups moved from social activists to impotent "service providers."

Most of the better-known groups receive government funding, which comes with prohibitions on certain types of advocacy, especially that which entails direct challenges to state officials for their disproportionate failure to respond effectively to violence against women.

'Marginally Effective Activism'

Virtually all of the established women's rights and anti-rape groups engage in only marginally effective activism; and none insists that civil rights laws for women be enforced exactly on par with civil rights laws that address racism and other forms of class-based discrimination. This is perhaps the cruelest and most ironic expression of sex discrimination – the fact that groups holding themselves out as advocates for women's equality are, themselves, enabling women's subjugation through their support for the establishment of social and legal hierarchies that put women last time and time again.

Indeed, most women's rights groups refuse even to characterize violence against women as a constitutional, civil rights and human rights concern worthy of equal and effective redress in the courts.

Until the nature of targeted violence against women is consistently taught, framed and understood in all legal, academic and cultural spheres as a public and political problem rooted in women's structured inequality, programs and services provided by established advocacy groups will serve primarily to co-opt victims and distract the public's attention from the real problem.

Constructing gender as a political class would help change the public response to violence against women from one of passive awareness campaigns and reactionary counseling and shelter services to proactive mobilization strategies aimed at creating large voting blocs (of men and women) whose "gender party" affiliation could exist as an adjunct to an "independent" party designation. Such a "gender party" could address women's political invisibility by declaring as its "platform" the goal of ensuring that violence against women is widely understood as a core human, constitutional and civil rights problem worthy of unmitigated redress at the highest levels of all branches of government. It would also address how meaningful reform must begin with a redesign of the legal baseline such that women are, once and for all, granted full constitutional equality under the 14th Amendment.

Arquette dared to say on the world stage what many of us have known for decades: inequality for women has been ignored as a social problem in this country for a very long time. That Arquette endured biting criticism in the days thereafter for not including other groups in her remarks is telling. Women are expected to speak up for the equal rights of others, and damned if they deign to ask for the same rights for themselves.

With luck, Arquette's decision to use the Academy Awards as a platform to tell the truth will foment a desperately-needed new women's movement; one where people of all stripes come together in solidarity, as fiercely nonpartisan allies, without compromise or submission to corruption, in an unrelenting and sustained commitment to women's full constitutional equality once and for all.

Wendy Murphy is a professor of sexual violence law at New England Law/Boston. A former sex crimes prosecutor, Murphy has written numerous law review and pop culture articles on violence against women and children. Her first book, "And Justice For Some," was released in hardcover in 2007 and was recently updated and re-released in paperback. She wrote the first law review article in the nation explaining the legal relationship between Title IX and sexual assault. Find out more at campusaccountability.org.

Link to original article from We News

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