Birth control is expensive. Day care is expensive. Children are expensive. Yet somehow people continue to argue that reproductive rights aren’t an economic issue—like unemployment, household debt, or housing.
Obviously, they’ve never tried to get a job while pregnant.
The New York Times published a piece this weekend, “Why Women Hide Their Pregnancies,” as a lead-in to a discussion of the Pregnant Workers Fairness Act. In it, Alissa Quart reminds readers that while some women may be lucky enough to be able to write their own tickets—getting new jobs and promotions while visibly on the verge of impending motherhood—they’re the exception, not the rule.
The experience of regular women is sadly very far from that of celebrities. Among the complaints filed with the E.E.O.C. in September was one against J’s Seafood Restaurant in Panama City, Fla. Two servers had been fired the preceding October after, the lawsuit claims, the restaurant became aware of their pregnancies. Another suit alleges that Bayou City Wings, a chain restaurant in Houston, forced employees to leave after their first trimesters, telling them it was “irresponsible” to keep working after they had become pregnant.
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So what separates your everyday waitress from [Yahoo CEO Marissa Mayers or actress Claire Daines]? Simply put, a server is easily replaceable in the eyes of management. In contrast, in the case of Yahoo, the company was struggling to find a savior, and there were few options. Ms. Mayer, pregnant or not, was deemed their best option. Ms. Danes, of course, carried the Emmy juggernaut for the show “Homeland” and has helped boost the visibility of the cable network Showtime. When reporting on a pregnant microelite, we should think twice before celebrating the idea that the glass ceiling has been shattered in a meaningful way.
It’s no surprise that workers in the lower levels of employment are completely replaceable. This is a given in the current work force, regardless of gender. The jobs in which a woman is likely to lose her position if she gets pregnant are also the ones least likely to have health-care plans that offer affordable contraception; a woman’s prescription for contraception will eat up a large portion of her budget.
Those who can least afford to get pregnant unintentionally are the ones who most need access to contraception. When being pregnant affects your ability to find work, how can you see reproductive health care as anything other than an economic issue?
The legislation would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have "a reasonable fear" that they will continue to be harmed while living in their unit.
Domestic violence survivors often face a number of barriers that prevent them from leaving abusive situations. But a new bill awaiting action in the Pennsylvania legislature would let survivors in the state break their rental lease without financial repercussions—potentially allowing them to avoid penalties to their credit and rental history that could make getting back on their feet more challenging. Still, the bill is just one of several policy improvements necessary to help survivors escape abusive situations.
Right now in Pennsylvania, landlords can take action against survivors who break their lease as a means of escape. That could mean a lien against the survivor or an eviction on their credit report. The legislation, HB 1051, introduced by Rep. Madeleine Dean (D-Montgomery County), would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have “a reasonable fear” that they will continue to be harmed while living in their unit. The bipartisan bill, which would amend the state’s Landlord and Tenant Act, requires survivors to give at least 30 days’ notice of their intent to be released from the lease.
Research shows survivors often return to or delay leaving abusive relationships because they either can’t afford to live independently or have little to no access to financial resources. In fact, a significant portion of homeless women have cited domestic violence as the leading cause of homelessness.
“As a society, we get mad at survivors when they don’t leave,” Kim Pentico, economic justice program director of the National Network to End Domestic Violence (NNEDV), told Rewire. “You know what, her name’s on this lease … That’s going to impact her ability to get and stay safe elsewhere.”
“This is one less thing that’s going to follow her in a negative way,” she added.
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Pennsylvania landlords have raised concerns about the law over liability and rights of other tenants, said Ellen Kramer, deputy director of program services at the Pennsylvania Coalition Against Domestic Violence, which submitted a letter in support of the bill to the state House of Representatives. Lawmakers have considered amendments to the bill—like requiring “proof of abuse” from the courts or a victim’s advocate—that would heed landlord demands while still attempting to protect survivors.
But when you ask a survivor to go to the police or hospital to obtain proof of abuse, “it may put her in a more dangerous position,” Kramer told Rewire, noting that concessions that benefit landlords shift the bill from being victim-centered.
“It’s a delicate balancing act,” she said.
The Urban Affairs Committee voted HB 1051 out of committee on May 17. The legislation was laid on the table on June 23, but has yet to come up for a floor vote. Whether the bill will move forward is uncertain, but proponents say that they have support at the highest levels of government in Pennsylvania.
“We have a strong advocate in Governor Wolf,” Kramer told Rewire.
Financial Abuse in Its Many Forms
Economic violence is a significant characteristic of domestic violence, advocates say. An abuser will often control finances in the home, forcing their victim to hand over their paycheck and not allow them access to bank accounts, credit cards, and other pecuniary resources. Many abusers will also forbid their partner from going to school or having a job. If the victim does work or is a student, the abuser may then harass them on campus or at their place of employment until they withdraw or quit—if they’re not fired.
Abusers may also rack up debt, ruin their partner’s credit score, and cancel lines of credit and insurance policies in order to exact power and control over their victim. Most offenders will also take money or property away from their partner without permission.
“Financial abuse is so multifaceted,” Pentico told Rewire.
Pentico relayed the story of one survivor whose abuser smashed her cell phone because it would put her in financial dire straits. As Pentico told it, the abuser stole her mobile phone, which was under a two-year contract, and broke it knowing that the victim could not afford a new handset. The survivor was then left with a choice of paying for a bill on a phone she could no longer use or not paying the bill at all and being turned into collections, which would jeopardize her ability to rent her own apartment or switch to a new carrier. “Things she can’t do because he smashed her smartphone,” Pentico said.
“Now the general public [could] see that as, ‘It’s a phone, get over it,'” she told Rewire. “Smashing that phone in a two-year contract has such ripple effects on her financial world and on her ability to get and stay safe.”
Why people fail to make this connection can be attributed, in part, to the lack of legal remedy for financial abuse, said Carol Tracy, executive director of the Women’s Law Project, a public interest law center in Pennsylvania. A survivor can press criminal charges or seek a civil protection order when there’s physical abuse, but the country’s legal justice system has no equivalent for economic or emotional violence, whether the victim is married to their abuser or not, she said.
Some advocates, in lieu of recourse through the courts, have teamed up with foundations to give survivors individual tools to use in economically abusive situations. In 2005, the NNEDV partnered with the Allstate Foundation to develop a curriculum that would teach survivors about financial abuse and financial safety. Through the program, survivors are taught about financial safety planning including individual development accounts, IRA, microlending credit repair, and credit building services.
State coalitions can receive grant funding to develop or improve economic justice programs for survivors, as well as conduct economic empowerment and curriculum trainings with local domestic violence groups. In 2013—the most recent year for which data is available—the foundation awarded $1 million to state domestic violence coalitions in grants that ranged from $50,000 to $100,000 to help support their economic justice work.
So far, according to Pentico, the curriculum has performed “really great” among domestic violence coalitions and its clients. Survivors say they are better informed about economic justice and feel more empowered about their own skills and abilities, which has allowed them to make sounder financial decisions.
This, in turn, has allowed them to escape abuse and stay safe, she said.
“We for a long time chose to see money and finances as sort of this frivolous piece of the safety puzzle,” Pentico told Rewire. “It really is, for many, the piece of the puzzle.”
“That’s where [economic abuse] gets complicated,” Tracy told Rewire. “Some of it is the fault of the abuser, and some of it is the public policy failures that just don’t value women’s participation in the workforce.”
Victims working low-wage jobs often cannot save enough to leave an abusive situation, advocates say. What they do make goes toward paying bills, basic living needs, and their share of housing expenses—plus child-care costs if they have kids. In the end, they’re not left with much to live on—that is, if their abuser hasn’t taken away access to their own earnings.
“The ability to plan your future, the ability to get away from [abuse], that takes financial resources,” Tracy told Rewire. “It’s just so much harder when you don’t have them and when you’re frightened, and you’re frightened for yourself and your kids.”
Public labor policy can also inhibit a survivor’s ability to escape. This year, five states, Washington, D.C., and 24 jurisdictions will have passed or enacted paid sick leave legislation, according to A Better Balance, a family and work legal center in New York City. As of April, only one of those states—California—also passed a state paid family leave insurance law, which guarantees employees receive pay while on leave due to pregnancy, disability, or serious health issues. (New Jersey, Rhode Island, Washington, and New York have passed similar laws.) Without access to paid leave, Tracy said, survivors often cannot “exercise one’s rights” to file a civil protection order, attend court hearings, or access housing services or any other resource needed to escape violence.
Still, that doesn’t necessarily translate into practice. For example, the National Center for Transgender Equality found that 26 percent of transgender people were let go or fired because of anti-trans bias, while 50 percent of transgender workers reported on-the-job harassment. Research shows transgender people are at a higher risk of being fired because of their trans identity, which would make it harder for them to leave an abusive relationship.
“When issues like that intersect with domestic violence, it’s devastating,” Tracy told Rewire. “Frequently it makes it harder, if not impossible, for [victims] to leave battering situations.”
For many survivors, their freedom from abuse also depends on access to public benefits. Programs like Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), the child and dependent care credit, and earned income tax credit give low-income survivors access to the money and resources needed to be on stable economic ground. One example: According to the Center on Budget and Policy Priorities, where a family of three has one full-time nonsalary worker earning $10 an hour, SNAP can increase their take-home income by up to 20 percent.
These programs are “hugely important” in helping lift survivors and their families out of poverty and offset the financial inequality they face, Pentico said.
“When we can put cash in their pocket, then they may have the ability to then put a deposit someplace or to buy a bus ticket to get to family,” she told Rewire.
By slashing spending and imposing severe restrictions on public benefits, politicians are guaranteeing domestic violence survivors will remain stuck in a cycle of poverty, advocates say. They will stay tethered to their abuser because they will be unable to have enough money to live independently.
“When women leave in the middle of the night with the clothes on their back, kids tucked under their arms, come into shelter, and have no access to finances or resources, I can almost guarantee you she’s going to return,” Pentico told Rewire. “She has to return because she can’t afford not to.”
By contrast, advocates say that improving a survivor’s economic security largely depends on a state’s willingness to remedy what they see as public policy failures. Raising the minimum wage, mandating equal pay, enacting paid leave laws, and prohibiting employment discrimination—laws that benefit the entire working class—will make it much less likely that a survivor will have to choose between homelessness and abuse.
States can also pass proactive policies like the bill proposed in Pennsylvania, to make it easier for survivors to leave abusive situations in the first place. Last year, California enacted a law that similarly allows abuse survivors to terminate their lease without getting a restraining order or filing a police report permanent. Virginia also put in place an early lease-termination law for domestic violence survivors in 2013.
A “more equitable distribution of wealth is what we need, what we’re talking about,” Tracy told Rewire.
As Pentico put it, “When we can give [a survivor] access to finances that help her get and stay safe for longer, her ability to protect herself and her children significantly increases.”
In what promises to be one of the most closely watched legal showdowns of the year, North Carolina and the U.S. Department of Justice (DOJ) filed dueling lawsuits against one another on Monday, each asking a federal court to determine the legality of the anti-trans bathroom discrimination provisions in the state’s recently enacted HB 2.
HB 2 is the grossly discriminatory law that overturns local anti-discrimination laws, bans cities or counties from setting a minimum wage for private employers, and mandates that access to restroom facilities in schools and publicly owned buildings be restricted to the gender on a person’s birth certificate.And even with the relative lack of legal precedent relating to trans people’s civil rights, if history is any indication, North Carolina very well may find itself on the losing end of this fight.
During a Monday press conference, U.S. Attorney General Loretta Lynch announced that the DOJ would be filing a lawsuit seeking a permanent injunction to block the bathroom discrimination provision of HB 2 and accused North Carolina of creating “state-sponsored discrimination against transgender individuals, who simply seek to engage in the most private of functions in a place of safety and security—a right taken for granted by most of us.”
Speaking directly to the transgender community, Lynch said, “[N]o matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward.”
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The DOJ had previously given North Carolina Gov. Pat McCrory (R) the opportunity to avoid the expense and hassle of defending a lawsuit against the United States. Principal Deputy Assistant Vanita Gupta gave McCrory an ultimatum in a letter last week: Confirm that the state of North Carolina would not“comply with or implement” HB 2, or risk a civil rights lawsuit and a curtailment of the nearly $861 million in federal funds North Carolina receives annually. Gupta gave the state until this last Monday to think about it and to notify employees that, consistent with federal law, they are permitted access to bathrooms and other facilities that align with their gender identity.
McCrory responded by filing an utterly pointless lawsuit. North Carolina could have easily saved itself thecost of filing, told the DOJ that it would move ahead with HB 2, and just waited to be slapped with a lawsuit. The cases are going to be consolidated anyway. But wasting taxpayer dollars in the persistent effort to oppress marginalized people seems to be a favorite tactic among states with nothing better to do.
Instead of confirming that he would stop the campaign against trans people, McCrory sued the Obama administration in federal court in North Carolina for its “radical reinterpretation of Title VII of the Civil Rights Act of 1964 which would prevent plaintiffs from protecting the bodily privacy rights of state employees while accommodating the needs of transgendered [sic] state employees.”
Title VII prohibits sex-based employment discrimination, among a number of other protections. According to the tortured analysis in McCrory’s complaint, the DOJ is “ignoring the bodily privacy” of state employees, particularly women and girls who, as a result of bathroom equality, could be vulnerable to assault by any sexual predator claiming to be a woman in order to gain easier access to their prey, despite the fact that there is not a single reported incident of a trans person assaulting anyone in a bathroom.
McCrory’s complaint cites a handful of cases out of the Seventh, Eighth, and Tenth Circuit Courts of Appeal, all of which stand forthe proposition that Title VII doesn’t protect transgender people as transgender people per se, and that it doesn’t protect people with “sexual identity disorders.”And besides, McCrory argues, even if transgender employees are covered by Title VII, the statute doesn’t prohibit employers from balancing special circumstances they pose with “the right to bodily privacy held by non-transgender employees in the workplace.”
Even setting aside McCrory’s problematic intimation that transgender employees don’t have the same “right to bodily privacy” that cisgender employees do, McCrory’s complaint misses the point.
The issue is not discrimination against transgender people for being transgender people, but rather, as the DOJ pointed out in its letter to Gov. McCrory, the issue is that discrimination against transgender people is discrimination based upon sex, and discrimination based on sex is a violation of Title VII.
Citing the landmark decision Price Waterhouse v. Hopkins, in which the Supreme Court made it clear that discrimination on the basis of “sex” includes differential treatment based on any “sex-based consideration,” the DOJ noted that federal courts and administrative agencies have applied Title VII to discrimination against transgender individuals based on sex, including gender identity.
In Hopkins, plaintiff Ann Hopkins said she had been denied a promotion at work because she was “too macho.” Her employer told her that she should wear makeup, style her hair, and act more feminine. Six members of the Supreme Court agreed that such comments were indicative of gender discrimination, and held that Title VII barred discrimination because of biological sex, but also barred gender stereotyping—discrimination based on someone failing to act and appear according to expectations defined by gender.
It makes sense that the same principle would apply to transgender people. Ann Hopkins was treated differently at work because she expressed her gender in a manner that did not conform to arbitrary societal standards. Similarly, transgender people who are prohibited from using the bathroom that conforms to their identity are being treated differently than cisgender people, because transgender people, as far as some of the courts are concerned, are not expressing their gender in a manner that parts of society deem suitable.
As the 11th Circuit noted in the 2011 case Glenn v. Brumby, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.”
If cisgender people can use facilities for people who share the biological gender with which they identify, then it is discriminatory to deny transgender people that same personal dignity. Full stop.
McCrory doesn’t seem to understand this and is stuck on the notion of “biological sex”: In his complaint, he protests that “North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.”
One can imagine making the same argument with respect to, say, racially segregated bathrooms: “All state employees are required to use the bathroom and changing facilities assigned to persons of their same race.”
And one hopes McCrory would agree that such an argument would fall flat on its face.
Ultimately, the fight between the United States and North Carolina is about more than just bathrooms. It’s also about conservative panic about the seeming cultural lawlessness of the Obama administration.
Conservative commentators are caterwauling that the Obama administration is rewriting Title VII and its sister act, Title IX of the United States Education Amendments of 1972—which prohibits discrimination in schools—to advance a transgender agenda. They complain that transgender people are not a protected class under Title VII or Title IX, and that extending the anti-discrimination protections found in those statutes to transgender people requires Congress’ stamp of approval.
Notably, McCrory’s complaint is silent on Title IX, presumably because the Fourth Circuit (which is where North Carolina sits) announced last month that it would defer to the Obama administration’s Title IX guidelines, which require schools that receive public funding to permit transgender students to use bathrooms consistent with their gender identity. The Obama administration reaffirmed this guidance in a letter to public schools on Friday.
The primary complaint of McCrory and his cronies is that the Obama administration is redefining “sex,” and that the new definition far exceeds anything that Congress could have contemplated when it enacted the twin statutes in 1964 and 1972. McCrory’s complaint about the “radical reinterpretation” of Title VII underscores that point.
But that’s not necessarily true. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for interpreting and enforcing Title VII under the Obama administration, isn’t redefining “sex” for purposes of the prohibition against sex discrimination in Title VII. Not really. Rather, the EEOC has given the term some context in light of Hopkinsand similar cases, in which courts have recognized that sex discrimination includes gender stereotyping.
And the EEOC is well within its right to do so. In 1997’s Auer v. Robbins, the U.S. Supreme Court ruled that federal agencies are entitled to interpret their own regulations as they see fit, as long as their interpretation isn’t erroneous and doesn’t conflict with the plain language of the statute or regulation.
Assuming the North Carolina federalcourt follows the Auer rule, McCrory won’t have a legal leg to stand on.
McCrory will likely argue that Congress did not intend the term “sex” to mean anything other than “biological male” or “biological female.” But certainly the EEOC’s more expansive interpretation—that sex includes gender identity—is not contradicted by Title VII or by congressional intent. Indeed, the legislative history regarding Title VII is rather sparse because the prohibition against sex discrimination was a last-minute addition to its protections.
Title VII initially was conceived to prohibit racial discrimination in the workplace. Rep. Howard Smith (D-VA) introduced an amendment to add sex discrimination protections to Title VII a mere two days before the House of Representatives was scheduled to vote on it. Smith, who was a vocal opponent of civil rights for Black people, was considered a staunch supporter of women’s rights. (How he felt about Black women—or whether he even knew that they existed—is anyone’s guess.) So any discussion of congressional intent with respect to sex discrimination and Title VII is going to be short-lived.
An argument could certainly be made that Congress was not contemplating that “sex” would mean anything other than “male or female” and that it didn’t intend sex discrimination to encompass gender identity when it passed the statute, but if there’s nothing in the legislative history, then who can tell?
Besides, as a wise man once said, “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
That’s Justice Antonin Scalia writing the majority opinion in Oncale v. Sundowner Offshore Services, a case involving male-on-male sexual harassment. Scalia noted that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.”
Almost assuredly, neither was transgender bathroom access, but that doesn’t mean denying transgender people the dignity of using a bathroom aligned with their gender identity is not a “principal evil” prime for redress under Title VII.
After all, if it’s good enough for Scalia, it should be good enough for Gov. McCrory.