Virtual Roundtable: Equality in Constitutional Democracies: The ERA, CEDAW, and the Chilean Plebiscite
BETTINGER-LOPEZ: Thank you very much. Welcome everyone to our roundtable, sponsored by the Council on Foreign Relations Women and Foreign Policy program, as well as the Think Global Health program, which has assisted with the development of today's roundtable. The subject today is equality in constitutional democracies, and we'll be exploring the Equal Rights Amendment, the Convention on the Elimination of Discrimination Against Women (CEDAW), and the Chilean plebiscite and looking at the developments of these themes both in the United States and Chile. So, as you read about in preparation for the event today, women's human rights and civil rights leaders, both in the United States and in Chile, have long championed systemic reforms in the United States. The championing of the Equal Rights Amendment and CEDAW, the Convention on the Elimination of All Forms of Discrimination Against Women, to constitutionalize and legally advanced gender equality has been an important area of advocacy and growth in recent years. We've seen the Biden-Harris administration pledge to support, both during their campaign and more recently, a new gender policy council that was established through an early executive order by President Biden and has taken unprecedented steps to center gender equality and equity at all levels of federal policymaking. And recently, also in Chile, Chileans overwhelmingly voted to adopt a new, historic constitution that must be drafted and adopted by a constituent assembly that requires gender parity.
So, we're so thrilled to welcome our speakers Lisa Valdez and Julie Suk as they consider the meaning of these constitutional and human rights developments for the state of gender equality in the United States, Chile, and globally.
We have several goals for our roundtable today. First, we want to explore the state of constitutional gender equality in the United States and, more briefly, in Chile. Second, we want to discuss the localization and implementation of CEDAW, as well as the history and the future of the Equal Rights Amendment (the ERA) and the recent Chilean plebiscites. We want to explore how an international legal framework such as CEDAW is internalized and constitutionalized, and how different levels of government can interact with the norms, the law, and the politics. And finally, we want to consider where and how human rights implementation can happen in the United States, given the history of United States exceptionalism and the reservations, understandings, and declarations, also known as RUDs, that create non-self-executing treaties. So, I will be presiding over this roundtable for the next hour with our speakers, whom I would like to briefly introduce.
Professor Lisa Valdez is a professor of government and Latin American, Latino, and Caribbean studies at Dartmouth College. Her research examines the extent to which informal institutional roles shape the possibilities for achieving gender equality. In 2014, she published a really excellent book Defying Convention: U.S. Resistance to the UN Treaty on Women's Rights, which examines the history of CEDAW, the reasons why the U.S. hasn't ratified it, and what impact it might have on the U.S. if it were ratified.
Our second speaker Julie Suk is the Florence Rogatz visiting professor of law at Yale University, and she is also a senior research scholar at Yale Law School and a professor of sociology, political science, and liberal studies at the Graduate Center of the City University of New York. Her 2020 book, just published, We the Women: The Unstoppable Mothers of the Equal Rights Amendment describes the ERA’s long legislative history, and she's authored dozens of articles, books, and book chapters about comparative constitutional law, the procedural implementation of equality norms in the United States and Europe, gender quotas, and women, work, and family. You can read more about our speakers, including their bios in your meeting packets for today.
I'd also like to thank Sam Kiernan, who is a research associate with us in the CFR Global Health and Women and Foreign Policy programs, who has very thoughtfully assisted with the preparation of this round table.
So, in terms of our roadmap for today, we will start out where Professor Valdez and Professor Suk each take a few minutes to outline some general thoughts on the subjects they'll be speaking about. And then we will go into a discussion between the three of us, where we aggregate some of these themes, and then we'll open it up in the last twenty-five minutes or so of this session to all of you to ask questions. We invite participants to think about your questions as you move along and send them forward in the chat. And then our moderator will be able to call on you, and when you are called on, if you could please just state your name and affiliation. I'll remind you later on in the program. So, with that, we'll go in alphabetical order, and so, we will start with Professor Baldez first. Lisa Baldez, welcome.
BALDEZ: Thank you so much, it's really an honor to share the screen with you, Carrie, and with Julie. Your work, both of you, have really influenced my own thinking on domestic violence, sexual violence, and on the Equal Rights Amendment. So, it's a real honor to be here.
So, let me start by talking about what CEDAW is, and then I'll move into how it works and what it would mean for the U.S. to ratify it. So, you know, it's really kind of an international bill of rights that outlines in thirty articles global standards for women's rights in every area of society. The CEDAW was approved by the UN General Assembly in 1979, after many years of wrangling and editing and amendments and revisions. And then it opened for signature in 1980. Since then, 189 countries member countries of the UN have ratified it. Six have not: Iran, Palau, Somalia, Sudan, Tonga, and the United States. So, the question of why the United States hasn't ratified it and what difference would be would it make if we did is an important one, given that this is not the typical company that the U.S. thinks of itself as keeping when it comes to women's rights.
So, as I said before, CEDAW defines global standards for women's rights policy. They're really benchmarks for domestic policy for countries to work toward. ratification would commit the United States, as it commits other countries, to engaging in an ongoing and continuous process of reporting on compliance—making progress toward complying with the provisions of the convention.
So, the way that that works is the very first step that governments do is they write a comprehensive report on the de facto status of women's rights—sorry, the de jure status of women's rights law and policy and the de facto status of women in the country and all these different areas, and submit it to the UN committee that oversees compliance with CEDAW. Now writing a report may sound like "Okay, we've got a million reports." But, as I'll talk about in a minute, the United States has never done something like that, and so that, in and of itself could be really significant. From there, civil society organizations are invited to issue shadow reports to the to the UN committee, where they can critique, offer more information, challenge, add to the government report, and they are invited to present before the CEDAW committee. The government of the country then sends a delegation to present the report before this committee in Geneva. And that delegation can be as, you know, twenty, thirty, forty people representing all branches of government to come and make the case about women's rights. They engage with a what's called a constructive dialogue with CEDAW officials and experts on that committee.
And that is a really, really interesting exchange. It’s uncomfortable for countries to do that—to participate in that process—because there is no country in the world that is in full compliance with the provisions of CEDAW. So, everyone, every delegation is going to get asked hard questions about their failures to comply. But I think the fact that every country is subjected to that is a really important aspect of the convention and how it works.
The committee then writes a series of what are called concluding observations—records assessing here's what you're doing well, here's what could be better—and recommends issues for follow up. And then there's a built-in accountability building mechanisms. So, this happens every four years. And the CEDAW committee writes in between then to say, “How are you doing with those recommendations?”
So why hasn't the United States ratified it? Well, it's not for lack of trying. The convention has been—come up before the Senate many times. But CEDAW is an Article II treaty, right. It's governed by Article II of the Constitution, which requires executive approval, and a two-thirds Senate vote on advice and consent on a treaty. That’s a really high threshold. It's among the highest for treaty ratification in the world, and it's very difficult to reach, but it's particularly difficult to reach when any kind of controversy comes up.
Now, initially, when CEDAW was first approved—actually, when it was being drafted, it was not at all controversial. President Nixon, President Ford, and President Carter sent delegations during the 1970s to Geneva to draft the convention. And those delegations were always bipartisan. They included leaders from the Democratic and Republican Party, and they were headed by Republican Party leader Patricia Hutar.
So those who were present—when CEDAW opened for signature in 1980, the people from the United States who went to sign it, and signing is kind of in an intent to ratify, those people were: Sarah Weddington, who was the lawyer in Roe who represented Roe in Roe v. Wade, and also Barbara Mikulski, a U.S. senator from Maryland. From things that they said and reported on later, they felt that that moment was the end of discrimination against women. They felt this is it: we’re done. And there was this incredible hope and optimism about what was about to happen, which didn't happen. Because with the election of President Reagan and a very conservative shift in the ideology of the Republican Party, that support for women's rights was no longer provision a plank within the Republican platform.
Now, there were some moderate republican women who supported CEDAW. And when President H.W. Bush held the presidency, they wrote him a petition asking him to put CEDAW under consideration. But slowly, over the course of the Bush administration reviewing CEDAW, those women peeled off that coalition one by one under pressure from party leaders with regard to abortion. And since then, the Republican Party has basically viewed CEDAW as a carte blanche for abortion on demand.
The last big push for ratification came in 2010. Conditions looked really favorable. You had Barack Obama as president, Joe Biden, who was an early supporter of CEDAW, as vice president, Hillary Clinton as secretary of state, and Milan Verveer as the ambassador for global women's issues. Senator Kerry headed up the Senate Foreign Relations Committee, and there were more than a hundred organizations that supported ratification. But there are also more than a hundred organizations that opposed ratification, and they opposed it very strenuously.
The Republican Party is generally opposed to human rights treaties on the grounds that they are international treaties that shape domestic law, or at least intend to shape domestic law. And the Republican Party has been very successful in framing CEDAW as a very direct threat to American women and to American families, and they've had all kinds of rhetoric about this will end Mother's Day, will create abortion on demand, which I think are quite over-exaggerated. Whereas the supporters’ rhetoric about what would happen if we ratified CEDAW has pointed to benefits that are more diffuse. We will be able to help the world's women and expand women's rights abroad, or we will further ensure rights that many Americans think American women already have. So, there's a long and ongoing history.
It is, as Carrie mentioned, was on the platform of the Biden-Harris campaign by both. Biden supports ratification. My academic view is that the odds of ratification are vanishingly slim. It's up to advocates about whether or not people want to pursue that form. But what we can do in the meantime is something I'm going to call “domestication without ratification.” And I'm happy to talk about this more in the Q&A. But one is advocates could push for a comprehensive report on women's rights in the country to be written. And I think the Gender Policy Council, which reports directly to Biden, is a logical place to start with that. We can continue to enforce the treaties that the United States has ratified. The International Covenant on Civil and Political Rights does have some planks on women's rights. And really importantly, there is a campaign going on right now called Cities for CEDAW that looks at translating the principles of CEDAW into local and state level policy and creating laws or ordinances that adopt the principles of CEDAW to local government, and that's a way to circumvent deadlock in the Senate at the federal level.
I'll stop there. I want to just leave two questions about this domestication without ratification issue or effort. Does tying local women's rights to an international treaty, to CEDAW, does that strengthen the claims, or does it, in this context, weaken them? And then what would it take to ensure compliance about local efforts to comply with CEDAW, given that what I view is important about CEDAW is this ongoing process that ensures accountability over the long term? So, without that, and without a lot of mobilization on behalf of it, it's really hard to hold local efforts to account. So, I'll stop there, and I look forward to the questions.
BETTINGER-LOPEZ: Thank you so much, Professor Baldez. Professor Suk, now over to you. We would love to hear from you about some of these themes as they play out in the context of the Equal Rights Amendment.
SUK: Right. Thank you so much, Carrie, for organizing this forum. It's such a pleasure to appear with you and with Lisa Valdez, whose work I admire, both of you. So, thank you so much.
So, one anomaly of the U.S. Constitution is that it does not have a provision guaranteeing equal rights between women and men. That principle was explicitly articulated in the UN Charter and Article 2.A of CEDAW instructs all nations to enshrine this principle in their constitutions, and almost every constitution currently enforced in the world has such a provision, which has been considered a staple of modern constitutionalism since World War II. Sex equality is a basic human right. And as the late Justice Ruth Bader Ginsburg wrote in her many writings on the Equal Rights Amendment and congressional testimonies in the 1970s, the sex equality guarantee should be thought of as a human right, on par with any guarantee of freedom of speech or religion belonging in every modern constitution.
And like CEDAW, the absence of gender equality rights in the U.S. Constitution is not for lack of trying. Women's movements have proposed a constitutional amendment guaranteeing equality of rights not to be denied or abridged on account of sex since 1923. The U.S. Constitution’s rule for amendment, however, at Article 5, requires two-thirds of Congress, which is to say both houses of Congress and then ratification by three-fourths of the states, typically by the state legislatures, to make a constitutional amendment.
So, ERA proponents struggled for about fifty years, from 1923 to 1972, just to get the two-thirds of both houses of Congress to act. That did not happen. We didn't get both houses of Congress, two-thirds, to act in the same session until 1971–72. And when it finally did, there was a political compromise. And it was a compromise that was unduly shaped by a vocal, relentless, and small minority in the Senate. It led to the inclusion of a seven-year deadline on ratification for the state legislatures. And so, the fact that we got this compromise, I mean, the ERA did go out to the states for ratification by way of this compromise in 1972, but that deadline was something that was inserted because a few members of the vocal minority really felt strongly about it. And it raises questions about the relationship of gender equality to democracy and the structures and procedures in the context of lawmaking, including constitutional lawmaking, to legitimize this to legitimize constitutional democracy itself.
So, what happens with the ERA? There's that seven-year deadline, and thirty states—and that's a super majority of the states, that's 60 percent of the states—ratified it quite quickly. By the end of 1973, within a year and a half, we got thirty states. But at that point, ratification stalled, and only thirty-five states ratified the ERA by 1977. Ratification stalled largely because a Stop ERA Movement, led by Phyllis Schlafly, really brought attention to and caused a lot of fear and confusion about what the ERA would do in terms of the status of mothers, children, and families. But because ratification stalled, Congress extended the deadline once in 1978, just by a few years to 1982. But no additional states ratified before 1982. And in 1982, the ERA was presumed dead and long forgotten.
But in recent years, the ERA has been revived. So, after the women's march in 2017, Nevada actually ratified the ERA just that year in March 2017. And the Me Too Movement, that really gained steam in the fall of 2017, really led Illinois to ratify the ERA in 2018 in the spring. And then with the nineteenth amendment centennial on the horizon for 2020 and women running in record numbers for Virginia state legislature, that led to Virginia ratifying the ERA in 2020. So now, thirty-eight states have ratified, albeit three states ratifying decades after the last congressionally imposed ratification deadline.
And what's really interesting about this revival is that the state, particularly women of color, who have led the effort in Nevada, Illinois, and Virginia, they've really emphasized that a new meaning for the ERA. It's not only about the 1970s agenda, which was largely about getting rid of gender classifications that were explicit in the law. That project what has had some success through litigation in the federal courts and certainly through landmark Supreme Court decisions. So, by the time we get to the twenty-first century revival, the ERA is not just about getting rid of sex discrimination in the law, but actually empowering legislature to put gender equality front and center in policy agendas.
You might think of that—this idea of legislators being in the driver's seat, rather than courts, centering gender in all policy agendas—as a form of gender mainstreaming that you see in many other countries around the world and the European Union. The idea that gender and the impact on women is something to be considered before any policy is adopted. And this is not a totally new twenty-first century idea. I think it is an idea that's been in CEDAW, as well. But also, domestically, women in Congress in the 1970s, when they adopted the ERA, sure, they talked about getting rid of gender discrimination and the law. But many of the leaders including some of the first women of color elected to Congress, in the late 1960s, when they argued for the ERA, they also talked about the need for legislatures to implement real equality through legislation. And that's something—they were explicit about it. They were talking about childcare and infrastructure that they worked on in the 70s, but which we still don't really have at the federal level.
So, when the ERA was revived in Nevada, Illinois, and Virginia, so much of the floor debate discourse about what it would mean had to do not just with getting rid of sex discrimination, but with passing laws at the state and federal level to really address the problem of unequal pay, the unequal burdens of childcare, the unfair treatment of pregnant workers. And these policy agendas, which I think have been around since the 70s, have really not been addressed fully or adequately, even today in 2021. And those agendas, I think, have achieved a renewed sense of urgency because of the effects of the pandemic economy on women and particularly working mothers.
So, I just want to say a few words about where we are today, after those three late ratifications. One huge question obviously, both legally and politically is whether or not the late ratifications can be counted to validate the ERA and actually add it to the Constitution. And there is pending litigation and legislation in an effort to resolve this issue. After Virginia ratified, the House actually passed a resolution in 2020. And then they passed it again in 2021, declaring the ERA to be ratified as soon as thirty-eight states ratify it, notwithstanding any prior deadlines. The Senate didn't take action last legislative session. In this legislative session, it's been referred to the Senate Judiciary Committee, and the House Resolution can be brought up by the majority leadership on the floor.
But the real issue now, even though it's believed that there are enough votes to actually pass the resolution in the Senate, the filibuster effectively requires sixty votes for cloture before it could be voted on in the Senate. And so, it's believed that the ERA deadline removal in the Senate would have fifty-two votes, but not sixty. And that's what's holding that up and, currently, as a matter of removing the deadline.
At the same time, the three states that ratified most recently have brought litigation arguing that deadlines—that the ratification deadline on the ERA, and in general, is not legally binding, and therefore the ERA is part of the Constitution now and should be recognized as such. So, there are clearly those issues that need to be resolved, whether in litigation or legislation. I'm happy to talk more specifically about them in the Q&A if there's an interest.
But I think most importantly, there are substantive issues that are raised by the ERA’s revival because of the intervening legal developments in judicial interpretation of the Equal Protection Clause. Specifically, that because of the litigation pioneered by Justice Ginsburg as a lawyer in the 1970s, we actually have constitutional law under the Equal Protection Clause that prohibits sex discrimination by government. But what we've never really done is interpret our constitutional right to equality more robustly to obligate the government to promote gender equality on the ground. And the court has actually struck down Congress's efforts to legislate gender equality, including through the Violence Against Women Act (VAWA) civil remedy provision. And that stands in stark contrast to many other countries— Germany and France, for example—that have adopted new constitutional amendments that explicitly authorize and obligate the state to promote real equality, whether through access to positions of power, or also, in Germany, a 1994 constitutional amendment that obligates the government to eradicate disadvantages that now exist in an effort to actually implement the principle of equal rights between women and men. And so, I think these ideas are important. And the way that the ERA resolves has tremendous implications, not only for the future of gender equality, but the process by which we amend the Constitution and whether or not that process is a democratic one.
BETTINGER-LOPEZ: Thank you so much, Julie. Wonderful. So, we've got two examples of historic efforts that have present day manifestations and lots of law and policy implications in our current administration, our current world, and so, we'd like to do a little bit of a deeper dive into a few of the themes that you both have flagged.
So, I'd like to start with you, Lisa, to talk a little bit more about the domestication of CEDAW. You spoke a bit about both national level as well as local and municipal efforts to domesticate CEDAW. I was wondering if you could give us a little bit more granular detail about examples of local or municipal governments that have taken efforts to domesticate CEDAW, the Cities for CEDAW campaign, the C for C campaign, and your thoughts on the future of domestication and localization of CEDAW in the U.S. or elsewhere.
BALDEZ: Thanks. So, the Cities for CEDAW campaign is really capitalizing on the city of San Francisco, which adopted a CEDAW ordinance I believe in 1998, and created a CEDAW task force. And so, that involved a couple of different steps. The first thing was to look at CEDAW and figure out how to translate the articles of CEDAW into something that would make sense in the context of what the city government does in the city of San Francisco. And so, they focused on three areas: economic development, health care, and violence against women. And that's not exactly the language that CEDAW uses, but that's how San Francisco or this group at this taskforce interpreted it.
So that was the first step. The second was creating a series of steps. So one, the first step was creating a plan for action. So, what is this going to entail, and who is going to do the work of talking to various agencies and government bureaus throughout the city to talk about what they needed to do to come into compliance? They also adopted a training module—so a process of how to train municipal officials to think about gender equality, and how to perform a gender analysis and then to actually do this work. I think a really important piece of it is a gender analysis of the budget, right? What does the budget entail in terms of benefits to men and benefits to women? And to what extent does that support, does the budget support promoting women's rights? I think that's the third.
So that's one way in which this happened. And there are—Cities for CEDAW is a really active campaign. There have been a lot of efforts. There's some activist on the issue of sex trafficking in the state of Kentucky that landed on CEDAW, and article six of CEDAW in particular, which talks about trafficking and prostitution, and used that to persuade the legislature to adopt an anti-trafficking law and policy in the state of Kentucky. So, that was a really kind of almost ad hoc domestication of an international treaty that had really powerful effect in the state of Kentucky.
And then the third thing I want to mention is more of a germ of possibility. I was giving a talk on CEDAW to a high school organization a few weeks ago. And I talked to them, they said, “Well, what would it look like if we domesticated CEDAW here?” And I said, “Well, you could go to town meeting, and talk, raise questions, ask about gender inequity or the gender nature of the budget or just, you know, ask questions and see how people respond and try to figure out, you know, how you might make that relevant. And I could see their eyes like, honing in and thinking like, “Yeah, we're totally gonna do that.” Town meeting is a is a big deal around here, and it's open to everyone. And it suddenly gave them a way to connect that kind of advocacy work they're doing on a broader level to their own communities. So, I see there's a lot of hope there.
You know, I have concerns about the domestic, the local process because unless you build in these accountability mechanisms, or unless, if someone violates them, you can bring out, you know, protest or people mobilizing to say, “Hey, you're not allowed, you can't do that.” It's really dependent on the kind of will of political leaders. And anytime you're dependent on the will of political leaders that, you know, that places a lot of weight on the shoulder of the leader. So, those are my concerns about it, but also some possibilities for hope.
BETTINGER-LOPEZ: Thank you so much. And I want to acknowledge my own county mayor, Daniella Levine Cava, who was a champion of having CEDAW implemented in Miami Dade County, and I know, one of her colleagues from the county is participating in this session, and I would invite her to join the conversation during the question and answer period.
We want to make sure that we touch on Chile as a comparative example. And to think about the developments in the gender parity requirements with the Chilean plebiscite, and to think about how that maps on to these questions of gender equity and parody that we're speaking about in the CEDAW context. So Lisa, can you talk a little bit about what has happened recently in Chile in this context?
BALDEZ: Sure. I think to make sense of it, there's a little bit of background that needs to happen. One is that, you know, for at least the past five, maybe ten years, feminist movements have been so highly mobilized and active on issues relating to abortion and reproductive freedom, femicides—femicides are murders of women on the basis of their gender—and other public policy issues, sorry violence against women and sexual violence of all of all kinds. And so, these movements have been out there, the equivalent of what Black Lives Matter protests have looked like in United States, for several years.
In 2015, the Chilean legislature adopted a quota law that requires 40 percent of legislative candidates for office to be women. Now, that sounds pretty progressive, but Chile is almost the last country in Latin America to adopt a law like that. Argentina was the first in 1991. And these laws have been incredibly successful at raising the percentage of women in elective office. Now, the constituent assembly grew out of a protest in Chile that started with students protesting a fare hike for the metro—for the subway. And it almost instantly exploded into a nationwide anti-system estallido, uprising, in Chile. And out of that process, came a demand for a new constitution and to get rid of the constitution that was fraudulently approved under General Pinochet in 1980.
The coalition of women—it's an across the political spectrum coalition of women who mobilized to get the quota law in Congress—quickly realized that there's going to be a constituent assembly in Chile, that they wanted to quote a law approved of that. And these women had been in the political parties, and they knew the ways that party leaders could circumvent or ignore the provisions of the quota law. So, they were ready. And they had a very specific proposal for the constituent assembly that was approved.
And here's the way the parody law works with a with regard to choosing delegates for the constituent assembly. So first of all, the different parties and independent coalitions of citizens can advance lists of candidates from whom voters can choose and elect the 155 members of the constituent assembly. And these elections are taking place on May 15. So, all of those lists must be headed by a woman. The second provision for the lists is that—they call it the zebra rule in Chile, others countries call it the zipper rule—there has to be alternation, has to go woman, man, woman, man throughout, to the bottom of the list. And that means if there is an odd number of seats, then there's always going to be one more woman than man. But the law also applies to the results of the election. So, in a district with an odd number of seats, the difference between the number of men and women elected cannot be more than one. So there has to be, you know, close.
And if that is not the case, then they have a system where the best loser replaces the worst winner. And what that means, let's say you have a district with eight seats in it. And then the election result is you get six men and two women. That's out of compliance with the quota law or the parity law. So, the two women with the highest votes will replace the two men with the lowest votes. And the women have to be from the same list. So that's a way that this parity law is, I would say, ironclad to have parity at the list level and at the outcome level, which is really powerful. Now, when election lists were submitted to the electoral commission, and last January, January 2021, thirty-seven of the lists did not comply with the zebra principle. So, women immediately mobilized to demand that the list be fixed. And this is that where the mobilization of women—this ongoing kind of massive protest in Chile and other countries—comes to the fore. And there is immediately press conferences and calls for the electoral commission to correct the list, which they did. So, when Chileans go to the polls on May 15, they'll select 155 people who will rewrite Chile's constitution, and half of them will be women. I should say that there are also seventeen seats reserved for indigenous people, and 5 percent of the seats will go for people with disabilities. There was a request to have reserved seats for Afro-Chileans, but that was not approved.
BETTINGER-LOPEZ: Thank you, for that comparative example. Very interesting. Julie, I'd like to turn to you. Back to the theme of kind of the Equal Rights Amendment in the age of COVID. Right, we're in the age of a global pandemic, a national and a global reckoning on race, a surge in white male supremacist violence in the U.S., a global recession that's deeply impacted women and communities of color. My colleague, Catherine Powell, has referred to this as the gender and the color of COVID. So, I want to ask you, first of all, what does the ERA mean, in this moment? You started to touch on some of those themes previously, and then second of all, if you could take us, comparatively, to think about other countries that have engaged in gender mainstreaming, and what that has looked like? And again, kind of reflecting on COVID times what that looks like, now or in the future?
SUK: I think we're at a real crossroads. And the two questions you asked are quite related. Because, I mean, Lisa was explaining the gender parity provisions of the process by which a gender parity constituent assembly will be elected in Chile, and that grows out of prior laws that existed for a few years in Chile, requiring gender parity for electing the legislature. And that's related to similar laws that have existed in Europe for a few decades now. But the laws requiring gender parity, essentially gender quotas for certain positions of power that emerged in Europe after intense constitutional fights at the domestic level in countries like France and Germany that produced constitutional amendments that you can see as analogous to the ERA. But those amendments, so in Germany in 1994, specifically to authorize positive measures to promote gender equality, like quotas for elected office or quotas for corporate boards, they put into—there was already a nondiscrimination provision that dates back to post World War II: no discrimination on grounds of sex. But they added language that said that the law shall eradicate disadvantages that now exist; shall promote the actual implementation of equal rights between women and men. And in France, the struggle over gender quotas, both for electoral office and gender quotas, the constitutional court struck that down as being against equality. And so there were new amendments, in the late twentieth century and in the early 2000s, that explicitly said the law shall promote equal access by men and women.
And I tell the story because you could see these new amendments, these late twentieth century amendments, as saying equality is not mere formal equality. Authorizing the legislature to actually take gender into account, and in fact, obligating the legislature to take gender into account to achieve real quality is what the constitutional principle of gender equality is about. And I think this is something we're at a real crossroads with in the United States. Because we actually have, in response to the Me Too Movement, California passed a law requiring at least one woman—some form of gender balance, or at least gender inclusion—on corporate boards. And that's being litigated right now, and it's being argued that that's actually sex discrimination because under a formal understanding of gender equality, taking gender into account in that way, including gender representation and gender empowerment, could be by some understanding, a violation of equal protection rather than an advancement of equal protection.
And this is where I think having a new amendment could be helpful. But that new amendment, the Equal Rights Amendment, it just says equality of rights shall not be denied or abridged on account of sex. And so, if the men's movement, for example, wants to mobilize and say that efforts to promote women's empowerment is actually a violation of the ERA, that is something that could be available to them unless a particular legislative history that makes clear the meaning of the ERA as actually promoting women's equality, particularly in COVID times where if you want to do a real infrastructure of gender equality, it might involve things like childcare policy. It might involve what some people are calling the Marshall Plan for mom's—actually compensating women for unpaid care work. And some of those policy proposals may have to be gender sensitive and gender conscious, rather than formally gender neutral. And that's something that I think it's not clear from the text of the ERA itself—if the ERA requires gender neutrality or gender consciousness. But I think that when it's not clear, it's up to the people to mobilize to make clear what it is they want if they're making a constitutional amendment now. And so, while it's midstream in Congress, I think it is important for people to speak out, and for hearings to be held, so that the new public meaning of the ERA for the twenty-first century, addressing the gender displacements and inequalities that have been occasioned by the pandemic economy. But that conversation is absolutely crucial to the ERA doing anything useful for gender equality in the future.
BETTINGER-LOPEZ: Thank you so much. This is wonderful. Okay, so we're going to open it up now to the panelists. And Lisa, if you have a few—I'm going to just say, folks can start to think of your questions, please raise your hands.
I'm going to turn it over to Lisa to say a couple of words about gender-based violence or anything else she'd like to wrap up this piece of the conversation on and then turn it over to a question and answer. I see a couple of hands up. And please, when you are called on if you could please identify your name and your organizational affiliation. So, Lisa, some closing thoughts here.
BALDEZ: Thanks. Thanks for asking that. It's obviously fundamental. So, I talked about the way in which the parity law is going to affect the numbers of women who will be elected. But there's another question about what will they do once they're there. And a lot of people in mobilizing for parity or gender quotas have a view that they have a particular set, a particular way to define what they think women's interests are. But women rarely share interest across all the different intersectionalities of our identities. And there, you know, so that's an open question. I think, is a particularly open question because I suspect that women on the right will be a quite a powerful bloc, or B-L-O-C, within the constituent assembly, and the degree to which they're likely to share an agenda with women to the left of them is unclear. However, I think domestic violence and gender-based violence is one of the issues on which we are most likely to see agreement across the political spectrum. And that is where the, the Me Too Movement, the very creative and dramatic world-influencing protests that have happened in Chile will have, will connect with this institutional focus to raise the issue of gender-based violence and, hopefully, to make some real progress there.
BETTINGER-LOPEZ: Wonderful. Thank you. Okay. Is the CFR manager going to call us out?
EVENT MANAGER: Yes. So, just as a reminder to ask a question, click on the raise hand icon on your Zoom window, and when you were called on accept the unmute now prompt before proceeding with your name and affiliation, followed by your question. We will also be sharing the roster of registered participants in the chat. So, our first question comes from Ryan Kaminsky.
KAMINSKY: Thank you very much, and this was a terrific conversation. And I hope one of many to come. And just a big thank you to all the panelists and CFR. My name is Ryan Kaminski. I’m with the Truman National Security Project. I have two quick questions.
First, on misinformation that came up earlier specific to CEDAW, what are the panelists’ thoughts on combating some of the misinformation we see on these human rights treaties time and time again? With CEDAW it was you know, Mother's Day is going to be eliminated. With the Convention on the Rights of Persons with Disabilities, there was, you know, the UN is going to come after your kids. What, you know, are some tactics that we can really use to help address this problem of complete misinformation about these agreements?
And second on CEDAW, you know, one opportunity coming up on the Biden-Harris administration might be a voluntary national review of the United States on the UN Sustainable Development Goals (SDGs). And that would open the door for a national conversation and a national update and reporting on Sustainable Development Goal five on gender equality. I'm just wondering if any of the panelists have thoughts on that? And if so, what would be ways to really make sure that this is a national conversation and that this reporting opportunity on SDG five and other goals related to gender equality really maximize on such an opportunity that can potentially happen in 2022? Thank you very much.
BALDEZ: Yeah. Thanks, Ryan. That's a great a great question. It's a really important question. So, one of the concerns that has always motivated my research as a political scientist is looking for possible coalitions across the political spectrum. And, you know, you can see I mentioned moderate Republican women and their support for CEDAW and how that kind of breaks apart in 1980 and remains quite apart. And I think that the argument about CEDAW obligating participation in a process that does not guarantee any particular outcome, I think it's empirically valid—there's data to support it—but it's also, I think, politically, one possibility. And I may be naïve here, but I think, you know, focusing on CEDAW as a set of questions, and a set of procedures, and a set of accountability is something that that I could see people getting behind. Now, I'm a political scientist. I'm not an advocate. I study framing, but I am not an expert in framing in ways that will make people kind of shift their position. But my hope is that there's that some way to create some middle ground where clearly very little exists right now.
And then with regard to the Sustainable Development Goals, I'm really happy to hear that. I wasn't aware of that. And I think that's really, really important. And that too, will play a role in, you know, raising people's awareness of where we're at as a country with regard to the status of women.
SUK: So just to add on to that, some of the misinformation you mentioned about CEDAW was also misinformation about the ERA, specifically, that it was going to be, whether by getting rid of Mother's Day or otherwise, really bad for mothers to have legal mechanisms for gender equality, largely based on understanding that it would mean always never being gender conscious of anything.
And I think there are two major issues. One is that I think there are mechanisms at both in both state legislatures and at the national level in Congress that actually inhibit real debate. And so, for example, part of the reason the ERA doesn't get ratified in Nevada, Virginia, and Illinois in the 1970s—Virginia is actually a great example—is that it's bottled up in committee. And so, there isn't actually a floor debate. In a lot of sessions, there aren't real possibilities for having an open debate. And I think one fear right now, is that there, you know, there have been very few hearings on the ERA. And in the Senate, I think, there's—even though very ironically, the filibuster rule was designed because unlimited debate was supposed to be a good thing—the specter of unlimited debate ensures that there's actually no debate. Until you think you have sixty votes for something, nobody wants to bring it to the floor. And so, I think that the old-fashioned view is, of course, that you have to have an open and rational debate in proper channels in order to combat misinformation. But if you have a whole bunch of rules that are actually going to inhibit debate or keep the debates within certain concentrated places, like specific committees, then I think that's going to allow the misinformation to have more influence than it ought to.
BETTINGER-LOPEZ: Thank you very much. We are now going to turn it over to Ellie Smeal for the next question.
SMEAL: Thank you. I have two different ones, totally different ones. One is that I'm sure you're all aware that Afghanistan had an equal rights amendment, or has an equal-rights-amendment–type thing, in its constitution. And many of us are extremely worried about what is going to happen to Afghanistan if the Taliban has a dominant role. And how do we raise—I think we have to raise—a worldwide women's movement to the dangers of Afghanistan? Here we are in 2021, and we could be taking all rights away from women again.
This other part is the ERA in the United States, where there is an act of movement to get rid of the filibuster. And we are—I should have said Ellie Smeal, Feminist Majority—there's a whole group, a huge coalition now to eliminate the filibuster as an anti-democratic—with a small “d”—an anti-democracy measure in which a small minority controls. And you're absolutely right, Julie, that in many states, we have not—it's been bottled up in committee, the Equal Rights Amendment. Virginia was one; there was never a vote in the House until we literally had to flip the House and the Senate to progressive control. And, or, in this case, Democratic control. When we started this fight in the South, the Democrats were the Dixiecrats, and they bottled it up. When we—now, the Dixiecrats are Republicans, but the whole time, there never was a vote, until we actually flipped everything. And then, it took us all this time; it isn't like we weren't working on who was being elected. It took—it's very hard with gerrymandering, with so many other problems, to flip in certain states. And Nevada, by the way, the reason we could pass it in 2017 is the flip election was 2016. In Nevada, we finally got a progressive Democrats majority in Nevada, both houses, and they immediately passed the ERA, because there had been a movement, and there has been a movement in the states all the way through. It’s amazing how people have just stuck to it, even though the process is actually so undemocratic that it's outrageous.
BALDEZ: And I like to respond to the first part of the question, if I may. First of all, getting asked a question by Ellie Smeal—big goal of mine, so thank you. The Feminist Majority Foundation, as you know well, was active on raising awareness about the status of women under the mujahideen, under Taliban rule long before 9/11 happened. And Afghanistan and CEDAW—U.S. ratification of CEDAW—have always kind of walked hand-in-hand. During the war on terror, when Bush was president, Democrats framed CEDAW ratification in terms of if you really want to protect the status of women in Afghanistan, you will ratify CEDAW, and brought Afghan leaders to the floor of the House and the Senate and really used that as a mobilizing tool. And that's really when it came closest to being ratified.
The United States has ratified three of the nine UN human rights treaties. And my explanation for which ones get ratified, have to do with some kind of international incident or foreign policy response that the president wants to make and decides to use ratification as a way to address or signal support for a particular issue. The Genocide Convention, the Convention Against Torture, these all came in a particular context. What I would love to see is the status of women around the world being connected to the status of women in the United States, and this global movement connecting, and we're so close to being connected. We have the means at hand. But it might take—you know, actually, I don't know what it would take to get a president to put that kind of capital on the line. But certainly, the kind of work that you have done for a long time and the prospects of mobilizing and pulling together all these Me Too Movements around the world is that what I think it would take too.
SUK: So Ellie, it's always wonderful to hear your voice. And your voice has been such a crucial part of how we've gotten as far as we've gotten on the ERA. So, thank you so much for being here and for sharing your thoughts about the movements. And I think it's a real reminder that the ERA has been going on for generations, has been mobilized by women for generations, and that's part of the importance of why it needs to be added to the Constitution now, as much for what it will do as law, as it is to just recognize the political work that women have done across generations, standing on each other's shoulders. And so, it's like Pauli Murray said in 1970 in an ERA hearing, she said that the Equal Rights Amendment was not just about winning cases in court, it was about women's empowerment. And, and I think Ellie's comment really shows how it's really by empowering women that the next step could be taken.
So, in addition to just thinking in terms of rights, it's about women through—and of course, in other countries, the parity mechanisms has made it much faster in many respects, than here. But we really have to think about who's in power, and what our structural mechanisms are in our democracy to empower everybody who's previous like, especially people who have previously been marginalized and excluded.
BETTINGER-LOPEZ: I would just also add to the chorus of thanks to Ellie for your question and note that during my time, when I had the opportunity to serve as the White House advisor on violence against women to then Vice President Biden, one thing that I really learned was that framing women's equality and women's human rights issues and intersectional equality issue, when that can be framed in terms of, for example, national security and other areas that are not thought of as “gendered” those can be very effective ways of advancing conversations into spaces where people in silos don't necessarily have a meeting of the minds. And so, I think about an op-ed that Valerie Hudson has published in the New York Times—and she's spoken at previous CFR roundtables about this—about framing women's human rights as a national security issue. And in Afghanistan, in particular, as well as in the United States, incorporating that into U.S. foreign policy and finding ways to make it a foreign policy prerogative of the United States and other countries can be a way to drive this through various political as well as legal channels. So, okay, and yes, and Catherine Powell, also writes we may need a woman U.S. president to also accomplish some of these goals.
Yes. Great. In our last minute. I'd like to read a question that, Yana, I'm sorry, I don't know your last name, who works with Representative Jackie Spear placed in the chat to us her mic is not working. So, I will read the question, and turn it over to Professor Suk and Baldez for some final thoughts. She says, “Beyond the Morrison case, the case that Professor Suk referred to in regarding the VAWA civil rights remedy, what are some concrete examples of ways that the Equal Rights Amendment can have an impact? Do you think the ERA would usher in strict scrutiny for sex discrimination? And would that be a positive development?
SUK: Great, this is a really important question. So, section two of the ERA gives Congress the power to legislate to implement the Equal Rights Amendment. And I think that's becoming increasingly important not only because of the Morrison case in 2000, but because other ways in which the federal judiciary has been limiting Congress's power to act, both with regard to the Spending Clause, the Commerce Clause, as well as a very limited and then understanding of Congress's power to promote equality under section five of the fourteenth amendment. So, I think that having an extra set of tools under the Equal Rights Amendment that would make it really clear that Congress can actually pass national legislation to promote gender equality, and remove barriers that exist, particularly after the pandemic, to women's economic security and advancement, that that's really important because a lot of things that are being done right now that are proactive on the federal level, are being challenged as not properly within Congress's power under the Commerce Clause. People are bringing litigation, attacking things like moratorium on evictions at the federal level as being not properly authorized by the Commerce Clause. So, I think expanding or making clear Congress's power to enact robust gender equality policy is actually very important because some of it will be challenged in litigation in the future.
With regard to strict scrutiny, I think that's a complicated question because it meant something different in 1972 than it means today. In 1972, ERA proponents wanted strict scrutiny not just for gender classifications, but for policies that desperately impacted and adversely impacted women. The Supreme Court in the late 1970s said that they weren't going to strictly scrutinize disparate impact, and then started strictly scrutinizing race-based affirmative action. So even though strict scrutiny started out as substantive race- and gender-equality promoting, the courts started using it to scrutinize measures to actually promote racial equality and gender equality. So now, it's just a little, it's not really clear that having strict scrutiny for sex classifications under the law for any form of gender consciousness is going to be a useful tool if the goal is to remove the disadvantages that women face. On the other hand, if strict scrutiny were reinterpreted to actually mean strict scrutiny for disparate impact, then you could see it as being doctrinally useful for removing women's disadvantages. But I think one thing that's clear from 1970 to now, is that the point of the ERA is to remove women's second-class citizenship and disadvantage. But I don't think I don't think that strict scrutiny would necessarily do that. But I don't think strict scrutiny is necessarily part of the text of the ERA. So, then it's really up to the ERA’s proponents to be very clear in the legislative history now as to whether or not strict scrutiny is desirable, and if it is desirable, what it means: strict scrutiny of classifications versus strict scrutiny of disparate impact.
BALDEZ: I'm going to conclude with just two quick observations. Countries that have equal rights amendments, other countries, in many of them the equal rights amendment covers both state action by state actors, government officials, public officials, and private actors, individual citizens. And the question I have about the Equal Rights Amendment, I think it's really a question for another panel, would be to what extent is the ERA likely to address state action solely versus also private action? And that's very relevant, as Carrie’s work has shown many times, to the issue of violence against women.
SUK: Oh, well to that question that the ERA that's currently working its way through Congress says equality of rights shall not be denied or abridged by the United States or by any state. Equality of rights under the law shall not be denied or abridged by the United States or by any state. So as a textual matter, even though I think it's an interesting idea, and there were earlier drafts of the ERA that just said women and men shall have equal rights, period. But that's not in what's actually working its way right now, has state action language in it. So, it'd be harder to argue that the ERA that's now being completed, if it is completed, actually addresses anything other than state action. And as a general matter, I think, some state constitutions notwithstanding, I think, in terms of the enforcement of federal constitutional rights, the state action doctrine has been so central that I don't really envision the federal judiciary abandoning that with regard to the ERA unless both textually and legislative history wise that were made explicit.
BETTINGER-LOPEZ: We are a little bit past the hour, so we are going to conclude at this point. Thank you to our wonderful panelists. We had a great discussion today and we are looking forward to continuing this conversation. For any attendees who didn't have a chance to ask their questions, please feel free to contact us offline, and we'd love to continue to engage with you. Thank you very much.
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