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Gov’t-Mandated Gender Discrimination Is Back – Let’s Ensure History Doesn’t Repeat Itself

March 1, 2022

In honor of Women’s History Month, it’s important to remember how American women purged our laws of gender discrimination, lest we be doomed to repeat it.

My great-grandmother, who grew up in rural Italy and came to America in the 1920s as Benito Mussolini was transforming her home country into a fascist dictatorship, always impressed upon me how lucky I was to be growing up in the United States. “In America,” she would say, “a woman can be anything she wants to be.” That was not true of the country she grew up in.

Italian women in the early twentieth century had few options for life outside the home. Under Mussolini’s rule, they were not allowed to participate in politics, go to college, or work in many professions. They were prohibited from teaching young men because “women do not have, nor will they ever have, either the moral or mental vigor to teach in those schools which formed the ruling class of the country.” In 1881, 40-50% of women in Italy were employed. But by 1921, only about a quarter were employed, and fascism brought that number down to just 18%. Despite her intelligence, my great-grandmother never even learned to read or write. Although much has changed over the past century, in dozens of countries today, women are still denied educational opportunities, banned from certain professions, or required to get their husband’s permission in order to work at all.

My great-grandmother was right: American women are fortunate. But in the not-too-distant past, gender discrimination was institutionalized in our own laws and legal system.

Legal restrictions on women in the workforce were commonplace in the United States until the mid-twentieth century. In the 1880s, many public schools prohibited the hiring of married women and terminated teachers if they married. So-called marriage bars became more prevalent during the Great Depression to reserve the scarce jobs for men rather than married women, whose duties were at home.

A century and a half ago, the Supreme Court upheld an Illinois law prohibiting women from practicing law. “The harmony … [of] the family institution,” the Court said, “is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.” And as recently as 1948, the Court upheld a Michigan law banning any woman from bartending unless her husband or father owned the bar. The ban was justified, the Court reasoned, because female bartenders could “give rise to moral and social problems against which [government] may devise preventative measures.” In the 1960s, over half the states still legally excluded women from some type of work.

Minimum wage and maximum hours laws for women were also widespread. Proponents of minimum wage laws purported to help women by ensuring they got fair pay, since they’d be unable to bargain for themselves in a male-dominated workforce. But rather than giving women greater opportunities, those laws put many of them out of work altogether. No matter, said the Supreme Court. Restricting women’s work hours was constitutional because their proper role is to “preserve the strength and vigor of the race.”

Today, we understand these laws for what they were: attempts to relegate women to the roles male-dominated governments thought they should fill, ignoring their individual preferences. But the same century-old justification for those discriminatory rules is being recycled by today’s proponents of gender-based mandates: Big Brother needs to “help” women because we can’t help ourselves.

Those who accept such arguments are unraveling the work of early egalitarian feminists—women who fought for decades to do away with patronizing laws that treated women as weak and incapable of making their own decisions or shaping their own destinies.

As 20th century American journalist and feminist Suzanne LaFollette wrote, “women who rely upon [government] guarantees to protect them against prejudice and discrimination are leaning on a broken reed.” Special favors from government only exacerbate inequality and sexism. Women cannot be seen as equals by society, LaFollette believed, until they are treated by the law “not as women but as human beings.”

That’s why Alice Paul and her National Woman’s Party (the original proponents of the Equal Rights Amendment) wholeheartedly rejected “protective” legislation that singled women out for what they considered to be restrictive and discriminatory treatment. Those laws, Paul argued, were actually “used to deny women the right to earn their own livelihoods and to support their dependents.”

Prior to her appointment to the Supreme Court, Ruth Bader Ginsburg likewise spent much of her legal career arguing against rules that favored women at the expense of men. She was adamant that laws aimed at “helping” women frequently result in depriving them of their freedom of choice. Based “on the notion that women could not cope with the world beyond hearth and home without a father, husband, or big brother to guide them,” she wrote, “the state impeded both men and women from pursuit of the very opportunities and styles of life that could enable them to break away from traditional patterns and develop their full, human capacities.”

Yet today, laws that dictate how many women should serve on a company’s board, or whether a woman should value flexibility over higher pay, subject them to one-size-fits-all, top-down agendas. They ignore the decisions women themselves make when pursuing the career paths of their choice, supplanting those decisions with the choices bureaucrats think women should make.

This Women’s History Month, let’s honor the work of the brave women who toiled to secure true gender equality by treating women as individuals with unique preferences and needs. Rather than shackling the next generation of women with messages of despair, let’s empower them to pursue their dreams and teach them that the best way to fight prejudice is through excellence.

Christina Sandefur is the Executive Vice President of the Goldwater Institute.




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