Christian Conservatives Seek to “Restore” Women

Kathryn Joyce

A leading figure in the Christian right anti-trafficking establishment, Linda Smith embodies the tensions between feminists and religious right activists working on this issue.

A recent issue of Focus on the Family’s Citizen
magazine highlights the anti-sex trafficking work of Linda Smith, who
says she has "spent 10 years of [her] life restoring little girls and
young women who have been in the commercial sex industry." If Smith’s
terminology, "restore," gives you the willies considering the subject
matter — evoking not just new "virginal restoration" services being bought everywhere from Hollywood to Muslim communities in Europe,
but also the more general sense of the word, as repairing a broken or
used object, applied to women — there’s more to be find suspect in Focus
on the Family’s praise for Smith, a leading figure in the Christian
right anti-trafficking establishment who embodies a lot of the tensions
in the alliance between feminists and religious right activists working on the issue.

Linda Smith,
a two-term Congressional representative from Washington state, who
broke into the House on a grassroots, Christian, write-in campaign, had
a 100% positive rating from the Christian Coalition
for her staunchly conservative anti-abortion politics, and was profiled
in 1995 under the title "Invasion of the Church Ladies" by Hanna Rosin
for The New Republic, as part of a class of female
representatives-Smith’s opponents dubbed her the "Hazel Dell
Housewife"-going to war in D.C. for traditional values. After a failed
Senate bid in 1998, Smith retired from political life-in a way-to begin
work on an anti-sex trafficking organization she founded, Shared Hope International, and which she considers her Christian "ministry," though she’s cagily told supporters, "If I ever advertised as a Christian, I can’t do the work I do."

Smith hasn’t quite left Washington though, appearing in congressional hearings in 2002 to testify
about her newfound convictions on sex trafficking, and continuing to
lead national campaigns on the issue, along with three other groups,
including two other religious groups, that make up the War Against Trafficking Alliance,
an advocacy organization that provides trainings for governments and
NGOs with support from the Depts. of Justice and State. In Smith’s own
SHI, she works to "restore" women who have been removed from
prostitution in a series of Christian-oriented and staffed "Houses of
Hope" that combine shelter from sex traffickers and pimps and a halfway
house work model: having the women work in bakeries and other small
businesses. In interviews with the Seattle Times
several years ago, Smith was vague about the houses’ locations,
occupancy rates and business opportunities, preferring to linger on
details of the financial aid she and her husband bestowed on individual
rescued-and-restored women. Several "Houses of Hope" are now listed on
SHI’s website.

Smith’s focus, which is shared by a number of colleagues on the
religious right, who have made the issue a favored evangelical cause in
recent years, is criticized by groups with a broader trafficking focus, who charge that the focus on "sex slavery" erases the less sexy issue of plain labor trafficking and slavery,
with workers forced into indentured servitude-like situations in
factories and fields, as well as by sex-worker advocacy groups who
complain that the sweeping targets of anti-sex trafficking work
includes women who choose sex work willingly and prioritizes
criminalizing all sex work-and demanding that NGOs that help sex
workers condemn those sex workers in exchange for aid money-over helping ensure better working conditions for the women who engage in it.

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This much seems clear from Smith’s testimony to Congress in 2002, where
she argued the absolutist position that countries with legalized or
tolerated prostitution provide "cover for the traffickers," and should
be considered part of the problem. "I encourage the administration to
consider countries with legalized or tolerated prostitution as having
laws that are insufficient to eliminate trafficking," she told the
congressional subcommittee, seeming to argue for an ever-murkier line
between any sex work and slavery. In this, Smith seems to agree with
feminist anti-prostitution purists who argue that there’s no
substantive difference between prostitution and "sex slave"
trafficking: a rare instance of orthodox feminist theory making it into
the mainstream, albeit on the shoulders of the Christian right.

It’s a tricky divide, as Smith’s newest campaign, an investigation on "domestic minor sex trafficking,"
aims to expand the definition of sex trafficking for good purpose:
relabeling the prostitution of U.S. children as domestic sex
trafficking so that the children will be eligible for the same
protections that foreign-born tracking victims are (brought to social
services instead of being arrested as prostitutes). It’s an admirable
goal to enact a commonsense fix, but, as for Smith’s broader goals, as
with other strange bedfellows coalitions, it’s worth remembering that
Christian right muscle doesn’t come without an orthodox price.

Linda Smith appears on the Christian women’s television talk show, Everyday Woman, to offer her take on anti-trafficking work.

This piece first appeared on Religion Dispatches.

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Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.


Federal Court Issues Preliminary Injunction Allowing Trans Student to Use Boys’ Bathroom

Imani Gandy

Gavin Grimm sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender” rather than their gender identity.

A federal district court in Virginia issued an injunction on Thursday in favor of transgender student Gavin Grimm, requiring that Gloucester County School Board permit him to use the boys’ restroom at his high school.

Grimm sued the Gloucester County School Board over its policy requiring students to use restrooms that reflect their “biological gender” rather than their gender identity. The student’s attorneys argued that the policywhich essentially expels transgender students from communal restrooms and requires them to use “alternative” restroom facilitiesis unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

Grimm’s attorneys had asked the district court for an injunction blocking the policy. The court initially sided with the school board, ruling that its bathroom policy did not violate Title IX, and that the privacy interests of other students outweighed any potential harm to Grimm in using a different bathroom.

After Grimm appealed that ruling to the Fourth Circuit Court of Appeals, a three judge-panel reversed the district court’s dismissal of Grimm’s claim in late April, ruling that the district court had relied on the wrong standard in failing to issue the injunction. In backing Grimm, the court relied heavily on recent guidance issued by the U.S. Department of Education that denying transgender students access to the school bathrooms of their choice is a violation of Title IX, and remanded the case back to the lower court for a new hearing with instructions to include consideration of the Department of Education’s guidance. After entertaining a request by the school board that all 15 judges who sit in the Fourth Circuit rehear the case “en banc,” meaning before the full court, the Fourth Circuit announced that it would not review its prior ruling.

In Thursday’s order granting the injunction, the Virginia district court noted that “[i]t appears to the Court from the unrebutted declaration submitted by the parties that the plaintiff is entitled to use the boys’ restroom.”

“Therefore, for the reasons set forth in [Judge Davis’s] concurrence and based on the declarations submitted by the parties, the Court finds that the plaintiff is entitled to a preliminary injunction,” wrote District Court Judge Robert G. Doumar in the order.

Earlier this month, the school board requested that the U.S. Supreme Court review the case. The petition filed with the Court asks the justices to reexamine a line of legal precedent relied on by the Fourth Circuit in ruling for Grimm. This precedent, a principle of judicial deference sometimes referred to as the Auer/Seminole Rock doctrine, grants federal agencies like the Department of Education substantial leeway in interpreting the regulations for laws they are responsible for enforcing, like Title IX. But given the Court’s current calendar, the earliest it could hear the case, should it agree to take it, is next year.

In late May, the Supreme Court declined to to hear another case involving student loan financing that similarly sought to undermine the longstanding principle of judicial deference.

In an email to Rewire, Joshua Block, staff attorney for the American Civil Liberties Union, which represents Grimm in this lawsuit said, “This ruling will have the biggest impact for Gavin personally.”

“Under the Fourth Circuit’s decision, it was already clear that Gavin would ultimately prevail in court. This preliminary injunction makes sure that Gavin’s legal victory has a real impact on his life while he is still at school.”