Before a hushed audience of over 2000 women’s rights advocates from 140 countries stood Kthi Win, a sex worker and leader of a national organization of female, male, and transgender sex workers in Burma. With quiet confidence she bravely stated:
“The key demand of the sex workers’ movement in Burma, in Asia and all around the world is simple. We demand that sex work is recognized as work. But we have one other key demand, specific to certain parts of the women’s movement. We demand that we are not treated as victims.”
This defiant rejection of victimhood by a sex worker, speaking on behalf of the global sex workers’ rights movement, took place at the recent AWID International Forum on Women’s Rights and Development, one of the largest gatherings of women’s rights activists in the world. It was an extraordinary moment because there’s a tendency by some in the women’s movement to reject sex workers like Kthi because they dispute the monolithic narrative that all people in prostitution seek rescue.
The characterization of sex workers fighting for their human rights as “prostituted women” engaged in futile attempts to “organize the enslaved” is perplexing. For five years my students and I have worked with and been inspired by sex workers successfully organizing from the margins of society. Sex workers in India who fight against police abuse, work as safe sex peer educators, and run afterschool programs for their children. Sex workers in South Africa who are leading a national campaign to decriminalize sex work. Sex workers in Malawi who had the courage to sue the government and challenge the constitutionality of forced HIV testing of sex workers without informed consent. And there are countless more examples of sex workers organizing in Africa, Asia, Europe, Latin America and the Caribbean, and North America. To label and disregard these advocates as “victims” who cannot comprehend their true “enslavement” is condescending, disempowering, and untrue.
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They are fighting for their human rights with creativity and agency and in defiance of deep societal and legal marginalization, forming a chorus of agitation for the right to work, the right to live free from violence, the right to access healthcare.
Women’s rights advocates who view all people in prostitution as “slaves” and make no distinction between those trafficked into prostitution and consenting adult sex workers who are in the trade by choice or circumstance often advocate for anti-sex trafficking policies that harm adult sex workers. Kthi, who has personally experienced the impact of strategies like brothel raids, which often involve indiscriminate round-ups of sex workers in an effort to locate trafficking victims, provided a visceral critique of such policies:
“We live in daily fear of being ‘rescued.’ The violence happens when feminist rescue organisations work with the police who break into our work places and beat us, rape us and kidnap our children in order to ‘save’ us…What we need is for the mainstream women’s movement to not just silently support our struggle but to speak up and speak out against the extremists who have turned the important movement against real trafficking into a violent war against sex workers.”
We must listen to sex workers. If the women’s movement insists on conflating trafficking with sex work and labeling all people in prostitution as slaves who are incapable of speaking on their own behalf, we will insulate ourselves from hearing important critiques of methods that are ostensibly supposed to help sex workers but invariably lead to more rights violations. The women’s rights movement should not embrace policies that harm female, male, and transgender sex workers. At the end of her speech, Kthi echoed this sentiment by repeating the cri de coeur of the global sex workers’ rights movement: “Nothing about us, without us.”
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.
"To ensure that all people and all families have the opportunity to thrive, our political platforms must be intersectional, so that the most marginalized are centered and our whole lives are honored," said SisterSong Women of Color Reproductive Justice Collective Executive Director Monica Simpson in a recent speech.
Editor’s note: This speech was given by SisterSong Women of Color Reproductive Justice Collective Executive Director Monica Simpson before the Democratic National Convention Platform Drafting Committee on June 17. The hearing was held as part of a process to determine “what should be included in the party’s platform for the July 2016 convention in Philadelphia.” A version of the statement will be sent to the Republican National Committee. We are reprinting it here with permission from SisterSong.
So for identification purposes, thank you for saying who I am. I’m really excited to be here as a volunteer and advocate to provide information to the drafting committee about the importance of reproductive justice and to highlight how the platform might address the priorities, experiences, and struggles of women of color.
So I grew up in the rural South, in a town with only one stoplight, in a town where racial divide was blatantly drawn by railroad tracks that split the town from the haves and the have-nots. I remember being forced to sign the prom promise that locked us into abstinence-only sex education, where we were given that [information about sexual health] only over one course period. And unfortunately, this is still the case.
Also in my church, the place where most Black people in my Southern community received political education, every young woman except three of us were pregnant before graduating high school. The nearest abortion clinic for those who were strong enough to endure the shame of their community and the church was 30 miles away. There were no sidewalks, or public transportation system, to get a person there, even if they wanted to have one.
Most felt stuck within the town limits, where the jobs were basically nonexistent. The then-newly builtprivate prison that needed to be filled was a constant reminder of the criminal justice system that separated so many young mothers from the fathers of their children.
In this story, you can see how the overlapping issues like race, economic barriers, faith, and criminal justice can make it difficult and sometimes impossible for marginalized communities to access the services that they need. This is what intersectionality looks like. And it’s because of these types of stories like mine that Black women came together to establish the reproductive justice movement, now 20 years ago.
Reproductive justice, distinct from reproductive health and rights, is a movement-building framework that envisions liberation for the most marginalized. We believe that reproductive justice will be achieved whenall people have the economic, social, and political power and means to make decisions about their bodies, sexuality, faith, and family with dignity and self-determination. As you can imagine, we have a long way to go.
To ensure the health and safety of women of color, I urge you to address the formidable barriers that prevent us from getting the care we need, deny our decisions, and lead to shameful disparities. [Together], we must complete the work to ensure health care for all by expanding Medicaid nationally and passing the Health Equity and Accountability Act. This act eliminates health disparities, and the one issue [to] address most importantlyto us and our work right now is the issue of maternal mortality.
Black women are dying during pregnancy, childbirth, and the postpartum period at [rates] nearly four times higher than white women. This is a public health crisis and a national shame. We must stop it in its tracksand the avalanche of state laws that push access to safe and legal abortion out of reach for people of color by those struggling to make ends meet. This is—this will be helped by ending the Hyde Amendment that puts a ban on insurance coverage for abortion, and passing the Women’s Health Protection Act which removes barriers to access.
Of course, our ability to make real decisions about pregnancy cannot be separated from the economic realities in our lives. And furthermore, everyone needs to feel safe, especially mothers and pregnant women. But unfortunately, pregnant women dealing with substance abuse are being overly criminalized in states like Tennessee. Women like Marissa Alexander in Florida [were] imprisoned for protecting [their] family and women like Purvi Patel and Kenlissia Jones were criminalized for ending their pregnancies.
The intersection of criminal justice and our reproductive lives is real and something that we cannot ignore.
Now more than ever, women of color are standing up for the issues that matter to us and demanding change, and we are voting. Change in policies, change in the political discourse, and change in leadership are needed to ensure that our communities are no longer ignored. Like the platform as a whole, this is not a one-note plan. One of my sheroes, Audre Lorde, said we cannot have single-issue movements because we do not live single-issue lives. To ensure that all people and all families have the opportunity to thrive, our political platforms must be intersectional, so that the most marginalized are centered and that our whole lives are honored.
This speech has been lightly edited for clarity.
Watch the full video, including the Q&A following Simpson’s speech, here: