by NONA BLYTH CLOUD
“Is a Woman a Person?”
The answer “Yes, of course,” may seem obvious, but it’s not so clear-cut in American law.
When a sitting Supreme Court Justice says that the Equal Protection clause of the 14th Amendment shouldn’t be applied to women because that was not the original intention, then you know the issue hasn’t been settled for the estimated 193,983,384 female Americans, who comprise 50.8% of the U.S. population.
And that makes me, as one of those U.S. females, very unsettled.
In 2011, in the legal magazine California Lawyer, Supreme Court Justice Antonin Scalia said:
“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
This is from a Supreme Court justice who says that the “religious beliefs” of for-profit corporations are more important than providing reproductive healthcare for their employees, even if the corporation’s “beliefs” about abortion and birth control have been completely debunked by medical science.
The 14th Amendment’s equal protection clause states:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The cruel irony of Justice Scalia’s remarks is that one of the most powerful arguments used against ratifying the Equal Rights Amendment to the U.S. Constitution was that it “wasn’t necessary” because women were “already protected” by the equal protection clause of the 14th Amendment.
Justice Scalia’s opinion on the 14th Amendment and his “historical facts” are hotly contested by many Constitutional scholars, and are out-of-step with the advances that have been made in women’s rights, so they are especially shocking to see from one who sits on the highest court in the land.
In light of the barrage of laws already passed that restrict women’s access to reproductive healthcare; when rapists continue to attack more victims because too many rape kits that could identity them remain unprocessed, even when federal funding is available; and when women who are victims of Domestic Violence are serving sentences for “failure to protect” their children which are decades longer than the sentences given to the men who savagely beat them; then we urgently need to reexamine American women’s legal standing.
And “The Land of the Free” is far behind our neighbor to the North in settling this question.
In Canada, the question of whether or not women are persons was unequivocally settled in 1929, but it took the determined efforts of five remarkable women to win a ruling on appeal to their highest court that yes, women ARE persons.
“If politics mean…the effort to secure through legislative action better conditions of life for the people, greater opportunities for our children and other people’s children…then it most assuredly is a woman’s job as much as it is a man’s job.”
— Irene Parbly, one of Canada’s “Famous Five”
Emily Murphy was born into a prominent legal family. When she and her family moved to Alberta in 1903, she began a campaign to ensure the property rights of married women. Largely because of her work, the Alberta legislature passed the Dower Act in 1911, protecting a wife’s right to one-third of her husband’s property.
In 1916, she and a group of concerned women tried to attend the trial of Edmonton prostitutes arrested under “questionable” circumstances. They were ejected from the court on the grounds that the testimony was “not fit for mixed company.” Murphy protested to the provincial Attorney General.
“If the evidence is not fit to be heard in mixed company,” she argued, “then… the government.. [must] set up a special court presided over by women, to try other women.” To her surprise the Minister agreed, and offered Murphy the post of presiding over such a court. Murphy became the first woman police magistrate in the entire British Empire.
The validity of her appointment was questioned on the grounds that a woman was not a “person” under the British North America Act of 1867, which set out the powers and responsibilities of the provinces and of the federal government. This federal act used the word “persons” when it referred to more than one person and the word “he” when it referred to one person. Therefore, many argued, the Act meant only a man could be a person, and women were ineligible to participate in politics or affairs of state.
Emily Murphy took up the cause. She found a section of the Supreme Court Act that allowed any five interested persons the right to petition the government for a ruling on a constitutional point, so she called on four other Alberta reformers to join her in petitioning for a clarification of whether or not women were “persons” as referenced in the act.
Her first choice was Nellie McClung, a tireless worker for human rights, a suffragist, and a former Member of the Alberta Legislature. Then Louise McKinney, a crusader against the evils of alcohol and cigarettes. The third petitioner was Montréal-born Henrietta Edwards, a vigorous campaigner for women’s rights with expert knowledge of the laws pertaining to women and children. Irene Parlby, Murphy’s fourth choice, had entered politics to improve the lives of rural women in Alberta. A Minister without Portfolio in the Alberta Legislature, Parlby’s participation signified the support of the Government of Alberta.
For twelve years these five led the fight to have women declared legal “persons” in Canada. They became known as “The Famous Five.”
The Persons Case, as it is called, reached the Supreme Court of Canada in March 1928. “Does the word “person” in Section 24 of the B.N.A. Act include female persons?” After five weeks of debate and argument the Supreme Court of Canada decided that the word “person” did not include women.
But the Famous Five would not let it rest there. They carried the case to the Privy Council in Britain.
On October 18, 1929, Lord Sankey, Lord Chancellor of the Privy Council, announced the decision of the five Lords. The decision stated “that the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word “person” should include females, the obvious answer is, why should it not?”
Persons Day is now celebrated in Canada every October 18, the anniversary of the Privy Council’s decision, and October is Canada’s Women’s History Month. The Governor General’s Awards in Commemoration of the Persons Case are given each October to five women who have made contributions to the improvement of the lives of Canadian women and girls.
So while this question of personhood has been settled in Canada for 86 years, it remains open to interpretation in the United States.
“Is a Woman a Person?”
The Preamble to the United Nations Charter, which states the primary tenets of the organization, lists this as its second principle:
• “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women”
and again in
“The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs…”
70 years ago, the United States was one of the 50 original signatories of the U.N. Charter on June 6, 1945.
“Is a Woman a Person?”
There is a way to settle that question here. Ratify the Equal Rights Amendment, finally.
Gail Cooper, Vice President for Programs of the organization Re: Gender, believes that a ratified ERA with two words added: “on account of sex and gender,” would also bring transgender and transsexual people under its protection.
The Equal Rights Amendment
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
From the Equal Rights Amendment website:
“The ERA, affirming the equal application of the Constitution to all persons regardless of their sex, was written in 1923 by Alice Paul, suffragist leader and founder of the National Woman’s Party. After women’s right to vote was guaranteed by the 19th Amendment in 1920, she proposed the ERA as the next step in confirming “equal justice under law” for all citizens.
The ERA was introduced into every Congress between 1923 and 1972, when it was passed and sent to the states for ratification. The original seven-year time limit in the ERA’s proposing clause was extended by Congress to June 30, 1982, but at that deadline, the ERA had been ratified by 35 states, three states short of the 38 required to put it into the Constitution.
The ERA has been introduced into every Congress since 1982. Beginning in 1994 with introduction of the first three-state strategy bill in Congress, ERA advocates have been pursuing two different routes to ratification:
• the traditional process outlined in Article V of the Constitution, requiring passage by a two-thirds majority in the Senate and the House of Representatives, followed by ratification by legislatures in three-quarters (38) of the 50 states, and
• ratification in three more of the 15 state legislatures that did not ratify the ERA during the 1972-82 ratification campaign, based on legal analysis that when three more states vote yes, this non-traditional process could withstand legal challenge and put the ERA into the Constitution.”
“Is a Woman a Person?”
If we are not, then there are over 193 million women and girls living in the United States who are not truly citizens of our own country.
Sources and Further Reading:
October is DOMESTIC VIOLENCE AWARENESS Month
Between 2001 and 2012, 6,410 women were murdered in the United States by an intimate partner using a gun—more than the total number of U.S. troops killed in action during the entirety of the Iraq and Afghanistan wars combined.
“Failure to Protect” Laws – Imprisoning the Victims of Domestic Violence While Their Abusers Are Already Released