available in Asia as early as 1995, the female condom remains surprisingly
underused in the region. While this can be said of global north countries
as well, failed attempts to promote higher usages in countries like
Vietnam, Thailand and Indonesia are a reflection of narrowly-perceived
target groups, high costs and lack of political will.
So the question
remains: Are low rates of usage a problem of access, demand or both?
Demand may be affected by problems with the condom itself. Some women
cite difficulties in insertion, the size of the condom and its visual
appearance as well as challenges in negotiating with male partners as
reasons to explain its lack of acceptability. On the other hand, while
there has been a range of promotional programs to increase support and
use for the female condom in such countries as South
Africa, Ghana, and Brazil, with support from UNAIDS and Governments,
this uptake has not been matched in the Asia region.
countries like Thailand and Vietnam the focus has largely been on female
sex workers, this approach already creating stigma around the female
condom’s use. In a trial conducted in Vietnam in 2000, under a joint UNAIDS and World
Health Organization initiative,
481 women in districts around Hanoi were invited to use the female condom.
Among the 428 women who actually ended up using the condom, more than
half affirmed that female condoms were acceptable and 230 said they
would continue to use them if they were provided free of charge, or
if they could buy them at a suitable price. Unfortunately, one of the
study’s recommendations was giving priority to sex workers and women
with STIs in order to help them prevent the spread of STIs and HIV/AIDS,
ignoring the interests of all women who might choose to use the female
condom if it was more readily available. In Vietnam, where sexual violence
including marital rape remains a pressing issue, the value of the female
condom for women’s ability to protect themselves against unwanted
pregnancy should not be understated.
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other countries, distribution and cost are blamed for low female condom
use. In Indonesia, which Family
ranks the lowest in terms of condom usage in Asia, the strong patriarchal
culture and sporadic approach to promoting condoms are blamed for the
low usage. In an attempt to address rising rates of HIV in Indonesia, the government ran a trial
of female condoms in selected areas of Papua
in August 2006. In response to the initial success, the government launched
a national female condom program in February 2007. Yet, six months later,
local groups in the Papuan provincial capital, Jayapura, criticized
the poor distribution and high cost of the female condoms at 15,000
rupiahs, or US$1.60 for a pack of two.
some activists in Indonesia have criticized the female
condom, arguing that it is "once again, putting the burden on women."
Rather than seeing it as a tool for empowerment, these activists fear
women will be blamed when HIV infections remain uncontrolled in ten
years time. They also insist that campaigns continue to call on men
not to have unsafe sex with sex workers rather sending the message that
men should not have sex with their wives without using condoms.
the higher price of the female condom over the male condom remains an
obstacle. Though the newer FDA approved version of the female condom
is 30 percent less expensive than its predecessor, prices still ranging
from US$1.40 to US$2.10 for consumers, considerably higher than the
male condom and out of the price range for many women. However, economies of scale suggest that the price will decrease
as demand increases, which will allowing the female condom to be a tool
for empowerment that it was initially seen to be. Further research must
also be undertaken. In 2004, the Guttmacher
for a renewed commitment to research on the acceptability and implementation
of female condom programs, highlighted the short-term nature of many
studies on female condom use, with only a few studies tracking use beyond
condom gives women more options and empowers them to have control over
their own lives. Interestingly, some studies have revealed that female condom has
opened the door for women to discuss sex with their partners. With global
efforts, including advocacy, program scale-up, public and private sector
investment, to overcome some of the negative perceptions and the very
real barriers to accessing the female condom, such as costs, women in
Asia can join others around the world who currently benefit from its
Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, written by Gillian Thomas, senior staff attorney with the American Civil Liberties Union Women’s Rights Project, goes beyond cases that helped shape workplace anti-discrimination policies. Rather, it focuses on ten key women whose own lives changed the law.
In 1966, Ida Phillips, a single mother working as a waitress, sat down at her kitchen table and wrote a letter to then-President Lyndon B. Johnson. She told him her story: Despite her qualifications, Phillips had been told by a Martin Marietta employee not to apply for an assembly-line position at one of the construction-material company’smanufacturing plant. The job would have paid more than double what she was making as a waitress. It included a pension plan and insurance, benefits unavailable in most female-dominated industries at the time (and which since have only marginally improved.) The reason Phillips was turned away? She was a woman with a preschool child.
That letter, Phillips’ subsequent lawsuit, and her Supreme Court win would help spark a civil rights revolution in the workplace—one with consequences that reverberate today.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. And it was Phillips’ case, and the nine others profiled in the book, that would ultimately shape that law into one that, decades later, is an important tool in advancing gender and sex equality. As Thomas explained to Rewire in an interview, Title VII it is not just a foundational piece of civil rights legislation important for its historical effect on workplace equality. In the face of anti-transgender bathroom bills and statewide “religious liberties” legislation sweeping the country, it is a crucial tool for pushing equality forward.
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Thomas’ book is organized along three key themes in employment discrimination law: pregnancy-related workplace policies, gender stereotypes in the workplace, and sexual harassment. Those themes act as an inroad toward thinking more broadly about how, in Thomas’ words, we achieve “substantive equality” in the workplace. They illustrate how early fights over promotions and workplace policies that kept women out of certain jobs due to concerns of harming their potential fertility foreshadowed the legal showdowns over contraception coverage in employee health-care plans in cases like Burwell v. Hobby Lobby andZubik v. Burwell.
“The subject matter areas that I saw [as a researcher and employment discrimination litigator] were, number one, women’s capacity for pregnancy, and then their subsequent roles as mothers, which, historically, has played a huge role in their second-class status legally,” Thomas told Rewire. “Women of color have always been seen as workers, irrespective of whether they had children, so that’s not an entirely universal stereotype. But I think it’s pretty safe to say that generally pregnancy and motherhood have proven to be enormous conflicts in terms of what equality looks like when you have these distinct differences” in how race and gender are perceived.
Take, for instance, the case of Peggy Young and the question whether an employer can refuse to make on-the-job accommodations for pregnant employees when it does so for nonpregnant employees. Young, another one of the women featured in Thomas’ book, was a United Parcel Service (UPS) “air driver” who became pregnant. When Young told her employer she was pregnant, UPS told her they couldn’t accommodate the light-lifting recommendation made by Young’s medical providers. Instead, UPS told Young, she would have to take unpaid medical leave for the remainder of her pregnancy.
In March 2015, the U.S. Supreme Court ruled against UPS, vacating the Fourth Circuit Court of Appeals ruling that had supported UPS’ policy. The decision produced a new test for assessing pregnancy discrimination claims and sent Young’s case back to the lower courts for another look. Not long after the Roberts Court’s decision, UPS and Young settled the lawsuit, bringing an end to Young’s case.
The decision was a qualified win for advocates. The Roberts Court had accepted Young’s argument that UPS had no legitimate business reason for failing to accommodate her particular request, but the decision went short of ruling businesses must accommodate any pregnancy request.
But Because of Sex doesn’t stop at unpacking overt discrimination like the kind detailed in Young’s 2015 case or Phillips’ one in 1966. The book also takes a look at what the law has described as more “benevolent” kinds of discrimination. These include employment policies designed to “protect” women from endangering possible future pregnancies, such as prohibiting women employees from working jobs where they may be exposed to hazardous chemicals.
“It really all boils down to two issues that we are talking about in all these things,” Thomas explained, when discussing workplace policies that, employers have argued, were put in place to protect their female employees from potentially endangering a pregnancy. “One is [employers] ignoring hazards that apply to men and making women into baby-making machines. And number two is [employers] treating health effects or health hazards on the job as reasons for diminishing women’s opportunities, instead of arming women with information and assuming that they will make the right choice for themselves.”
This disconnect is most apparent in the case of United Automobile Workersv. Johnson Controls, Inc., another case Thomas highlights in her book. In 1982, the car battery manufacturer Johnson Controls sent a memorandum to all its employees that said “[w]omen who are pregnant or who are capable of bearing children will not be placed into jobs involving lead exposure or which would expose them to lead through the exercise of job bidding, bumping, transfer or promotion rights.”
The policy amounted to a demotion for many female employees and a closed door for others.
Title VII actually permits employers, in a limited context, to have employment policies that discriminate on their face, such as policies that permit churches to only hire members of the same faith. Johnson Controls argued its policy of keeping women out of certain positions due to employer concerns of health risks to future pregnancies fit within Title VII’s narrow window for permitting explicit discrimination.
The Supreme Court would eventually rule in 1991 that Johnson Controls’ policy violated Title VII because it forced female employees to have to choose “between having a child and having a job,” thereby rejecting the argument made by Johnson Control’s that a woman’s fertility—or infertility—can in most situations be considered a bona fide occupational qualification.
As Thomas noted in her book, “It was no coincidence that fetal protection politics were most prevalent in well-paid, unionized industries from which women historically had been excluded. Indeed they had been excluded precisely because they had been deemed physically unsuited for the dirty, sometimes strenuous work.”
But “in female-dominated fields, though, fetal protection policies made no business sense; they effectively would gut the workforce. That reality apparently trumped any hypothetical harm to employees’ future pregnancies,” Thomas wrote.
In other words, these policies didn’t exist in female-dominated fields.
Johnson Controls may have helped grant women the agency to determine how and when they earned a paycheck with regard to policies targeting their potential fertility, but it hardly ended the debate around when and how employers attempt to diminish women’s opportunities related to their roles as potential mothers. This has played out in the hundreds of lawsuits over the contraception benefit, for example.
In other words, if Johnson Controls had settled the question of whether a woman’s fertility was an appropriate grounds for discrimination, we would not have Hobby Lobby.
Because of Sex draws another connection between the historical fight over Title VII and the contemporary one: How do employers adjust workplace policies around shifting gender norms, and when is it discriminatory if they don’t? The law asks, “What are women supposed to want to do?” said Thomas in her interview with Rewire. “What work are they able to do? What work do they want to do? [Given] assumptions and stereotypes that are about their abilities, their preferences, their interests and how [they are] conforming to [those] in terms of stereotypes about what femininity is—what [are] women … supposed to look and act like?”
Gender nonconforming behavior, and the manner in which employees experience discrimination as a result of that behavior, is a key component over the debate around transgender rights. But it would take a “shrill” woman and the birth of the notion of “workplace harassment” to get us and the law there first.
By every measure, Ann Hopkins should have been made a partner in the global accounting firm Price Waterhouse. She was smart. Ambitious. Worked hard and constantly outperformed her peers. But it was those very attributes that her male partners deemed “too aggressive” or as evidence that she needed “charm school,” and ultimately used to deny her a partnership that by every objective measure she had earned.
The Supreme Court would ultimately disagree. In 1989, it ruled Hopkins should have been made a partner and that the comments relating to her demeanor amounted to improper gender stereotyping, a violation of Title VII’s sex discrimination provisions.
If Hopkins was initially shut out of workplace advancement due to her defiance of feminine stereotypes, so too are women subjected to on-the-job harassment, as Thomas draws out in Because of Sex. “Sexual harassment didn’t even have a name in 1974, but was such a prevalent force driving women out of the work force, driving them into different jobs [and] subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas further explained in her interview.
1974 was the year Mechelle Vinson first hired a lawyer to represent her in a case against her boss, who was chronically sexually abusing her on the job. But at the time, courts largely wrote off those kinds of complaints as a kind of chasing-around-the-office, and not sexual harassment, or in Vinson’s case, on-the-job rape. As described by Thomas in her book, “throughout the 1970s, many courts responded to complaints about abusive bosses with a collective shrug that conveyed, ‘You can’t blame a guy for trying.'”
“Sexual harassment was such a prevalent force driving women out of the workforce, driving them into different jobs, and subjugating them just generally in terms of the identity as sexual objects on the job,” Thomas told Rewire.
That “you can’t blame a guy for trying” attitude hasn’t completely gone away as far as the federal courts are concerned. After all, in 2013 the Roberts Court in Vance v. Ball Statemade it even harder for employees to bring workplace harassment suits, and employees still face losing jobs for “being too cute” or having their sexuality be a perceived threat to their employer’s ability to remain professional in the workplace.
Which is why, in the fight over transgender bathroom access in 2016, Title VII should be a powerful force in defeating these latest attempts to stymie social progress. The idea that “you can’t blame a guy for trying” has morphed into “how the hell can we police gender roles if we don’t know where you pee.” That’s thanks almost entirely to the manner in which the law has wrestled with gender stereotypes under Title VII, Thomas explained.
In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing workplace anti-discrimination laws, issued the landmark decision Macy v. Holder, which held that employment discrimination based on transgender status was a form of unlawful sex discrimination under Title VII. Then in 2015, it issued a ruling stating that denying employees access to restrooms consistent with their gender identity is also a violation of Title VII. Meanwhile several federal courts of appeals have ruled that Title VII protects against gender identity discrimination.
But the Roberts Court has yet to weigh in.
“I think sexual orientation in a way is the sort of a final frontier” in Title VII litigation, said Thomas. “The court seems really fixated on this idea of analogizing very precisely from Hopkins. In other words, if you look or act in a way that doesn’t conform to gender stereotypes then, OK, [the courts] can understand that’s sex discrimination,” said Thomas. “But if your identity is not conforming to stereotypes in that you, you know, are romantically attracted to someone of your sex, that is harder for [the courts] to get, even though it’s obviously the most obvious manifestation of stereotype.”
This is, in many ways, a fight that started in the workplace—one that eventually got the backing of the Obama administration before becoming a flashpoint of conservative election-cycle politics. Thomas’ book doesn’t close on a prediction of what the next big Title VII fight will be per se, but it is impossible to finish it and not see the narrative threads of the historical fight for workplace equality woven throughout the the contemporary one. Sex. Gender. How the law understands and navigates the two. All this is what makes Thomas’ Because of Sex the closest thing to an assigned reading I can make.
Pressure is mounting on Congress to send President Obama a sufficient spending bill to combat the Zika virus’ spread.
The House and Senate recently passed their own measures, both proposing less than the $1.9 billion the president requested. But now they must work out their differences for the sake of our public health. Currently, none of these proposals include funding for Title X, the federal program that provides low-income people with family planning services, birth control, and other preventive reproductive health services. With the potentially life-changing outcomes that can result from contracting Zika, federal and state action is urgently needed to support prevention efforts and increase access to the full range of contraception available nationwide.
There’s no time to waste. More than 600 people in the continental United States, including at least 150 pregnant women, have already been infected with Zika. This month, a New Jersey infant exposed to Zika was born with the birth defect microcephaly, where a baby’s head is smaller than expected. Many more Americans have been affected in Puerto Rico and other U.S. territories. Local transmission is expected to spike as warmer weather approaches and climate conditions become more favorable to the virus’s primary vector, the Aedes aegypti mosquito.
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The Centers for Disease Control and Prevention (CDC) have reported significant evidence showing links between Zika and adverse pregnancy and birth outcomes, including miscarriage, stillbirth, and fetal abnormalities. Brain damage in Zika-infected babies is proving to be far worse than doctors initially thought. Zika has been found to attack lobes of the fetal brain that control thought, vision, and movement. Exposure to Zika was first considered to be a threat for women in the first trimester only, but there is growing concern about the possibility of maternal-fetal transmission throughout pregnancy.
It has also been discovered that men infected with Zika can transmit the virus to their sexual partners through semen, where the virus is stored much longer than in the blood.
As more individuals learn about the potential health risks linked to the virus, many will want and need services and information to help them effectively avoid or postpone pregnancy. Extensive research already shows the public health value and taxpayer savings associated with preventing unintended pregnancy.
Now with Zika, the stakes are even higher.
Congressional leaders must act without delay to pass a comprehensive Zika funding and preparedness package that includes additional resources for Title X to expand access to reliable birth control, related services, and counseling to low-income and uninsured people. Increased funding for these essential services is needed on the ground now, especially in regions expected to be disproportionately affected by the virus. The threat is particularly worrisome in areas that experience the warmer weather that’s conducive to Zika-carrying mosquitoes.
On the state level, elected leaders across the country should require public and commercial health plans to cover all—not just some—FDA-approved birth control. After the passage of the Affordable Care Act (ACA), California was one of the first states to approve a contraceptive-coverage equity law that codified the spirit of the ACA’s contraceptive mandate, also known as the birth control benefit, by requiring health plans to cover all methods of contraception without cost sharing or restrictions. Marylandrecently enacted a similar measure that also requires coverage for vasectomies, and several other states are considering legislation with the same intent. The Zika threat makes passage of these kinds of laws across the country time-sensitive. State Medicaid programs must also adopt reimbursement and coverage policies that break down barriers enrollees may face in accessing the full range of effective contraceptive methods.
Patientsmust be able to get the method they can use safely and consistently. That means health-care professionals across the country, including those in primary-care settings, must offer all forms of available birth control. Providers need training to support their patients in accessing the contraceptive method that is best suited for their health and reproductive life goals. Even some OB-GYNs can use training on newer methods and updated best practices.
Many unknowns remain regarding the Zika virus, which has quickly become one of the world’s greatest public health challenges. But a concerted and proactive response—that includes improved access to contraception—must be implemented before Zika becomes a national public health crisis here in the United States.