Analysis Law and Policy

Second Presidential Debate Still Too Glossy on Women’s Economic Issues

Sheila Bapat

Come November 7th, there are deeper questions to be tackled by both the President and Congress regarding issues of poverty that disproportionately impact women.

Aside from the hysterical “binders full of women” remark that is currently blowing up Twitter and inspiring social media memes, gender and economic issues were finally woven into last night’s Presidential debate. The discussion in particular about pay equity offered an opportunity for both candidates to outline their positions on issues of deep consequence for all women and their families. But given the range of issues covered, from Libya to energy independence to the deficit, the debate offered at best a cursory discussion about pay equity and gender parity generally.

For example, the Lilly Ledbetter Fair Pay Act continues to take center stage in terms of pay equity, yet there was no mention of the Paycheck Fairness Act. Passing the Paycheck Fairness Act would advance the cause of pay equity for women in the United States by providing employees with information about salaries and requiring employers to justify wage discrepancies (whereas the Lilly Ledbetter Fair Pay Act actually just restored rights that the Supreme Court had stripped years earlier in Ledbetter v. Goodyear Tire & Rubber Co.). Ben Adler of The Nation raised to me on Twitter the fact that President Obama had an opportunity to ask Governor Romney point blank whether he would sign the Paycheck Fairness Act were it to pass in the future (it was recently voted down in Congress). No mention of the Paycheck Fairness Act was ever made.

In addition, there was no mention of the Pregnant Workers Fairness Act (PWFA) a bill that was recently introduced in the Senate. PWFA would provide protections to pregnant women in labor intensive positions who are still at a higher risk of being fired when their doctor instructs them not to perform their regularly assigned duties.

Finally, both candidates talk about the importance of bringing “high-wage high-skill” jobs back to the United States, such as high-level manufacturing positions. Remarks like this are aspirational, but can further marginalize the work of nannies, caregivers, and other domestic workers who remain instrumental to the U.S. economy. The domestic workers’ movement has begun to educate the public about why caregiving sectors deserve value, dignity, and protections they have historically not received, but the remarks of both candidates demonstrate that domestic labor—which primarily immigrant women engage in—is still largely left out of discourse about jobs and the economy.

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Beyond the specific policy the candidates discussed, the tone and remarks of each candidate with respect to gender reflects their values and the values of their respective parties. On the question about gun control, Governor Romney pivoted and discussed the importance of marriage—a mysterious topic shift, but one that aligned with recent studies about the intersection of marriage and poverty. On the question of pay equity, Romney mentioned his chief of staff needing to be home and cook dinner for her family and read to her children— an anecdote that may resonate with social conservatives. By contrast, President Obama connected gun control issues to education, the economy and specifically, the importance of generating jobs and productive options for young adults who may otherwise find themselves in poverty and/or turn to violence.

No debate is ever focused exclusively on women and families’ economic security, and last night may be as much as we can get from Presidential candidates during this campaign season. Come November 7, there are deeper questions to be tackled by both the President and Congress, beyond the Lilly Ledbetter Fair Pay Act, and with a greater attention to issues of poverty that disproportionately affect women.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

Commentary Violence

When It Comes to Threats, Online or on the Campaign Trail, It’s Not Up to Women to ‘Suck It Up’

Lauren Rankin

Threats of violence toward women are commonplace on the internet for the same reason that they are increasingly common at Donald Trump rallies: They are effective at perpetuating violence against women as the norm.

Bizarre and inflammatory rhetoric is nothing new for this election. In fact, the Republican presidential candidate has made an entire campaign out of it. But during a rally last Tuesday, Donald Trump sunk to a new level. He lamented that if Hillary Clinton is elected president in November, there will be no way to stop her from making judicial nominations.

He said, “By the way, and if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know.”

For a candidate marred by offensive comment after offensive comment, this language represents a new low, because, as many immediately explained, Trump appears to be making a veiled threat against Clinton, whether he had intended to or not.

Sen. Elizabeth Warren (D-MA) called it a “death threat” and Dan Rather, former CBS Evening News host, called it a “direct threat of violence against a political rival.” Former President Ronald Reagan’s daughter Patti Davis said it was “horrifying,” and even the author of an NRA-linked blog initially tweeted, “That was a threat of violence. As a real supporter of the #2A it’s appalling to me,” before deleting the tweet as the NRA expressed support for Trump.

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This kind of language is violent in nature on its face, but it is also gendered, following in a long line of misogynistic rhetoric this election season. Chants of “kill the bitch” and “hang the bitch” have become common at Trump rallies. These aren’t solely examples of bitter political sniping; these are overt calls for violence.

When women speak out or assert ourselves, we are challenging long-held cultural norms about women’s place and role in society. Offensively gendered language represents an attempt to maintain the status quo. We’ve seen this violent rhetoric online as well. That isn’t an accident. When individuals throw pejorative terms at those of who refuse to be silenced, they are attempting to render public spaces, online or on the campaign trail, unsafe for us.

There is no shortage of examples demonstrating how individuals who feel threatened by subtle power shifts happening in our society have pushed back against those changes. The interactions happening online, on various social media platforms, offer the most vivid examples of the ways in which people are doing their best to try to make public spaces as uncomfortable as possible for marginalized populations.

Social media offers the opportunity for those whose voices are routinely ignored to hold power in a new way. It is a slow but real shift from old, more traditional structures of privileging certain voices to a more egalitarian megaphone, of sorts.

For marginalized populations, particularly women of color and transgender women, social media can provide an opportunity to be seen and heard in ways that didn’t exist before. But it also means coming up against a wall of opposition, often represented in a mundane but omnipresent flow of hatred, abuse, and violent threats from misogynist trolls.

The internet has proven to be a hostile place for women. According to a report from the United Nations, almost three quarters of women online have been exposed to some form of cyber violence. As someone who has received threats of violence myself, I know what it feels like to have sharing your voice met with rage. There are women who experience this kind of violent rhetoric to an even greater degree than I could ever dream.

The list of women who have been inundated with threats of violence could go on for days. Women like Zerlina Maxwell, who was showered with rape threats after saying that we should teach men not to rape; Lindy West received hundreds upon hundreds of violent and threatening messages after she said that she didn’t think rape jokes were funny; Leslie Jones, star of Ghostbusters and Saturday Night Live, was driven off of Twitter after a coordinated attack of racist, sexist, and violent language against her.

And yet, rarely are such threats taken seriously by the broader community, including by those able to do something about it.

Many people remain woefully unaware of how cruel and outright scary it can be for women online, particularly women with prolific digital profiles. Some simply refuse to see it as a real issue, declaring that “It’s just the internet!” and therefore not indicative of potential physical violence. Law enforcement doesn’t even have a solution, often unwilling to take these threats seriously, as Amanda Hess found out.

This kind of response is reflected in those who are trying to defend Donald Trump after the seemingly indefensible. Despite the overwhelming criticism from many, including some renowned Republicans, we have also seen some Trump supporters try to diminish or outright erase the violent aspect of this clearly threatening rhetoric. Sen. Roy Blunt (R-MO) and former mayor of New York City Rudy Giuliani have both said that they assumed Trump meant get rid of her “by voting.” Speaker of the House Paul Ryan (R-WI) said that it “sounds like just a joke gone bad.”

The violent nature of Donald Trump’s comments seem apparent to almost everyone who heard him. To try to dismiss it as a “joke” or insist that it is those who are offended that are wrong is itself harmful. This is textbook gaslighting, a form of psychological abuse in which a victim’s reality is eroded by telling them that what they experienced isn’t true.

But gaslighting has played a major role in Donald Trump’s campaign, with some of his supporters insisting that it is his critics who are overreacting—that it is a culture of political correctness, rather than his inflammatory and oppressive rhetoric, that is the real problem.

This is exactly what women experience online nearly every day, and we are essentially told to just suck it up, that it’s just the internet, that it’s not real. But tell that to Jessica Valenti, who received a death and rape threat against her 5-year-old daughter. Tell that to Anita Sarkeesian, who had to cancel a speech at Utah State after receiving a death threat against her and the entire school. Tell that to Brianna Wu, a game developer who had to flee her home after death threats. Tell that to Hillary Clinton, who is trying to make history as the first woman president, only to have her life threatened by citizens, campaign advisers, and now through a dog whistle spoken by the Republican presidential candidate himself.

Threats of violence toward women are commonplace on the internet for the same reason that they are increasingly common at Donald Trump’s rallies: They are effective at perpetuating violence against women as the norm.

Language matters. When that language is cruel, aggressive, or outright violent, it doesn’t exist in a vacuum, and it doesn’t come without consequences. There is a reason that it is culturally unacceptable to say certain words like “cunt” and other derogatory terms; they have a history of harm and oppression, and they are often directly tied to acts of violence. When someone tweets a woman “I hope your boyfriend beats you,” it isn’t just a trolling comment; it reflects the fact that in the United States, more women are killed by intimate partners than by any other perpetrator, that three or more women die every day from intimate partner violence. When Donald Trump not only refuses to decry calls of violence and hate speech at his rallies but in fact comes across as threatening his female opponent, it isn’t just an inflammatory gaffe; it reflects the fact that one in three women have experienced physical or sexual violence.

Threats of violence have no place in presidential campaigns, but they also have no place online, either. Until we commit ourselves to rooting out violent language against women and to making public spaces safer and more accommodating for women and all marginalized people, Trump’s comments are just par for the course.

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